{ "id": 8469320, "name": "JUSTICE FOR ANIMALS, INC., Plaintiff v. LENOIR COUNTY SPCA, INC., Defendant", "name_abbreviation": "Justice for Animals, Inc. v. Lenoir County SPCA, Inc.", "decision_date": "2005-02-01", "docket_number": "No. COA04-69", "first_page": "298", "last_page": "310", "citations": [ { "type": "official", "cite": "168 N.C. App. 298" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "597 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631346, 12631347 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/597/0133-02", "/se2d/597/0133-01" ] }, { "cite": "358 N.C. 376", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631332, 12631399, 12631344, 12631345, 12631346 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/596/0813-01", "/se2d/598/0136-02", "/se2d/597/0132-02", "/se2d/597/0132-01", "/se2d/597/0133-02" ] }, { "cite": "491 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "675", "parenthetical": "determination requiring exercise of judgment or application of legal principles is a conclusion of law" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 505", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11798267 ], "year": 1997, "pin_cites": [ { "page": "510", "parenthetical": "determination requiring exercise of judgment or application of legal principles is a conclusion of law" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0505-01" ] }, { "cite": "137 S.E.2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "262 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568090 ], "year": 1964, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0438-01" ] }, { "cite": "89 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "243" } ], "opinion_index": 0 }, { "cite": "242 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621159 ], "year": 1955, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0636-01" ] }, { "cite": "186 S.E.2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "206" } ], "opinion_index": 0 }, { "cite": "13 N.C. App. 495", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554434 ], "year": 1972, "pin_cites": [ { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/nc-app/13/0495-01" ] }, { "cite": "291 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "139" } ], "opinion_index": 0 }, { "cite": "305 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572880 ], "year": 1982, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0633-01" ] }, { "cite": "604 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "331-32" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410657 ], "year": 2004, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0028-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "37" } ], "opinion_index": 0 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "595 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "775" }, { "page": "776-77" }, { "page": "777-78" }, { "page": "775" } ], "opinion_index": 0 }, { "cite": "164 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8897426 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "368" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nc-app/164/0366-01" ] }, { "cite": "607 S.E.2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "359 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3794209, 3799976, 3793513, 3800274, 3796792, 3798971, 3799454 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0191-07", "/nc/359/0191-01", "/nc/359/0191-04", "/nc/359/0191-05", "/nc/359/0191-03", "/nc/359/0191-02", "/nc/359/0191-06" ] }, { "cite": "599 S.E.2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "924" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 885", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9000703 ], "pin_cites": [ { "page": "887" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0885-01" ] }, { "cite": "592 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 504", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8918328 ], "year": 1991, "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0504-01" ] }, { "cite": "86 S.E. 577", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "opinion_index": 1 }, { "cite": "169 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660811 ], "year": 1915, "opinion_index": 1, "case_paths": [ "/nc/169/0631-01" ] }, { "cite": "354 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "284", "parenthetical": "citing Abernethy v. Board of Comm'rs, 169 N.C. 631, 86 S.E. 577 (1915)" } ], "opinion_index": 1 }, { "cite": "85 N.C. App. 26", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169585 ], "year": 1987, "pin_cites": [ { "page": "34", "parenthetical": "citing Abernethy v. Board of Comm'rs, 169 N.C. 631, 86 S.E. 577 (1915)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/85/0026-01" ] } ], "analysis": { "cardinality": 1002, "char_count": 30958, "ocr_confidence": 0.757, "pagerank": { "raw": 4.2416988072905503e-07, "percentile": 0.9147380793243158 }, "sha256": "b7110aea529778f04194ac11064bfd12a0681cb424ce2a64170965dc5e0c865f", "simhash": "1:990b9f2ed33e4c70", "word_count": 4963 }, "last_updated": "2023-07-14T17:36:09.557360+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BRYANT concurs.", "Judge LEVINSON concurs in the result in part and dissents in part." ], "parties": [ "JUSTICE FOR ANIMALS, INC., Plaintiff v. LENOIR COUNTY SPCA, INC., Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nJustice for Animals, Inc., (\u201cplaintiff\u2019) appeals from an Order that granted Lenoir County SPCA, Inc.\u2019s (\u201cdefendant\u201d) motion for an involuntary dismissal pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure. We vacate portions of the trial court\u2019s order, and reverse and remand in part.\nI. Background\nPlaintiff filed a complaint pursuant to N.C. Gen. Stat. \u00a7 19A-1, et. seq., seeking injunctive relief and asserting defendant was causing unjustifiable physical pain, suffering, and death in its euthanization of animals. Plaintiff alleged that defendant\u2019s practice of euthanizing feral cats without holding them for seventy-two hours is unjustifiable because it violates N.C. Gen. Stat. \u00a7 130A-192. \u201cWebster\u2019s New Collegiate Dictionary provides several definitions for \u2018feral\u2019 including: \u2018wild animal\u2019 and \u2018having escaped from domestication and become wild.\u2019 \u201d Malloy v. Cooper, 162 N.C. App. 504, 509, 592 S.E.2d 17, 21 (quoting Webster\u2019s New Collegiate Dictionary 456 (9th ed. 1991)), disc. rev. denied, 358 N.C. 376, 597 S.E.2d 133 (2004). N.C. Gen. Stat. \u00a7 130A-192 (2003) permits the euthanization of animals after a minimum seventy-two hour impoundment, if the animal is not claimed and provides:\nThe Animal Control Officer shall canvass the county to determine if there are any dogs or cats not wearing the required rabies vaccination tag. If a dog or cat is found not wearing the required tag, the Animal Control Officer shall check to see if the owner\u2019s identification tag can be found on the animal. ... If the animal is not wearing an owner identification tag and the Animal Control Officer does not otherwise know who the owner is, the Animal Control Officer may impound the animal. The duration of the impoundment of these animals ... shall not be less than 72 hours.\nPlaintiff contends this statute requires defendant to impound all cats, tame or feral, for seventy-two hours prior to euthanization.\nElla Marie Harrell (\u201cHarrell\u201d), a former animal control officer for defendant, testified at trial regarding defendant\u2019s process for determining whether a cat was feral or \u201ctame\u201d when deciding to hold the animal or immediately euthanize it. She testified, \u201cIf it was a cat, when it was brought to the shelter they would go out with a pen, pencil, whatever and they would poke the animal. And, if the animal responded aggressively to the object, then they would say its wild, go put it down.\u201d Harrell further testified that prior to arriving at the shelter, the \u201canimal is very upset, very agitated, because normally they have not been ridden around in vehicles. And, occasionally you also have dogs that are in the back of that truck that are barking, and a cat\u2019s normal response is to become agitated around dogs.\u201d\nAt the close of plaintiff\u2019s evidence, the trial court granted defendant\u2019s motion for an involuntary dismissal pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure. It found that the seventy-two hour impoundment period set forth in \u00d1.C. Gen. Stat. \u00a7 130A-192 \u201capplies only to domestic felines and canines as defined in N.C. [Gen. Stat.] \u00a7 130A-184(2) and (4), respectively, and not to feral or wild animals.\u201d The trial court further found that plaintiff offered no evidence, other than the fact that defendant immediately euthanizes feral cats prior to impounding them for seventy-two hours, to support their claim that defendant caused unjustifiable physical pain, suffering, and death to any animal. Plaintiff appeals.\nII. Issues\nThe issues on appeal are: (1) whether the trial court had subject matter jurisdiction over plaintiff\u2019s claims against defendant; and (2) whether the trial court erred by granting defendant\u2019s motion for an involuntary dismissal.\nIII. Subject Matter Jurisdiction\nA. N.C. Gen. Stat. \u00a7 130A-192\nIn its complaint, plaintiff alleged that defendant\u2019s practice of euthanizing feral cats without holding them for seventy-two hours is unjustifiable because it violates N.C. Gen. Stat. \u00a7 130A-192. Its complaint states, \u201cThe killing of these cats, dogs, kittens, and puppies before the statutory seventy-two hour impoundment period causes unjustifiable physical pain, suffering, and death.\u201d The threshold issue is whether the trial court had subject matter jurisdiction over plaintiff\u2019s claim.\nThe issue of whether a court has subject matter jurisdiction may be raised at any time during a proceeding, and the issue may be raised for the first time on appeal. Even if the parties did not raise the issue in their briefs, the court may raise the question of subject matter jurisdiction by its own motion. Further, the parties cannot stipulate to give a court subject matter jurisdiction where no such jurisdiction exists.\nNorthfield Dev. Co. v. City of Burlington, 165 N.C. App. 885, 887, 599 S.E.2d 921, 924 (citations omitted), disc. rev. denied, 359 N.C. 191, 607 S.E.2d 278 (2004).\nOur General Assembly specifically designated the administration and enforcement of N.C. Gen. Stat. \u00a7 130A-192 to either the Secretary of Health and Human Services or a local health director and local health department. N.C. Gen. Stat. \u00a7 130A-4(a) (2003) provides:\n(a) Except as provided in subsection (c) of this section, the Secretary shall administer and enforce the provisions of this Chapter and the rules of the Commission. A local health director shall administer the programs of the local health department and enforce the rules of the local board of health.\n(b) When requested by the Secretary, a local health department shall enforce the rules of the Commission under the supervision of the Department. The local health department shall utilize local staff authorized by the Department to enforce the specific rules.\nFurther, N.C. Gen. Stat. \u00a7 130A-24 (2003) states:\n(a) Appeals concerning the enforcement of rules adopted by the Commission, concerning the suspension and revocation of permits and program participation by the Secretary and concerning the imposition of administrative penalties by the Secretary shall be governed by Chapter 150B of the General Statutes, the Administrative Procedure Act.\n(al) Any person appealing an action taken by the Department pursuant to this Chapter or rules of the Commission shall file a petition for a contested case with the Office of Administrative Hearings as provided in G.S. 150B-23(a). The petition shall be filed not later than 30 days after notice of the action which confers the right of appeal unless a federal statute or regulation provides for a different time limitation. The time limitation imposed under this subsection shall commence when notice of the agency decision is given to all persons aggrieved. Such notice shall be provided to all persons known to the agency by personal delivery or by the placing of notice in an official depository of the United States Postal Service addressed to the person at the latest address provided to the agency by the person.\n(b) Appeals concerning the enforcement of rules adopted by the local board of health and concerning the imposition of administrative penalties by a local health director shall be conducted in accordance with this subsection and subsections (c) and (d) of this section. The aggrieved person shall give written notice of appeal to the local health director within 30 days of the challenged action. The notice shall contain the name and address of the aggrieved person, a description of the challenged action and a statement of the reasons why the challenged action is incorrect. Upon filing of the notice, the local health director shall, within five working days, transmit to the local board of health the notice of appeal and the papers and materials upon which the challenged action was taken.\n(c) The local board of health shall hold a hearing within 15 days of the receipt of the notice of appeal. The board shall give the person not less than 10 days\u2019 notice of the date, time and place of the hearing. On appeal, the board shall have authority to affirm, modify or reverse the challenged action. The local board of health shall issue a written decision based on the evidence presented at the hearing. The decision shall contain a concise statement of the reasons for the decision.\n(d) A person who wishes to contest a decision of the local board of health under subsection (b) of this section shall have a right of appeal to the district court having jurisdiction within 30 days after the date of the decision by the board. The scope of review in district court shall be the same as in G.S. 150B-51.\nIn Justice for Animals, Inc. v. Robeson County, 164 N.C. App. 366, 368, 595 S.E.2d 773, 775 (2004), the plaintiffs filed a complaint alleging \u201cthe treatment of animals at the Animal Control Facility is cruel and unlawful under N.C. Gen. Stat. \u00a7 19A-1 et seq., \u00a7 130A-192, and \u00a7 14-360.\u201d This Court held that the plaintiffs were \u201caggrieved persons\u201d whose claims fell within the scope of N.C. Gen. Stat. \u00a7 130A-24(b). Id. at 370, 595 S.E.2d at 776-77. We affirmed the trial court\u2019s dismissal of the plaintiffs\u2019 complaint for failure to exhaust the administrative remedies available under N.C. Gen. Stat. \u00a7 130A-24(b) and failure to plead a basis for avoiding the exhaustion requirement. Id. at 373, 595 S.E.2d at 777-78.\n\u201cWhere a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.\u201d In re from the Civil Penalty Assessed for Violations of the Sedimentation Pollution Control Act etc., 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Plaintiff here is the identical plaintiff in Justice for Animals, Inc., and alleged defendant violated N.C. Gen. Stat. \u00a7 130A-192, one of the statutes also at issue in Justice for Animals, Inc.\nPortions of plaintiff\u2019s complaint seek injunctive relief against defendant to halt the destruction of animals for failure to wear the required rabies vaccination tags pursuant to N.C. Gen. Stat. \u00a7 130A-192, a statute contained within the Public Health Chapter. To the extent plaintiff\u2019s complaint alleges an action pursuant to this statute, it must seek administrative remedies, including its rights to appeal, against the local health department and local health director. Justice for Animals, Inc., 164 N.C. App. at 369, 595 S.E.2d at 775; N.C. Gen. Stat. \u00a7 130A-4(a); N.C. Gen. Stat. \u00a7 130A-24.\nPlaintiff is unable to file a complaint against defendant, a private non-governmental agency, in the office of administrative hearings. The defendants in Justice for Animals, Inc., included the local board of health and its animal control divisions. As plaintiff failed to allege defendant is a division of the local health department, plaintiff\u2019s claim for relief under N.C. Gen. Stat. \u00a7 130A-192 is not proper against defendant. See N.C. Gen. Stat. \u00a7 130A-4(a).\nNeither the trial court nor this Court has jurisdiction at this stage in the proceedings to address the issue of whether this defendant is required to hold all animals for seventy-two hours pursuant to N.C. Gen. Stat. \u00a7 130A-192. The trial court erred by finding \u201cthe 72-hour impoundment period set forth in N.C. [Gen. Stat.] \u00a7 130A-192 applies only to domestic cats and dogs as those terms are defined in N.C. Gen. Stat. \u00a7 130A-184(2) and (4), respectively, and not to feral or wild animals.\u201d The trial court was without subject matter jurisdiction to enter findings or conclusions regarding plaintiffs claim for violations by defendant under N.C. Gen. Stat. \u00a7 130A-192. Enforcement of this statute is proper against the local board of health in the Office of Administrative Hearings. N.C. Gen. Stat. \u00a7 130A-4(a); N.C. Gen. Stat. \u00a7 130A-24. We vacate these portions of the trial court\u2019s order.\nB. N.C. Gen. Stat. \u00a7 19A-1.1\nThe trial court has subject matter jurisdiction pursuant to N.C. Gen. Stat. \u00a7 19A-2 over plaintiffs claim to the extent it seeks an injunction against defendant by alleging the cruel treatment of animals, as defined in N.C. Gen. Stat. \u00a7 19A-1. We note that N.C. Gen. Stat. \u00a7 19A-1.1 sets forth several exemptions regarding the ability to seek a remedy under the provisions of Chapter 19A. Specifically, N.C. Gen. Stat. \u00a7 19A-1.1(5) (2003) states that this Article, Civil Remedy for Protection of Animals, shall not apply to \u201cthe lawful destruction of any animal for the purposes of protecting the public, other animals, or the public health.\u201d This statute, however, was enacted during the 2003 session of the legislature and was not effective until 19 June 2003. As this action was filed prior to the effective date of N.C. Gen. Stat. \u00a7 19A-1.1, its exceptions do not apply to the case at bar.\nPlaintiffs complaint specifically alleges jurisdiction pursuant to N.C. Gen. Stat. \u00a7 19A-2. Further, its complaint alleges: \u201cThe killing of these cats, dogs, kittens, and puppies [by defendant] before the statutory seventy-two (72) hour impoundment period causes unjustifiable physical pain, suffering, and death.\u201d Plaintiffs complaint prays the trial court to \u201cpermanently enjoin defendant, pursuant to N.C. Gen. Stat. \u00a7 19A-4, from killing any cats, dogs, kittens, or puppies before the expiration of the statutory seventy-two hour impoundment period for each such animal killed.\u201d These allegations set forth a cause of action against defendant sufficient to establish subject matter jurisdiction for a claim of cruel treatment as defined in N.C. Gen. Stat. \u00a7 19A-1(2).\nWe recognize that defendant\u2019s actions, as well as its decision to either immediately euthanize animals or impound them, are guided by N.C. Gen. Stat. \u00a7 130A-192. As stated above, neither the trial court nor this Court has jurisdiction over plaintiff\u2019s claim regarding the interpretation, application, or enforcement of this statute as it relates to claims against the private party defendant. However, the trial court and this Court have subject matter jurisdiction oyer plaintiff\u2019s action to the extent plaintiff\u2019s complaint generally alleges an action for \u201cunjustifiable pain, suffering, or death\u201d to animals based on defendant\u2019s immediate euthanization of cats. N.C. Gen. Stat. \u00a7 19A-1(2) (2003).\nIV. Standard of Review\nAs the trial court had jurisdiction over plaintiff\u2019s allegations of cruelty pursuant to N.C. Gen. Stat. \u00a7 19A-1, our review turns to whether the trial court erred in entering an involuntary dismissal pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure.\nThe well-established rules regarding our review of a trial court\u2019s order dismissing an action are set forth in Miles v. Carolina Forest Ass\u2019n, 167 N.C. App. 28, 35, 604 S.E.2d 327, 331-32 (2004):\nWhen a motion to dismiss pursuant to Rule 41(b) is made, the judge becomes both the judge and the jury; he must consider and weigh all competent evidence before him; and he passes upon the credibility of the witnesses and the weight to be given to their testimony. Dealers Specialties, Inc. v. Housing Services, 305 N.C. 633, 636, 291 S.E.2d 137, 139 (1982). In the absence of a valid objection, the court\u2019s findings of fact are presumed to be supported by competent evidence, and are binding on appeal. Id. A general exception to the judgment and an assignment of error that the court erred in entering the findings of fact and signing the judgment is a broadside assignment of error and does not bring up for review the findings of fact or the evidence on which they are based. Sweet v. Martin, 13 N.C. App. 495, 495, 186 S.E.2d 205, 206 (1972); Merrell v. Jenkins, 242 N.C. 636, 637, 89 S.E.2d 242, 243 (1955). Where the assignments of error are insufficient to present the findings of fact for review, the appeal presents the question of whether the findings support the court\u2019s inferences, conclusions of law, judgment, and whether error appears on the face of the record. Taney v. Brown, 262 N.C. 438, 443, 137 S.E.2d 827, 830 (1964).\nHere, plaintiff failed to specifically object to any of the trial court\u2019s findings of fact. Our review turns to whether the trial court\u2019s findings of fact support its conclusions of law and judgment.\nV. Civil Remedy for Protection of Animals\nN.C. Gen. Stat. \u00a7 19A-1(1) (2003) defines \u201canimals\u201d' as \u201cevery living vertebrate in the classes Amphibia, Reptila, Aves, and Mammalia except human beings.\u201d This broad definition clearly includes both feral and tame cats. The statute further defines \u201ccruelty\u201d and \u201ccruel treatment\u201d as \u201cevery act, omission, or neglect whereby unjustifiable physical pain, suffering, or death is caused or permitted.\u201d N.C. Gen. Stat. \u00a7 19A-1(2).\nThe trial court\u2019s unchallenged findings of fact, other than those portions vacated above, show \u201cPlaintiff at trial offered no evidence, other than the fact that defendant immediately euthanizes feral or wild cats prior to impounding them for 72 hours, to support their claim that defendant has caused unjustifiable physical pain, suffering, or death to any animal.\u201d The trial court also \u201cfound\u201d that \u201c[a]s plaintiff offered no evidence of cruel treatment or unjustifiable physical pain, suffering, or death other than its contention that defendant\u2019s euthanization of feral animals prior to impounding the same for 72 hours constitutes cruel treatment per se, defendant\u2019s [Rule 41(b)] Motion . . . should be granted.\u201d We note this \u201cfinding\u201d should be more appropriately labeled as a conclusion of law. See In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997) (determination requiring exercise of judgment or application of legal principles is a conclusion of law).\nThe trial court\u2019s findings, conclusions, and judgment are grounded in its interpretation of N.C. Gen. Stat. \u00a7 130A-192, which we have held was not properly before the trial court. Further, the trial court\u2019s conclusion that plaintiff failed to set forth facts or present evidence to support an allegation for cruel treatment of animals is based solely on its earlier interpretation of N.C. Gen. Stat. \u00a7 130A-192. We have already held these portions of the trial court\u2019s order to be erroneous and have vacated them accordingly.\nWithout these \u201cfindings,\u201d the trial court has set forth no other basis to grant defendant\u2019s motion for an involuntary dismissal. The trial court erred by dismissing plaintiff\u2019s case without entering proper findings, based on the evidence presented, that defendant\u2019s action of immediately euthanizing an \u201canimal,\u201d as defined in N.C. Gen. Stat. \u00a7 19A-1, does not constitute \u201ccruel treatment\u201d as also defined in that statute. Without proper findings regarding the appropriate statutes at issue, the trial court\u2019s conclusions of law are unsupported.\nTestimony presented at trial tended to show that defendant employs a \u201cpoke\u201d 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\u2019s use of the \u201cpoke\u201d test to determine whether a cat is feral or tame and defendant\u2019s subsequent immediate euthanization constitutes \u201cunjustifiable pain, suffering, or death.\u201d N.C. Gen. Stat. \u00a7 19A-1(2).\nVI. Conclusion\nBoth the trial court and this Court lack subject matter jurisdiction over plaintiff\u2019s claim against defendant for violating N.C. Gen. Stat. \u00a7 130A-192. The portions of the trial court\u2019s order that seek to interpret and apply this statute against defendant are vacated. Plaintiff has standing to bring against, and the trial court has subject matter jurisdiction over, defendant pursuant to N.C. Gen. Stat. \u00a7 19A-1-4. The trial court failed to make proper findings under Article I of the Protection of Animals statutes. N.C. Gen. Stat. \u00a7 19A-1-4. The trial court\u2019s order is vacated in part and reversed in part. This case is remanded for further proceedings.\nVacated in part; Reversed in part and Remanded.\nJudge BRYANT concurs.\nJudge LEVINSON concurs in the result in part and dissents in part.", "type": "majority", "author": "TYSON, Judge." }, { "text": "LEVINSON, Judge\nconcurring in the result in part and dissenting in part.\nI concur only in the majority\u2019s conclusion that this matter must be reversed and remanded. I dissent from those portions of the majority opinion which purport to vacate, on subject matter grounds, the portions of the trial court\u2019s order related to N.C.G.S. \u00a7 130A-192 (2003).\nI respectfully disagree with the majority opinion in three important respects. First, I disagree with the majority\u2019s holding that, if the plaintiff lacks standing to seek redress against this defendant for the violation of G.S. \u00a7 130A-192, then the trial court is without authority to consider that statute even if its meaning and application are relevant to an issue in the case. Secondly, this matter should be reconsidered by the trial court on the central issue actually raised in the pleadings and tried before it originally, not on an entirely different one identified by this Court. Thirdly, the trial court, in its evaluation of the merits of plaintiff\u2019s claim, materially relied upon a misinterpretation of a relevant statute, such that the trial court\u2019s con-elusion that defendant\u2019s actions did not constitute \u201ccruelty\u201d cannot be sustained.\nPreliminarily, I observe that the majority opinion unnecessarily addresses the issue of plaintiffs standing to bring suit under G.S. \u00a7 130A-192. The discussion of standing arises from the majority\u2019s erroneous premise that plaintiff herein brought a lawsuit against defendant, a private nonprofit corporation, for violation of G.S. \u00a7 130A-192, a statute applicable only to county or other governmental entities. In fact, as the majority acknowledges, plaintiff \u201cfiled a complaint pursuant to [N.C.G.S.] \u00a7 19A-1 et seq.\u201d alleging cruelty. Although plaintiff\u2019s complaint makes some reference to G.S. \u00a7 130A-192, the gist of its claim is that defendant inflicts unjustifiable pain, suffering, and death to certain cats and dogs, by euthanizing them almost immediately after they are received. Plaintiff sought to demonstrate or illustrate the alleged cruelty by reference to defendant\u2019s failure to hold these stray cats and dogs for even the bare minimum of 72 hours that G.S. \u00a7 130A-192 requires of county animal shelters. However, plaintiff did not bring suit under G.S. \u00a7 130A-192, so the majority\u2019s extensive discussion of plaintiff\u2019s standing to bring such a suit is wholly unnecessary.\nA serious problem arises from the majority opinion\u2019s confusion of a party\u2019s standing to bring suit under a statute against a certain party with the court\u2019s authority to consider or interpret the statute when it may be relevant to an issue before the court. The majority opinion concludes that, because plaintiff lacked standing to sue defendant SPCA under G.S. \u00a7 130A-192, \u201cneither the trial court nor this Court has jurisdiction . . . regarding the interpretation\u201d of the statute, and that the interpretation of G.S. \u00a7 130A-192 \u201cwas not properly before the trial court.\u201d The majority cites no authority for its holding that a court may not utilize its interpretation of a statute unless it provides a cause of action for the plaintiff. A plaintiff\u2019s lack of standing to challenge a statute does uot deprive the court of authority to interpret the statute. And, of course \u201c[i]t is permissible in the interpretation of statutes to consider other statutes related to the particular subject, or to the statutes under construction.\u201d Davidson County v. City of High Point, 85 N.C. App. 26, 34, 354 S.E.2d 280, 284 (1987) (citing Abernethy v. Board of Comm\u2019rs, 169 N.C. 631, 86 S.E. 577 (1915)). In holding that neither the trial court nor this Court had the authority to interpret the scope of G.S. \u00a7 130A-192, the majority is in error. Accordingly, I dissent from that portion of the majority opinion that purports to vacate, on lack of subject matter jurisdiction grounds, the findings of fact and conclusions of the trial court \u201cregarding plaintiff\u2019s claim for violations by defendant under N.G. Gen. Stat. \u00a7 130A-192.\u201d\nFurther, in my opinion, it is essential to address the meaning of G.S. \u00a7 130A-192 inasmuch as the trial court rested its decision, in large part, on its interpretation of the statute. The interpretation of the statute is relevant to plaintiff\u2019s claim because the fact (if proven) that defendant fails to adhere to the minimum standards applicable to county agencies is some evidence of whether \u201cunjustifiable . . . death is caused or permitted[]\u201d by defendant. See N.C.G.S. \u00a7 19A-1(2) (defining \u201ccruelty\u201d).\nTurning to the meaning of G.S. \u00a7 130A-192, the trial court erred in its interpretation of this statute. The trial court judge concluded that the requirement of G.S. \u00a7 130A-192, that dogs and cats without rabies tags be held at least 72 hours before being killed, was applicable only to \u201ctame\u201d cats and not to \u201cwild\u201d or \u201cferal\u201d cats. The court based its ruling on the definitions in N.C.G.S. \u00a7 130A-184 (2003), of animals subject to rabies control measures. The statute states that \u201c \u2018cat\u2019 means a domestic feline,\u201d and that \u201c \u2018dog\u2019 means a domestic canine.\u201d The correct interpretation of this is that \u201cdomestic cat\u201d and \u201cdomestic dog\u201d are delineating which species of animals are within the ambit of the statute. That this is the correct interpretation is immediately apparent when one considers the following: The 72 hour hold is one small item in a comprehensive rabies control statute, which applies the same definitions to all statutes in the rabies control section. Consequently, if stray dogs and cats are excluded from the provisions of G.S. \u00a7 130A-192, then they are also excluded from the rest of the rabies section. In that event, the animal control officer would have no authority to take crucial measures to reduce the spread of rabies \u2014 a truly absurd interpretation and application of the statutes. See, e.g., N.C.G.S. \u00a7 130A-195 (\u201cDestroying stray dogs and cats in quarantine districts\u201d); N.C.G.S. \u00a7 130A-197 (\u201cInfected dogs and cats to be destroyed\u201d); N.C.G.S. \u00a7 130A-199 (\u201cRabid animals to be destroyed\u201d); N.C.G.S. \u00a7 130A-200 (\u201cConfinement or leashing of vicious animals).\nFinally, the majority opinion instructs the trial court to enter findings and.conclusions on remand regarding whether a \u201cpoke test\u201d that defendant purportedly employed to decide whether a cat is a house pet or a stray \u201cferal\u201d animal constitutes \u201ccruel treatment.\u201d The \u201cpoke test\u201d was neither the basis of plaintiffs claim, nor the basis of the trial court\u2019s ruling. I emphasize that plaintiff\u2019s claim is premised on a claim that defendant inflicts unjustifiable pain, suffering, and death to certain cats and dogs by euthanizing them almost immediately after they are received. During oral argument before this Court, both parties agreed that this case does not implicate the question of whether the \u201cpoke test\u201d constitutes \u201ccruelty\u201d. This inquiry, now required by operation of the majority opinion, is simply not relevant to a determination of plaintiff\u2019s claim \u2014 except as it may collaterally help establish that defendant, indeed, failed to hold all cats for a certain period.\nIn short, the trial court\u2019s incorrect interpretation of G.S. \u00a7 130A-192 materially impacted its determination on the ultimate issue before it, and requires remand for the court to utilize the correct interpretation in its consideration of plaintiff\u2019s claim that the defendant caused unjustifiable pain, suffering, and death to certain animals by its failure to hold all cats for some minimum period. In making its ultimate determination on the merits, the judge may consider as some evidence not only the fact that our legislature generally requires county entities to hold all cats for 72 hours, G.S. \u00a7 130A-192, but also a host of other statutory provisions that may be relevant. See, e.g., G.S. \u00a7 130A-197 and G.S. \u00a7 130A-199. .\nFor all the foregoing reasons, I would reverse and remand for the entry of a new order by the trial court, leaving in its discretion whether to receive additional evidence.\n. The definition of \u201ccruelty\u201d includes \u201cevery act, omission, or neglect whereby unjustifiable . . . death is caused or permitted.\u201d G.S. \u00a7 19A-1(2). Thus, even in the absence of the 72-hour provision in G.S. \u00a7 130A, the trial court would be obligated to determine whether failure to hold all cats for 72 hours constituted cruelty.", "type": "concurring-in-part-and-dissenting-in-part", "author": "LEVINSON, Judge" } ], "attorneys": [ "Ward and Smith, P.A., by A. Charles Ellis; and William A. Reppy, Jr., for plaintiff-appellant.", "White & Allen, RA., by David J. Fillippeli, Jr., and Gregory E. Floyd, for defendant-appellee." ], "corrections": "", "head_matter": "JUSTICE FOR ANIMALS, INC., Plaintiff v. LENOIR COUNTY SPCA, INC., Defendant\nNo. COA04-69\n(Filed 1 February 2005)\n1. Animals\u2014 feral or wild \u2014 subject matter jurisdiction \u2014 72-hour impoundment period\nThe trial court erred by concluding that it had subject matter jurisdiction over plaintiff\u2019s claim under N.C.G.S. \u00a7 130A-192 asserting that defendant SPCA animal control facility was causing unjustifiable physical pain, suffering, and death in its eutha-nization of feral cats without holding them for seventy-two hours, because: (1) our General Assembly specifically designated the administration and enforcement of N.C.G.S. \u00a7 130A-192 to either the Secretary of Health and Human Services or a local health director and local health department; (2) plaintiff is unable to file a complaint against defendant, a private nongovernmental agency, in the office of administrative hearings; and (3) plaintiff failed to allege that defendant is a division of the local health department.\n2. Animals\u2014 feral or wild \u2014 subject matter jurisdiction \u2014 animal cruelty\nThe trial court had subject matter jurisdiction under N.C.G.S. \u00a7 19A-2 over plaintiffs claim seeking injunctive relief against defendant SPCA animal control facility alleging the cruel treatment of animals as defined by N.C.G.S. \u00a7 192-1.\n3. Animals\u2014 feral or wild \u2014 euthanization\u2014animal cruelty\u2014 involuntary dismissal\nThe trial court erred by entering an involuntary dismissal under N.C.G.S. \u00a7 1A-1, Rule 41(b) for plaintiffs claim seeking injunctive relief against defendant SPCA animal control facility alleging the cruel treatment of animals, because: (1) the trial court\u2019s findings, conclusions, and judgment are grounded in its interpretation of N.C.G.S. \u00a7 130A-192 which was not properly before the trial court; and (2) the trial court failed to enter proper findings based on the evidence presented that defendant\u2019s action of immediately euthanizing an animal as defined by N.C.G.S. \u00a7 19A-1 does not constitute cruel treatment. On remand, the trial court should make findings of fact and conclusions of law regarding whether plaintiff has presented sufficient evidence to show defendant\u2019s use of a poke test to determine whether a cat is feral or tame and defendant\u2019s subsequent immediate euthanization constitutes unjustifiable pain, suffering, or death.\nJudge Levinson concurring in part and dissenting in part.\nAppeal by plaintiff from order entered 18 August 2003 by Judge Elizabeth A. Heath in Lenoir County District Court. Heard in the Court of Appeals 23 September 2004.\nWard and Smith, P.A., by A. Charles Ellis; and William A. Reppy, Jr., for plaintiff-appellant.\nWhite & Allen, RA., by David J. Fillippeli, Jr., and Gregory E. Floyd, for defendant-appellee." }, "file_name": "0298-01", "first_page_order": 328, "last_page_order": 340 }