Trubow v. N.M. Real Estate Comm'n
Decision Date | 02 May 2022 |
Docket Number | A-1-CA-38429 |
Citation | 2022 NMCA 044 |
Parties | ADAM TRUBOW and PATRICK MCBRIDE, Appellants-Petitioners, v. NEW MEXICO REAL ESTATE COMMISSION, Appellee-Respondent. |
Court | Court of Appeals of New Mexico |
Released for Publication September 6, 2022.
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY; VALERIE A HULING, DISTRICT JUDGE
Marrs Griebel Law, Ltd.
Clinton W. Marrs
Rodey Dickason, Sloan, Akin & Robb, P.A.
Edward Ricco
for Petitioners
Hector H. Balderas, Attorney General
Lori Chavez, Assistant Attorney General
for Respondent
{¶1}A licensing board, subject to the Uniform Licensing Act (ULA), cannot take disciplinary action against a party later than two years after the improper conduct is discovered by the board. See NMSA 1978, § 61-1-3.1(A) (2003). On appeal, Adam Trubow and Patrick McBride (Petitioners) argue (1) the statute of limitations under the ULA barred the New Mexico Real Estate Commission (NMREC) from bringing disciplinary action against them, and (2) substantial evidence did not support NMREC's disciplinary action. Agreeing with Petitioners, we conclude that the disciplinary action brought by NMREC was barred by the statute of limitations. Consequently, we do not address Petitioner's substantial evidence claim.
{¶2}On December 6, 2017, NMREC revoked Petitioners' real estate broker licenses and issued a fine after determining that Petitioners made false statements regarding their business relationship with Ms. Lisa Donham and acted in bad faith regarding negotiations for the short sale of her home. It is undisputed that the disciplinary action was based on allegations made in a letter from Ms. Donham dated April 6, 2011 (2011 Letter).[1]
{¶3}On January 15, 2014, Ms. Donham submitted a complaint against Petitioners, along with the 2011 Letter, to the Consumer Protection Division of the New Mexico Attorney General's Office (NMAG). On July 2, 2014, NMREC received an email setting forth Ms. Donham's complaints against Petitioners from the NMAG. Eight days later, on July 10, 2014, NMREC opened the email from the NMAG and opened a case for investigation.
{¶4}On July 8, 2016, two years and six days after it received the email from the NMAG alerting it to Ms. Donham's complaints, NMREC issued a notice of contemplated action (NCA) indicating formal action against Petitioners for the denial, suspension, restriction, or revocation of Petitioners' real estate licenses. Petitioners argue that the statute of limitations, Section 61-1-3.1(A), barred NMREC from bringing disciplinary action against them.
{¶5}Before we discuss the merits of this appeal, we briefly address NMREC's challenge that Petitioners failed to preserve their time-barred argument on appeal. NMREC argues that Petitioners neglected to raise the issue of whether NMREC with reasonable diligence, should have discovered the claim against them before July 10, 2014. We disagree.
{¶6}"To preserve an issue for review on appeal, it must appear that [the] appellant fairly invoked a ruling of the trial court on the same grounds argued in the appellate court." Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 24, 314 P.3d 688 (internal quotation marks and citation omitted). "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 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." Sandoval v. Baker Hughes Oilfield Operations, Inc., 2009-NMCA-095, ¶ 56, 146 N.M. 853, 215 P.3d 791.
{¶7}Here, the record reveals that Petitioners filed a motion seeking dismissal with NMREC and argued that the action was time-barred due to the statute of limitations. The motion laid out its objections to NMREC and created an adequate record for purposes of appeal. NMREC addressed Petitioners' argument that the NCA was issued past the statute of limitations, denied Petitioners' motion to dismiss, and found no evidence to confirm whether NMREC opened the email prior to July 10, 2014, the stamped date on which the email was opened. Additionally, Petitioners renewed the statute of limitations argument to the district court in a statement of appellate issues. The district court also rejected Petitioners' argument and agreed with NMREC that, despite receiving the email on July 2, 2014, the contents therein were not discovered until July 10, 2014, when the email was opened.
{¶8}The record thus plainly establishes that Petitioners alerted both NMREC and the district court to its argument against the timeliness of NMREC's NCA in the form of written pleadings, allowing both adjudicative bodies to make an informed decision as to the issue raised. Considering the preservation requirements and their purposes, we conclude Petitioners properly preserved their statute of limitations argument and turn now to the issues raised on appeal.
{¶9}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 Psych. Exam'rs v. Land, 2003-NMCA-034, ¶ 26, 133 N.M. 362, 62 P.3d 1244. In addition, the ULA "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 v. N.M. Bd. of Podiatry, 1986-NMSC-051, ¶ 12, 104 N.M. 454, 722 P.2d 1176. Within the ULA, Section 61-1-3.1(A) states:
An action that would have any of the effects specified in Subsections D through N of [NMSA 1978,] Section 61-1-3 [(1993, amended 2020)] or an action related to unlicensed activity shall not be initiated by a board later than two years after the discovery by the board of the conduct that would be the basis for the action, except as provided in Subsection C[2] of this section.
(Emphasis added.) Here, the parties agree that under Section 61-1-3.1(A), the applicable statute of limitations is two years. Therefore, because NMREC issued the NCA on July 8, 2016, the issue before this Court is whether NMREC "discovered"- within the meaning of the ULA-the conduct on which the discipline was based before or after July 8, 2014. The answer depends on the meaning of the phrase "discovery by the board" in Section 61-1-3.1(A). Consequently, we must interpret Section 61-1-3.1(A).
{¶10}Generally, there are two basic standards that trigger the beginning of the statute of limitations period: the discovery rule and the occurrence rule. See Cummings v. X-Ray Assocs. of N.M., P.C., 1996-NMSC-035, ¶ 47, 121 N.M. 821, 918 P.2d 1321 ( ). While the discovery rule focuses on the date the injury was discovered, or, importantly, reasonably should have been discovered, the occurrence rule fixes the accrual date on the occurrence of a given act. Id. Accordingly, in order to resolve this appeal, we first determine which rule governs the application of Section 61-1-3.1(A) to these circumstances.
{¶11}"The meaning of language used in a statute is a question of law that we review de novo." Cooper v. Chevron U.S.A Inc., 2002-NMSC-020, ¶ 16, 132 N.M. 382, 49 P.3d 61. "[W]hen presented with a question of statutory construction, we begin our analysis by examining the language utilized by the Legislature, as the text of the statute is the primary indicator of legislative intent." Bishop v. Evangelical Good Samaritan Soc'y, 2009-NMSC-036, ¶ 11, 146 N.M. 473, 212 P.3d 361. "In furtherance of this goal, we examine the plain language of the statute as well as the context in which it was promulgated, including the history of the statute and the object and purpose the Legislature sought to accomplish." Leger v. Gerety, 2022-NMSC-007, ¶ 26, 503 P.3d 349 (internal quotation marks and citation omitted). The plain meaning rule requires a court to give effect to the statute's language and refrain from further interpretation when the language is clear and unambiguous. Sims v. Sims, 1996-NMSC-078, ¶ 17, 122 N.M. 618, 930 P.2d 153 . "However, if 'adherence to the literal use of the words would lead to injustice, absurdity or contradiction, we will reject the plain meaning in favor of an interpretation driven by the statute's obvious spirit or reason.'" Cordova v. Cline, 2021-NMCA-022, ¶ 7, 489 P.3d 957 (quoting State v. Trujillo, 2009-NMSC-012, ¶ 21, 146 N.M. 14, 206 P.3d 125). "We also consider the statutory subsection in reference to the statute as a whole and read the several sections together so that all parts are given effect." Bishop, 2009-NMSC-036, ¶ 11. In addition to the statutory language, we examine "the context in which it was promulgated, including the history of the statute and the object and purpose the Legislature sought to accomplish." Maes v. Audubon Indem. Ins. Grp., 2007-NMSC-046, ¶ 11, 142 N.M. 235, 164 P.3d 934; see State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939 ...
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