WHITLEY v. KENNERLY II (1999)

Plaintiff contends that the court erred by concluding that the one-year statute of limitation of G.S. 1-54(3) (1996) was not tolled by G.S. 1-15.1 (1996), which states in pertinent part:

(a) Notwithstanding any other provision of law, if a defendant is convicted of a criminal offense and is ordered by the court to pay restitution or restitution is imposed as a condition of probation, special probation, work release, or parole, then all applicable statutes of limitation and statutes of repose, except as established herein, are tolled for the period set forth in this subsection for purposes of any civil action brought by an aggrieved party against that defendant for damages arising out of the offense for which the defendant was convicted.   Any statute of limitation or repose applicable in the civil action shall be tolled from the time of entry of the court order

(1) Requiring that restitution be made,

(2) Making restitution a condition of probation or special probation, or

(3) Recommending that restitution be made a condition of work release or parole, and until the defendant has paid in full the amount of restitution ordered or imposed.   Provided, however, in no event shall an action to recover damages arising out of the criminal offense be commenced more than 10 years from the last act of the defendant giving rise to the cause of action.

Defendants argue, and the trial court agreed, that by not setting a specific amount of restitution, the sentencing court did not enter an order of restitution.   We cannot subscribe to this argument.

It is clear that the intent of G.S. 1-15.1 is to toll the statute of limitation pending payment of all restitution.   While the sentencing court in the criminal case did not enter an order setting the amount of restitution, the court clearly indicated in the judgments that it was ordering restitution as a monetary condition and special condition of probation.   The sentencing judge also clearly indicated in open court that he was holding open the matter of restitution pending the determination of insurance coverage and that he was going to “do what we can for Mr. Whitley.”

We hold that the sentencing court in the criminal action effectively tolled the running of the statute of limitation for plaintiff's civil action when the court decreed that restitution was to be determined later.   By operation of G.S. 1-15.1, the statute of limitation remained tolled pending the entry of an order establishing the amount of restitution and the payment in full of that amount by the defendants, or until the terms of the judgment are satisfied and probation terminated.

Accordingly, we reverse the trial court's order dismissing plaintiff's civil action for assault and battery and remand the case to the trial court for further proceedings.

Reversed and remanded.

EAGLES, Chief Judge.

Judges McGEE and HORTON concur.