Penn v. Town of Wrightsville Beach, No. COA06-502 (N.C. App. 1/2/2007)
| Decision Date | 02 January 2007 |
| Docket Number | No. COA06-502,COA06-502 |
| Parties | ROBERTA W. PENN, Petitioner, v. TOWN OF WRIGHTSVILLE BEACH, NORTH CAROLINA; TOWN OF WRIGHTSVILLE BEACH, NORTH CAROLINA BOARD OF ALDERMEN; and JOHN S. CAREY, CHIEF, WRIGHTSVILLE BEACH POLICE DEPARTMENT, Respondents. |
| Court | North Carolina Court of Appeals |
Dillow, McEachern & Associates, P.A., by Mary Margaret McEachern and Robert E. Dillow, Jr., for petitioner-appellant.
Wessell & Raney, LLP, by John C. Wessell, III, for respondents-appellees.
Petitioner (Roberta Penn) appeals judgment entered after the Superior Court affirmed the Wrightsville Beach Board of Aldermen's determination that petitioner's pit bull terrier is a potentially dangerous dog as defined in N.C. Gen. Stat. § 67-4.1(a)(2)(c)(2005). We affirm.
The relevant facts may be summarized as follows: On 30 August 2004, a 5 year old child, hereinafter "Carly", was riding her bicycle in the vicinity of property owned by petitioner at 803 Schloss Street in Wrightsville Beach, North Carolina. Carly was accompanied by her mother, Karen Carter, and a young friend who were also riding bicycles. Carly and her friend approached petitioner's property and began talking with her. Petitioner's 38-39 pound pit bull terrier, "C.C.", ran from her garage toward Carly and bit her on her left foot. Carter then ran to Carly as petitioner retrieved C.C. and brought her back into the yard. The bite did not result in hospitalization or an evaluation by a physician.
On 13 September 2004, Chief of Police John S. Carey "made a determination pursuant to the provisions of § 91.29 of the Wrightsville Beach Code of Ordinances that [petitioner's dog] was a potentially dangerous dog as defined in N.C.G.S. § 67-4.1(a)(2)." The Wrightsville Beach Board of Aldermen upheld Chief Carey's determination. Petitioner then filed a petition to the superior court for review de novo.
The trial court found, in pertinent part that:
1. On August 30, 2004, a 5 year old child, Carly Carter (herein "Carly"), was riding her bicycle in the vicinity of property owned by Ms. Roberta Penn at 803 Schloss Street, Wrightsville Beach, North Carolina. Carly was accompanied by her mother, Karen Carter, and by a young friend, Paige Scott.
2. As Carly approached the property of Ms. Penn, Ms. Penn's pit bull terrier "C.C." ran from Ms. Penn's garage toward Carly and bit Carly on her left foot.
3. At the time C.C. bit Carly, Carly was in the street right-of-way of Schloss Street and not on Ms. Penn's property.
4. C.C., in running from Ms. Penn's property toward Carly, approached Carly in a vicious or terrorizing manner in an apparent attitude of attack.
5. The bite inflicted by C.C. on Carly did not result in broken bones or disfiguring lacerations and did not require cosmetic surgery or hospitalization. Carly was not taken to a hospital or a physician for treatment following the bite.
Consequently, the trial court concluded, in pertinent part, that:
9. The actions of the dog C.C. in chasing and then biting Carly in the manner described hereinabove constitute an approach by the dog C.C. to a person not on the owner's property in a vicious or terrorizing manner in an apparent attitude of attack.
10. The pit bull terrier owned by Ms. Roberta Penn named "C.C." is hereby found to be a potentially dangerous dog as that term is defined in N.C.G.S. § 67-4.1(a)(2).
From this judgment petitioner now appeals, contending, inter alia, that the trial court's findings of fact were not supported by competent evidence. We disagree.
At the outset, we must determine our standard of review. That standard of review will depend upon the nature of the error alleged in the petition for judicial review. If errors of law are alleged, our review is de novo. If the alleged error is that the final agency decision is not supported by the evidence, we employ the whole record test. Here, although the petition for judicial review alleges certain...
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