OPINION
{1} Thе primary issue presented in this case is, when does the statute of limitations begin to run for purposes of “toxic tort” personal injury claims? Plaintiff (Tenant) appeals pro se from the district court order granting summary judgment in favor of Defendants (Landlords) dismissing his claim for damages due to exposure to mold. The district court granted summary judgment to Lаndlords based on Tenant’s failure to bring the claim within the applicable statute of limitations time period. We affirm the district court.
BACKGROUND
{2} In May 2003, Tenant rented a home from Landlords and lived there until he vacated the home on or before October 20, 2004. Shortly after moving into the home, Tenant began to feel sick and to develop a rash. Tenant’s health began to deteriorate as he began experiencing respiratory and memory problems, fatigue, coughing, lack of concentration, headaches, irritation in his eyes and throat, weakness, and lack of strength. Tenant informed Landlords that he believed something in the home itself was making him sick. When Landlords took no action, Tenant called the City’s Environmental Protection Agency (EPA) office and explained that he was very sick and he believed something in the home was causing his sickness. The EPA office conducted an inspection of the home, and discovered mold growing on some of the walls of the home. The inspector informed Tеnant that “sometimes mold can be very dangerous to a human.” Tenant testified that based on the inspection, he took samples of the spores from the home and had them analyzed. Tenant asserts that after receiving the results of the analyses, he moved from the home “as soon as possible,” leaving most of his possessions behind. Shortly thereafter, the home was “RED TAGGED” by the EPA office. Tenant asserts that after vacating the home, he became more and more sick, his rash worsened, he started to develop lesions and, as a result, he suffered both physically and emotionally.
{3} On October 5, 2004, Landlords filed a petition under the Uniform Owner-Resident Relations Act (thе Act), NMSA 1978, Sections 47-8-1 to -52 (1975, as amended through 2009), for nonpayment of rent for the months of May, June, and September 2004. In response to the petition, Tenant sent a “Letter of Demand” to Landlords on October 12, 2004, listing problems with the rental property, including water leaks, and asking for damages based on his claims that he and his family were “all sick” with ailmеnts such as headaches, chest pains, and sinus problems. The “Letter of Demand” was filed in Landlords’ action to assert counterclaims against Landlords. Tenant then dismissed all counterclaims included in the “Letter of Demand” that was filed in response to Landlords’ petition for writ of restitution. Landlords’ petition was granted, and a writ of restitution wаs issued “effective OCTOBER 20, 2004 AT NOON,” restoring the home to Landlords as of that date and time.
{4} On November 15, 2007, Tenant filed a complaint for negligence and for violation of the Act. Tenant asserted that Landlords failed to comply with their obligations as listed in Section 47-8-20(A)(1)-(4) of the Act. Subsections (1)-(4) require that the owner:
(1) substantially comply with requirements of the applicable minimum housing codes materially affecting health and safety;
(2) make repairs and do whatever is necessary to put and keep the premises in a safe condition as provided by applicable law and rules and regulations as provided in Section 47-8-23 NMSA 1978;
(3) keep common areas of the premises in a safe condition;
(4) maintain in good and safe working order and conditiоn electrical, plumbing, sanitary, heating, ventilating, air conditioning and other facilities and appliances, including elevators, if any, supplied or required to be supplied by him[.]
Section 47-8-20(A)(1)-(4). In addition, Tenant contended that former residents of the rental property, which included members of Landlords’ family, knew or should have known that the rental home had water leaks and mold. Tenant further asserted that he was not certain that the mold caused his ailments until sometime within the year 2007 after he visited a doctor who specialized in mold exposure.
{5} Landlords argued that Tenant’s complaint was barred by the three-year statute of limitations governing personal injury actions and should be dismissed. The district court agreed, finding that Tenant’s own pleadings showed that shortly after he rented the property, he believed he suffered illnesses as a “direct consequence of the mold” in the home. Accordingly, the district court granted Landlords’ motion for summary judgment and dismissed Tenant’s entire complaint. Tenant makes the follоwing arguments on appeal: (1) that the “discovery rule” operated to toll the statute of limitations until he knew, with certainty, the cause of his illnesses and symptoms; and (2) that the actions of the attorneys representing Landlords rose to the level of fraudulent concealment that tolled the statute of limitations until the fraud was discovered or reasonably should have been discovered.
DISCUSSION
STANDARD OF REVIEW
{6} Tenant contends that the material facts are not in dispute, and Landlords do not disagree. “On appeal from the grant of summary judgment, we ordinarily review the whole record in the light most favorable to the party opposing summary judgment to determine if there is any evidencе that places a genuine issue of material fact in dispute.” City of Albuquerque v. BPLW Architects & Eng’rs, Inc.,
THE APPLICABLE STATUTE OF LIMITATIONS
{7} Landlords sought to dismiss Tenant’s entire complaint on the grounds that the complaint was filed outside the three-year statute of limitations pertaining to personal injury claims. In response to Landlords’ motion to dismiss the complaint, Tenant acknowledged that the three-year statute of limitations under NMSA 1978, Section 37-1-8 (1976), is apрlicable to his case. In his pleadings in the district court and on appeal, Tenant has never argued that a statute of limitations other than the three-year period of Section 37-1-8 applies to any of his claims. He has therefore failed to preserve any argument that a different limitation period might apply to his cause of action under the Act, and we need not address that question.
The “Discovery Rule” Applies
{8} “Depending on the nature of the claims asserted and the context out of which they arise, personal injury claims may accrue at the time of the occurrence, the time of injury, or the time of discovery.” Williams v. Stewart,
{9} In applying Section 37-1-8 to a claim of medical malpractice against a non-qualifying health-care provider, our Supreme Court hеld that in cases where the cause of an injury does not present itself at the time of a negligent act, the statute of limitations is governed by the discovery rule. See Roberts,
{10} The discovery rule has since been applied in various New Mexico cases, including those involving products liability and professional negligence. See, e.g., N.M. Pub. Schs. Ins. Auth. v. Gallagher & Co.,
{11} Although New Mexico courts have not yet decided the specific question presented in this case, other jurisdictions have applied the discovery rule in cases involving exposure to toxic mold. See, e.g., Marcinkowski v. Castle,
Accrual of the Limitations Period
{12} Tenant argues that under the discovery rule, the accrual date for the cause of action did not occur “until he received a proper diagnosis of mold poisoning.” Tenant maintains that he did not receive such a formal medical diagnosis until shortly before he filed his complaint. However, that is not how the discovery rulе is applied. Under the discovery rule, the statute of limitations begins to run when the plaintiff knows or, with reasonable diligence should know, of his injury and its cause. See Roberts,
{13} Out-of-state authority in the specific context of toxic mold eases is consistent with the above discussion. Other courts have held that an action for damages from exposure to mold accrues when a claimant becomes symptomatic or when there are physical manifestations from the exposure. See Marcinkowski,
{14} Consistent with the foregoing cases, we hold that when the claimant in a toxic mold case experiences physical symptoms that would cause an ordinary person to make an inquiry about the discovery of the cause of the symptoms, that is the point at which the statute of limitations begins to accrue. See Pirtle,
{15} Tenant began to experience symptoms shortly after he moved into the rental home. As of the date that he vacated the home, October 20, 2004, Tenant was suffering from a host of symptoms, knew that there was mold in the home, believed that the mold was causing his symptoms, and had been informed by the EPA that mold could indeed be dangerous to humans. Thus, his cause of action accrued no later than October 20, 2004. Tenant did not file his complaint until November 15, 2007, more than three years after that date. Applying the discovery rule to this case, Tenant’s cause of action accrued when he was aware of the fact that he was suffering from an injury, when he suspected that his injury was caused by mold, and when with reasonable diligence, he could have discovered that his injury was caused by exposure to mold. The complaint was filed outside the applicable three-year statute of limitations. Tenant’s claims are therefore barred.
Fraudulent Concealment
{16} Tenant argues that the district court erred by refusing to consider fraudulent concealment. Tenant alleges that he could not have known and could not have confirmed until after he filed his lawsuit that Landlords and their attorneys were involved in fraudulent concealment.
{17} In his brief in chief, Tenant states that “[fjraud has come to light in this case.” Tenant points out that Parr was the acting magistrate judge in the restitution case initiated by Landlords in 2004 and, after retiring from the bench, Parr represented Landlords in the present case. Tenant contends that while the 2004 case was ongoing, Landlords were told by Parr that thеy should not reveal anything about the “toxins in the home,” and he claims that during the current litigation, Landlords were told that they should not reveal that Parr was representing them. Tenant feels that in the 2004 action, Parr treated his witnesses rudely. Tenant is therefore convinced that Landlords’ attorneys were involved in fraudulent concealment and thаt more evidence of their wrongful actions will be discovered “over time.” Tenant argues that because information regarding the toxins in the rental home was fraudulently concealed by Landlords’ attorneys, the statute of limitations should have been tolled.
{18} Landlords argue that the issue of fraudulent concealment was not properly preserved for purposes of appeal. Based on the record, we agree. “[0]n appeal, the party must specifically point out where, in the record, the party invoked the court’s ruling on the issue. Absent that citation to the record or any obvious preservation, we will not consider the issue.” Crutchfield v. N.M. Dеp’t of Taxation & Revenue,
The primary purposes for the preservation rule are: (1) to specifically alert the district court to a claim of error so that any mistake can be corrected at that time, (2) to allow the opposing party a fair opportunity to respond to the claim of error and to show why the district court should rule against that claim, and (3) to create a record sufficient to allow this Court to make an informed decision regarding the contested issue.
Kilgore v. Fuji Heavy Indus. Ltd.,
{19} In order to toll the statute of limitations, Tenant was required to establish that Landlords were aware of their own negligence but concealed that negligence from Tenаnt or that Landlords failed to disclose medical information pertaining to Tenant’s condition and treatment; and that Tenant did not have knowledge of his cause of action and could not have timely discovered the cause of action through reasonable diligence. See Blea v. Fields,
{20} Finally, we note that even if Tenant’s allegations are accepted as true, summary judgment was still appropriate. The alleged instructions to Landlords did not prevent Tenant from being aware that he began to experience a variety of illnesses and symptoms when he moved into the home, that he was made aware that there was mold in the home, and that he believed that his illnesses and symptoms were caused by that mold. See id. ¶ 36 (holding that because claimant had knowledge of a cause of action or could have discovered a cause of action through reasonable diligence during the statutory period, despite any concealment by the defendant, the issue of actual cоncealment was immaterial).
CONCLUSION
{21} We hold that Tenant’s complaint was filed outside the applicable statute of limitations and was therefore barred. We also hold that Tenant’s claim of fraudulent concealment was not properly preserved for purposes of appeal. We affirm the summary judgment order in this case.
{22} IT IS SO ORDERED.