July 02, 2012 – New Mexico Real Estate Commission v. Joyce R. Barger, No. 31,262

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	JULY 2, 2012
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 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.

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{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

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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 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.

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{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

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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 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.

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{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

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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.

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{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

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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

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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 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”

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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.

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{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 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

1The 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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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

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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
JAMES J. WECHSLER, Judge