October 31, 2022- George Cheng v. Brian Rabey, No. A-1-CA-39142

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: Court of Appeals of New Mexico
Filed 10/31/2022 2:28 PM

Filing Date: October 31, 2022 | [>
~
No. A-1-CA-39142 Mark Reynolds

GEORGE CHENG,

Plaintiff-Appellee,

V.

BRIAN RABEY,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Manuel I. Arrieta, District Judge

George Cheng
Las Cruces, NM

Pro Se Appellee
New Mexico Legal Aid, Inc.
Thomas Prettyman

Albuquerque, NM

for Appellant

OPINION	1
MEDINA, Judge.	2
{1} 	Following a de novo appeal from magistrate court, the district court affirmed	3
a judgment issued against Brian Rabey (Tenant), finding that Tenant had entered a	4
written lease agreement with George Cheng (Landlord) and breached that agreement	5
by failing to pay rent in August 2018. The district court also denied Tenant’s	6
counterclaims for abatement and equitable relief. On appeal, Tenant argues that	7
Landlord’s petition for restitution should have been dismissed for lack of jurisdiction	8
because Landlord did not allow Tenant the three days to cure his nonpayment of rent	9
as required by the Uniform Owner-Resident Relations Act (UORRA), NMSA 1978,	10
§§ 47-8-1 to -52 (1975, as amended through 2007). Tenant’s argument relies on the	11
assumption that the Uniform Statute and Rule Construction Act (USRCA), NMSA	12
1978, §§ 12-2A-1 to -20 (1997), applies to the interpretation of the UORRA. The	13
district court found that Tenant abandoned this argument, but Tenant argues that	14
subject 	matter 	jurisdiction 	is 	not 	waivable 	and 	that 	Tenant 	raised 	the 	issue	15
throughout the proceedings below. In the alternative, Tenant argues that Landlord’s	16
petition for restitution should have been dismissed because it did not state the proper	17
amount due to cure nonpayment of rent. Tenant also argues that the district court	18
erred in not awarding him his withheld water payments or abatement for repairs not	19
made. We hold that the district court erred in finding Tenant waived his jurisdictional	20
argument and that Landlord’s petition should have been dismissed as untimely filed.	21

2
Therefore, we reverse on that issue. As such, we do not reach whether Landlord’s	1
petition stated the proper amount due. We otherwise affirm the judgment of the	2
district court.	3
BACKGROUND	4
{2} 	Tenant and Landlord entered into a lease in October 2017. The lease specified	5
that rent was $450 and was due the first day of each month, stated that Landlord	6
would assess a $50 fee to rent paid more than three days late, and required Tenant	7
to pay a $400 security deposit. The lease stated that Landlord would make all	8
necessary repairs to the common areas of the building, required the parties to provide	9
notice to each other in writing, and stated that the lease could only be modified in	10
writing and with the signatures of all parties. The lease was silent as to who was to	11
pay for utilities. In February 2018, Landlord asked Tenant to begin paying $10 a	12
month for water, and Tenant agreed. Tenant asserts that the property needed several	13
repairs and that he orally informed Landlord of the need for repairs, which Landlord	14
disputes.	15
{3} 	Tenant later reviewed his lease and found there was no written obligation for	16
him to pay for water. Thus, when Tenant paid his August rent, he provided Landlord	17
with a $410 money order, withholding $40 for his water payments from February,	18
March, April, and May. Tenant delivered the payment to Landlord on August 3,	19
2018, at which time he also gave Landlord written notice of several needed repairs.	20

3
The next day, Saturday, August 4, 2018, Landlord delivered a notice of nonpayment	1
requiring Tenant to pay $4501 in rent, plus a late fee of $50 for a total of $500.	2
{4} 	Tenant did not pay the amount requested, and Landlord subsequently filed a	3
petition for restitution in magistrate court on August 7, 2018. In his answer to	4
Landlord’s petition, Tenant argued that Landlord filed his petition for restitution	5
prematurely because the three-day notice period had not elapsed at the time of filing.	6
Tenant further argued that the $500 demand in the notice was improper because	7
Tenant only underpaid by $40. Tenant also counterclaimed for abatement of rent due	8
to repairs not made and for recovery of his withheld water payments.	9
{5} 	The magistrate court entered a judgment in Landlord’s favor, ordering Tenant	10
to pay $473 plus 8.75 percent interest per year until the judgment was paid. The	11
magistrate court also ordered a writ of restitution to be issued on August 24, 2018.	12
Tenant vacated the property on August 23, 2018.	13
{6} 	Tenant appealed the magistrate court judgment to the district court. At the	14
hearing on the appeal, Tenant maintained his argument that Landlord’s petition was	15
untimely filed. The district court affirmed the magistrate court’s judgment, finding	16
that Landlord was entitled to damages of $473 and allowing Landlord to retain	17
Tenant’s security deposit. The district court also found that Tenant waived his	18
1 Tenant 	testified 	that 	he 	cancelled 	the 	money 	order 	after 	receipt 	of
nonpayment of rent on his door.

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jurisdictional argument by arguing the merits of the case and that the three-day	1
period in Section 47-8-33 should be calendar days. The district court denied Tenant’s	2
claims for abatement and other equitable relief.	3
{7} 	Tenant then filed a motion to reconsider, arguing that he did not waive his	4
jurisdictional argument and that Landlord had forfeited his right to retain Tenant’s	5
security deposit by not providing Tenant with a written statement of deductions as	6
required by UORRA. The district court granted Tenant’s motion to reconsider in	7
part, allowing Landlord to retain the damage deposit and reducing Tenant’s total	8
damages to $73, but did not otherwise modify its judgment. This appeal followed.	9
DISCUSSION	10
I. 	Timeliness of Petition for Restitution	11
{8} 	We must first determine whether Tenant waived his jurisdictional argument.	12
If Tenant did not waive his argument, we then determine whether the magistrate	13
court lacked jurisdiction over Landlord’s petition for restitution. “Jurisdictional	14
questions are questions of law which [we] review[] de novo.” El Castillo Ret.	15
Residences v. Martinez, 2017-NMSC-026, ¶ 20, 401 P.3d 751.	16
A. 	Tenant Did Not Waive His Jurisdictional Argument	17
{9} 	We first address whether the district court erred by finding that Tenant waived	18
his jurisdictional argument by arguing the merits of the case. “It is well settled that	19
subject matter jurisdiction cannot be waived” and may be raised for the first time on	20

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appeal. Gonzales v. Surgidev Corp., 1995-NMSC-036, ¶ 11, 120 N.M. 133, 899 P.2d	1
576. The record reflects that Tenant actively pursued his jurisdictional argument at	2
the magistrate court and at the district court. Tenant therefore did not waive his	3
jurisdictional argument, and the district court erred in holding otherwise. We now	4
reach the merits of Tenant’s jurisdictional argument.	5
B. 	Landlord Filed His Petition for Restitution Prematurely	6
{10} 	Tenant argues that when counting days, Section 12-2A-7(A) of the USRCA	7
states that “if the period is expressed in days, the first day of the period is excluded	8
and the last day is included.” Therefore, under USRCA, Section 47-8-33(D) can only	9
be interpreted to mean that the landlord may not file a petition for restitution until	10
the full three days have passed. Tenant further asserts that allowing a landlord to file	11
a petition for restitution before three days have passed would render the notice period	12
meaningless.	13
{11} 	The district court concluded that USRCA did not apply to UORRA and that	14
Landlord complied with the three-day notice requirement of Section 47-8-33(D). We	15
agree that USRCA does not apply to the UORRA. “USRCA only applies to statutes	16
enacted on or after the effective date, or adopted after its own adoption.” State v.	17
Garcia, 2022-NMCA-051, ¶ 9, 517 P.3d 281, cert. denied (S-1-SC-39306); see	18
§ 12-2A-1(B). USRCA was enacted in 1997, and UORRA was enacted in 1975.	19
Compare § 12-2A-1, with § 47-8-1. We therefore cannot apply USRCA to determine	20

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what constitutes three-day notice under UORRA. But regardless, we hold that	1
Landlord’s petition was untimely filed and explain.	2
{12} 	“When construing statutes, our guiding principle is to determine and give	3
effect to legislative intent,” and “[w]e use the plain language of statutes as the	4
primary indicator of legislative intent.” Baker v. Hedstrom, 2013-NMSC-043, ¶ 11,	5
309 P.3d 1047 (alterations, internal quotation marks, and citations omitted). “When	6
a term is not defined in a statute, we must construe it, giving those words their	7
ordinary meaning absent clear and express legislative intention to the contrary.”	8
State v. Johnson, 2009-NMSC-049, ¶ 10, 147 N.M. 177, 218 P.3d 863 (internal	9
quotation marks and citation omitted). “If the plain meaning of the statute is	10
doubtful, ambiguous, or if an adherence to the literal use of the words would lead to	11
injustice, absurdity, or contradiction, we will construe the statute according to its	12
obvious spirit or reason.” 	Baker, 2013-NMSC-043, ¶ 11 (alterations, internal	13
quotation marks, and citation omitted).	14
{13} 	Section 47-8-33(D) states,	15
If rent is unpaid when due and the resident fails to pay rent within three	16
days after written notice from the owner of nonpayment and his	17
intention to terminate the rental agreement, the owner may terminate	18
the 	rental 	agreement 	and 	the 	resident 	shall 	immediately 	deliver	19
possession of the dwelling unit; provided that tender of the full amount	20
due, in the manner stated in the notice, prior to the expiration of the	21
three-day notice shall bar any action for nonpayment of rent.	22

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{14} 	Section 47-8-33(D) does not specify whether “day” means a business day or	1
calendar day, and only specifies that if the final day for remedying any breach	2
pursuant to written notice falls on a weekend or federal holiday, the period to remedy	3
shall be extended until the next day that is not a weekend or federal holiday. Section	4
47-8-33(H). Because the word “day” can be construed in various ways, we construe	5
its use in Section 47-8-33(D) according to its obvious spirit or reason. “In	6
ascertaining a statute’s spirit or reason, we consider its history and background, and	7
we read the provisions at issue in the context of the statue as a whole, including its	8
purpose and its consequences.” State v. Wilson, 2021-NMSC-022, ¶ 16, 489 P.3d	9
925 (alteration, internal quotation marks, and citation omitted).	10
{15} 	The purpose of UORRA as a whole is “to simplify, clarify, modernize and	11
revise the law governing the rental of dwelling units and the rights and obligations	12
of owner and resident, and to encourage the owners and the residents to maintain	13
and improve the quality of housing in New Mexico.” Section 47-8-2. Our Supreme	14
Court has previously held that UORRA is remedial in nature, and that “[i]ts	15
application must therefore be liberally construed.” Garcia v. Thong, 1995-NMSC-	16
030, ¶ 5, 119 N.M. 704, 895 P.2d 226; see T.W.I.W., Inc. v. Rhudy, 1981-NMSC-	17
062, ¶ 12, 96 N.M. 354, 630 P.2d 753. “Liberal construction is necessary to effect	18
[a] statute’s remedial purpose.” Michaels v. Anglo Am. Auto Auctions, Inc., 1994-	19
NMSC-015, ¶ 13, 117 N.M. 91, 869 P.2d 279.	20

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{16} 	The purpose of the three-day notice is to provide a tenant with the opportunity	1
to pay rent and retain possession of the dwelling unit. Therefore, to effectuate this	2
remedial purpose, “within three days” must be liberally construed to mean three full	3
days beginning on the day after the notice is served. If the third day falls on “a	4
weekend or federal holiday, the period to remedy shall be extended until the next	5
day that is not a weekend or federal holiday.” Section 47-8-33(H). Therefore, the	6
owner cannot file a petition for restitution or otherwise terminate the rental	7
agreement and seek possession of the premises until the day following the third day.	8
Allowing an owner to file before the third day has elapsed would defeat the purpose	9
of Section 47-8-33(D). This interpretation is also consistent with our Rules of Civil	10
Procedure: when computing time periods, the day on which the triggering event	11
occurs is generally excluded. See, e.g., Rule 1-006(A)(1)(a), (2)(a)(i) NMRA (setting	12
forth the rules of civil procedure for the district courts, excluding the day of the	13
triggering event); Rule 2-104(A)(1)(a), (2)(a)(i) NMRA (setting forth the rules of	14
civil procedure for the magistrate courts, same).	15
{17} 	Here, because Landlord gave Tenant notice of nonpayment of rent on August	16
4, the three-day period encompassed August 5-7. Thus, Tenant had until August 8	17
to cure his nonpayment of rent. Thus, Landlord’s filing of his petition for restitution	18
and possession of the premises on August 7 was premature. It is long-settled that “a	19
plaintiff in ejectment must have a legal right to possession before he can commence	20

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his ejectment action.” Dickens v. Hall, 1986-NMSC-029, ¶ 9, 104 N.M. 173, 718	1
P.2d 683. Because Landlord’s petition was prematurely filed, he did not have a legal	2
right to possession, meaning the magistrate court lacked jurisdiction over Landlord’s	3
petition. See id. ¶ 10.	4
{18} 	We therefore reverse the district court’s judgment and dismiss Landlord’s	5
petition 	for 	restitution 	for 	lack 	of 	jurisdiction. 	We 	now 	address 	Tenant’s	6
counterclaims. See Sangre de Cristo Dev. Corp. v. City of Santa Fe, 1972-NMSC-	7
076, ¶ 12, 84 N.M. 343, 503 P.2d 323 (stating that a counterclaim may survive the	8
failure 	of 	a 	complaint 	if 	there 	is 	jurisdiction 	to 	hear 	the 	counterclaim, 	the	9
counterclaim is independent of the main case, and affirmative relief is sought).	10
II. 	Tenant’s Counterclaims	11
A. 	Landlord and Tenant Orally Modified the Lease to Include Water	12
Payments	13
{19} 	Tenant argues that, because the lease is silent as to who pays for water,	14
Landlord retained the obligation to pay for water. Though Landlord testified that	15
there was an oral agreement to pay for water, Tenant argues that this oral agreement	16
was ineffective because the parties did not put this agreement in writing, the lease	17
contains a merger clause, and the lease and UORRA require this modification to be	18
in writing. To determine whether Tenant was entitled to his withheld water	19
payments, we must interpret the parties’ lease. Interpretation of a contract is a matter	20
of law that we review de novo. City of Albuquerque v. BPLW Architects & Eng’rs,	21

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Inc., 2009-NMCA-081, ¶ 13, 146 N.M. 717, 213 P.3d 1146. “[W]e view the contract	1
as a harmonious whole, give meaning to every provision, and accord each part of the	2
contract its significance in light of other provisions.” Pub. Serv. Co. of N.M. v.	3
Diamond D Constr. Co., 2001-NMCA-082, ¶ 19, 131 N.M. 100, 33 P.3d 651.	4
{20} 	We agree that the lease is silent as to who pays for water. The lease contains	5
an “entire agreement” clause, which states that the lease “replaces and supersedes	6
any and all oral agreements between the parties, as well as any prior writings” and a	7
“modification” clause, which states that the lease may only be modified in writing	8
that is signed by all parties. Therefore, any oral modification regarding utilities is	9
invalid per the plain language of the lease.	10
{21} 	However, in the absence of a prohibiting statute, a written agreement which	11
specifies it may only be amended in writing may nevertheless be changed by the	12
parties’ words or conduct that signify an intention to change the prior agreement.	13
See Medina v. Sunstate Realty, Inc., 1995-NMSC-002, ¶ 13, 119 N.M. 136, 889 P.2d	14
171. Oral modifications of written contracts that specify they must be modified in	15
writing must be proven by clear and convincing evidence. Powers v. Miller, 1999-	16
NMCA-080, ¶ 11, 127 N.M. 496, 984 P.2d 177. Such clear and convincing evidence	17
is demonstrated here where Tenant testified that Landlord told Tenant he needed to	18
pay an additional $10 per month for water and Tenant agreed and paid the additional	19
amount each month for a period of months. While Tenant contends that UORRA	20

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requires such a modification be in writing, UORRA does not specify that an	1
agreement between an owner and a resident requiring the resident pay for utilities be	2
in writing. Rather, UORRA requires that an owner supply a resident with heating	3
and plumbing and states that a resident may take on this requirement if the	4
transaction is in writing. Section 47-8-20(A)(6), (C); see also T.W.I.W., Inc., 1981-	5
NMSC-062, ¶¶ 2, 15 (holding that Section 47-8-20 required the landlord to install a	6
heater in the tenant’s unit). Tenant’s contention is not that Landlord failed to supply	7
him with plumbing, but rather that he should not have had to pay for water because	8
that obligation was not contained in the written agreement. Because the parties’	9
conduct clearly demonstrates an oral modification requiring Tenant to pay for water,	10
we affirm the district court’s judgment denying Tenant’s requested offset for water.	11
B. 	Tenant Is Not Entitled to Abatement for Repairs	12
{22} 	Tenant next argues that the district court erred by denying his requests for	13
abatement because he served Landlord with several written requests for repairs for	14
defective conditions. In addressing this argument, we review the district court’s final	15
judgment and apply a substantial evidence standard to its findings of fact and a de	16
novo standard to its conclusions of law. See Jacob v. Spurlin, 1999-NMCA-049, ¶ 7,	17
127 N.M. 127, 978 P.2d 334. “Substantial evidence is such relevant evidence that a	18
reasonable mind would find adequate to support a conclusion.” State ex rel. King v.	19

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B & B Inv. Grp., 2014-NMSC-024, ¶ 12, 329 P.3d 658 (internal quotation marks and	1
citation omitted).	2
{23} 	We first observe that Tenant did not actually abate any rent for repairs.	3
Regardless, Tenant is not entitled to abatement under UORRA. Tenant did not give	4
Landlord any written notice of the needed repairs until August 3 and did not ask for	5
any abatement or reimbursement in writing. Regardless of whether Tenant gave	6
Landlord oral notice, UORRA requires written notice of conditions needing repair	7
and the passage of seven days before a resident can withhold rent. Section 47-8-	8
27.2(A). While Tenant could have abated his rent for the following month, because	9
Tenant moved out on August 23, Tenant did not abate any of his rent or exercise any	10
other remedies available to him under UORRA. See § 47-8-27.1(A) (specifying	11
remedies for breach of agreement by landlord). Additionally, Landlord and Tenant	12
dispute the condition of the property, and the record below does not demonstrate	13
substantial evidence of a need for repairs. We therefore decline to award Tenant	14
abatement and affirm the judgment of the district court.	15
III. 	Landlord’s Brief	16
{24} 	Finally, we address the answer brief of Landlord, who appears pro se.	17
“Although pro se pleadings are viewed with tolerance, a pro se litigant is held to the	18
same standard of conduct and compliance with court rules, procedures, and orders	19
as are members of the bar.” 	Camino Real Env’t Ctr., Inc. v. N.M. Dep’t of Env’t,	20

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2010-NMCA-057, ¶ 21, 148 N.M. 776, 242 P.3d 343 (omission, internal quotation	1
marks, and citation omitted). Landlord’s answer brief includes no citations to case	2
law or the record proper and raises new issues of fact that were not brought up below.	3
Where a party fails to cite any portion of the record to support its factual allegations,	4
we need not consider its argument on appeal. See Santa Fe Expl. Co. v. Oil	5
Conservation Comm’n, 1992-NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819; see	6
also Rule 12-318(A)(3) NMRA (requiring briefs in chief to contain “a summary of	7
proceedings, briefly describing the nature of the case, the course of proceedings, and	8
the disposition in the court below, and including a summary of the facts relevant to	9
the issues presented for review[, which] summary shall contain citations to the	10
record proper, transcript of proceedings, or exhibits supporting each factual	11
representation” (emphasis added)). We caution Landlord regarding this violation of	12
our appellate rules and remind him “to read and follow the appellate rules to avoid	13
future 	violations.” 	See 	Santa 	Fe 	Expl. 	Co., 	1992-NMSC-044, 	¶ 11 	(internal	14
quotation marks and citation omitted).	15
CONCLUSION	16
{25} 	For the foregoing reasons, we reverse in part and affirm in part.	17
{26} 	IT IS SO ORDERED.	18
_________________________________	19
JACQUELINE R. MEDINA, Judge	20

—

WE CONCUR:
ras, tote
KRFSTINA BOGA US, Judge

H. HENDERSON, Judge

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