{
  "id": 4364037,
  "name": "DOMINION RADIO SUPPLY, INC. D/B/A AUDIO EXPRESS, Plaintiff v. CHRISTOPHER COLCLOUGH, Defendant",
  "name_abbreviation": "Dominion Radio Supply, Inc. v. Colclough",
  "decision_date": "2012-01-17",
  "docket_number": "No. COA11-811",
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    "judges": [
      "Chief Judge MARTIN and Judge STEPHENS concur."
    ],
    "parties": [
      "DOMINION RADIO SUPPLY, INC. D/B/A AUDIO EXPRESS, Plaintiff v. CHRISTOPHER COLCLOUGH, Defendant"
    ],
    "opinions": [
      {
        "text": "ELMORE, Judge.\nDominion Radio Supply, Inc. D/B/A Audio Express (plaintiff) appeals from an order granting summary judgment in favor of Christopher Colclough (defendant). After careful consideration, we reverse the decision of the trial court.\nDefendant was an employee of plaintiff from May 2005 until July 2005. Around this time, plaintiff noticed that funds and products were being taken without permission. Durham County law enforcement officers conducted an investigation, and defendant was arrested and charged with embezzlement. On 22 February 2006, the Durham County District Court entered a Motion/Agreement and Order to Defer Prosecution for the embezzlement charge. The order placed defendant on supervised probation for eighteen months. The order also required defendant to abide by special conditions, including the requirements to: 1) complete a TATC drug treatment program, 2) complete fifty hours of community service, 3) and pay restitution to plaintiff in the amount of $8,325.86.\nOn 1 November 2006, defendant was found to be non-compliant with the deferred prosecution order, because he 1) failed to pay any of the money owed, 2) failed to complete community service, and 3) tested positive for cocaine and opiates. Defendant\u2019s case then returned to the trial court. On 26 June 2007, defendant pled guilty to misdemeanor larceny for money taken from plaintiff. Defendant received a suspended sentence and supervised probation for eighteen months. Defendant\u2019s new probation did not include an obligation to pay restitution to plaintiff.\nIn March 2007, plaintiff discovered 1) that defendant had not complied with the terms of the deferred prosecution order, 2) that defendant pled guilty to misdemeanor larceny, and 3) that defendant\u2019s new probation did not include an order to pay restitution. On 15 June 2010, plaintiff filed a complaint seeking payment from defendant in the amount of $8,325.86 with interest. On 2 August 2010, defendant filed an answer, claiming that plaintiff\u2019s claim was barred by a three year statute of limitations, and requesting that the complaint be dismissed with prejudice. Then, on 20 January 2011 defendant filed a motion for summary judgment. On 10 March 2011, the trial court granted defendant\u2019s motion for summary judgment and dismissed plaintiff\u2019s complaint. Plaintiff now appeals.\nPlaintiff\u2019s primary argument on appeal is that the applicable statute of limitations for its claim was tolled during the one year in which the Motion/Agreement and Order to Defer Prosecution was in effect, pursuant to N.C. Gen Stat. \u00a7 1-15.1. We agree.\nHere, defendant was ordered to pay restitution as a condition of his probation pursuant to a Motion/Agreement and Order to Defer Prosecution. That order delayed prosecution of defendant for the crime of embezzlement. Thus, defendant was not convicted of the crime. However, defendant was placed on eighteen months\u2019 probation and ordered, among other things, to pay restitution to plaintiff as a condition of his probation. Therefore, the facts before this Court establish that 1) defendant was not convicted of embezzlement but 2) defendant was placed on special probation, and required to pay restitution.\nOur General Statutes establish that \u201cif 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[.]\u201d N.C. Gen. Stat. \u00a7 l-15.1(a) (2009). Plaintiff argues that this section of the statute should be read to mean that the statute of limitations is tolled 1) if defendant is convicted of a crime and ordered to pay restitution or 2) if defendant is ordered to pay restitution as a condition of special probation. We note that plaintiff\u2019s suggested interpretation of the word \u201cor\u201d in the statute essentially establishes two categories for tolling the statute of limitations: 1) when defendant is convicted and 2) when defendant is not convicted, but otherwise placed on probation. Likewise, we also note that the other logical manner in which to interpret the word \u201cor\u201d in the statute would be to mean that the statute of limitations is tolled when defendant is convicted and 1) ordered to pay restitution as part of his conviction or 2) ordered to pay restitution as a condition of probation associated with his conviction. By this interpretation, the statute would only toll the statute of limitations if the defendant was in fact convicted of the crime. Thus, we are faced with two possible interpretations of the same statute, and we must decide which interpretation is accurate. In essence, we must decide whether the statute only applies when a defendant is actually convicted of the crime.\nWhen the language of a statute is clear and unambiguous, there is no room for judicial construction and the courts must give the statute its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein. E a statute is unclear or ambiguous, however, courts must resort to statutory construction to determine legislative will and the evil the legislature intended the statute to suppress.\nState v. Jackson, 353 N.C. 495, 501, 546 S.E.2d 570, 574 (2001) (quotations and citations omitted). Here, we conclude that the language of N.C. Gen. Stat. \u00a7 1-15.1 is ambiguous, or at the very least it lends itself to more than one interpretation. Accordingly, we will examine the legislative intent in enacting the statute.\nThe legislative intent in enacting \u00a7 1-15.1 has been codified in our General Statutes in N.C. Gen. Stat. \u00a7 15B-30. See 2004 N.C. Sess. Laws 159, \u00a7 3. That statute states in part that \u201c[t]he General Assembly finds that the State has a compelling interest in ensuring that... victims of crime are compensated by those who have harmed them.\u201d N.C. Gen. Stat. \u00a7 15B-30 (2009). Furthermore, it states that \u201c[n]o person who commits a crime should thereafter gain monetary profit as the result of committing the crime.\u201d N.C. Gen. Stat. \u00a7 15B-30(1) (2009).\nIt is clear from this language that the legislature intended to enact N.C. Gen. Stat. \u00a7 1-15.1 as a way to ensure that victims of crimes are actually compensated. Thus, we conclude that the legislature intended to provide victims with extra time to file suit against a defendant if he failed to pay restitution, by tolling the statute of limitations for the period of time that a defendant was under an obligation to pay restitution.\nHere, defendant was obligated to pay restitution to plaintiff as a condition of his probation pursuant to the Motion/Agreement and Order to Defer Prosecution. That order was in place from 22 February 2006 until 26 June 2007, when defendant was found to be non-compliant, and he pled guilty to a lesser offense of misdemeanor larceny. Defendant has never paid any money to plaintiff as restitution. The trial court has determined that N.C. Gen. Stat. \u00a7 1-15.1 did not apply to plaintiffs claim, because defendant was not actually convicted of embezzlement. Since defendant has never paid any money to plaintiff, if this Court were to affirm the order of the trial court, defendant will have gained monetary profit as the result of committing a crime. We find that such an outcome would be in direct contradiction to the legislative intent in enacting N.C. Gen. Stat. \u00a7 1-15.1. Thus, we conclude that N.C. Gen. Stat. \u00a7 1-15.1 does apply to plaintiff\u2019s claim. Accordingly, the applicable statute of limitations for plaintiff\u2019s claim was tolled by this section during the months in which the Motion/Agreement and Order to Defer Prosecution was in effect. We reverse the order of the trial court, and remand for further proceedings consistent with this opinion.\nReversed and remanded.\nChief Judge MARTIN and Judge STEPHENS concur.\nCASES REPORTED WITHOUT PUBLISHED OPINIONS\n(Filed 17 January 2012)\nAPAC-ATLANTIC, INC. v. FIREMENS INS. CO. No. 11-541 Scotland (08CVS792) Reversed\nCALIBER BUILDERS, LLC v. WASTE WATER SYS. OF N.C., INC. No. 11-652 Wake (08CVS14365) (09CVS25419) Reversed and Remanded\nCHARNOFFv. CALDER No. 11-777 New Hanover (0CVS1586) Affirmed\nFEDERATED FIN. CORP. OF AM. v. JENKINS No. 11-654 Wake (09CVS2084) Affirmed\nIN RE C.D. No. 11-763 Mecklenburg (10JA234) Affirmed\nIN RE C.L.R. No. 11-1195 Haywood (09JT33) Affirmed\nIN RE F.T. No. 11-851 Wake (10JA202) Affirmed\nIN RE G.C. No. 11-705 Orange (10JA95) Affirmed in part and Reversed in part.\nIN RE J.M. No. 11-823 Buncombe (10JA360) Affirmed\nIN RE J.S.S. No. 11-1038 Chatham (10JT43) Affirmed\nIN RE K.M.M. No. 11-943 Stokes (09JT75-76) Affirmed\nIN RE K.S. No. 11-719 Vance (08JA109) Affirmed\nIN RE L.M.R. No. 11-975 Haywood (09JT31-32) Affirmed\nIN RE M.D.B. No. 11-1001 Richmond (10J103) (10J104) Affirmed\nIN RE RICHARDSON No. 11-616 Wake (10SPC4210) Affirmed remanded for correction of order\nIN RE S.R. No. 11-1109 Burke (08J186-187) Affirmed\nIN RE S.S. No. 11-644 Forsyth (96J69) Affirmed\nKNOWLES v. WACKENHUT CORP. No. 11-716 Indus. Comm. (029574) Affirmed in part; reversed and remanded in part\nKRAUS v. WELLS FARGO SEC., LLC No. 11-687 Mecklenburg (10CVS22122) Affirmed\nMATTHEWS v. CMTY. NEWSPAPERS, INC. No. 11-912 Cherokee (10CVS561) Reversed\nMOOSE v. WATKINS No. 11-759 Indus. Comm. (804798) (PH1959) Affirmed\nNIX v. NIX No. 11-743 New Hanover (10CVD5646) Affirmed in Part, Reversed in Part and Remanded\nORBAN v. WILKIE No. 11-678 Gaston - (11CVS222) Affirmed\nORBAN v. WILKIE No. 11-901 Gaston (11CVS222) Affirmed\nREASONER v. REASONER Cabarrus Dismissed\nNo. 11-755 Dismissed (10CVD1784)\nSHUMAKER v. WAKE FOREST UNIV. BAPTIST MED. CTR. No. 11-598 Forsyth (10CVS7611) Reverse\nSOLOMON v. N.C. STATE VETERANS Indus. Comm. NURSING HOME-FAYETTEVILLE (930794) No. 11-571 Affirmed in Part, Remanded in Part\nSTATE v. BARBER No. 11-695 Wake (09CRS11916) No Error\nSTATE v. CALDWELL No. 11-1068 Mecklenburg (08CRS252426) (08CRS252429) No Error\nSTATE v. COLEMAN No. 11-486 Mecklenburg (09CRS211845) (09CRS21239) No Error\nSTATE v. DANIELS No. 11-825 Wake (09CRS33746-49) (09CRS33839-42) (09CRS33844) (09CRS33917) No Error\nSTATE v. DAVIS No. 11-412 Mecklenburg (10CRS19240) (10CRS206456) (10CRS206459) No Error\nSTATE v. FRAZIER No. 11-653 Nash (09CRS54263) (09CRS54281) (09CRS54283-85) No Error\nSTATE v. GOLDSTON No. 11-636 Wake (07CRS67090) (07CRS67781) No Error\nSTATE v. JONES No. 11-287 Gaston (09CRS62874-75) New Trial\nSTATE v. KHAN No. 11-368 Wake (08CRS85094) (10CRS652) Affirmed, in part, vacated and remanded\u2019 in part\nSTATE v. LEWIS No. 11-672 Wake (07CRS84527) Affirmed\nSTATE v. LUKER No. 11-699 Jackson (09CRS51335) (09CRS851) No Error\nSTATE v. MERRITT No. 11-660 Cumberland (10CRS17094-98) Affirmed\nSTATE v. MONTGOMERY No. 11-838 Wake (09CRS206901) No Error\nSTATE v. MURPHY No. 11-778 Nash (10CRS7108) Dismissed\nSTATE v. OAKES No. 11-979 Forsyth (10CRS8692) (99CRS49353) No prejudicial error\nSTATE v. PANECKA No. 11-664 Cumberland (09CRS16623-24) (09CRS54371-72) (09CRS54377) Dismissed in part; affirmed in part\nSTATE v. PARKER No. 11-736 Wake (05CRS27921) (08CRS21285) Affirmed\nSTATE v. PAYSEUR No. 11-692 Gaston (10CRS51643) (10CRS51644) (10CRS51797) No error in part; vacated and part\nSTATE v. PEGUES No. 11-530 Mecklenburg (09CRS201806) (09CRS201817-18) No Error\nSTATE v. RAEWKIN No. 11-680 Lincoln (06CRS52635) (07CRS3058) No Error\nSTATE v. SIMPSON No. 11-762 Forsyth (10CRS55627) No Error\nSTATE v. SISK No. 11-741 Cleveland (10CRS1842) (10CRS52244) No Error\nSTATE v. THOMAS No. 11-819 Hertford (07CRS3544-46) No Error\nSTATE v. WELLS No. 11-909 Mecklenburg (10CRS217769) (10CRS217771) No Error\nSTATE v. WHITE No. 11-558 Perquimans (08CRS50112) (08CRS50113) No Error\nSTATE v. WHITE No. 11-656 Catawba (08CRS50884) (09CRS4322) No error at trial; remand for correction of clerical errors in judgment\nSTATE v. WILSON No. 11-605 Guilford (09CRS23298) (09CRS89562) (09CRS90055) No Error\nSTATE v. YOUNG No. 11-488 Wayne (08CRS54255) No Error\nLenoir (07CVS1902) Dismissed WACHOVIA BANK OF DELAWARE, N.A. v. ASKEW No. 11-1039\nMecklenburg (10CVS22900) Dismissed WAYNE HOOD CONSTR., INC. v. HENNESSEY No. 11-771",
        "type": "majority",
        "author": "ELMORE, Judge."
      }
    ],
    "attorneys": [
      "Jay B. Green, attorney for plaintiff.",
      "No brief filed by defendant."
    ],
    "corrections": "",
    "head_matter": "DOMINION RADIO SUPPLY, INC. D/B/A AUDIO EXPRESS, Plaintiff v. CHRISTOPHER COLCLOUGH, Defendant\nNo. COA11-811\n(Filed 17 January 2012)\nDamages and Remedies \u2014 special probation \u2014 restitution\u2014 tolling of statute of limitations\nThe trial court erred by granting summary judgment in favor of defendant on plaintiff\u2019s claim seeking restitution in a case where defendant was not convicted of embezzlement, but placed on special probation and required to pay restitution. N.C.G.S. \u00a7 1-15.1 was tolled during the one year in which the agreement and order to defer prosecution was in effect.\nAppeal by plaintiff from order entered 10 March 2011 by Judge Jane P. Gray in Wake County District Court. Heard in the Court of Appeals 14 November 2011.\nJay B. Green, attorney for plaintiff.\nNo brief filed by defendant."
  },
  "file_name": "0193-01",
  "first_page_order": 203,
  "last_page_order": 211
}