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                                                           New Mexico Compilation
                                                         Commission, Santa Fe, NM
                                                        '00'04- 14:06:53 2012.08.22
       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-081

Filing Date: July 2, 2012

Docket No. 31,262

NEW MEXICO REAL ESTATE COMMISSION,

       Petitioner-Appellant,

v.

JOYCE R. BARGER,

       Respondent-Appellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. Shannon Bacon, District Judge

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

                                              1
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 threatening revocation 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

                                              2
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.

{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

                                               3
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 statutorily defined event even if the triggering
event has never been discovered. See, e.g., Cummings v. X-Ray Assocs. of N.M., P.C.,
1996-NMSC-035, ¶¶ 49-50, 121 N.M. 821, 918 P.2d 1321 (contrasting, in the medical
malpractice context, the statute of limitations, which is triggered by accrual/discovery of the
injury, and the statute of repose, which terminates the right to bring an action after a certain
amount of time has elapsed). Therefore, we do not believe the original version of Section
61-1-3.1(A) is particularly helpful in shedding light on the Legislature’s intent when it
enacted the 1993 version.

                                                4
{15} Focusing on the 1993 version itself, we must determine whose discovery triggers the
two-year limitations period. This inquiry is necessarily informed by the purpose of the ULA
itself. 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 Psychologist Exam’rs v. Land, 2003-NMCA-034, ¶ 26, 133 N.M. 362, 62 P.3d
1244. In addition, it “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, 104 N.M. at 1178-79, 722 P.2d at 456-
57. Thus, the public’s need for protection would best be served if the statute of limitations
is triggered by the licensing board’s discovery of the licensee’s conduct, while the licensee’s
property right is more extensively protected if the triggering event is the complainant’s
discovery of the conduct.

{16} Also informative to our analysis are the purposes served by statutes of limitations.
Our Supreme Court has stated that “a statute of limitations seeks to further . . . basic fairness
to the defendant” by “encouraging promptness in instituting a claim, suppressing stale or
fraudulent claims, and avoiding inconvenience.” Roberts, 114 N.M. at 256, 837 P.2d at 450.
The statute “should reflect a policy decision regarding what constitutes an adequate period
of time for a person of ordinary diligence to pursue his claim.” Id. (internal quotation marks
and citation omitted). These statements reflect a recognition that “a person of ordinary
diligence” must know about a claim in order to pursue it. It therefore makes sense that the
entity who knows about the claim is the same as the entity who pursues it. In this case, the
NMREC is the only entity that can bring a disciplinary claim against a person holding a real
estate license and, therefore, its knowledge of the conduct should be the triggering event.

{17} Although Barger correctly points out that administrative bodies do not ordinarily
discover conduct on their own, there are practical reasons—which also favor
licensees—supporting the view that it is the licensing board’s discovery of the objectionable
conduct that serves as the triggering event. For example, if the triggering event is the
complainant’s discovery of the licensee’s conduct and if the complainant delays presenting
the complaint to the board, the board’s opportunity to investigate the claim is curtailed by
the delay. Giving a board a full two years to investigate and bring a claim could ultimately
benefit the licensee because the board has a greater opportunity to discover and weed out
baseless or fraudulent complaints.

{18} We find support for our interpretation of the statute in the Legislature’s 2003
amendment to Section 61-1-3.1(A), which clarified that it is “discovery by the board” that
triggers the running of the limitations period. There is New Mexico precedent for looking
to later amendments of statutes for aid in interpreting ambiguous or unclear statutory
language. For example, in Leo, this Court interpreted a provision in the Workers’
Compensation Act that tied the amount of attorney fees paid by the employer to the amount
of the employer’s offer of judgment. 118 N.M. at 360-61, 881 P.2d at 720-21. The statute
provided in Subsection (3) that “if the employer’s offer was greater than the amount awarded
by the compensation order,” the employer would not be liable for its fifty-percent share of

                                               5
the worker’s attorney fees and, in Subsection (4), that “if the employer’s offer was less than
the amount awarded,” the employer would have to pay one hundred percent of the worker’s
attorney fees. Id. at 361, 881 P.2d at 721 (emphasis and internal quotation marks omitted)
(quoting NMSA 1978, § 52-1-54(F)(3), (4) (1990)). There was no provision for relieving
the worker of his obligation to pay fifty percent of his attorney fees if the worker made an
offer that was less than the compensation order until the Legislature amended the statute to
change “employer’s offer” in Subsection (4) to “worker’s offer.” Leo, 118 N.M. at 361, 881
P.2d at 721 (quoting Section 52-1-54(F)(4) (1993) (emphasis omitted)). We relied on the
amendment to conclude that the Legislature had simply made “an error in language” in the
earlier, applicable version of the statute. Leo, 118 N.M. at 362, 881 P.2d at 722. Therefore,
we removed the words “the employer’s offer” from Subsection (4) of the applicable version
and inserted “the worker’s offer” so that the applicable version had the same meaning as the
amended version of the statute. Id. at 361-62, 881 P.2d at 721-22 (emphasis, quotation
marks, and citation omitted). We stated that “the 1993 amendments . . . essentially reiterated
and clarified the [L]egislature’s intent,” which was not clearly stated in the earlier version
of the statute. Id. at 362, 881 P.2d at 722; see Aguilera v. Bd. of Educ., 2006-NMSC-015,
¶ 19, 139 N.M. 330, 132 P.3d 587 (noting that “an amendment may clarify existing law,
rather than change the law, if the statute was ambiguous or unclear prior to the amendment”
(internal quotation marks and citation omitted)); Wasko v. N.M. Dep’t of Labor, 118 N.M.
82, 84-85, 879 P.2d 83, 85-86 (1994) (holding that amendment adding a provision to a
statute was meant to clarify existing law rather than change it and applying the amendment
to a case governed by the pre-amendment version of the statute); Resolution Trust Corp. v.
Binford, 114 N.M. 560, 568, 844 P.2d 810, 818 (1992) (applying statutory amendment to
prior version of the statute applicable to the case by “indulg[ing] the presumption that the
[L]egislature was aware that the law was not clear” and “interpret[ing] the amendment as a
clarification of existing law”). Consistent with this case law, we conclude that the 2003
amendment to Section 61-1-3.1(A) simply clarified that it is a board’s discovery that triggers
the statute of limitations.

{19} Barger argues that the district court’s interpretation of the statute is consistent with
our Supreme Court’s decision in Varoz. We disagree. Although the Court in Varoz
emphasized and enforced the protections provided to licensees by the ULA’s statute of
limitations, see 104 N.M. at 457, 722 P.2d at 1179 (stating that it was “[t]he [L]egislature’s
intention to protect the licensee’s property right to the fullest extent possible consistent with
public health and safety”), it was faced with a statute of limitations that was entirely different
from the one we now interpret. The statute at that time contained no discovery component,
and the limitations period ran from the date of the licensee’s underlying conduct. Id. at 455,
722 P.2d at 1177. As a result, the Court logically understood the Legislature’s intent to be
“strict compliance with legislatively[]prescribed procedural safeguards.” Id. at 457, 722
P.2d at 1179.

{20} Since Varoz, the Legislature amended the statute to include the discovery of the
underlying conduct as the triggering event. It follows that the Legislature decided to reject
a “strict compliance” approach and to make the statute more favorable to the licensing board

                                                6
and less favorable to the licensee. The rigid directives in Varoz are no longer applicable.

{21} Barger also argues that it would be unfair to determine that a board’s discovery of
a licensee’s conduct is the event triggering the limitations period because delay in the
board’s discovery may inhibit the licensee’s ability to access relevant records. She observes
that her allegedly unethical conduct occurred some ten years prior to the NMREC’s filing
of the NCA, while the applicable real estate licensing regulations required her to maintain
her business records for only three years. See 16.61.16.9(E)(5) NMAC (12/31/2008)
(amended 1/1/2012).1 It is true that a complainant’s delay in bringing a licensee’s conduct
to a board’s attention may result in some loss of evidence or fading of witnesses’ memories,
but, as evidenced by the 2003 amendment to Section 61-1-3.1(A), the Legislature apparently
deemed the risk worth taking in order “to protect the public from practitioners who do not
possess the necessary qualifications” for licensure. Varoz, 104 N.M. at 457, 722 P.2d at
1179. Moreover, the loss of evidence may be as damaging to a board’s prosecution as it is
to a licensee’s defense. We fail to see how possible delay by a complainant militates in
favor of the restrictive interpretation employed by the district court.

{22} In summary, we decline to apply the plain meaning doctrine to interpret a statute that
is susceptible to two equally plausible meanings. Instead, we “search for and effectuate the
legislative intent—the purpose or object—underlying the statute.” State ex rel. Helman v.
Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). The 2003 amendment clarifies
that the Legislature intended the triggering event in Section 61-1-3.1(A) to be a licensing
board’s discovery of the conduct underlying an NCA.

CONCLUSION

{23} For the foregoing reasons, we reverse the district court’s judgment holding that the
NMREC’s action against Barger is time barred. We remand this matter to the NMREC for
further proceedings.

{24}   IT IS SO ORDERED.

                                              ______________________________________
                                              CYNTHIA A. FRY, Judge

WE CONCUR:

______________________________________
CELIA FOY CASTILLO, Chief Judge



       1
        The regulations have been amended and now require a broker like Barger to
maintain records for no less than six years. See 16.61.16.9(F) NMAC (1/1/2012).

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______________________________________
JAMES J. WECHSLER, Judge

Topic Index for NM Real Estate Commission v. Barger, Docket No. 31,262

APPEAL AND ERROR
Standard of Review

CIVIL PROCEDURE
Statute of Limitations
GOVERNMENT
Licensing

PROPERTY
Brokers and Agents

STATUTES
Interpretation
Legislative Intent
Rules of Construction




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