Whitley v. Kennerly, 512 S.E.2d 426 (N.C. Ct. App. 1999)

Cases | Whitley v. Kennerly, 512 S.E.2d 426 (N.C. Ct. App. 1999) | 2018

The defendants pled guilty to assault with a deadly weapon. The sentencing court ordered restitution as a monetary and special condition of probation, though it did not enter an order setting the amount of restitution. Plaintiff filed a civil action seeking damages and the defendants asserted the statute of limitations as a defense. The trial court held that the one-year statute of limitation for assault and battery expired and that N.C. Gen. Stat. § 1-15.1 did not operate to toll it because the trial court in the criminal action did not order a specific amount of restitution. The plaintiff appealed. The appellate court held that the sentencing court in the criminal action effectively tolled the running of the statute of limitation for plaintiff’s civil action when it decreed that restitution was to be determined later. By operation of § 1-15.1, the statute of limitation remained tolled pending entry of an order establishing the amount of restitution and payment in full of that amount by the defendants, or until the terms of the judgment were satisfied and probation terminated.