Lambert v. Morris , 262 N.C. App. 583 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-189
Filed: 4 December 2018
Stanly County, No. 16 CVS 621
SAM LAMBERT and ANDRIA LAMBERT, Plaintiffs,
v.
SALLY MORRIS and STEVE HAIR, Defendants.
Appeal by plaintiffs from order entered 16 August 2017 by Judge Michael L.
Robinson in Stanly County Superior Court. Heard in the Court of Appeals 2 October
2018.
Carruthers & Roth, P.A., by Brandon K. Jones and Richard L. Vanore, for
plaintiffs-appellants.
Bolster Rogers, PC, by Melissa R. Monroe and Jeffrey S. Bolster, for defendants-
appellees.
BRYANT, Judge.
Where plaintiffs did not demonstrate genuine issues of material fact, the trial
court did not err in granting summary judgment.
Plaintiffs Sam Lambert and Andria Lambert filed an action against defendants
Sally Morris and Steve Hair alleging conversion, civil conspiracy, unfair and
deceptive trade practices, and intentional or reckless infliction of emotional distress.
Plaintiffs also sought injunctive relief and damages related to the disappearance of
their dog, Biscuit.
LAMBERT V. MORRIS
Opinion of the Court
On 16 August 2015, Biscuit went missing from plaintiffs’ residence in Stanly
County. Plaintiffs attempted to locate Biscuit for several days before initiating
contact with Jimmy Medlin of the Montgomery County Animal Control (“Animal
Control”) on or about 19 August 2015. Plaintiffs informed Medlin that a photograph
of Biscuit was posted on Animal Control’s unofficial Facebook page and asked if
Biscuit was there. Medlin checked their records and told plaintiffs they did not have
a record of Biscuit. Plaintiffs continued to follow up with the unofficial Facebook page
periodically for news of Biscuit.
Over a month later, on 2 October 2015, a citizen brought Biscuit to Animal
Control where she was placed in one of Animal Control’s holding cells located on the
Montgomery County Humane Society’s (“Humane Society”) property. Biscuit did not
have a microchip or a collar to identify the owners. Biscuit was held for 72 hours
under the possession of Animal Control. After the 72-hour period, on 5 October 2015,
Animal Control transferred possession of Biscuit to the Humane Society.1 The
Humane Society often takes possession of animals after the 72-hour period and finds
available homes for them.
The next day, on 6 October 2015, a volunteer with the Humane Society took
Biscuit to a veterinarian for examination and spaying. On 7 October 2015, a picture
of Biscuit was posted by the Humane Society on its website where it remained until
1Defendant Morris was the Vice President/Secretary and Treasurer for the Humane Society
and Defendant Hair was the President.
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LAMBERT V. MORRIS
Opinion of the Court
Biscuit was adopted. Meanwhile, it was discovered that Biscuit had tumors in her
mammary glands and on 20 October 2015, she was taken to the Asheboro Animal
Hospital to have them surgically removed. Then, on 30 October 2015, defendant Hair
formally adopted Biscuit by completing an adoption application with the Humane
Society. Defendant Hair reimbursed the Humane Society for some of Biscuit’s
veterinary bills while in the care of the Humane Society.
Approximately four weeks after Biscuit was adopted, defendant Hair decided
to let defendant Morris foster Biscuit because of problems Biscuit was having
interacting with defendant Hair’s other rescue dogs. Defendant Morris brought
Biscuit to the Humane Society about “two to three times a week.”
Almost a year later, in June 2016, plaintiffs found an old Facebook posting of
Biscuit at the Humane Society and attempted to claim Biscuit. Defendant Hair
requested that plaintiffs needed to reimburse him for Biscuit’s vet bills while in the
care of the Humane Society if he gave Biscuit to them, which plaintiffs agreed.
Defendant Hair requested to speak with plaintiffs’ veterinarian, but plaintiffs
were unable to reach him. Defendant Hair did not feel comfortable giving Biscuit
back to plaintiffs when plaintiffs indicated that they had over fourteen dogs.
Defendant Hair stated he would not return Biscuit to plaintiffs before conducting a
home visit. The exchange between plaintiffs and defendant Hair became heated.
Defendant Hair eventually ended the meeting and told plaintiffs to leave. Defendant
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LAMBERT V. MORRIS
Opinion of the Court
Hair refused to return Biscuit and did not proceed any further with the home
inspection.
On 22 July 2016, plaintiffs filed their action against defendants. During
negotiations, defendant Hair agreed to return Biscuit to plaintiffs to resolve the
lawsuit, however he later declined and the parties proceeded with the action. On 14
August 2017, the action was heard before the Honorable Michael L. Robinson on
defendants’ motion for summary judgment. Judge Robinson issued a written order
granting judgment in favor of defendants and dismissed plaintiffs’ claims. Plaintiffs
appeal.
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On appeal, plaintiffs argue the trial court erred in granting summary judgment
in favor of defendants and dismissing plaintiffs’ claims for: 1) conversion and
permanent injunction; 2) civil conspiracy; 3) unfair and deceptive trade practices; 4)
intentional or reckless infliction of emotional distress; and 5) punitive damages. We
disagree.
“Our standard of review of an appeal from summary judgment is de novo; such
judgment is appropriate only when the record shows that ‘there is no genuine issue
as to any material fact and that any party is entitled to a judgment as a matter of
law.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting
Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).
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LAMBERT V. MORRIS
Opinion of the Court
Rule 56 of the North Carolina Rules of Civil Procedure provides that any party
is entitled to judgment as a matter of law “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact[.]” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2017). “In a motion for summary judgment, the evidence presented to the trial court
must be . . . viewed in a light most favorable to the non-moving party.” Hart v.
Brienza, 246 N.C. App. 426, 430, 784 S.E.2d 211, 215 (2016) (citations and quotations
omitted).
A party moving for summary judgment may prevail if it
meets the burden (1) of proving an essential element of the
opposing party’s claim is nonexistent, or (2) of showing
through discovery that the opposing party cannot produce
evidence to support an essential element of his or her claim
. . . . If the moving party meets this burden, the non-moving
party must in turn either show that a genuine issue of
material fact exists for trial or must provide an excuse for
not doing so.
Id.North Carolina General Statutes, section 19A-32.1 provides for procedures an
animal shelter must follow upon receiving a lost or abandoned animal. N.C. Gen.
Stat. § 19A-32.1 (2017). The statute, in pertinent part, states “all animals received
by an animal shelter or by an agent of an animal shelter shall be held for a minimum
holding period of 72 hours.” Id. § 19A-32.1(a). “[A] person who comes to an animal
shelter [within the minimum holding period] attempting to locate a lost pet is entitled
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Opinion of the Court
to view every animal held at the shelter, subject to rules providing for such viewing
during at least four hours a day, three days a week.” Id. § 19A-32.1(c).
After the expiration of the minimum holding period, the
shelter may (i) direct the agent possessing the animal to
return it to the shelter, (ii) allow the agent to adopt the
animal consistent with the shelter’s adoption policies, or
(iii) extend the period of time that the agent holds the
animal on behalf of the shelter.
Id. § 19A-32.1(e).
Plaintiffs allege many causes of action, all of which are based on whether
defendant Hair’s adoption of Biscuit was properly conducted. In its extensive order
granting summary judgment to defendants, the trial court viewed the issue before it
as follows: “whether [] defendants’ evidence that the adoption of [p]laintiffs’ lost dog
‘Biscuit’ was properly conducted pursuant to applicable law has been sufficiently
rebutted by [p]laintiffs’ evidence to create an issue for jury determination, thus
mandating denial of the Motion.” The trial court determined that plaintiffs’ evidence,
challenging defendant Hair’s adoption of Biscuit, did not create genuine issues of
material fact. As the trial court determined and we agree, Animal Control satisfied
its legal duty as Biscuit remained in its custody for the required statutory holding
period and was acquired by the Humane Society only after the expiration of 72 hours.
By law, it is permissible for Animal Control to euthanize animals after the 72-
hour period. See id. § 19A-32.1(a). However, as defendants established, it is also
customary for Animal Control to transfer animals to the Humane Society for the
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Opinion of the Court
purpose of finding new available homes. After the minimum holding period, Animal
Control has the legal authority to either euthanize or transfer possession to initiate
adoption. It is made clear by the statute that after the 72-hour holding period, prior
ownership can be legally severed and a formal adoption can begin before euthanasia
is considered.
Plaintiffs lost any ownership rights to Biscuit after the first 72 hours Biscuit
was in the possession of Animal Control.2 Once the Humane Society received Biscuit
and initiated a formal adoption to a third party––in this case, defendant Hair––
almost a month had passed since Biscuit was in the possession of Animal Control.
It is undisputed that defendant Hair was the rightful owner of Biscuit, and we
agree with the statement of the trial court that “[d]efendant Hair, as the [rightful]
owner of [Biscuit], was entitled to negotiate with [p]laintiffs in whatever fashion he
desired” in deciding whether to return Biscuit to plaintiffs or keep her and “this
conduct was solely as an individual . . . not on behalf of the Humane Society.”
Therefore, defendants have successfully rebutted plaintiffs’ allegations of tortious
conduct and demonstrated that there exist no genuine issues of material fact.
Accordingly, the trial court did not err in granting summary judgment to
defendants and dismissing plaintiffs’ claims.
AFFIRMED.
2 We again note that Biscuit had no identifying chip or collar when she arrived at Animal
Control.
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Opinion of the Court
Judges DIETZ and INMAN concur.
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