All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
Animals--euthanization of feral cats--“poke” procedure--language disavowed
The decision of the Court of Appeals in this case is affirmed. However, language in the
Court of Appeals opinion regarding the “poke” procedure employed by defendant to determine
whether a cat is feral or tame is disavowed because the issue of this procedure was neither the
basis of plaintiff's claim nor properly before the Court of Appeals.
Appeal by plaintiff pursuant to N.C.G.S. § 7A-30(2), and
cross-appeal by defendant, from the decision of a divided panel
of the Court of Appeals, 168 N.C. App. 298, 607 S.E.2d 317
(2005), vacating in part and reversing and remanding in part an
order entered on 18 August 2003 by Judge Elizabeth A. Heath in
District Court, Lenoir County. Heard in the Supreme Court 13
September 2005.
Ward and Smith, P.A., by A. Charles Ellis and Cheryl A.
Marteney, for plaintiff-appellant/appellee.
White & Allen, P.A., by David J. Fillippeli, Jr. and Gregory
E. Floyd, for defendant-appellee/appellant.
PER CURIAM.
The decision of the Court of Appeals is affirmed. However,
inasmuch as the issue of the “poke” procedure was not the basis
of plaintiff's claim nor properly before the Court of Appeals, we
specifically disavow the language in Section V. Civil Remedy for
Protection of Animals in that court's opinion:
Testimony presented at trial tended to show that
defendant employs a “poke” procedure to determine
whether to impound or immediately euthanize an animal.
On remand, the trial court should make findings of fact
and conclusions of law regarding whether plaintiff has
presented sufficient evidence to show defendant's use
of the “poke” test to determine whether a cat is feral
or tame and defendant's subsequent immediate[euthanasia] constitutes “unjustifiable pain,
suffering, or death.” N.C. Gen. Stat. § 19A-1(2).
Justice for Animals, Inc. v. Lenoir Cty. SPCA, Inc.,
168 N.C. App. 298, 306-07, 607 S.E.2d 317, 322-23 (2005). Thus,
on remand, the trial court is not to consider the “poke”
procedure.
MODIFIED AND AFFIRMED.
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