November 29, 2016-S. Louis Little v Thomas R. Baigas, No. 34,724, KVS

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: November 29, 2016

NO. 34,724

S, LOUIS LITTLE,
Plaintiff-A ppellant,

V.

THOMAS R. BAIGAS,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
Jeff Foster McElroy, District Judge

The Herrera Firm, P.C.
Samuel M. Herrera
‘Taos, NM

for Appellant

New Mexico Legal Center, P.C.
Lee Boothby

Taos, NM

for Appellee

OPINION
KENNEDY, Judge.
{1} 	A vacationing tenant renting a home fell from a deck that was built almost ten
years earlier by an unlicensed builder. The tenant injured himself in 2009 and sued the
lessor of the home in 2011 for his injury. During that suit, the tenant sought to
discover from the lessor the identity of the person who built the deck, but the lessor
did not identify the builder for almost three years. While waiting for the lessor to
identify the builder, the statute of limitations on the claims for the tenant’s personal
injuries expired. The builder was subsequently disclosed by the lessor and was quickly
named as a defendant in the case. The builder filed a motion for summary judgment,
claiming that because the statute of limitations had run before he was named as a
defendant, he was entitled to dismissal of the claims against him. The tenant
responded by asserting that the doctrines of equitable tolling and equitable estoppel
applied to block the statute of limitations’ operation. The district court granted
summary judgment for the builder, and dismissed the tenant’s claims against the
builder. The tenant appeals that dismissal.
{2} 	We conclude that the builder made a prima facie showing of entitlement to
summary judgment based on the statute of limitations. We conclude that the tenant’s
basis for asserting equitable tolling and equitable estoppel as bars to the operation of

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the statute of limitations is insufficient to invoke those doctrines. Although we fully
recognize the disdain and enmity with which New Mexico courts view unlicensed
contractors, we also conclude that the tenant cannot prevail basing his claims of
fraudulent concealment of the builder’s identity or the builder’s unlicensed status and
failure to secure a construction permit for the deck. Since the tenant did not proffer
evidence sufficient to establish the elements of either of those doctrines such as would
defeat the operation of the statute of limitations, the district court properly granted
summary judgment, and we affirm.
I. 	BACKGROUND
{3} 	The facts of this case are undisputed. In April 2000, Defendant Thomas R.
Baigas built a deck for Defendant Paulette Jacobs. At the time, Baigas was not
licensed as a contractor. Neither Baigas nor Jacobs had applied for or obtained a
building permit. In the summer of 2009, Plaintiff S. Louis Little was renting a
vacation home from Jacobs. While replacing a hot tub cover on the deck in question
on the evening of July 14, 2009, Little slipped and fell off the deck, injuring himself
in the fall. Little brought suit against Jacobs on August 3, 2011, seeking damages for
personal injury. Jacobs, despite discovery requests made by Little in December 2011
and again on January 24, 2012, did not produce the identity of her builder until
January 3, 2013, when she found a cancelled check in her records and disclosed that
Baigas had constructed the deck. On January 18, 2013, Little amended his complaint,

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adding Baigas as a defendant and seeking punitive damages. Baigas filed a motion to
dismiss pursuant to Rule 1-012 NMRA; we reversed the district court’s dismissal of
the case, holding that an unlicensed contractor cannot benefit from the statute of
repose contained in NMSA 1978, Section 37-1-27 (1967). Little v. Jacobs, 2014-
NMCA-105, ¶ 1, 336 P.3d 398.
{4} 	Baigas filed a motion for summary judgment, making two arguments: the
three-year statute of limitations for personal injury actions had run by the time Little
added Baigas as a defendant, and the discovery rule did not operate to save Little’s
cause of action. Little responded to Baigas’s motion for summary judgment by
arguing that the four-year statute of limitations for negligence claims applied and that
Baigas was either equitably estopped from raising a statute of limitations defense, or
that equitable tolling applied to the statute of limitations.
{5} 	The district court issued a letter decision acknowledging the undisputed nature
of the facts in this case and granting Baigas’s motion for summary judgment. As
stated in its letter decision, the district court believed that “[t]he crux of the issue” was
whether the three- or four-year statute of limitations applied. The district court
concluded that Little was bringing a personal injury action, and thus applied the three-
year statute of limitations. It then concluded that the doctrine of equitable estoppel did
not apply to the case, explaining that no facts showed “that [P]laintiff relied on any
representations of . . . Baigas against his interest.” The district court also opined that

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Little’s best argument was for equitable tolling, but ultimately concluded that Baigas’s
failure to procure a contractor’s license and building permit did not constitute the
extraordinary circumstances required for tolling to apply. The district court therefore
issued an order dismissing Little’s claims against Baigas. Little filed a timely appeal,
asserting that the district court’s refusal to apply equitable tolling or estoppel was
error.
II. 	DISCUSSION
A. 	Standard of Review
{6} 	Summary judgment is appropriate where there is “no genuine issue as to any
material fact,” and the movant is entitled to judgment “as a matter of law.” Rule 1-
056(C) NMRA. We review an order granting summary judgment de novo, viewing
“the pleadings, affidavits, depositions, answers to interrogatories, and admissions in
the light most favorable to a trial on the merits” and resolving “all reasonable
inferences in favor of the party opposing summary judgment[.]” Madrid v. Brinker
Rest. Corp., 2016-NMSC-003, ¶ 16, 363 P.3d 1197 (internal quotation marks and
citation omitted). Our courts “view summary judgment with disfavor, preferring a trial
on the merits.” Romero v. Philip Morris Inc., 2010-NMSC-035, ¶ 8, 148 N.M. 713,
242 P.3d 280. In summary judgment proceedings, the moving party has the initial
burden of establishing a prima facie case for summary judgment; in other words, they
must make a showing sufficient to “raise a presumption of fact or establish the fact in

5
question unless rebutted.” Id. ¶ 10 (internal quotation marks and citation omitted). But
once the movant makes a prima facie showing, “the burden shifts to the non-movant
to demonstrate the existence of specific evidentiary facts which would require trial on
the merits.” Id. (internal quotation marks and citation omitted). During summary
judgment proceedings, a party cannot rely on allegations of the complaint or argument
that facts may exist, but instead must provide evidence to justify a trial on the issues
and that gives rise to reasonable inferences. Id. “An inference is not a supposition or
a conjecture, but is a logical deduction from facts proved and guess work is not a
substitute therefor.” Id. (internal quotation marks and citation omitted).
B. 	Baigas Made a Prima Facie Case for Summary Judgment
{7} 	We note at the outset that, although in the district court the parties contested
whether the applicable statute of limitations was three or four years, that issue is not
before us on appeal. Although Little argued that the four-year statute of limitations for
negligence actions applied, and Baigas argued for the three-year statute of limitations
on personal injury claims, the district court agreed with Baigas, applying the three-
year statute of limitations. On appeal, Little has neither argued that the four-year
period should apply, nor asserted error in the district court’s application of the three-
year period. We therefore conclude that he has abandoned the argument he made
below that a four-year statute of limitations applies. See State v. Flanagan, 1990-
NMCA-113, ¶ 1, 111 N.M. 93, 801 P.2d 675 (“Issues not briefed on appeal are

6
deemed abandoned.”); see also Rule 12-213(A)(4) NMRA (requiring that a brief in
chief set forth an argument, standard of review, explanation of preservation, and
citation to authority in support of each issue presented on appeal). This being a case
involving personal injury from Baigas’s alleged defective construction of the deck,
we see no error in proceeding under the three-year statute. The next question we must
consider is whether Baigas set forth sufficient undisputed facts to establish a prima
facie case that the amended complaint was filed outside of the applicable three-year
statute of limitations.
{8} 	“Under the discovery rule, the statute of limitations begins to run when the
plaintiff knows or, with reasonable diligence should know, of his injury and its cause.”
Gerke v. Romero, 2010-NMCA-060, ¶ 12, 148 N.M. 367, 237 P.3d 111. It is beyond
cavil that Little knew the date of his injury and its cause; he filed suit against Jacobs
within the statute of limitations. It is also undisputed fact that Little filed his second
amended complaint naming Baigas as a defendant on January 18, 2013. This date is
outside the three-year period for bringing actions based on personal injuries that began
on July 14, 2009 and ended three years later. See NMSA 1978, § 37-1-8 (1976).
{9} 	Based on undisputed facts, Baigas established a prima facie case that the statute
of limitations as to any claim against him expired on July 14, 2012. We hold that
Baigas met his burden of making a prima facie case that the statute of limitations had
expired prior to Little amending his complaint to join Baigas as a defendant. Little

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asserts equitable bars to the operation of the statute of limitations, and we now turn
to an examination of whether those doctrines apply.
C. 	Little Failed to Establish Equitable Tolling or Equitable Estoppel
{10} 	As noted above, Little twice unsuccessfully requested of Jacobs in December
2011 and January 2012 that she identify the person who constructed the deck. In
neither instance did Little pursue the request beyond making it. Jacobs finally
dislodged Baigas’s identity from a cancelled check on January 3, 2013, after the
statute of limitations had run. Based on this late disclosure by Jacobs, Little countered
Baigas’s motion for summary judgment, alleging that the statute of limitations was
either equitably tolled by Baigas’s concealing his identity by failing to obtain a
building permit for the deck, or that Baigas’s “concealment” of his identity should
equitably estop Baigas from asserting a statute of limitations defense. He also asserted
that whether Baigas concealed his identity was a material fact in dispute that should
be presented to the jury because Baigas performed the work illegally as an unlicensed
contractor and failed to obtain a building permit that was required for the construction
of the deck. Neither of these facts are in dispute for purposes of summary judgment.
Little further argued that had Baigas obtained a building permit, his name would have
been public record, and discoverable through that public pathway. We can assume that
Baigas was more untraceable because of the lack of the license and permit.

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{11} 	Our Supreme Court clarified the difference between equitable tolling and
equitable estoppel.
Equitable tolling permits a plaintiff to avoid the bar of the statute of
limitations if despite the exercise of all due diligence he is unable to
obtain vital information bearing on the existence of his claim. In
contrast, the doctrine of equitable estoppel comes into play if the
defendant takes active steps to prevent the plaintiff from suing in time,
as by promising not to plead the statute of limitations.
Estate of Brice v. Toyota Motor Corp., 2016-NMSC-018, ¶ 11, 373 P.3d 977 (quoting
Shropshear v. Corp. Counsel of Chicago, 275 F.3d 593, 595 (7th Cir. 2001)).
Equitable tolling functions to suspend the statute of limitations, while estoppel bars
a defendant from enforcing a statute of limitations. Slusser v. Vantage Builders, Inc.,
2013-NMCA-073, ¶ 12, 306 P.3d 524.
1. 	Equitable Tolling
{12} 	Equitable tolling is a non-statutory tolling principle that provides relief in cases
when exceptional circumstances beyond the plaintiff’s control preclude filing suit
within the statute of limitations. 	See Snow v. Warren Power & Mach., Inc.,
2015-NMSC-026, ¶ 24, 354 P.3d 1285. “Generally, a litigant seeking equitable tolling
bears the burden of establishing two elements: (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way.” Slusser,
2013-NMCA-073, ¶ 16 (internal quotation marks and citation omitted). Exceptional
circumstances require that a plaintiff demonstrate “an extraordinary event beyond his

9
or her control.” Ocana v. Am. Furniture Co., 2004-NMSC-018, ¶ 15, 135 N.M. 539,
91 P.3d 58. The doctrine does not “assume a wrongful—or any—effort by the
defendant to prevent the plaintiff from suing.” Slusser, 2013-NMCA-073, ¶ 14
(internal quotation marks and citation omitted). Where a plaintiff fails to produce
sufficient facts showing that either element has been met, equitable tolling should not
be applied. Id. ¶ 17.
{13} 	Little cites to Lopez v. State, 1996-NMSC-071, 122 N.M. 611, 930 P.2d 146,
and our unreported case, McEaddy v. N.M. State Agency for Surplus Prop., No.
33,576, 2015 WL 660159, mem. op. (N.M. Ct. App. Jan. 29, 2015) (non-precedential),
as support for his assertion that equitable tolling is appropriate. Neither case is helpful;
both deal with the notice provision of the Tort Claims Act. Lopez specifically declined
to apply equitable estoppel, id. ¶ 22, while McEaddy is not precedent. See Hess Corp.
v. N.M. Taxation & Revenue Dep’t, 2011-NMCA-043, ¶ 35, 149 N.M. 527, 252 P.3d
751 (“[A]n unpublished opinion is written solely for the benefit of the parties to the
action and has no controlling precedential value.”); see also Rule 12-405(C), (D)
NMRA (stating that non-reported cases are not precedent); Rule 23-112 NMRA app.
(II)(D) (setting out proper form for citing unpublished and non-precedential opinions
to enable reviewing court to be apprised of their status). Little also rests his discussion
of the elements of equitable tolling on the fact that he was “forced to rely on Jacob[s’]
memory and her leisurely attempts at reviewing her records,” putting him “at the

1The second amended complaint filed in May 2012, only added a claim for
damages based on the deck’s construction violating the Uniform Building Code.
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mercy of Jacob[s] because [Baigas] had effectively concealed his identity by failing
to obtain a building permit for the job.” Upon our review of the record, and for the
following reasons, we cannot conclude that equitable tolling applies in this case.
a. 	Little Failed to Demonstrate Sufficient Diligence in Pursuing Baigas’s
Identity
{14} 	We note that the original complaint and an amended complaint filed in this case
against Jacobs some nine months later, mention no one else as possibly liable for
Little’s injuries.1 Little promptly requested of Jacobs the identity of the person who
built the deck and a copy of the building permit after filing suit against her in 2011.
The interrogatory submitted by Little asked Jacobs to “provide the name, address,
telephone number of the person or persons who constructed the deck.” Little does not
direct us to any pleading filed at that time requesting the building permit or any other
documents. When Little requested an extension of discovery in August of that year,
it related to a medical witness; no search for the deck’s builder was mentioned. In
January 2012, Little received a supplemental answer from Jacobs that the builder’s
name was still unknown to her. Jacobs informed Little at the time that because it had
“been so long” since the deck was built that Jacobs could not “recall the person’s
name who installed the deck.” However, Jacobs stated she was “working on locating

2See Rule 1-034 NMRA (providing that a party may serve a request for
production of documents to which the recipient is obligated to respond within thirty
days).
3See Rule 1-037(A)(2) NMRA (providing for a party’s motion to compel
discovery if an interrogatory has not been answered or document has not been
provided pursuant to a lawful request under Rule 1-033 (interrogatories) or Rule 1-034
(requests for production).
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this information and when found, it will be provided.” Little alleges no attempts to
enforce his requests for production of documents from Jacobs concerning the builder’s
identity.2 Neither did he, for nearly a year after this semi-response from Jacobs, make
any other efforts to press Jacobs to disgorge the builder’s information3 before the
statute of limitations ended in July 2012.
{15} 	However, almost a year after her last communication on the subject, on January
4, 2013, Jacobs filed a disclosure of lay witnesses and exhibits that listed “Thomas R.
Baigas,” who might “testify regarding his knowledge of the construction of the deck
surrounding the incident of July 14, 2009.” Following the disclosure, a pending trial
date was vacated, and Little filed his third amended complaint, alleging in the motion
to amend that the first two complaints did “not contain sufficient allegations to permit
[Little] to have his cause fully and fairly presented to the court and jury” and that he
should be permitted to name Baigas as a defendant.
{16} 	Although the district court determined on undisputed facts that Little “was
diligently pursuing his claim,” Little’s argument before that court was no more than

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he “did not discover [that] he had a claim against . . . Baigas until . . . 	Jacobs
disclosed the identity of the person who constructed the deck . . . [after which] [Little]
immediately sought to amend his complaint[.]” This allegation is only partially true.
Little clearly knew that he had a cause of action, as demonstrated by suing Jacobs. His
interrogatories indicated a belief the deck’s builder shared liability for his injury. The
only missing fact was Baigas’s name. This is not a picture showing the active pursuit
of a tortfeasor whose function, but not identity, is known to an opposing party. Little’s
discovery of Baigas’s identity was in essence the result of no more than passive luck,
in which he played no great part in developing. We have previously expressed our
inclination to hold a plaintiff to the statute of limitations when a plaintiff has not
affirmatively sought necessary information to support a known cause of action. See
Yurcic v. City of Gallup, 2013-NMCA-039, ¶ 21, 298 P.3d 500; cf. Reaves v.
Bergsrud, 1999-NMCA-075, ¶ 27, 127 N.M. 446, 982 P.2d 497 (determining that the
plaintiff suffered no unfairness in the denial of her motion to name an expert after
missing the deadline to do so, where the plaintiff should have known that she needed
an expert to testify). By this standard, the district court’s finding of diligence on
Little’s part seems overly generous.
{17} 	Despite the statute of limitations looming, Little followed no avenues such as
motions to compel or depositions of Jacobs (including subpoena duces tecum for her
records) directed at ascertaining the identity of the deck’s builder. Based on the facts

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before us, we will not accord the label of “reasonable diligence” to Little’s passive
acceptance of Jacobs’ dilatory practices. See Lewis ex rel. Lewis v. Samson, 2001-
NMSC-035, ¶ 29, 131 N.M. 317, 35 P.3d 972 (“Carelessness is not compatible with
a finding of diligence and offers no reason for a grant of relief.” (alteration, internal
quotation marks, and citation omitted)); cf. State v. Pruett, 1984-NMSC-021, ¶¶ 6-7,
100 N.M. 686, 675 P.2d 418 (holding that a failure to pursue adequate remedies to
ascertain witness information constituted lack of due diligence); N.M. Feeding Co. v.
Keck, 1981-NMSC-034, ¶ 11, 95 N.M. 615, 624 P.2d 1012 (stating that where
discovery procedure was available, a party’s failure to use it until three days before
trial showed lack of diligence); State v. Curry, 2002-NMCA-092, ¶ 19, 132 N.M. 602,
52 P.3d 974 (stating that a failure to use “basic trial preparation” constitutes lack of
diligence); City of Carlsbad v. Grace, 1998-NMCA-144, ¶ 8, 126 N.M. 95, 966 P.2d
1178 (holding that a party’s failure to find its accounting error because of its practice
of not checking payments was a lack of diligence).
{18} 	We believe that in light of the undisputed facts, the district court’s finding of
sufficient diligence is wrong as a matter of law. To establish his claim of equitable
tolling, Little bore the burden of showing he diligently investigated and pursued the
identity of all parties responsible for his injury. Based on the evidence before the
district court, he failed to satisfy the first prong of the test for equitable tolling by
failing to attempt to compel Jacobs’ responses to his discovery requests or ask for

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documents she might have possessed concerning the construction of the deck. See
Meiboom v. Watson, 2000-NMSC-004, ¶ 20, 128 N.M. 536, 994 P.2d 1154
(acknowledging an appellate court “may affirm a district court’s ruling on a ground
not relied on by the district court” (internal quotation marks and citation omitted)).
B. 	No Exceptional Circumstances Prevented Little’s Discovery of Baigas’s
Identity
{19} 	We now turn to the element of whether Little demonstrated that extraordinary
circumstances precluded the discovery of Baigas’s identity. Neither the district court’s
nor our analysis supports Little’s position. Little bore the burden of demonstrating
facts sufficient to show that the circumstances rendering his diligence futile were
“extraordinary.” Slusser, 2013-NMCA-073, ¶ 16. Little’s brief in chief rests entirely
on the assertion that “[t]he District Court held that as a matter of law, the[]
circumstances [of this case] were extraordinary.” This is a misrepresentation sufficient
to invite our caution to counsel to stick to the record, since in fact, the district court
found that the “circumstances are not extraordinary circumstances contemplated by
the theory of equitable tolling.” (Emphasis added.) We agree with the district court.
{20} 	Little never set forth any evidence, argument, or authority of how his
unremarkable actions in regard to Jacobs’ unremarkable reticence were extraordinary
circumstances sufficient for invoking equitable tolling. Nor has he explained how
being an unlicensed contractor or failing to secure a building permit is an exceptional

15
circumstance. Little now suggests that he was at Jacobs’ mercy and that had Jacobs
not retained the check, “which she was not obligated to do,” Baigas would have
remained undiscovered; this reveals that Jacobs’ having the check is the sole
extraordinary event justifying tolling. Without more, we hold that Little has not met
his burden.
{21} 	The fact that Jacobs’ faulty memory may have inhibited Little’s search was
unfortunate but Little did not pursue the facts to meet his burden of showing
extraordinary circumstances. The district court disposed of Little’s equitable tolling
argument on this basis, finding that there were no extraordinary circumstances
justifying tolling. We affirm the district court. We next consider Little’s assertion that
equitable estoppel constitutes a bar to invoking the statute of limitations.
C. 	Equitable Estoppel
{22} 	The district court concluded that the “principle of [equitable estoppel] does not
apply here” because there was no evidence that Little relied on any representations
made by Baigas to Little’s detriment. The district court granted summary judgment,
finding that Baigas had not purposefully concealed his identity and that Little did not
rely to his detriment on any representations made by Baigas, thus defeating Little’s
claim of equitable estoppel. Appellate courts review a district court’s application of
the doctrine of equitable estoppel for an abuse of discretion. Cont’l Potash, Inc. v.
Freeport-McMoran, Inc., 1993-NMSC-039, ¶ 26, 115 N.M. 690, 858 P.2d 66. “The

16
existence of grounds justifying a claim of equitable estoppel is a question of fact,” and
the party relying on a claim of equitable estoppel “has the burden of establishing all
facts necessary to prove it.” Id. ¶ 30. “The party must plead the circumstances giving
rise to estoppel with particularity.” Id. ¶ 31.
{23} 	Equitable estoppel prohibits a party from asserting a statute of limitations
defense “ ‘if that party’s conduct has caused the plaintiff to refrain from filing an
action until after the limitations period has expired.’ ” Slusser, 2013-NMCA-073, ¶ 22
(quoting In re Drummond, 1997-NMCA-094, ¶ 13, 123 N.M. 727, 945 P.2d 457). The
doctrine of equitable estoppel is “premised on the notion that the one who has
prevented the plaintiff from bringing suit within the statutory period should be
estopped from asserting the statute of limitation as a defense.” Id. (internal quotation
marks and citation omitted).
{24} 	To prevail on his claim of equitable estoppel, Little was required to prove that
Baigas “(1) concealed material facts, falsely represented material facts, or made
representations of fact different or inconsistent with later assertions in court; (2) had
an intent or expectation that such conduct would be acted upon by the plaintiff; and
(3) possessed either actual or constructive knowledge of the real facts.” Vill. of Angel
Fire v. Bd. of Cty. Comm’rs of Colfax Cty., 2010-NMCA-038, ¶ 21, 148 N.M. 804,
242 P.3d 371 (alteration, internal quotation marks, and citation omitted). Additionally,
Little had to prove that he “(1) lacked both the knowledge and the means of acquiring

17
knowledge of the truth as to the facts in question; (2) relied on the defendant’s
conduct; and (3) acted upon that conduct in a way that prejudicially altered his
position.” 	Id. 	(internal 	quotation 	marks 	and 	citation 	omitted). 	“Fraudulent
concealment may be either active, as with an affirmative effort to conceal the
negligence such as a false representation, or the fraud may be passive where, in a
confidential relationship[,] a duty to speak exists, and the defendant, with knowledge
of his negligence, remains silent.” Kern ex. rel. Kern v. St. Joseph Hosp., Inc., 1985-
NMSC-031, ¶ 32, 102 N.M. 452, 697 P.2d 135. To obtain estoppel under a theory of
passive fraudulent concealment, also known as estoppel by silence, a party must first
“establish that there was a duty to speak,” and then show that the party asserting
estoppel relied upon that silence. Cont’l Potash, Inc., 1993-NMSC-039, ¶ 43.
However, “[b]ald allegations of concealment are not sufficient to make out a case of
fraudulent concealment.” Id. ¶ 31; see also Blea v. Fields, 2005-NMSC-029, ¶¶ 27-28,
138 N.M. 348, 120 P.3d 430 (establishing elements of fraudulent concealment, and
holding that silence, without an act of concealment or evidence of intent to mislead
potential claimants, combined with a claimant’s reasonable means to learn of the
defendant’s status, does not support equitable estoppel). The elements of fraudulent
concealment also include detrimental reliance by the plaintiff on the acts of the
defendant. McNeill v. Rice Eng’g & Operating, Inc., 2006-NMCA-015, ¶ 23, 139
N.M. 48, 128 P.3d 476.

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{25} 	Little fails to demonstrate that he relied to his detriment on anything Baigas did.
Jacobs represented facts to Little that “she [was] working on locating this information
and when found, it [would] be provided.” As noted above, Little did not pursue the
most likely source of Baigas’s identity, with the result that a cancelled check found
a year after the second response from Jacobs resulted in the filing of the claim against
Baigas.
{26} 	The district court found that “Baigas was not aware of the filing of the original
complaint and had no reason to know that the action would be brought against him”
and that Baigas not having the proper license or permit did not demonstrate any intent
on his part to thwart Little’s claim. Little’s brief takes liberty with the district court’s
language, asserting that the court said that Baigas “effectively concealed his identity,”
when the district court did no more than note that the lack of paperwork “may have
had that effect.” We agree with the district court’s assessment of the facts, since
nothing Little alleges demonstrates that Baigas, during the passage of nine years since
building the deck, had any actual or constructive knowledge of the facts concerning
Little’s injury or his suit against Jacobs until after Jacobs revealed his name, and he
received a summons and complaint. In evaluating this claim, we are not unmindful of
our previous holding that had Little more diligently pursued the cancelled check that
Jacobs had in her possession, Baigas’s identity may have been revealed sooner. This
also plays heavily into requiring that Little establish that he had neither the knowledge

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nor the means of acquiring knowledge of Baigas’s identity. See Vill. of Angel Fire,
2010-NMCA-038, ¶ 21.
{27} 	We agree with Little that there was “no evidence whatsoever” before the district
court as to Baigas’s intent, as we observe that it is Little’s burden to establish Baigas’s
intent as an element of fraudulent concealment to support his estoppel claim. No
confidential or fiduciary relationship or knowledge of possible liability, giving rise to
a “duty to speak,” exists between the parties in this case. Cont’l Potash, Inc., 1993-
NMSC-039, ¶ 43. If anything, the lack of evidence that Baigas intended to conceal
either his identity or liability from Little forecloses any conclusion that there was any
fraudulent concealment relevant to Little’s claim of equitable estoppel.
{28} 	Little’s unfortunate citation to Lopez, concerning concealment by silence,
incorrectly stated that our Supreme Court applied equitable estoppel against the State
when the plaintiff in a slip-and-fall case was inhibited from filing a tort claims notice
against the correct party within ninety days by paying attention only to the name on
a courthouse. See 1996 -NMSC- 071, ¶ 17. The Supreme Court, noting that it was
loath to apply estoppel against the State, specifically declined to decide the issue of
equitable estoppel in that case. Id. ¶¶ 21-22. Little suggests that the district court erred
by making findings regarding Baigas’s intent in not obtaining a license. After Baigas
made his prima facie showing that the statute of limitations had run, the burden shifted
to Little to proffer evidence that equitable estoppel was appropriate. Little was

20
required to show that Baigas had the intent to deceive that is required under the
equitable estoppel doctrine, but proffered no such evidence. We are therefore not
persuaded that there is any evidence that Baigas purposefully concealed any facts
from Little or that Little placed any reliance on anything Baigas did. We therefore see
no error in the district court’s conclusion that the doctrine of equitable estoppel does
not apply in this case, and we affirm.
D. 	Being an Unlicensed Contractor Does Not Preclude Asserting a Statute of
Limitations Defense
{29} 	Little’s last argument is that Baigas’s status as an unlicensed contractor is
sufficient as a matter of law to preclude his reliance on the statute of limitations.
However, Little’s assertion on this point is grounded only in arguing the public policy
that has resulted in legislation that protects licensed contractors against harsh
application of the discovery rule for filing causes of action and prevents unlicensed
contractors from maintaining an action to be paid for any work they do.
{30} 	New Mexico’s statutes and case law reflect strong public policy against
unlicensed contractors. See Gamboa v. Urena, 2004-NMCA-053, ¶ 14, 135 N.M. 515,
90 P.3d 534 (recognizing that the Legislature has a “complete intolerance of
unlicensed contractors”). Contracting without a license is a crime. NMSA 1978, § 60-
13-12(A) (1989). We recognized this position in the first appeal of this case, Little,
2014-NMCA-105, ¶ 12, when we cited to a plethora of cases that stand for the

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proposition that an unlicensed contractor has no cause of action for compensation for
his or her work, whether based in contract, equity, or otherwise. Id. ¶¶ 12-13. Case
law reflects this policy mostly by disallowing unlicensed contractors to recover
compensation for unlicensed work, “even if the work was ‘expertly performed’ and
the consumer knew the contractor was unlicensed.” Gamboa, 2004-NMCA-053, ¶ 15
(quoting Mascarenas v. Jaramillo, 1991-NMSC-014, ¶ 16, 111 N.M. 410, 806 P.2d
59 (noting that “[t]he public policy behind the licensing requirement of Construction
Industries Licensing Act is so strong that the element of consumer knowledge is of no
consequence”)). Unlicensed contractors are prohibited from using the courts to
recover compensation “under any theory, whether in law or in equity.” Romero v.
Parker, 2009-NMCA-047, ¶¶ 17, 19, 146 N.M. 116, 207 P.3d 350 (noting that “an
unlicensed contractor’s action for compensation is barred on all equitable principles”).
More to the point, we held in Little that the statute of repose allowed to contractors
under Section 37-1-27 only protects licensed contractors, and not others, based on this
Court’s and the Legislature’s “strong public policy against unlicensed contractors.”
Little, 2014-NMCA-105, ¶¶ 1, 12, 17, 21. Hence, the statute of repose was foreclosed
to Baigas in Little.
{31} 	Here, Baigas is maintaining no action on his own behalf to assert rights against
Little based on his work, but defending an action brought by Little asserting the
expiration of the statute of limitations. Precluding a contractor from maintaining any

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action for payment for work is different from applying the generally applicable statute
of limitations to an action to establish a contractor’s liability for injury caused by that
work. A statute of repose whose protection extends to a limited class of potential
defendants is also different from the general statute of limitations that applies to all
civil actions. Ultimately, in Little we concluded that an unlicensed contractor was
outside the limited class of actor protected by the statute of repose provided by
Section 37-1-27, which limits the time within which the discovery rule would operate
to allow suit for construction defects. Little, 2014-NMCA-105, ¶¶ 17-18, 21. We
noted that in applying the benefit of the repose to “architects, builders, and those
involved in the construction industry[,]” we had previously held that owners who
design and construct their own improvements were excluded from its benefit because
they are not the described persons whom the statute of repose was designed to protect.
Id. ¶ 19 (internal quotation marks and citation omitted).
{32} 	Little concedes there is no law directly on point, and he is asking for us to
construct yet “another detriment” to contracting without a license, as we did in Little.
Id. ¶ 20 (stating that the effect of our holding denying the statute of repose to Baigas
created “another detriment” to contracting without a license). However in Little, we
specifically stated that “our holding does not prevent an unlicensed contractor from
defending an action against him.” Id. Though we acknowledge the importance of the
policy denying unlicensed contractors the fruits of licensure—payment for their work

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and a statute of repose—we have found no basis to hold that equitable tolling or
estoppel is triggered as a matter of law by Baigas’s unlicensed status or that failing to
get a construction permit is, as a matter of law, fraudulent concealment. The statute
of limitations is an affirmative defense available to all defendants, and we will not
extend our previous holding here to create a legal bar to unlicensed contractors
invoking it.
III. 	CONCLUSION
{33} 	Though noting New Mexico’s “complete intolerance” of unlicensed contractors,
Gamboa, 2004-NMCA-053, ¶ 14, we decline Little’s invitation to expand it to
characterize a contractor’s failure to obtain a license or building permit as fraudulent
concealment as a matter of law sufficient to automatically trigger equitable estoppel.
In light of Little’s failure to set forth facts sufficient to trigger the application of either
equitable estoppel or equitable tolling, we conclude that the district court properly
declined to apply the doctrines of equitable tolling and equitable estoppel to this case.
We affirm the district court’s order granting summary judgment in favor of Baigas.
{34} 	IT IS SO ORDERED.
____________________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:

MICHAEL E. VIGIL, Chief Judge

JONATHANB. SUTIN, Judge

24.