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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 Opinion Number: _____________ 3 Filing Date: November 2, 2022 4 No. A-1-CA-39401
5 BOBBY ROMERO, Personal 6 Representative of the ESTATE 7 OF FLOREN LUJAN JR.,
8 Plaintiff-Appellant, 9 v. 10 NANCY TAFOYA, 11 Defendant-Appellee.
12 APPEAL FROM THE DISTRICT COURT OF VALENCIA COUNTY 13 James Lawrence Sanchez, District Judge
14 Stalter Law LLC 15 Kenneth H. Stalter 16 Albuquerque, NM
17 for Appellant
18 Moses, Dunn, Farmer & Tuthill, P.C. 19 Alicia L. Gutierrez 20 Albuquerque, NM
21 for Appellee 1 OPINION 2 BUSTAMANTE, Judge, retired, sitting by designation. 3 {1} Plaintiff Bobby Romero, the personal representative of the Estate of Floren 4 Lujan, Jr., appeals the district court’s grant of summary judgment in favor of 5 Defendant Nancy Tafoya. Plaintiff argues (1) NMSA 1978, Section 14-12A-9(B) 6 (2003) (repealed 2021, effective Jan. 1, 2022) of the Notary Public Act, NMSA 7 1978, §§ 14-12A-1 to -26 (2003) (repealed 2021, effective Jan. 1, 2022) (recompiled 8 as the Revised Uniform Law on Notarial Acts, NMSA 1978, §§ 14-14A-1 to -32 9 (2021, effective Jan. 1, 2022)),1 is not the exclusive remedy for claims of misconduct 10 of a notary public; (2) the two-year statute of limitations governing official bonds, 11 NMSA 1978, § 37-1-8 (1976), does not apply to his claim; and (3) no alternate 12 grounds exist to affirm the district court. We hold the Notary Public Act does not 13 provide the exclusive remedy for misconduct of a notary public and no alternative 14 basis exists to affirm the district court. We reverse and remand. 15 BACKGROUND 16 {2} In 2011, Defendant, a notary public, notarized a general work experience 17 affidavit on behalf of Mary Ann Lujan that was purportedly signed by Floren to 18 obtain a renewal of a contractor license (the alleged false affidavit). Plaintiff asserted
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All references to the Notary Public Act in this opinion are to the 2003 version of the Act.
1 in this case that Floren never signed the alleged false affidavit, and that Mary Ann 2 signed the affidavit using Floren’s name in front of Defendant. 3 {3} In 2015, Floren filed a complaint against Mary Ann and others for various 4 breaches and misconduct (the 2015 case). During the course of the 2015 case, Mary 5 Ann provided discovery to Floren evincing the alleged false affidavit. Floren died in 6 late 2016. 7 {4} In June 2020, Plaintiff, as personal representative of Floren’s estate, filed a 8 complaint for damages for fraud against Defendant on the basis of the false affidavit. 9 Early in the litigation, Defendant filed a motion for summary judgment, arguing the 10 Notary Public Act requires a claim for misconduct be against the notary public’s 11 official bond, and the four-year statute of limitations for the fraud claim, see NMSA 12 1978, § 37-1-7 (1880), had expired because Floren discovered the fraud in April 13 2016, and Plaintiff did not file the present case until June 2020. Without holding a 14 hearing, the district court granted Defendant’s motion for summary judgment. The 15 district court determined that a complaint alleging misconduct by a notary public is 16 limited by the Notary Public Act, Plaintiff’s complaint was filed more than two years 17 after the alleged misconduct was discovered, and the complaint was against 18 Defendant individually and not against her bond as required by the Notary Public 19 Act.
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1 DISCUSSION
2 I. The Notary Public Act Does Not Provide the Exclusive Remedy for 3 Misconduct by a Notary Public
4 {5} Defendant first argues the district court erred in granting summary judgment 5 as a matter of law because the Notary Public Act is nonexclusive and does not 6 preclude common law tort claims against notaries public. Defendant appears to 7 concede that the district court erred in this determination. This Court is not bound 8 by the concession, and we conduct our own analysis as to whether the Notary Public 9 Act is exclusive. See State v. Caldwell, 2008-NMCA-049, ¶ 8, 143 N.M. 792, 182 10 P.3d 775. 11 {6} Whether Plaintiff’s fraud claim is barred by the exclusivity of the Notary 12 Public Act is a matter of law, which we review de novo. See Moongate Water Co. v. 13 City of Las Cruces, 2014-NMCA-075, ¶ 5, 329 P.3d 727. “In interpreting statutes, 14 we seek to give effect to the Legislature’s intent.” Valenzuela v. Snyder, 2014- 15 NMCA-061, ¶ 16, 326 P.3d 1120 (internal quotation marks and citation omitted). 16 “[T]he plain language of a statute is the primary indicator of legislative intent,” and 17 we “give the words used in the statute their ordinary meaning unless the [L]egislature 18 indicates a different intent.” High Ridge Hinkle Joint Venture v. City of Albuquerque, 19 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (internal quotation marks and 20 citations omitted). To determine legislative intent we also “look to the language used
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1 and consider the statute’s history and background.” Valenzuela, 2014-NMCA-061, 2 ¶ 16 (internal quotation marks and citation omitted). 3 {7} A “notary public” is an individual commissioned by the governor of New 4 Mexico who is authorized to perform notarial acts pursuant to the Notary Public Act, 5 § 14-12A-2(I), which include “(1) acknowledgments; (2) oaths and affirmations; (3) 6 jurats; (4) copy certifications; and (5) any other act so authorized by the law of this 7 state.” Section 14-12A-7(A). The Notary Public Act is clear that a notary public shall 8 not perform a notarial act if the principal “is not in the notary public’s presence at 9 the time of notarization,” § 14-12A-7(B)(1), “with the intent to deceive or defraud,” 10 § 14-12A-13, or if the notary public “knows or has good reason to believe that the 11 notarial act or the associated transaction is unlawful.” Section 14-12A-8(B)(1). 12 {8} To be commissioned as a notary public, the Notary Public Act requires an oath 13 of office and a ten-thousand dollar bond to have been provided before the State 14 issues a commission for a notary public. Section 14-12A-9(A). The Notary Public 15 Act goes on to state, “A person damaged by an unlawful act, negligence or 16 misconduct of a notary public in his [or her] official capacity may bring a civil action 17 on the notary public’s official bond.” Section 14-12A-9(B). 18 {9} As Plaintiff notes, the Notary Public Act uses permissive language when it 19 states a party “may bring a civil action on the notary public’s official bond.” Id. 20 (emphasis added). “‘May’ confers, a power, authority, privilege or right.” NMSA
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1 1978, § 12-2A-4(B) (1997). The word “may” indicates the party asserting the action 2 has discretion. Cf. DeMichele v. N.M. Dep’t of Tax’n & Revenue, 2015-NMCA-095, 3 ¶ 11, 356 P.3d 523 (noting “[t]he word ‘may’ indicates that the district court has 4 discretion” (alteration, internal quotation marks, and citation omitted)). The use of 5 this discretionary language is in contrast to “‘[s]hall’ and ‘must,’ [which] express a 6 duty, obligation, requirement or condition precedent.” Section 12-2A-4(A). The use 7 of “may”—in contrast to the potential use of compulsory language—in the plain 8 language of Section 14-12A-9(B) indicates the Legislature did not intend the statute 9 to provide an exclusive remedy. See Gandy v. Wal-Mart Stores, Inc., 1994-NMSC- 10 040, ¶ 6, 117 N.M. 441, 872 P.2d 859 (interpreting a former version of Section 12- 11 2A-4(B) as concluding the use of “shall” and “will” indicates a statute is mandatory 12 and “may” is permissive); High Ridge Hinkle Joint Venture, 1998-NMSC-050, ¶ 5 13 (noting plain language is the primary indicator of legislative intent). 14 {10} Further, the Notary Public Act does not contain any language that suggests an 15 exclusivity provision, which indicates it did not intend for the remedy to be exclusive 16 because “the Legislature knows how to include language in a statute if it so desires.” 17 See Chatterjee v. King, 2011-NMCA-012, ¶ 15, 149 N.M. 625, 253 P.3d 915, rev’d 18 on other grounds by 2012-NMSC-019, ¶ 52, 283 P.3d 283; compare Salazar v. 19 Torres, 2007-NMSC-019, ¶ 11, 141 N.M. 559, 158 P.3d 449 (concluding the 20 Workers’ Compensation Act provided the exclusive remedy for all accidental
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1 injuries based on statutory language that stated the act “provides exclusive remedies” 2 (internal quotation marks and citation omitted)), with Gandy, 1994-NMSC-040, ¶ 7 3 (determining no statutory language in the Human Rights Act indicated the remedies 4 are intended to be exclusive, and concluding the Act did not provide an exclusive 5 remedy). 6 {11} Finally, Gandy instructs that when an act’s remedies differ from those 7 provided by the common law, it indicates the act is not exclusive. 1994-NMSC-040, 8 ¶ 8 (concluding that because “[p]unitive damages are sometimes recoverable in tort 9 actions but are not recoverable under the Human Rights Act,” it indicated the Act 10 was not exclusive). Here, the Notary Public Act provides, for a remedy in the form 11 of a civil action on the notary public’s ten-thousand dollar surety bond. Section 14- 12 12A-9(B). In contrast, “a plaintiff alleging fraud may recover such damages as are 13 the direct and natural consequences of the reliance on a fraudulent representation.” 14 Williams v. Stewart, 2005-NMCA-061, ¶ 34, 137 N.M. 420, 112 P.3d 281. This 15 difference provides another indication that the Legislature did not indicate the 16 Notary Public Act to be exclusive. 17 {12} Based on the foregoing, we conclude that Section 14-12A-9(B) does not 18 provide the exclusive remedy for a claim against a notary public, and we accordingly 19 reverse the district court’s decision to grant Defendant’s motion for summary 20 judgment on that basis. Based on this determination and the fact that Plaintiff’s
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1 lawsuit was for an action in fraud, we need not address the district court’s conclusion 2 that Plaintiff’s suit was erroneously filed against Defendant in her individual 3 capacity and not against her in her official capacity or Plaintiff’s arguments 4 regarding the interpretation of the statute of limitations for actions against official 5 bonds.
6 II. A Genuine Issue of Material Fact Exists as to When the Statute of 7 Limitations for Plaintiff’s Claim Began to Run
8 {13} We review the district court’s grant of summary judgment de novo. Salas v. 9 Mountain States Mut. Cas. Co., 2009-NMSC-005, ¶ 12, 145 N.M. 542, 202 P.3d 10 801. “Summary judgment is only appropriate where there are no genuine issues of 11 material fact and the movant is entitled to judgment as a matter of law.” Garcia v. 12 Underwriters at Lloyd’s, London, 2008-NMSC-018, ¶ 12, 143 N.M. 732, 182 P.3d 13 113 (internal quotation marks and citation omitted). “All reasonable inferences from 14 the record are construed in favor of the non-moving party.” Id. 15 {14} In Defendant’s memorandum in support of her motion for summary judgment, 16 she asserted it was undisputed that Floren was alerted to the alleged false affidavit 17 in April 2016. To support this assertion, Defendant relied on a certificate of service, 18 dated April 8, 2016, for the defendants’ responses to the plaintiff’s first set of 19 requests for production in the 2015 case. In response, Plaintiff disputed Defendant’s 20 assertion that Defendant was alerted to the false affidavit at the time Defendant 21 alleged, and provided an affidavit stating, “To the best of my knowledge, the first
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1 time Floren Lujan, Jr. saw this work experience affidavit was on or about June 21, 2 2016.” The district court concluded only that “the [c]omplaint was filed more than 3 two years after” the alleged misconduct was discovered by Floren, and did not 4 discuss whether genuine issues of material fact existed regarding when Floren was 5 alerted to the alleged false affidavit. 6 {15} Defendant argues the district court’s order should be upheld under the right 7 for any reason doctrine because Plaintiff’s claim is barred by the statute of 8 limitations. Defendant relies on material not in the record, but requests we take 9 judicial notice of a motion and its two attached exhibits from the 2015 case and 10 determine they amount to a judicial admission. In a separate letter to the clerk of this 11 Court, Defendant attached the motion and exhibits “referenced in her [a]nswer 12 [b]rief pursuant to Rule 12-318(D)(2) NMRA.” Based on these documents, 13 Defendant argues no genuine issue of material fact exists regarding when Floren 14 discovered Plaintiff’s alleged fraud, and summary judgment should be upheld based 15 on a violation of the statute of limitations. Plaintiff argues there is no alternate basis 16 to uphold the district court’s order granting summary judgment. 17 {16} Plaintiff moved to strike the material. This Court held Plaintiff’s motion in 18 abeyance pending submission of this case to a panel. 19 {17} The material at issue includes a response to a motion for leave to file a second 20 amended complaint in the 2015 case. The motion opposes Floren’s request for leave
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1 to amend his complaint to add a claim for fraud because Floren knew of the fraud— 2 the alleged false affidavit—in at least May 2016. The defendant supported the 3 motion with evidence that Floren, through his attorneys, represented to the district 4 court in the 2015 case that he was aware of the alleged false affidavit during a motion 5 to dismiss hearing in May 2016. The pleading includes the transcript of proceedings 6 for the hearing on a motion to dismiss as an exhibit. Defendant argues on appeal that 7 these documents are evidence that Floren discovered the alleged forgery in May 8 2016, and based on that, the four-year statute of limitations barred Plaintiff’s 9 complaint in this matter as it was filed in June 2020. The documents were not 10 presented to the district court and are not in the record proper before us. 11 {18} We may take judicial notice of pertinent adjudicative facts when “a fact is not 12 subject to reasonable dispute.” Rule 11-201(B)(2) NRA (“The court may judicially 13 notice a fact that is not subject to reasonable dispute because it . . . can be accurately 14 and readily determined from sources whose accuracy cannot reasonably be 15 questioned.”). We decline to do so here. We explain. 16 {19} Defendant’s request for this Court to take judicial notice cannot be separated 17 from her request that we uphold the district court’s order granting summary 18 judgment. The distillation of her two arguments is that she would like this Court to 19 assess evidence not presented to the district court, and then conclude that based on 20 that evidence, there is no genuine issue of material fact regarding when Floren
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1 learned of the alleged false affidavit, and affirm the district court’s grant of summary 2 judgment on that basis. Defendant only presents a motion and the related evidence 3 requesting that the district court in the 2015 case find Floren was made aware of the 4 false affidavit in May 2016. Defendant does not provide us with the district court’s 5 factual finding or order regarding the matter. Granting Defendant’s request would 6 require us to make a determination that takes into account the evidence presented 7 below—including Plaintiff’s affidavit and the certificate of service—and the 8 material presented to this Court. 9 {20} Determining whether there is a genuine issue of material fact regarding when 10 Floren was alerted to the alleged false affidavit is the province of the district court. 11 See Rule 1-056(B) NMRA (noting summary judgment is appropriate when the 12 evidence presented shows there is no genuine issue of material fact and that the 13 moving party is entitled to a judgment as a matter of law); City of Sunland Park v. 14 N.M. Pub. Regul. Comm’n, 2004-NMCA-024, ¶ 17, 135 N.M. 143, 85 P.3d 267 15 (“Normally, an appellate court may not consider the documents if the district court’s 16 decision is not based on that material.”). We decline to circumvent the district court’s 17 authority and to take judicial notice of the documents, assess if the material presented 18 is a judicial admission, or review the validity of Plaintiff’s affidavit.
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1 CONCLUSION 2 {21} We reverse the district court’s order granting Defendant’s motion for 3 summary judgment and remand for proceedings consistent with this opinion. We 4 also grant Plaintiff’s motion to strike. 5 {22} IT IS SO ORDERED.
6 __________________________________ 7 MICHAEL D. BUSTAMANTE, Judge, 8 retired, sitting by designation.
9 WE CONCUR:
10 ________________________________ 11 JENNIFER L. ATTREP, Judge
12 ________________________________ 13 GERALD E. BACA, Judge