Little v. Baigas

• Citation: 390 P.3d 201
• Decision Date: 29 November 2016
• Docket Number: NO. 34,724,34,724
• Parties: S. Louis LITTLE, Plaintiff-Appellant, v. Thomas R. BAIGAS, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

390 P.3d 201

S. Louis LITTLE, Plaintiff-Appellant,

v.Thomas R. BAIGAS, Defendant-Appellee.

NO. 34,724

Court of Appeals of New Mexico.

Filing Date: November 29, 2016

Certiorari Denied, February 7, 2017, No. S-1-SC-36260

The Herrera Firm, P.C., Samuel M. Herrera, Taos, NM, for Appellant.

New Mexico Legal Center, P.C., Lee Boothby, Taos, NM, for Appellee.

OPINION

KENNEDY, Judge

{1} A vacationing tenant renting a home fell from a deck that was built almost ten years earlier by an unlicensed builder. The tenant injured himself in 2009 and sued the lessor of the home in 2011 for his injury. During that suit, the tenant sought to discover from the lessor the identity of the person who built the deck, but the lessor did not identify the builder for almost three years. While waiting for the lessor to identify the builder, the statute of limitations on the claims for the tenant's personal injuries expired. The builder was subsequently disclosed by the lessor and was quickly named as a defendant in the case. The builder filed a motion for summary judgment, claiming that because the statute of limitations had run before he was named as a defendant, he was entitled to dismissal of the claims against him. The tenant responded by asserting that the doctrines of equitable tolling and equitable estoppel applied to block the statute of limitations' operation. The district court granted summary judgment for the builder, and dismissed the tenant's claims against the builder. The tenant appeals that dismissal.

{2} We conclude that the builder made a prima facie showing of entitlement to summary judgment based on the statute of limitations. We conclude that the tenant's basis for asserting equitable tolling and equitable estoppel as bars to the operation of the statute of limitations is insufficient to invoke those doctrines. Although we fully recognize the disdain and enmity with which New Mexico courts view unlicensed contractors, we also conclude that the tenant cannot prevail basing his claims of fraudulent concealment of the builder's identity or the builder's unlicensed status and failure to secure a construction permit for the deck. Since the tenant did not proffer evidence sufficient to establish the elements of either of those doctrines such as would defeat the operation of the statute of limitations, the district court properly granted summary judgment, and we affirm.

I. BACKGROUND

{3} The facts of this case are undisputed. In April 2000, Defendant Thomas R. Baigas built a deck for Defendant Paulette Jacobs. At the time, Baigas was not licensed as a contractor. Neither Baigas nor Jacobs had applied for or obtained a building permit. In the summer of 2009, Plaintiff S. Louis Little was renting a vacation home from Jacobs. While replacing a hot tub cover on the deck in question on the evening of July 14, 2009, Little slipped and fell off the deck, injuring himself in the fall. Little brought suit against Jacobs on August 3, 2011, seeking damages for personal injury. Jacobs, despite discovery requests made by Little in December 2011 and again on January 24, 2012, did not produce the identity of her builder until January 3, 2013, when she found a cancelled check in her records and disclosed that Baigas had constructed the deck. On January 18, 2013, Little amended his complaint, adding Baigas as a defendant and seeking punitive damages. Baigas filed a motion to dismiss pursuant to Rule 1–012 NMRA ; we reversed the district court's dismissal of the case, holding that an unlicensed contractor cannot benefit from the statute of repose contained in NMSA 1978, Section 37–1–27 (1967). Little v. Jacobs , 2014–NMCA–105, ¶ 1, 336 P.3d 398.

{4} Baigas filed a motion for summary judgment, making two arguments: the three-year statute of limitations for personal injury actions had run by the time Little added Baigas as a defendant, and the discovery rule did not operate to save Little's cause of action. Little responded to Baigas's motion for summary judgment by arguing that the four-year statute of limitations for negligence claims applied and that Baigas was either equitably estopped from raising a statute of limitations defense, or that equitable tolling applied to the statute of limitations.

{5} The district court issued a letter decision acknowledging the undisputed nature of the facts in this case and granting Baigas's motion for summary judgment. As stated in its letter decision, the district court believed that "[t]he crux of the issue" was whether the three- or four-year statute of limitations applied. The district court concluded that Little was bringing a personal injury action, and thus applied the three-year statute of limitations. It then concluded that the doctrine of equitable estoppel did not apply to the case, explaining that no facts showed "that [P]laintiff relied on any representations of ... Baigas against his interest." The district court also opined that Little's best argument was for equitable tolling, but ultimately concluded that Baigas's failure to procure a contractor's license and building permit did not constitute the extraordinary circumstances required for tolling to apply. The district court therefore issued an order dismissing Little's claims against Baigas. Little filed a timely appeal, asserting that the district court's refusal to apply equitable tolling or estoppel was error.

II. DISCUSSION

A. Standard of Review

{6} Summary judgment is appropriate where there is "no genuine issue as to any material fact," and the movant is entitled to judgment "as a matter of law." Rule 1–056(C) NMRA. We review an order granting summary judgment de novo, viewing "the pleadings, affidavits, depositions, answers to interrogatories, and admissions in the light most favorable to a trial on the merits" and resolving "all reasonable inferences in favor of the party opposing summary judgment[.]" Madrid v. Brinker Rest. Corp. , 2016–NMSC–003, ¶ 16, 363 P.3d 1197 (internal quotation marks and citation omitted). Our courts "view summary judgment with disfavor, preferring a trial on the merits." Romero v. Philip Morris Inc. , 2010–NMSC–035, ¶ 8, 148 N.M. 713, 242 P.3d 280. In summary judgment proceedings, the moving party has the initial burden of establishing a prima facie case for summary judgment; in other words, they must make a showing sufficient to "raise a presumption of fact or establish the fact in question unless rebutted." Id. ¶ 10 (internal quotation marks and citation omitted). But once the movant makes a prima facie showing, "the burden shifts to the non-movant to demonstrate the existence of specific evidentiary facts which would require trial on the merits." Id. (internal quotation marks and citation omitted). During summary judgment proceedings, a party cannot rely on allegations of the complaint or argument that facts may exist, but instead must provide evidence to justify a trial on the issues and that gives rise to reasonable inferences. Id. "An inference is not a supposition or a conjecture, but is a logical deduction from facts proved and guess work is not a substitute therefor." Id. (internal quotation marks and citation omitted).

B. Baigas Made a Prima Facie Case for Summary Judgment

{7} We note at the outset that, although in the district court the parties contested whether the applicable statute of limitations was three or four years, that issue is not before us on appeal. Although Little argued that the four-year statute of limitations for negligence actions applied, and Baigas argued for the three-year statute of limitations on personal injury claims, the district court agreed with Baigas, applying the three-year statute of limitations. On appeal, Little has neither argued that the four-year period should apply, nor asserted error in the district court's application of the three-year period. We therefore conclude that he has abandoned the argument he made below that a four-year statute of limitations applies. See State v. Flanagan , 1990–NMCA–113, ¶ 1, 111 N.M. 93, 801 P.2d 675 ("Issues not briefed on appeal are deemed abandoned."); see also Rule 12–213(A)(4) NMRA (requiring that a brief in chief set forth an argument, standard of review, explanation of preservation, and citation to authority in support of each issue presented on appeal). This being a case involving personal injury from Baigas's alleged defective construction of the deck, we see no error in proceeding under the three-year statute. The next question we must consider is whether Baigas set forth sufficient undisputed facts to establish a prima facie case that the amended complaint was filed outside of the applicable three-year statute of limitations.

{8} "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." Gerke v. Romero , 2010–NMCA–060, ¶ 12, 148 N.M. 367, 237 P.3d 111. It is beyond cavil that Little knew the date of his injury and its cause; he filed suit against Jacobs within the statute of limitations. It is also undisputed fact that Little filed his second amended complaint naming Baigas as a defendant on January 18, 2013. This date is outside the three-year period for bringing actions based on personal injuries that began on July 14, 2009 and ended three years later. See NMSA 1978, § 37–1–8 (1976).

{9} Based on undisputed facts, Baigas established a prima facie case that the statute of limitations as to any claim against him expired on July 14, 2012. We hold that Baigas met his burden of making a prima facie case that the statute of limitations had expired prior to Little amending his complaint to join Baigas as a defendant. Little asserts equitable bars to the operation of the statute of limitations, and we now turn to an examination of whether those doctrines apply.

C. Little Failed to Establish Equitable Tolling or Equitable Estoppel

{10} As noted above, Little twice unsuccessfully requested of Jacobs in December 2011 and January...