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Case ID: 12692
Classification: Neglect / Abandonment
Animal: dog (non pit-bull)
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Wednesday, Feb 23, 2000

County: Buncombe

Charges: Summary
Disposition: Civil penalty imposed

Person of Interest: Barbara Onderdonk

NO. COA02-1076


Filed: 1 July 2003

JEAN CALLOWAY, in her Official
Capacity as Animal Cruelty Investigator
for Buncombe County, North Carolina,

v . Buncombe County
No. 00 CVD 3943

Appeal by defendant from judgment and order entered 17 December 2001 by Judge Earl J. Fowler, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 17 April 2003.

Westall, Gray, Connolly & Davis, P.A., by Jack W. Westall, Jr., for plaintiff appellees.

William E. Loose for defendant appellant.


Defendant Barbara Onderdonk raised Sheltie dogs for many years and owned twenty-seven dogs and a number of cats in February 2000. Plaintiffs instituted this action in August 2000 to remove most of the animals from defendant's care due to neglect and cruel treatment. The facts at trial showed the following: On 23 February 2000, Buncombe County Friends for Animals, Inc., d/b/a Asheville Humane Society (AHS) received a complaint from a local animal hospital that one of defendant's dogs was malnourished, dehydrated, severely underweight, anemic, and had died. AHS sent Animal Control Officer George Kushner to defendant's home on 25 February to look into the situation. Officer Kushner did not find anyone at home, but heard a number of dogs barking in the garage and noticed a strong odor of animal waste near the garage. Officer Kushner left a "door knocker" at the home requesting that defendant contact him regarding a complaint about the care and feeding of her animals. He also left several telephone messages for her.

Officer Kushner spoke to defendant by telephone on 29 February and set up an appointment with her to see the dogs on 1 March. He informed defendant that a Buncombe County Ordinance restricted the number of animals a person could have to six, and advised her that she should consider finding alternative homes for most of the dogs. Officer Kushner saw defendant let six dogs out in the dog run; the dogs were heavily matted and the undersides of their bodies were wet and yellow from what Officer Kushner believed was urine and feces. After several requests, defendant allowed Officer Kushner to look inside the garage, which smelled strongly of urine. He saw approximately fifteen dogs in carriers or portable cages stacked on top of each other, with waste covering the floor of each cage. The dogs were all underweight and matted, and their undersides were yellow from urine and feces.

Officer Kushner returned to defendant's home on 3 March and tried to discuss with her some options short of seizing the dogs or filing a criminal complaint. Defendant refused the suggestions and repeatedly stated that, "If I can't have my dogs, I might as well kill myself[.]" Defendant also said she would either kill herself, or kill the dogs and then kill herself, if anyone interfered with her ownership of the animals. As Officer Kushner tried to call his supervisor, defendant threw herself on the ground and consumed the entire contents of an unknown medicine bottle. Officer Kushner requested emergency help from the Buncombe County Sheriff's Office and contacted defendant's son. The rescue squad determined that defendant consumed a non-toxic liquid vitamin. Officer Kushner left defendant with her son and returned to AHS.

On 8 March 2000, Ms. Jean Calloway, an AHS employee who had applied to be an animal cruelty investigator for Buncombe County, went to defendant's residence and observed the dogs. When she asked defendant to voluntarily surrender her dogs, defendant stated she could not part with the dogs, that she would kill the dogs as well as herself, and clutched her chest, saying that Ms. Calloway was giving her a heart attack. Thereafter, on 10 March, Ms. Calloway obtained an order pursuant to N.C. Gen. Stat. � 19A-46 (2001), which allowed her to take immediate custody of twenty-three Shelties, two Fiests, and two cats.

When individuals from AHS and the Buncombe County Sheriff's Office arrived to pick up the animals, defendant fell to the ground stating she was having a heart attack, then got up and attempted to remove her dogs from the animal control vehicle. Rescue squad personnel removed her from the scene.

One of the dogs seized on 10 March was subsequently euthanized, and the remaining dogs incurred veterinary expenses exceeding $4,000.00. On 8 August 2000, plaintiffs filed a verified complaint and moved for a permanent injunction to obtain "final custody of the animals seized from Onderdonk to AHS for permanent placement" and to enjoin defendant "from further violations of N.C. Gen. Stat. Chapter 19A and Chapter 6 of the Buncombe County Code of Ordinances." In the alternative, plaintiffs requested a declaratory judgment to determine whether they or defendant owned the animals. On 6 October 2000, defendant answered, sought to dismiss the matter, and asserted seven affirmative defenses, as well as a counterclaim that challenged the constitutionality of plaintiffs' actions.

Plaintiffs presented the testimony of a number of witnesses who stated they saw defendant's premises and the condition of the dogs and believed defendant did not properly care for her animals. A number of photographs of the premises were also introduced at trial, as were a series of photographs of each of the dogs, which were taken immediately after they were seized. Defendant also presented testimony from a number of witnesses and testified on her own behalf regarding her care of the animals. Defendant maintained the dogs had adequate food, water, exercise, shelter, and medical care. She also asserted that she never mistreated her dogs in any way.
Defendant moved to dismiss the case both at the close of plaintiffs' evidence and at the close of all the evidence. The trial court denied both motions and stated that defendant was not entitled to have the case dismissed because it was before the trialcourt on its merits, rather than on procedural matters. After making several findings of fact, the trial court made the following conclusions of law:

1. The Court has jurisdiction over the parties to this litigation and over the dogs which were in the possession of the Defendant and were seized by Buncombe County Friends for Animals in March of 2000.

2. That the dogs were cruelly treated and were kept in a negligent and damaging environment which caused unjustifiable suffering and quite possibly death and that the dogs needed to be in the care and custody of the Plaintiff at the time of the seizure of the dogs.

3. That the dogs were reasonably in need of veterinary care at the time of the seizure of the dogs and that the Plaintiff was reasonable and justified in providing veterinary care which constitutes a lien on the dogs but that such lien would not be enforceable against the Defendant unless the dogs were returned to the possession of the Defendant.

4. That there is no legal basis to exclude the evidence presented by the Plaintiff relating to the condition of the dogs and the conditions of the Defendant's premises where the dogs were kept and maintained.

The trial court issued a permanent injunction pursuant to N.C. Gen. Stat. � 19A-4 (2001) which prevented defendant from having possession, custody and control of the dogs and placed the dogs with plaintiffs. Defendant appealed.

On appeal, defendant argues the trial court erred by (I) failing to dismiss the action because plaintiffs violated the law and left her without a remedy; (II) entering a permanent injunction which was unsupported by the facts and the law; and (III) failing to provide relief on her counterclaim. For the reasons stated herein, we disagree with defendant's arguments and affirm the judgment and order of the trial court.

Motion to Dismiss

By her first assignment of error, defendant argues the trial court erred by ignoring the issues raised in her answer and counterclaim and by failing to dismiss the action because plaintiffs unlawfully seized her animals. Defendant argues the Buncombe County Ordinance (which precludes ownership of more than six animals by an individual) did not constitute the applicable law in this case. Rather, she contends Chapter 19A of the North Carolina General Statutes was the appropriate vehicle for plaintiffs to utilize. Defendant further contends that plaintiffs committed numerous violations under Chapter 19A, which in turn voided plaintiffs' seizure of her animals.

Plaintiffs correctly point out that the trial court treated the case as a proceeding under Chapter 19A, Article 1, not as a proceeding under the Buncombe County Ordinance. Chapter 19A of the North Carolina General Statutes deals with protection of animals; Article 1 addresses the civil remedy for protection of animals. N.C. Gen. Stat. � 19A-2 (2001) provides:
It shall be the purpose of this Article to provide a civil remedy for the protection and humane treatment of animals in addition to any criminal remedies that are available and it shall be proper in any action to combinecauses of action against one or more defendants for the protection of one or more animals. A real party in interest as plaintiff shall be held to include any "person" as hereinbefore defined even though such person does not have a possessory or ownership right in an animal; a real party in interest as defendant shall include any person who owns or has possession of an animal.

A "person" is further defined as "any persons, firm or corporation, including any nonprofit corporation, such as a society for the prevention of cruelty to animals." N.C. Gen. Stat. � 19A-1(3) (2001). Once a complaint is filed, both preliminary and permanent injunctions are possible remedies. See N.C. Gen. Stat. � 19A-3 and -4 (2001). N.C. Gen. Stat. � 19A-4 provides:
In accordance with G.S. 1A-1, Rule 65, a district court judge in the county in which the original action was brought shall determine the merits of the action by trial without a jury, and upon hearing such evidence as may be presented, shall enter orders as he deems appropriate, including a permanent injunction or final determination of the animal's custody.

Here, defendant moved to dismiss the case based upon a number of perceived violations under Chapter 19A, Article 4, which deals with animal cruelty investigators and their ability to file sworn complaints, and when appropriate, to take custody of animals. Specifically, defendant argued that (1) Ms. Calloway was not an animal cruelty investigator and therefore tainted the procedures from the start; (2) the order allowing seizure of the animals was signed by a magistrate, not a judge; (3) plaintiffs seized her animals on 10 March, but did not file the complaint until 8 August; (4) the Buncombe County Ordinance (permitting a maximum of six animals per household) was not the proper law for plaintiffs to proceed under and was changed prior to trial; (5) plaintiffs failed to follow the procedures set forth in the Buncombe County Ordinance; (6) the seizure order was defective because it did not describe the animals to be seized and it did not describe the "cruelty" which led to the seizure; and (7) the seizure order lacked probable cause.

The trial court considered defendant's arguments regarding her motion to dismiss, but denied the motion as follows:
All right. Well, I'm going to deny your motion and proceed and get to the merits of the case, simply because -- you know, there are several reasons. We've had a lot of discussion along those issues that you raise, but I think the purpose of this hearing is to get to the merits. It's not for me to review the procedures that they followed. The issue here is whether the Court should enter a preliminary injunction in the state statute; not the county ordinance, but the state statute, regarding custody of these animals, as being cruelly treated animals, under the state statute. Without getting into a big discussion of how right or wrong all the magistrate's procedures or preliminary orders or the process that has been issued in this case might have been or not been, I don't think that's that pertinent to the issue before me. Whatever that has been, it's gotten the case before me to be heard on the merits, and I think that's what I'm going to do. So I'll deny your motion. Do you have evidence you want me to hear?

Thereafter, defendant presented her evidence and again moved for dismissal at the close of all the evidence. The trial court denied that motion. The trial court stated that the dogs were neglected, suffering, and cruelly treated within the meaning of N.C. Gen.Stat. � 19A-1(2) and later made findings of fact to that effect. Based on those findings, the trial court granted a permanent injunction which prevented defendant from getting her dogs back.

In sum, plaintiffs argue there were no violations under Chapter 19A, Article 1, so the proceeding was proper as long as a verified complaint was filed. Plaintiffs direct our attention to the record, which clearly shows that their verified complaint was filed on 8 August 2000. Plaintiffs further point out that defendant knew her animals had been seized in March 2000, yet did nothing for a considerable amount of time, thus invoking the doctrine of laches.
The trial court enjoys broad discretion in proceedings under Chapter 19A. Upon review, we believe the evidence was sufficient to support the trial court's findings of fact and conclusions of law, as well as the trial court's order for a permanent injunction. Accordingly, defendant's first assignment of error is overruled.

Permanent Injunction

By her second assignment of error, defendant argues the trial court's entry of a permanent injunction was unsupported by the facts and the law. Specifically, defendant argues the testimonies of several of plaintiffs' witnesses, including Jean Calloway and George Kushner, are unreliable because those witnesses contradicted themselves or were proven wrong by the photographic evidence introduced at trial. Thus, defendant argues, the trial court lacked reliable evidence upon which to base its findings of fact and conclusions of law, and therefore the permanent injunctionshould also fail. We do not agree.

It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion. A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. A ruling committed to a trial court's discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.

White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citations omitted).
Plaintiffs argue, and we agree, that there was plenary evidence from which the trial court could find and conclude that the dogs were neglected, dirty, malnourished, and cruelly treated within the meaning of N.C. Gen. Stat. � 19A-1(2). As previously noted, the trial court had full authority to issue a permanent injunction pursuant to N.C. Gen. Stat. � 19A-4. The judgment contained adequate findings of fact and conclusions of law which were fully supported by the evidence. The trial court conducted a bench trial and operated as the finder of fact. In such situations, the trial court's decision will not be overturned absent an abuse of discretion. As defendant cannot demonstrate an abuse of the trial court's discretion, her second assignment of error is overruled.

Defendant's Counterclaim

By her final assignment of error, defendant contends the trial court erred by failing to grant relief on her counterclaim, which alleged that plaintiffs' acts "were unconstitutional in nature; that the acts were an unconstitutional taking of [her] property and the Plaintiffs have failed to follow the statutory provisions and have acted outside of the authority granted to them by the State Legislature in seizing [her] animals." Defendant also argues that the seizure of her dogs constituted a taking for which she was never provided just compensation and maintains that, although the trial court made a finding regarding the veterinary expenses incurred by AHS for the care of her dogs after their seizure, she was never given an opportunity to redeem her dogs for that amount.

The trial court considered the counterclaim but determined relief was not warranted. We agree. As previously noted, the trial court enjoyed broad discretion upon the filing of plaintiffs' verified complaint. The permanent injunction was fully authorized by N.C. Gen. Stat. � 19A-4, and the trial court properly ordered the injunction. Upon review, the trial court found no evidence which supported relief under defendant's counterclaim. Defendant's final assignment of error is overruled.

After careful review of the record, transcript, exhibits, and the arguments presented by the parties, we believe the trial court acted properly in all respects. The judgment and order of the trial court are hereby
Judges McGEE and LEVINSON concur.
Report per Rule 30(e).


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