Kaplan v. Prolife Action League of Greensboro , 123 N.C. App. 720 ( 1996 )

Judge Johnson

dissenting in part, and concurring in part.

The majority would impermissibly limit the reach of the North Carolina RICO Act in derogation of the statute’s mandate and the General Assembly’s intent. I respectfully dissent as to that part of the majority opinion which finds that summary judgment was properly granted for defendants Linda Winfield and the Prolife Action League of Greensboro, but concur as to the majority’s decision that summary judgment was properly granted for all of the other listed defendants.

I find that not only do the activites allegedly engaged in by defendants fall within the prohibited behaviors espoused in the North Carolina RICO Act, but also that there is a sufficient causal nexus between the pecuniary gain of certain defendants and those activities in which they have engaged. Black’s Law Dictionary defines “pecuniary” as “Monetary; relating to money; financial; consisting of money or that which can be valued as money.” Black’s Law Dictionary 1131 (6th ed. 1990). Further, the term “pecuniary benefits” is defined by Black’s as “Benefits that can be valued in money.” “Pecuniary benefits available to parents by reason of death of an adult child encompass those benefits, including money, that can be reasonably estimated in money, such' as labor, services, kindness and attention of child to parents.” Id. (citations omitted).

The facts herein militate that this Court find that while, defendants’ actions may not be taken for pecuniary purpose, they certainly have a pecuniary effect. Plaintiffs presented evidence which tended to show that defendants passed out leaflets to defendant League members, as well as non-members while picketing outside of plaintiffs’ residence, in an effort to elicit support and increase membership of defendant League. Such distribution has led to income in furtherance of the League’s effort to force Dr. Kaplan to stop performing abortions. In addition, defendants’ picketing Dr. Kaplan’s business and home increases the League’s visibility, and leads to increased donations, i.e., pecuniary gain, for its cause. Plaintiffs also point to the League’s newsletters soliciting (and consequently, receiving) money to fund its campaign against plaintiffs and other physicians’ families, yard sales, collections for anti-abortion billboards, etc., which also lead to pecuniary gain..

In fact, defendants admit that defendant League is “getting money to operate the organization,” but argue that pecuniary gain requires something more, such as evidence that the League’s income exceeded its expenses. In addition, defendants argue that the League’s income, to qualify as a pecuniary gain, has to be extracted directly from the Kaplans. I find this position to be untenable.

The statute only requires that the activity have the purpose or effect of pecuniary gain, and does not designate that the gain be had from plaintiffs or by defendants directly. Notably, plaintiffs have sought to discover various membership listings and financial records in order to further demonstrate the pecuniary effect of defendants’ actions in the instant case. This issue is also the subject of an opinion recently filed by this Court. Kaplan, et al. v. Prolife Action League of Greensboro, et al., COA 95-1095 (N.C. Ct. App. Sept. 3, 1996). I find, without these listings and records which plaintiffs seek to discover, that there is still an adequate nexus between the actions of defendant Linda Winfield, who publishes and dispenses defendant League’s newsletter, and the League itself, and their consequent pecuniary gain to fulfill the requirements of the North Carolina RICO Act. As to the other listed defendants, who appear to be mere contributors and/or members of defendant League, I agree with the majority that the evidence is insufficient to show that these persons individually derived any “pecuniary gain” from the actions detailed above.

Finally, I am also of the opinion that plaintiffs tendered sufficient evidence of injury or damage to property within the meaning of section 75D-8(c) of the North Carolina RICO Act to withstand defendants Linda Winfield and the League’s motion for summary judgment. Section 75D-8(c) of our RICO Act provides for recovery of treble damages by any person “injured or damaged in his business or property” by any violation of section 75D-4 of the Act. N.C.G.S. § 75D-8(c). In the instant action, plaintiffs seek compensation solely for the “loss of use and enjoyment of their home,” and not “for the diminution in the value” of their home.

While there is not any case law specifically addressing the necessary injury to “business or property” under section 75D-8(c), there is a formidable body of North Carolina case law, which discusses the “bundle of rights” that goes along with the ownership of real property. In Hildebrand v. Telegraph Co., 219 N.C. 402, 14 S.E.2d 252 (1941), our Supreme Court stated:

The word “property” extends to every aspect of right and interest capable of being enjoyed as such upon which it is practicable to place a money value. The term comprehends not only the thing possessed but also, in strict legal parlance, means the right of the owner to the land; the right to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from its use.

Id. at 408, 14 S.E.2d at 256 (emphasis added). Accordingly, “where a person’s right to possess, use, enjoy or dispose of his land is substantially impaired, his property has been taken.” Long v. City of Charlotte, 306 N.C. 187, 201, 293 S.E.2d 101, 110-11 (1982). In addition, plaintiffs cite section 75D-3(h) of the North Carolina RICO Act to support their argument that the legislature intended that the term “property” be construed broadly. See N.C. Gen. Stat. § 75D-3(h) (stating that “[r]eal property” includes “any interest in such real property,” including leases and mortgages) (emphasis added).

The majority references Oscar v. University Students Co-Op. Ass’n, 965 F.2d 783 (9th Cir.), cert. denied, 506 U.S. 1020, 121 L. Ed. 2d 581 (1992), and string cites several other circuit courts’ decisions interpreting the reach of federal civil RICO, in support of a narrower interpretation of the term “property” under the North Carolina RICO Act. It is true as the majority notes that at the time that this statute was ratified, of particular concern to the General Assembly was organized crime and its social ills. Since that time, however, other patterns of organized criminal activity — i.e., securities, mail and wire fraud, and anti-abortion activities — have escalated. We, as members of the judiciary who are often called upon to interpret our statutes to comport with our legislators’ intent, must be ever conscious and mindful of the care and deliberation taken by the General Assembly in fashioning the laws of North Carolina. In the case of the North Carolina RICO Act, the General Assembly, in drafting this particular statute, drew the statute in a broad manner to encompass plaintiffs’ action herein.

I find nothing in the legislative history of our RICO Act to support the majority’s strict construction of our civil RICO statute; and, therefore, refuse to place the “narrow and novel” strictures of the circuit courts upon the North Carolina RICO Act. This Court should instead find that the plain meaning of the Act and the body of North Carolina case law, which recognizes the right to possess, use, enjoy, and dispose of property as being a property interest, supports a broad reading of the term “property” and injury thereto.

As such, we should decline to follow the circuit courts’ decisions noted in the body of the majority opinion, interpreting the federal civil RICO Act. Accordingly, we should find that plaintiffs presented sufficient evidence that they had suffered an injury to “business or property” within the meaning of section 75D-8(c) of the North Carolina civil RICO Act to withstand defendants’ motion for summary judgment in regards to their North Carolina RICO claim.

Plaintiffs’ forecast of evidence does in fact show defendants Linda Winfield and the League’s actions had the effect of deriving “pecuniary gain” pursuant to section 75D-2(c) of the Act; and adequate injury to “business or property” under section 75D-8(c) of that same Act. As such, I dissent in part, and concur in part with the majority’s decision.