N.M. Real Estate Comm'n v. Barger

• Decision Date: 02 July 2012
• Docket Number: No. 31,262.,31,262.
• Parties: NEW MEXICO REAL ESTATE COMMISSION, Petitioner–Appellant, v. Joyce R. BARGER, Respondent–Appellee.
• Court: Court of Appeals of New Mexico

284 P.3d 1112

2012 -NMCA- 081

NEW MEXICO REAL ESTATE COMMISSION, Petitioner–Appellant,

v.Joyce R. BARGER, Respondent–Appellee.

No. 31,262.

Court of Appeals of New Mexico.

July 2, 2012.

Gary K. King, Attorney General, 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 threateningrevocation of her license(s) unless the NCA's allegations were “explained or rebutted at a formal hearing.” Barger filed a motion to dismiss the NCA on the ground that it was barred by the applicable statute of limitations.

{4} In her motion, Barger noted that the applicable statute of limitations, NMSA 1978, Section 61–1–3.1(A) (1993) (amended 2003), provided that no disciplinary action against a professional license holder “shall be initiated by a board later than two years after the discovery of the conduct that would be the basis for the action.” Although the statute was amended in 2003 to specify that it was “discovery by the board” that triggered the limitations period, Barger argued that the amendment could not operate retroactively to apply to her case. As a result, she maintained, any alleged ethical violations she may have committed in connection with the real estate contract were immediately discoverable by the seller and, therefore, the statute of limitations expired two years from the date the real estate contract was executed.

{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), NMSA 1978, Sections 61–1–1 to –33 (1957, as amended through 2003). The 1993 version of the statute of limitations states that “[n]o action that would [result in disciplinary actions specified in Section 61–1–3(D)–(N) ] shall be initiated by a board later than two years after the discovery of the conduct that would be the basis for the action,” subject to certain exceptions not relevant to this case. Section 61–1–3.1(A) (1993). The statute does not specify whose discovery triggers the limitations period. Barger argues that it is discovery by the complainant, while the NMREC maintains that it is the licensing board's discovery. Either interpretation makes sense and, as a result, the statute is ambiguous. See Leo v. Cornucopia Rest., 118 N.M. 354, 357, 881 P.2d 714, 717 (Ct.App.1994) (stating that “[a] statute is ambiguous when it can be understood by reasonably well-informed persons in two or more different senses” and that “[t]he determination of whether the language of a statute is ambiguous is a question of law” (internal quotation marks and citation omitted)).

{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, 146 N.M. 473, 212 P.3d 361.

{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} Section 61–1–3.1 in its original form barred any action initiated by a licensing board “later than two years after the conduct that would be the basis for the action.” Section 61–1–3.1(A) (1981). Thus, prior to the 1993 amendment, there was no provision tying the running of the limitations period to discovery of the underlying conduct. In 1993, the Legislature amended the statute to bar board action initiated “later than two years after the discovery of the conduct,” Section 61–1–3.1(A) (1993) (emphasis added), and in 2003, the Legislature amended the statute again. The most recent amendment bars any action “initiated by a board later than two years after the discovery by the board of the conduct.” Section 61–1–3.1(A) (2003) (emphasis added).

{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...