1

Certiorari Denied, February 7, 2017, No. S-1-SC-36260

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2017-NMCA-027

Filing Date: November 29, 2016

Docket No. 34,724

S. LOUIS LITTLE,

Plaintiff-Appellant,

v.

THOMAS R. BAIGAS,

Defendant-Appellee.

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
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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 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, 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
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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 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

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
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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 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 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
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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.

{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 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 &
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The second amended complaint filed in May 2012, only added a claim for damages

based on the deck’s construction violating the Uniform Building Code.

2

See 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).

3

See 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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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 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 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
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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 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 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,
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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 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 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
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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 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 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.

{25} Little fails to demonstrate that he relied to his detriment on anything Baigas did.
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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 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 -NMSC071, ¶ 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 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,
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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 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-NMCA053, ¶ 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 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.
12

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 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

_________________________________

JONATHAN B. SUTIN, Judge