     This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 2   CORDELIA ABRAM, Deceased,
 3   by the Personal Representative for
 4   the Wrongful Death Estate,
 5   MAE ROSE LOPEZ,

 6          Plaintiff-Appellee,

 7 v.                                                                                   No. 31,850

 8   PALOMA BLANCA HEALTH CARE
 9   ASSOCIATES, L.L.C. d/b/a PALOMA
10   BLANCA HEALTH and REHABILITATION,
11   L.L.C., ALPHA HEALTH CARE INVESTORS,
12   PROPERTIES, L.L.C., OMEGA HEALTHCARE
13   INVESTORS, INC., SHORELINE HEALTHCARE
14   MANAGEMENT, L.L.C., CENTENNIAL
15   HEALTHCARE MANAGEMENT CORPORATION,

16          Defendants,

17 and

18   SKILLED HEALTHCARE GROUP, INC.,
19   SKILLED HEALTHCARE, L.L.C., CANYON
20   TRANSITIONAL HEALTHCARE and
21   REHABILITATION CENTER, L.L.C., and
22   ADMINISTRATOR, ANMARIE DVORAK,

23          Defendants-Appellants.
 1 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
 2 C. Shannon Bacon, District Judge

 3   Harvey and Foote Law Firm
 4   Dusti D. Harvey
 5   Jennifer J. Foote
 6   Albuquerque, NM

 7 for Appellee

 8   Rodey, Dickason, Sloan, Akin & Robb, P.A.
 9   W. Robert Lasater, Jr.
10   Sandra L. Beerle
11   Jocelyn Drennan
12   Albuquerque, NM

13 for Appellants


14                            MEMORANDUM OPINION

15 WECHSLER, Judge.

16   {1}   In our memorandum opinion in this case filed June 17, 2013, this Court

17 affirmed the district court’s denial of the motion to compel arbitration of Defendants

18 Skilled Healthcare Group, Inc., Skilled Healthcare, L.L.C., Canyon Transitional

19 Healthcare and Rehabilitation Center, L.L.C., and Administrator, AnMarie Dvorak.

20 Abram v. Paloma Blanca Health Care Assocs., L.L.C., No. 31,850, mem. op. ¶ 13

21 (N.M. Ct. App. June 17, 2013) (non-precedential). This Court affirmed the district

22 court, which had ruled that the arbitration agreement at issue in this case, which


                                             2
 1 “required arbitration of all claims except those of ‘collections or discharge of

 2 residents,’” was substantively unconscionable. Id. ¶¶ 1, 5 (citation omitted). We

 3 relied on our Supreme Court cases of Rivera v. American General Financial Services,

 4 Inc., 2011-NMSC-033, 150 N.M. 398, 259 P.3d 803, and Cordova v. World Financial

 5 Corp. of New Mexico, 2009-NMSC-021, 146 N.M. 256, 208 P.3d 901, and our recent

 6 cases that interpreted arbitration agreements that “contained the same or similar

 7 arbitration provisions as presented in this case[.]” Abram, No. 31,850, mem. op. ¶ 5;

 8 Ruppelt v. Laurel Healthcare Providers, L.L.C., 2013-NMCA-014, 293 P.3d 902, cert.

 9 denied, Ruppelt v. Belen Meadows, 2013-NMCERT-012, 299 P.3d 422; Bargman v.

10 Skilled Healthcare Grp., Inc., 2013-NMCA-006, 292 P.3d 1, cert. granted, 2013-

11 NMCERT-012, 299 P.3d 423; Figueroa v. THI of N.M., 2013-NMCA-077, 306 P.3d

12 480, cert. denied, 2012-NMCERT-010, 297 P.3d 332.

13   {2}   Our Supreme Court granted certiorari in this case. It subsequently decided

14 Strausberg v. Laurel Healthcare Providers, L.L.C., 2013-NMSC-032, 304 P.3d 409

15 (Strausberg II), reversing this Court’s opinion in Strausberg v. Laurel Healthcare

16 Providers, L.L.C., 2012-NMCA-006, 269 P.3d 914 (Strausberg I), and holding that

17 the party asserting unconscionability as an affirmative defense has the burden of

18 proving that the contract should not be enforced based on unconscionability.

19 Strausberg II, 2013-NMSC-032, ¶ 48. Our Supreme Court then remanded this case


                                             3
 1 “for consideration in light of” its opinion in Strausberg II. Abram, No. 34,249, order

 2 ¶ 4 (N.M. Sup. Ct. Oct. 25, 2013). On remand, this Court requested supplemental

 3 briefing “addressing the impact of” Strausberg II to this case. Abram, No. 31,850,

 4 order ¶ 2 (N.M. Ct. App. Oct. 29, 2013).

 5   {3}   This Court does not believe that the Strausberg II case has any impact on this

 6 case because Strausberg I was not a factor in the decision in this case of either the

 7 district court or this Court.

 8   {4}   Strausberg I was decided three days before the district court held its hearing on

 9 Defendant’s motion to compel arbitration. In announcing its ruling, the district court

10 acknowledged Strausberg I but reached a legal conclusion based on the language of

11 the arbitration agreement and on the prior Supreme Court cases of Rivera and

12 Cordova. Indeed, as discussed in our June 17, 2013 memorandum opinion, this Court

13 has subsequently interpreted Rivera and Cordova to conclude that the same or similar

14 arbitration provisions as at issue in this case were substantively unconscionable

15 “because they excluded from arbitration the claims most likely to be brought by the

16 health care facility while requiring arbitration of the claims most likely to be brought

17 by residents.” Abram, No. 31,850, mem. op. ¶ 5.

18   {5}   This conclusion did not depend on Strausberg I. In Ruppelt and Figueroa , this

19 Court, as did the district court in this case, decided that the arbitration agreements that


                                                4
 1 were before the Court were substantively unconscionable under the standards of

 2 Cordova and Rivera as a matter of law. Ruppelt, 2013-NMCA-014, ¶¶ 16, 18;

 3 Figueroa, 2013-NMCA-077, ¶ 30.

 4   {6}   In Strausberg I, this Court held that “when a nursing home relies upon an

 5 arbitration agreement signed by a patient as a condition for admission to the nursing

 6 home, and the patient contends that the arbitration agreement is unconscionable, the

 7 nursing home has the burden of proving that the arbitration agreement is not

 8 unconscionable.”      2012-NMCA-006, ¶ 20.          In reversing, our Supreme Court

 9 reaffirmed that “the party alleging unconscionability . . . bears the burden of proof

10 because unconscionability is an affirmative contract defense, and under settled

11 principles of New Mexico contract law, the party alleging an affirmative contract

12 defense has the burden to prove that the contract is unenforceable on that basis.”

13 Strausberg II, 2013-NMSC-032, ¶ 39.

14   {7}   Defendants argue that at least implicitly the district court and this Court relied

15 upon Strausberg I in this case. In part, they make their argument based on this

16 Court’s statements concerning Defendants’ failure to offer evidence to rebut the

17 unreasonableness or unfairness of the facially bilateral exceptions to the arbitration

18 agreement.     However, Defendants’ obligation arose from the language of the

19 arbitration agreement that was undisputedly before the district court. As we have


                                               5
 1 discussed, the district court reached its legal conclusion as to the import of the

 2 exceptions from the language of the agreement.

 3   {8}   In their supplemental brief, Defendants also question whether the district court

 4 could have determined the bilateral collection exception to be substantively

 5 unconscionable but for Strausberg I and request that this Court remand to the district

 6 court to present evidence concerning the exception. In our memorandum opinion, we

 7 declined to remand for an evidentiary hearing as to “whether there is a reasonable

 8 basis for the exclusions from the arbitration agreement.” Abram, No. 31,850, mem.

 9 op. ¶ 11. We distinguished Bargman, in which we issued such a remand when the

10 defendant made such a specific request in its appellate briefing. Abram, No. 31,850,

11 mem. op. ¶ 11. In Bargman, we remanded because, when the case was in district

12 court, “Rivera, Figueroa, and Ruppelt had not been decided and the burden of proof

13 was not all that clearly determined, and also because it is unclear that the district court

14 would have considered evidence[.]” Bargman, 2013-NMCA-006, ¶¶ 23, 24. In our

15 memorandum opinion, we determined that this case was different because Defendants

16 requested on appeal that we reverse the district court and remand “for further

17 proceedings under the correct approach.” Abram, No. 31,850, mem. op. ¶ 11 (internal

18 quotation marks omitted). Defendants did not request an evidentiary hearing or seek

19 to present evidence to the district court, even in light of Strausberg I that had recently


                                                6
 1 been decided. Abram, No. 31,850, mem. op. ¶ 11. Moreover, we determined in our

 2 memorandum opinion, that Rivera had been essential to the district court’s decision.

 3 In their supplemental brief, Defendants argue that their request for “further

 4 proceedings” on appeal was comparable to the request in Bargman for a remand for

 5 an evidentiary hearing. We do not agree. Defendants’ requested relief was reversal.

 6 They did not, as in Bargman, specifically request to develop an evidentiary record.

 7   {9}    Nor is this case in the same posture as Bargman with respect to existing

 8 precedent. As we discussed in our memorandum opinion, Rivera, essential to the

 9 district court’s analysis and decision, was argued extensively to the district court. In

10 addition, although the burden of proof was in flux, as indicated by the Strausberg I

11 and Strausberg II opinions, as we have discussed, the burden of proof was not a factor

12 in the district court’s decision. Based on the history of this case, we decline

13 Defendants’ request to remand at this time.

14 CONCLUSION

15   {10}   We affirm the decision of the district court denying Defendants’ motion to

16 compel arbitration.

17   {11}   IT IS SO ORDERED.


18                                                ________________________________
19                                                JAMES J. WECHSLER, Judge


                                              7
1 WE CONCUR:


2 ___________________________________
3 RODERICK T. KENNEDY, Chief Judge


4 ___________________________________
5 MICHAEL E. VIGIL, Judge




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