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I attest to the accuracy and integrity of this document New Mexico Compilation Commission, Santa Fe, NM '00'04- 14:12:10 2011.10.10

Certiorari Dismissed, September 14, 2011, No. 33,104 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO Opinion Number: 2011-NMCA-094 Filing Date: May 31, 2011 Docket No. 29,707 ISABEL BARRON, as power of attorney for MANUELA BARRON, Plaintiff-Appellee, v. THE EVANGELICAL LUTHERAN GOOD SAMARITAN SOCIETY, a North Dakota corporation, d/b/a BETTY DARE GOOD SAMARITAN; MYRNA ACOSTA, a New Mexico resident, director of nursing, and DOES 1-10, Defendants-Appellants. APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY Sheri Raphaelson, District Judge Harvey Law Firm, LLC Dusti D. Harvey Jennifer J. Foote Albuquerque, NM Duhigg, Cronin, Spring and Berlin, P.A. Nancy Cronin Albuquerque, NM for Appellee Modrall, Sperling, Roehl, Harris & Sisk, P.A. Martha G. Brown Deana M. Bennett Albuquerque, NM 1

for Appellants OPINION SUTIN, Judge. {1} Defendants The Evangelical Lutheran Good Samaritan Society d/b/a Betty Dare Good Samaritan and Myrna Acosta (collectively Defendants) appeal the district court's denial of their motion to dismiss and compel arbitration pursuant to an admission agreement. We consider whether Betty Dare resident, Manuela Barron, gave sufficient authorization to her granddaughter, Cindy Chapman, to agree to binding arbitration when Ms. Barron authorized Ms. Chapman to complete her admission paperwork. We conclude that under the circumstances of this case, the authority granted to Ms. Chapman by Ms. Barron was sufficient to allow Ms. Chapman to agree to arbitrate disputes, and we reverse the district court's denial of Defendants' motion to dismiss. In reaching this conclusion, we consider New Mexico's public policy of enforcing arbitration agreements. {2} Additionally, we reject Plaintiff Isabel Barron's contention that we should affirm the district court's decision on the alternative grounds that (1) the circumstances surrounding the arbitration provision rendered it procedurally unconscionable, or (2) the arbitration provision was not supported by consideration. We remand to the district court for a determination as to whether the unavailability of the National Arbitration Forum (NAF) renders the arbitration clause unenforceable. BACKGROUND {3} Ms. Barron was discharged from Gerald Champion Medical Center to Betty Dare on April 10, 2006. She was admitted to Betty Dare in order to recuperate from hip surgery and upon advice from hospital staff. Lucila Santillan was the social services director and handled admissions and discharges, among other things. After Ms. Barron had spent her first night in the facility, Ms. Santillan asked Ms. Barron "who would be doing her paperwork, trying to find out if she was going to be able to do the paperwork herself." When Ms. Barron was admitted to Betty Dare, she was mentally competent, alert, and oriented. According to Ms. Santillan, Ms. Barron responded that Ms. Chapman would be doing her paperwork. On April 11, 2006, Ms. Chapman met with Ms. Santillan, at which time, Ms. Santillan reviewed "every section of the Admission Agreement" with Ms. Chapman. At this meeting, Ms. Chapman filled out all of the paperwork related to Ms. Barron's admission to Betty Dare. The admission paperwork included a thirteen-page Admission Agreement, as well as nine other documents. {4} Also at this meeting, Ms. Chapman told Ms. Santillan that she (Ms. Chapman) was assuming responsibility for Ms. Barron's care, that she would have Ms. Barron's power of attorney, and that she would be the responsible party for Ms. Barron during her stay at Betty 2

Dare. Pursuant to these representations by Ms. Chapman, Ms. Santillan marked three boxes on the final page of the Admission Agreement: Medical or Health Care Power of Attorney, Other (next to which Ms. Santillan wrote "granddaughter"), and Financial Power of Attorney. Ms. Santillan marked these boxes in Ms. Chapman's presence. Ms. Chapman signed her own name on the final page. The day after Ms. Chapman completed the admission paperwork, Ms. Barron signed a power of attorney for healthcare that designated Ms. Chapman as her agent to make healthcare decisions. The power of attorney for healthcare was subsequently presented to Ms. Santillan. {5} Page twelve of the Admission Agreement was a full-page form titled "Resolution of Legal Disputes." The form included designated lines for the resident's name and the date, followed by three paragraphs. The first paragraph addressed the resident's rights. The second paragraph contained explanations of the types of disputes that would be "settled exclusively by binding arbitration[.]" The third paragraph explained what "agreeing to arbitrate legal disputes means[.]" The first two sentences of the third paragraph read, "[t]he [r]esident understands that agreeing to arbitrate legal disputes means that [she] is waiving [her] right to sue in a court of law and to a trial by jury. If the [r]esident does not wish to agree to arbitration, then [she] should inform the [f]acility by marking the box below and initialing and dating where indicated." {6} Ms. Barron's name and the date were handwritten at the top of the Resolution of Legal Disputes form in the designated lines. Directly below the resident's name in bold type was a sentence that read, "Please note that the [r]esident's agreement to arbitrate disputes is not a condition of admission or of continued stay." At the bottom of the page there was a box, next to which read, "No I do NOT wish to arbitrate disputes[.]" The box was unmarked. Directly below this option to reject arbitration was a line, initialed by Ms. Chapman, acknowledging receipt of a copy of the Resolution of Legal Disputes form. The form provided the phone number, mailing address, and website address for the NAF to request information regarding rules and procedures. {7} In an affidavit provided in support of Defendants' motion to dismiss, Ms. Santillan stated that, when she met with Ms. Chapman, she "spent approximately an hour and a half reviewing the Admission Agreement with [Ms. Chapman, and that she] went over every section of the Admission Agreement with [her]." Ms. Santillan further stated that she "asked [Ms. Chapman] to read the Resolution of Legal Disputes section" and that "[o]nce she had read that section, [Ms. Santillan] . . . explained to [Ms. Chapman] that if she did not want to agree to arbitrate, she would have to mark an `X' in the box indicating that she did not wish to arbitrate disputes and initial that place on the form." {8} The record reflects that Ms. Chapman read the Resolution of Legal Disputes form. In response to a question about her understanding of the Resolution of Legal Disputes form, Ms. Chapman stated in a deposition that she "read over it" though she could not "say really a hundred percent [that she] understood it[.]" Ms. Chapman also stated that when she took the papers home, following her meeting with Ms. Santillan, she "read them over." Despite any limited understanding of the Resolution of Legal Disputes form, Ms. Chapman stated

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that she did not contact the NAF for more information. Nor did Ms. Chapman contact Ms. Santillan with any questions after she took the paperwork home and read over it. {9} It is undisputed that Ms. Barron was not specifically apprised of the fact that the paperwork for her admission included an arbitration agreement. Ms. Santillan stated in a deposition that she did not recall everything she discussed with Ms. Barron; however, her typical practice was to ask a new resident "who is going to be signing your paperwork" and to tell the resident that "[t]here's Medicare paperwork that needs to be signed, so that Medicare can pay for your therapies." Ms. Chapman also stated in her deposition that she did not discuss the arbitration-related form with Ms. Barron. {10} Ms. Barron's term of residence at Betty Dare continued from April 10, 2006, until August 8, 2006. During her stay at Betty Dare, Ms. Barron allegedly suffered injuries that required hospitalization and caused her overall health to deteriorate. In October 2006, Ms. Barron transferred healthcare power of attorney to Plaintiff, Ms. Barron's daughter. In August 2007, Ms. Barron granted general power of attorney to Plaintiff. In March 2008, Plaintiff, acting pursuant to Ms. Barron's power of attorney, filed a complaint in district court against Defendants alleging, among other things, negligence and violation of the Unfair Practices Act, NMSA 1978

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