January 12, 2009 – Robert Gomez v. Gary Chavarria, Nos. 28,072 & 28,073 (consolidated)

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: January 12, 2009
NOS. 28,072 and 28,073 (consolidated)
ROBERT GOMEZ,
Plaintiff-Appellant,
v.
GARY CHAVARRIA,
Defendant-Appellee.
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Robert E. Robles, District Judge
Law Offices of Nancy L. Simmons, P.C.
Nancy L. Simmons
Albuquerque, NM
for Appellant
Montgomery & Andrews, P.A.
Paul E. Houston
Brian T. Judson
Sharon T. Shaheen
Albuquerque, NM
for Appellee

OPINION
SUTIN, Chief Judge.
{1} 	Plaintiff Robert Gomez appeals from two judgments dismissing his claims with
prejudice in two separate actions against Defendant Gary Chavarria. The district court
in each action determined that Plaintiff’s claims were barred by the applicable statute
of limitations, NMSA 1978, § 37-1-8 (1976), and that the one-year extension granted
to minors in NMSA 1978, Section 37-1-10 (1975) did not save the actions. The issues
are the same in both actions. 	Plaintiff asserts that the district court misapplied
Sections 37-1-8 and 37-1-10. We disagree and affirm.
BACKGROUND
{2} 	In his action filed on March 29, 2007, Plaintiff alleged that on February 13,
2004, he was sixteen years old and was injured in a vehicle collision caused by
Defendant. In his action filed on April 24, 2007, Plaintiff alleged that on April 23,
2004, he was seventeen years old and was again injured in another vehicle collision
caused by Defendant. Plaintiff turned eighteen on April 2, 2005.
{3} 	Defendant moved for judgment on the pleadings in both actions based on the
bar of Section 37-1-8. In response, Plaintiff argued that his claims and the three-year
limitations period in Section 37-1-8 were tolled until he reached age eighteen, and that
additionally, under Section 37-1-10, the limitations period was also tolled for another

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year after he reached eighteen. Based on the theory that, under Sections 37-1-8 and
37-1-10, “a minor is afforded the general statute of limitations of three years plus one
year (per tolling),” Plaintiff argued that the limitations period would not expire until
February 13, 2008, in the first action and April 23, 2008, in the second action, “or
until his birthday of April 2, 2008[,] since the tolling provision seemingly provides for
both dates.”
{4} 	The district court disagreed with Plaintiff and dismissed both actions with
prejudice. 	Plaintiff raises three issues on appeal. 	First, Plaintiff contends that
pursuant to minority/disability tolling principles and Section 37-1-10 he is allowed
four years from the accrual dates within which to file the actions. Second, he contends
that an interpretation of Section 37-1-10 to the contrary “would constitute a new rule
that should not be applied to him retroactively.” Third, he contends that the district
court’s interpretation of Section 37-1-10 violated his equal protection rights and his
substantive due process rights under the United States Constitution.
DISCUSSION
{5} 	The limitations period under Section 37-1-8 is three years. 	Section 37-1-10
states: “The times limited for the bringing of actions by the preceding provisions of
this chapter shall, in favor of minors and incapacitated persons, be extended so that

3
they shall have one year from and after the termination of such incapacity within
which to commence said actions.”
{6} 	We first address the deadline for filing the actions. We review issues of
statutory construction de novo. 	Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020,
¶ 16, 132 N.M. 382, 49 P.3d 61; Morgan Keegan Mortgage Co. v. Candelaria, 1998-
NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066. We also address what constitutes a
reasonable time extension and cut-off date for filing actions under case law, and this
issue involves the application of law to facts and requires a de novo review. Garcia
v. Jeantette, 2004-NMCA-004, ¶ 15, 134 N.M. 776, 82 P.3d 947. We next address the
issue of retroactive application of rules, which we also review de novo. 	Padilla v.
Wall Colmonoy Corp., 2006-NMCA-137, ¶ 7, 140 N.M. 630, 145 P.3d 110. Finally,
we address Plaintiff’s constitutional arguments, and we review those issues de novo
as well. 	ACLU of N.M. v. City of Albuquerque, 2006-NMCA-078, ¶ 10, 139 N.M.
761, 137 P.3d 1215.
Deadline for Filing Actions
{7} 	The three-year limitations period in Section 37-1-8 begins to run against both
adults and minors when the cause of action accrues. Slade v. Slade, 81 N.M. 462, 466,
468 P.2d 627, 631 (1970). It is quite clear from a plain reading of Section 37-1-10

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that, when the three-year limitations period in Section 37-1-8 runs its full course
during minority status, Section 37-1-10 gives the minor a year from his or her
eighteenth birthday within which to sue. It is not clear, however, what happens when
the three-year limitations period ends after the minor reaches age eighteen.
{8} 	With respect to his first action, Plaintiff reached eighteen a little over a year
after the date of the accrual of the first cause of action, February 13, 2004, the date of
the first accident. When he reached eighteen, he had almost a year and ten months
within which to sue before the Section 37-1-8 three-year limitations period ended on
February 13, 2007. With respect to his second action, Plaintiff reached eighteen a
little short of one year after the accrual of the second cause of action, April 23, 2004,
the date of the second accident. When he reached eighteen, he had a little more than
two years within which to sue before the Section 37-1-8 three-year limitations period
ended on April 23, 2007.
{9} 	On appeal, Plaintiff argues that it is to be assumed “that the minority years are
‘lost years’ in terms of ability to act on one’s own behalf.” He argues that because the
time between the accidents and his eighteenth birthday was approximately one year,
he “‘suffer[ed]’ from incapacity by way of his minority” and “effectively ‘lost’ one
year, a period of time when, legally, he was not considered able to assert or even

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understand his rights under the law.” He asserts that “[t]he logical interpretation of
the statute is that [he] had a one-year period following his eighteenth birthday during
which the statute of limitations was tolled.” In attempting to piece together Plaintiff’s
arguments, we understand him to say that the “lost year,” was a one-year period of
tolling, which should be added onto the three-year limitations period so as to extend
that period a year beyond the dates of February 13, 2007, and April 23, 2007, to
February 13, 2008, and April 23, 2008, thereby bringing him within a permissible
limitations period. Nothing in the statutes or case law, however, supports Plaintiff’s
arguments.
{10} 	The intent of the Legislature in enacting Section 37-1-10 was to give minors a
reasonable period of time after reaching majority within which to file an action. See
State v. Gutierrez, 2007-NMSC-033, ¶ 30, 142 N.M. 1, 162 P.3d 156 (“The plain
language of the statute is the primary indicator of legislative intent, so we look first
to the words the Legislature used and their ordinary meaning.”). 	Section 37-1-10
constitutes a legislative statement of policy that once a minor reaches majority he or
she must have a reasonable period of time within which to file an action in the face of
an early expiration of the applicable statute of limitations. 	The real issue here is
whether Plaintiff had a reasonable period of time after he reached eighteen within

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which to file his actions to avoid the bar of the Section 37-1-8 limitations period. We
hold that he did.
{11} 	In both actions, Plaintiff had more than a full year after he reached eighteen
within which to sue before the three-year limitations period in Section 37-1-8 ran its
course. 	Plaintiff’s arguments provide no basis upon which to hold that he had or
needed longer than the date of expiration of the three-year limitations period within
which to file his actions. Furthermore, if the three-year limitations period had ended
on a date less than one year from Plaintiff’s eighteenth birthday, we think that the
intent underlying Section 37-1-10 would allow a full year following his eighteenth
birthday for filing. 	Section 37-1-10 sets a standard that one year is a reasonable
period of time for suit once minors reach the age of majority. No case exists in New
Mexico law that indicates that a maximum of one year, under the circumstances here,
would be unreasonable. We agree with Defendant’s view of the statutes: “A minor’s
lawsuit for personal injury is not barred until one year after the minor reaches the age
of majority or until three years after the accident—whichever computation of time
gives the injured minor the most time to act.” 	We conclude that Plaintiff had a
reasonable time and opportunity in the year following his eighteenth birthday to file
his actions. He also had a reasonable time and opportunity to file his actions before

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the three-year limitations period expired. We therefore hold that the district court did
not misconstrue or misapply the statute of limitations.
Retroactive Application
{12} 	Plaintiff contends that a holding that his actions were barred under Section 37-
1-8 “would constitute a new rule that should not be applied to him retroactively.”
Plaintiff cites Whenry v. Whenry, 98 N.M. 737, 739, 652 P.2d 1188, 1190 (1982),
which states that for a court decision to be applied prospectively, the decision “must
establish a new principle of law, either by overruling clear past precedent on which
litigants may have relied, or by deciding an issue of first impression whose resolution
was not clearly foreshadowed.” 	(Internal quotation marks and citation omitted.)
Plaintiff argues that the district court’s ruling created a new rule of law because there
is nothing in any precedent or case law that clearly foreshadowed an answer to the
applicability of the statutes to the circumstances here and because “this particular
issue of statutory interpretation is apparently an issue of first impression.” 	We
disagree and hold that the statutory bar applies to Plaintiff.
{13} 	As a preliminary matter, in his argument on this issue Plaintiff asserts that his
trial attorney relied on the interpretation of the statutes that Plaintiff now presents on
appeal and that the attorney filed the actions “almost one full year prior to what he

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believed [was] the applicable deadline.” Plaintiff asks this Court to apply our holding
prospectively only so as not to punish him “for his attorney’s reasonable mistake as
to the meaning of a previously unconstrued statute.” Assuming, without deciding, that
the statements of the attorney’s reliance and belief might be material to the analysis
of the issue before us, we will not consider the statements. Plaintiff’s brief is devoid
of any citation to the record indicating where Plaintiff presented these reliance and
belief facts to the district court. We will not search the record for evidence to support
a party’s argument. 	In re Estate of Heeter, 113 N.M. 691, 694, 831 P.2d 990, 993
(Ct. App. 1992). Where a party fails to cite any portion of the record to support its
factual allegations, an appellate court need not consider its argument on appeal. Santa
Fe Exploration Co. v. Oil Conservation Comm’n, 114 N.M. 103, 108, 835 P.2d 819,
824 (1992).
{14} 	On the merits of the issue, we note that, in Slade, our Supreme Court stated:
Statutes of limitation begin to run against everyone, including minors,
when the cause of action accrues, and tolling statutes only extend the
time for completing the bar of the statute so that the minor shall have an
opportunity to act for himself after the disability caused by his minority
has been removed.
81 N.M. at 466, 468 P.2d at 631. We note, too, it is established in New Mexico that
a litigant’s right to sue cannot be cut off by an unreasonably short limitations period.

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A party must be given a reasonable time to enforce his claims. 	Terry v. N.M. State
Highway Comm’n, 98 N.M. 119, 122, 645 P.2d 1375, 1378 (1982). Given what we
believe is the only reasonable construction of the statutes at issue here, we hold that
the elements in Whenry based on which retroactive application is forbidden are not
met. See Whenry, 98 N.M. at 739, 652 P.2d at 1190. The foregoing language from
Slade and established case law mandating a reasonable time to enforce a claim,
together with the intent underlying Section 37-1-10, convinces us that we are not
establishing a new principle of law. We do not, therefore, have before us an issue of
first impression whose resolution was not clearly foreshadowed. 	Nor does our
holding upset any case law on which Plaintiff relied or could reasonably rely for his
interpretation of the statutes.
{15} 	Plaintiff’s reliance on Tafoya v. Doe, 100 N.M. 328, 670 P.2d 582 (Ct. App.
1983), is misplaced. Tafoya centered on limitation provisions in the Tort Claims Act,
NMSA 1978, §§ 41-4-15, -16 (1977). Tafoya, 100 N.M. at 329-32, 670 P.2d at 583-
86. Although mentioned in Tafoya, Section 37-1-10 was not at issue. See Tafoya, 100
N.M. at 331, 670 P.2d at 585. The statement from Tafoya on which Plaintiff relies,
namely, that Section 37-1-10 “provides for tolling of certain general limitation periods
until ‘one year from and after the termination’ of one’s minority,” does not support

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Plaintiff’s limitations or prospective-application-only theories. Tafoya, 100 N.M. at
331, 670 P.2d at 585. By the foregoing statement, Tafoya was simply characterizing
the statute’s language as extending the limitations period one year when the period
expired during minority.
Constitutionality
{16} 	Plaintiff contends that the district court’s construction of the statutes of
limitations violates his substantive due process and equal protection rights under the
United States Constitution. He asserts that “[s]ubstantive [d]ue [p]rocess claims are
addressed together with [e]qual [p]rotection [c]laims because a [s]ubstantive [d]ue
[p]rocess attack necessarily and implicitly includes an equal protection attack” and
cites ACLU of New Mexico, but provides no pinpoint citation. He acknowledges that
rational-basis review is proper. We determine whether the statutes as construed are
rationally related to a legitimate state interest. See ACLU of N.M., 2006-NMCA-078,
¶ 19. Plaintiff has the burden of establishing that the construction and application of
the statutes are not rationally related to a legitimate state interest. 	Id. 	“A strong
presumption of constitutionality surrounds a statute.” 	Id. ¶ 10 (internal quotation
marks and citation omitted).
{17} 	“The purpose of a statute of limitations is to protect prospective defendants

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from the burden of defending against stale claims while providing an adequate period
of time for a person of ordinary diligence to pursue lawful claims.” Garcia ex rel.
Garcia v. La Farge, 119 N.M. 532, 537, 893 P.2d 428, 433 (1995). 	Plaintiff
acknowledges that, as a general proposition, the state has a legitimate interest in
enacting statutes of limitations.
{18} 	Plaintiff argues, however, that Section 37-1-10 does not serve a legitimate
interest, in that “it cuts off the claims of some minors while bolstering the claims of
others based on an arbitrary difference in their particular ages at the time an action
accrues.” 	Plaintiff illustrates his argument by pointing out what he contends is an
arbitrary classification: 	Where the age of majority is eighteen, 	minors fifteen or
younger would receive the benefit of an extra year, since the three-year limitations
period would expire before they reach eighteen, whereas minors sixteen or older
would not receive that same benefit. Plaintiff offers this further explanation:
Despite the fact that the sixteen year old “suffers” from his status as a
minor for two years, once he reaches the age of majority[,] the trial
court’s 	interpretation of the statute not only counts those two years
against him for purposes of the statute of limitations, it also strips him
of the benefit of an extra year of tolling. In contrast, the fifteen year old
who reaches the age of majority after three years [is] afforded the extra
year of tolling, allowing him a total of four years in which to file suit.
Thus, as we read Plaintiff’s argument, not to accept his interpretation of the statute

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arbitrarily discriminates between him and others who are over sixteen at the time of
injury, on the one hand, and persons who are under age sixteen at the time of injury,
on the other hand.
{19} 	We reject this argument. 	First, as we discussed earlier in this opinion,
Plaintiff’s construction of the statutes at issue is not plausible or reasonable. A minor
is not harmed or prejudiced by the statute’s continuing to run during minority, because
Section 37-1-10 recognizes that a minor is not required to file an action before turning
eighteen. Further, the statute recognizes that because a minor is not required to file
before reaching majority it is fair and proper to allow a year’s time when eighteen is
reached within which to file an action. Second, there is no reasonable basis on which
to conclude that a minor who is at least sixteen when an injury occurs would be
treated differently on any arbitrary or discriminatory basis. Third, under the district
court’s determination and our holding, Plaintiff is not denied a benefit that persons
under sixteen at the time of injury would receive. Were Plaintiff under sixteen at the
time of the accidents, he would have had a year after he reached eighteen within which
to sue. Plaintiff was over sixteen at the time of his accidents, and he had more than
one year after he reached eighteen within which to sue. 	The district court’s
application of the statutes was not arbitrary, unjust, or unreasonable.

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{20} 	We 	therefore 	hold 	that, 	in 	regard 	to 	Plaintiff’s 	argument 	of 	arbitrary
discrimination as to classes of minors, the manner in which the district court and this
Court have construed Sections 37-1-8 and 37-1-10 does not violate any substantive
due process or equal protection rights.
CONCLUSION
{21} 	We affirm the district court.
{22} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Chief Judge
WE CONCUR:
_________________________________
MICHAEL D. BUSTAMANTE, Judge
_________________________________
CYNTHIA A. FRY, Judge