George Cheng v. Rabey, A-1-CA-39142

Case DateOctober 31, 2022
CourtCourt of Appeals of New Mexico

GEORGE CHENG, Plaintiff-Appellee,

BRIAN RABEY, Defendant-Appellant.

No. A-1-CA-39142

Court of Appeals of New Mexico

October 31, 2022

Corrections to this opinion/decision not affecting the outcome, at the Court's discretion, can occur up to the time of publication with NM Compilation Commission. The Court will ensure that the electronic version of this opinion/decision is updated accordingly in Odyssey.


George Cheng

Las Cruces, NM

Pro Se Appellee

New Mexico Legal Aid, Inc.

Thomas Prettyman

Albuquerque, NM

for Appellant



{¶1} Following a de novo appeal from magistrate court, the district court affirmed a judgment issued against Brian Rabey (Tenant), finding that Tenant had entered a written lease agreement with George Cheng (Landlord) and breached that agreement by failing to pay rent in August 2018. The district court also denied Tenant's counterclaims for abatement and equitable relief. On appeal, Tenant argues that Landlord's petition for restitution should have been dismissed for lack of jurisdiction because Landlord did not allow Tenant the three days to cure his nonpayment of rent as required by the Uniform Owner-Resident Relations Act (UORRA), NMSA 1978, §§ 47-8-1 to -52 (1975, as amended through 2007). Tenant's argument relies on the assumption that the Uniform Statute and Rule Construction Act (USRCA), NMSA 1978, §§ 12-2A-1 to -20 (1997), applies to the interpretation of the UORRA. The district court found that Tenant abandoned this argument, but Tenant argues that subject matter jurisdiction is not waivable and that Tenant raised the issue throughout the proceedings below. In the alternative, Tenant argues that Landlord's petition for restitution should have been dismissed because it did not state the proper amount due to cure nonpayment of rent. Tenant also argues that the district court erred in not awarding him his withheld water payments or abatement for repairs not made. We hold that the district court erred in finding Tenant waived his jurisdictional argument and that Landlord's petition should have been dismissed as untimely filed.


Therefore, we reverse on that issue. As such, we do not reach whether Landlord's petition stated the proper amount due. We otherwise affirm the judgment of the district court.


{¶2} Tenant and Landlord entered into a lease in October 2017. The lease specified that rent was $450 and was due the first day of each month, stated that Landlord would assess a $50 fee to rent paid more than three days late, and required Tenant to pay a $400 security deposit. The lease stated that Landlord would make all necessary repairs to the common areas of the building, required the parties to provide notice to each other in writing, and stated that the lease could only be modified in writing and with the signatures of all parties. The lease was silent as to who was to pay for utilities. In February 2018, Landlord asked Tenant to begin paying $10 a month for water, and Tenant agreed. Tenant asserts that the property needed several repairs and that he orally informed Landlord of the need for repairs, which Landlord disputes.

{¶3} Tenant later reviewed his lease and found there was no written obligation for him to pay for water. Thus, when Tenant paid his August rent, he provided Landlord with a $410 money order, withholding $40 for his water payments from February, March, April, and May. Tenant delivered the payment to Landlord on August 3, 2018, at which time he also gave Landlord written notice of several needed repairs.


The next day, Saturday, August 4, 2018, Landlord delivered a notice of nonpayment requiring Tenant to pay $450[1] in rent, plus a late fee of $50 for a total of $500.

{¶ 4} Tenant did not pay the amount requested, and Landlord subsequently filed a petition for restitution in magistrate court on August 7, 2018. In his answer to Landlord's petition, Tenant argued that Landlord filed his petition for restitution prematurely because the three-day notice period had not elapsed at the time of filing. Tenant further argued that the $500 demand in the notice was improper because Tenant only underpaid by $40. Tenant also counterclaimed for abatement of rent due to repairs not made and for recovery of his withheld water payments.

{¶ 5} The magistrate court entered a judgment in Landlord's favor, ordering Tenant to pay $473 plus 8.75 percent interest per year until the judgment was paid. The magistrate court also ordered a writ of restitution to be issued on August 24, 2018. Tenant vacated the property on August 23, 2018.

{¶ 6} Tenant appealed the magistrate court judgment to the district court. At the hearing on the appeal, Tenant maintained his argument that Landlord's petition was untimely filed. The district court affirmed the magistrate court's judgment, finding that Landlord was entitled to damages of $473 and allowing Landlord to retain Tenant's security deposit. The district court also found that Tenant waived his


jurisdictional argument by arguing the merits of the case and that the three-day period in Section 47-8-33 should be calendar days. The district court denied Tenant's claims for abatement and other equitable relief.

{¶ 7} Tenant then filed a motion to reconsider, arguing that he did not waive his jurisdictional argument and that Landlord had forfeited his right to retain Tenant's security deposit by not providing Tenant with a written statement of deductions as required by UORRA. The district court granted Tenant's motion to reconsider in part, allowing Landlord to retain the damage deposit and reducing Tenant's total damages to $73, but did not otherwise modify its judgment. This appeal followed.


I. Timeliness of Petition for Restitution

{¶ 8} We must first determine whether Tenant waived his jurisdictional argument. If Tenant did not waive his argument, we then determine whether the magistrate court lacked jurisdiction over Landlord's petition for restitution. "Jurisdictional questions are questions of law which [we] review[] de novo." El Castillo Ret. Residences v. Martinez, 2017-NMSC-026, ¶ 20, 401 P.3d 751.

A. Tenant Did Not Waive His Jurisdictional Argument

{¶ 9} We first address whether the district court erred by finding that Tenant waived his jurisdictional argument by arguing the merits of the case. "It is well settled that subject matter jurisdiction cannot be waived" and may be raised for the first time on


appeal. Gonzales v. Surgidev Corp., 1995-NMSC-036, ¶ 11, 120 N.M. 133, 899 P.2d 576. The record reflects that Tenant actively pursued his jurisdictional argument at the magistrate court and at the district court. Tenant therefore did not waive his jurisdictional argument, and the district court erred in holding otherwise. We now reach the merits of Tenant's jurisdictional argument.

B. Landlord Filed His Petition for Restitution Prematurely

{¶ 10} Tenant argues that when counting days, Section 12-2A-7(A) of the USRCA states that "if the period is expressed in days, the first day of the period is excluded and the last day is included." Therefore, under USRCA, Section 47-8-33(D) can only be interpreted to mean that the landlord may not file a petition for restitution until the full three days have passed. Tenant further asserts that allowing a landlord to file a petition for restitution before three days have passed would render the notice period meaningless.

{¶11} The district court concluded that USRCA did not apply to UORRA and that Landlord complied with the three-day notice requirement of Section 47-8-33(D). We agree that USRCA does not apply to the UORRA. "USRCA only applies to statutes enacted on or after the effective date, or adopted after its own adoption." State v. Garcia, 2022-NMCA-051, ¶ 9, 517 P.3d 281, cert. denied (S-1-SC-39306); see § 12-2A-1(B). USRCA was enacted in 1997, and UORRA was enacted in 1975. Compare § 12-2A-1, with § 47-8-1. We therefore cannot apply USRCA to determine


what constitutes three-day notice under UORRA. But regardless, we hold that Landlord's petition was untimely filed and explain.

{¶ 12} "When construing statutes, our guiding principle is to determine and give effect to legislative intent," and "[w]e use the plain language of statutes as the primary indicator of legislative intent." ...

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