NEW MEXICO REAL ESTATE COMMISSION v. JOYCE R. BARGER
No. 31,262
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
July 2, 2012
2012-NMCA-081
I attest to the accuracy and integrity of this document New Mexico Compilation Commission, Santa Fe, NM ‘00‘04- 14:06:53 2012.08.22
Santa Fe, NM
Elaine P. Lujan, Assistant Attorney General
Albuquerque, NM
for Appellant
Dixon, Scholl & Bailey, P.A.
Gerald G. Dixon
Spring V. Schofield
Albuquerque, NM
for Appellee
OPINION
FRY, Judge.
{1} In this case, we must determine whether the 1993 version of the Uniform Licensing Act‘s two-year statute of limitations begins to run when the licensing board discovers the conduct giving rise to a disciplinary action against a licensee or when someone else, such as the complaining party, discovers the conduct. Here, Petitioner, the New Mexico Real Estate Commission (NMREC), filed a notice of contemplated action against Respondent Joyce R. Barger more than two years after the complaining party discovered Barger‘s alleged unethical conduct, but less than two years after the NMREC discovered the conduct. We hold that it is the licensing board‘s discovery that triggers the limitations period and, accordingly, we reverse the district court‘s contrary determination.
BACKGROUND
{2} This case arose from a complaint filed with the NMREC in October 2008 against Barger, a licensed real estate broker. The complaint, signed by Garry Pruitt, alleged that Barger was guilty of certain ethical violations in connection with a real estate contract originally executed in February 2000 by Jerry Cooper as seller and Barger as buyer. Pruitt later purchased the real estate contract from Cooper. The complaint listed both Pruitt and Cooper as complainants.
{3} The NMREC investigated the matter and, in May 2010, it filed a notice of contemplated action (NCA) against Barger threatening
{4} In her motion, Barger noted that the applicable statute of limitations,
{5} The NMREC hearing officer denied the motion and, on the same day, the parties entered into a settlement agreement reserving Barger‘s right to appeal her claim that the NCA was time-barred. Barger appealed to the district court, which found that the NMREC improperly filed the NCA because the statute of limitations had expired. The district court agreed with Barger that the 2003 amendment to the statute applied prospectively. The court further concluded that, consistent with the plain language of the 1993 version of the statute, the limitations period “[was] triggered when the basis of the action [was] discovered by the complain[ant], not when [the] complaint [was] made to the board.” We granted the NMREC‘s petition for a writ of certiorari.
DISCUSSION
{6} The NMREC argues that the district court‘s interpretation of the 1993 version of the statute of limitations leads to an absurd result because the limitations period is triggered when anyone discovers conduct that could possibly give rise to disciplinary action against a licensee, even if the person discovering the conduct delays reporting it to the NMREC until after the time period expires. Although the statute does not specify whose discovery is the triggering event, the NMREC claims that it makes more sense if it is the licensing board‘s discovery since the statute runs against the NMREC. Barger counters that the district court‘s interpretation of the statute is correct according to the plain language used by the Legislature. She claims that the statute of limitations was enacted to protect a licensee‘s property right, not to preserve a board‘s right to pursue a disciplinary action.
{7} “The meaning of language used in a statute is a question of law that we review de novo.” Bishop v. Evangelical Good Samaritan Soc‘y, 2009-NMSC-036, ¶ 8, 146 N.M. 473, 212 P.3d 361 (internal quotation marks and citation omitted). If the meaning of a statute is clear and unambiguous, we apply the statute as written. Id. ¶ 9. However, “where the language of the legislative act is doubtful or an adherence to the literal use of words would lead to injustice, absurdity or contradiction, the statute will be construed according to its obvious spirit or reason, even though this requires the rejection of words or the substitution of others.” Id. (alteration, internal quotation marks, and citation omitted).
{8} The statute of limitations in question in this case is part of New Mexico‘s Uniform Licensing Act (ULA),
{9} When we interpret an ambiguous statute, our primary task “is to determine the intent of the [L]egislature and construe the statute in a manner that gives effect to that intent.” Id. We do this by considering the language in the statute and its history, id., as well as the “practical implications and the legislative purpose of [the] statute.” Bishop, 2009-NMSC-036, ¶ 11.
{10} The language of the statute provides few clues as to the Legislature‘s intended meaning of “discovery of the conduct.” However, the statute does establish that it is an action “initiated by a board” that is barred if the action is filed more than two years after the discovery. This suggests that it is a board‘s discovery that triggers the limitations period because, generally speaking, statutes of limitations “encourage[] plaintiffs to bring their actions while the evidence is still available and fresh.” Roberts v. Sw. Cmty. Health Servs., 114 N.M. 248, 256, 837 P.2d 442, 450 (1992) (emphasis added). This suggested meaning is not definitive, however, so we consider the statute‘s history.
{11}
{12} Barger argues that the amendments to the statute “are consistent with a progressive modification . . . to limit the application and breadth of the statute of limitations” and “reflect an apparent shift in legislative policies or decision making.” Each version of the statute made sense as applied, Barger claims, and there is no basis for rewriting the applicable 1993 version to conform to the most recent amendment.
{13} On the other hand, the NMREC contends that the 1993 amendment, which added a discovery component to the statute, signified a sea change in legislative policy. The original version of the statute reflected a policy favoring licensees because it precluded disciplinary actions even if the licensing board was completely unaware of the licensee‘s objectionable conduct for more than two years. However, beginning with the 1993 amendment, the Legislature added a discovery requirement and thereby struck the policy balance in favor of the public‘s need to be protected from professional licensees’ unethical practices. See Varoz v. N.M. Bd. of Podiatry, 104 N.M. 454, 456-57, 722 P.2d 1176, 1178-79 (1986) (explaining that profession licensure statutes reflect a legislative balance between the public‘s right to protection and the licensee‘s property right).
{14} The NMREC correctly observes that the existence of the original version of the statute—without a discovery component—has no bearing on the interpretation of the 1993 version, which added a discovery element. A discovery statute of limitations is inherently different from a non-discovery statute because the latter terminates the right to pursue an action after a specific amount of time from a statutorily defined event even if the triggering event has never been discovered. See, e.g., Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶¶ 49-50, 121 N.M. 821, 918 P.2d 1321 (contrasting, in the medical malpractice context, the statute of limitations, which is triggered by accrual/discovery of the injury, and the statute of repose, which terminates the right to bring an action after a certain amount of time has elapsed). Therefore, we do not believe the original version of
{15} Focusing on the 1993 version itself, we must determine whose discovery triggers the two-year limitations period. This inquiry is necessarily informed by the purpose of the ULA itself. The ULA provides professional licensing boards with a means for “protecting the public by enforcing professional standards with respect to the conduct of its licensees.” N.M. Bd. of Psychologist Exam‘rs v. Land, 2003-NMCA-034, ¶ 26, 133 N.M. 362, 62 P.3d 1244. In addition, it “reflect[s] a legislative decision regarding the balance to be struck between the public‘s need to be protected and the licensee‘s individual property right to earn a livelihood under a state-conferred license.” Varoz, 104 N.M. at 1178-79, 722 P.2d at 456-57. Thus, the public‘s need for protection would best be served if the statute of limitations is triggered by the licensing board‘s discovery of the licensee‘s conduct, while the licensee‘s property right is more extensively protected if the triggering event is the complainant‘s discovery of the conduct.
{16} Also informative to our analysis are the purposes served by statutes of limitations. Our Supreme Court has stated that “a statute of limitations seeks to further . . . basic fairness to the defendant” by “encouraging promptness in instituting a claim, suppressing stale or fraudulent claims, and avoiding inconvenience.” Roberts, 114 N.M. at 256, 837 P.2d at 450. The statute “should reflect a policy decision regarding what constitutes an adequate period of time for a person of ordinary diligence to pursue his claim.” Id. (internal quotation marks and citation omitted). These statements reflect a recognition that “a person of ordinary diligence” must know about a claim in order to pursue it. It therefore makes sense that the entity who knows about the claim is the same as the entity who pursues it. In this case, the NMREC is the only entity that can bring a disciplinary claim against a person holding a real estate license and, therefore, its knowledge of the conduct should be the triggering event.
{17} Although Barger correctly points out that administrative bodies do not ordinarily discover conduct on their own, there are practical reasons which also favor licensees—supporting the view that it is the licensing board‘s discovery of the objectionable conduct that serves as the triggering event. For example, if the triggering event is the complainant‘s discovery of the licensee‘s conduct and if the complainant delays presenting the complaint to the board, the board‘s opportunity to investigate the claim is curtailed by the delay. Giving a board a full two years to investigate and bring a claim could ultimately benefit the licensee because the board has a greater opportunity to discover and weed out baseless or fraudulent complaints.
{18} We find support for our interpretation of the statute in the Legislature‘s 2003 amendment to
{19} Barger argues that the district court‘s interpretation of the statute is consistent with our Supreme Court‘s decision in Varoz. We disagree. Although the Court in Varoz emphasized and enforced the protections provided to licensees by the ULA‘s statute of limitations, see 104 N.M. at 457, 722 P.2d at 1179 (stating that it was “[t]he [L]egislature‘s intention to protect the licensee‘s property right to the fullest extent possible consistent with public health and safety“), it was faced with a statute of limitations that was entirely different from the one we now interpret. The statute at that time contained no discovery component, and the limitations period ran from the date of the licensee‘s underlying conduct. Id. at 455, 722 P.2d at 1177. As a result, the Court logically understood the Legislature‘s intent to be “strict compliance with legislatively[]prescribed procedural safeguards.” Id. at 457, 722 P.2d at 1179.
{20} Since Varoz, the Legislature amended the statute to include the discovery of the underlying conduct as the triggering event. It follows that the Legislature decided to reject a “strict compliance” approach and to make the statute more favorable to the licensing board and less favorable to the licensee. The rigid directives in Varoz are no longer applicable.
{21} Barger also argues that it would be unfair to determine that a board‘s discovery of a licensee‘s conduct is the event triggering the limitations period because delay in the board‘s discovery may inhibit the licensee‘s ability to access relevant records. She observes that her allegedly unethical conduct occurred some ten years prior to the NMREC‘s filing of the NCA, while the applicable real estate licensing regulations required her to maintain her business records for only three years. See
{22} In summary, we decline to apply the plain meaning doctrine to interpret a statute that is susceptible to two equally plausible meanings. Instead, we “search for and effectuate the legislative intent—the purpose or object—underlying the statute.” State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). The 2003 amendment clarifies that the Legislature intended the triggering event in
CONCLUSION
{23} For the foregoing reasons, we reverse the district court‘s judgment holding that the NMREC‘s action against Barger is time barred. We remand this matter to the NMREC for further proceedings.
{24} IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
CELIA FOY CASTILLO, Chief Judge
JAMES J. WECHSLER, Judge
Topic Index for NM Real Estate Commission v. Barger, Docket No. 31,262
APPEAL AND ERROR
Standard of Review
CIVIL PROCEDURE
Statute of Limitations
GOVERNMENT
Licensing
PROPERTY
Brokers and Agents
STATUTES
Interpretation
Legislative Intent
Rules of Construction