Trubow v. New Mex. Real Estate Comm'n

• Decision Date: 02 May 2022
• Docket Number: A-1-CA-38429
• Citation: 516 P.3d 224
• Parties: Adam TRUBOW and Patrick McBride, Appellants-Petitioners, v. NEW MEXICO REAL ESTATE COMMISSION, Appellee-Respondent.
• Court: Court of Appeals of New Mexico

516 P.3d 224

Adam TRUBOW and Patrick McBride, Appellants-Petitioners,
v.
NEW MEXICO REAL ESTATE COMMISSION, Appellee-Respondent.

No. A-1-CA-38429

Court of Appeals of New Mexico.

Filing Date: May 2, 2022
Certiorari Granted, July 19, 2022, No. S-1-SC 39402

Marrs Griebel Law, Ltd., Clinton W. Marrs, Albuquerque, NM, Rodey, Dickason, Sloan, Akin & Robb, P.A., Edward Ricco, Albuquerque, NM, for Petitioners

Hector H. Balderas, Attorney General, Santa Fe, NM, Lori Chavez, Assistant Attorney General, Albuquerque, NM, for Respondent

BACA, Judge.

516 P.3d 226

{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.

BACKGROUND

{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.

DISCUSSION

{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,

516 P.3d 227

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.

I. The Discovery Rule Applies to the ULA

{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...