 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated
 4   errors or other deviations from the official paper version filed by the Court of Appeals and does
 5   not include the filing date.
 6   IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO


 7 PAUL SAIZ, M.D.,

 8          Plaintiff-Appellee,

 9 v.                                                                                    NO. 30,521

10 PHC-LAS CRUCES, INC., d/b/a
11 MEMORIAL MEDICAL CENTER,

12          Defendant-Appellant.


13 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
14 Manuel I. Arrieta, District Judge

15 Joel T. Newton
16 Las Cruces, NM

17 for Appellee

18   Bannerman & Johnson, P.A.
19   David H. Johnson
20   Deborah E. Mann
21   Albuquerque, NM

22 for Appellant



23                                 MEMORANDUM OPINION
 1 CASTILLO, Judge.

 2        Defendant appeals an order denying its motion to compel arbitration of

 3 Plaintiff’s claims against it. In our notice, we proposed to affirm the district court.

 4 Defendant has timely responded. We have considered its arguments and not being

 5 persuaded, we affirm.

 6        In our notice, we proposed to agree with the district court that the Professional

 7 Services Agreement (PSA) clearly states an intention to substitute for any other

 8 agreements that the parties may have had regarding on-call duties. As the PSA has

 9 no provision for arbitration, there is no basis to compel arbitration of the dispute

10 between the parties. See Salazar v. Citadel Commc’ns Corp., 2004-NMSC-013, ¶ 8,

11 135 N.M. 447, 90 P.3d 466 (“Of course, a prerequisite to compelling arbitration is the

12 existence of a valid agreement to arbitrate.”). Defendant responds that Plaintiff’s

13 complaint was not at all clear regarding whether he sought a declaratory judgment on

14 the PSA or on both the PSA and the Recruiting Agreement (RA). It makes much of

15 the fact that the complaint refers to “contracts” in one paragraph of the complaint for

16 declaratory judgment. [RP 14, ¶ 33] However, reading the entire complaint for

17 declaratory judgment makes it clear that Plaintiff seeks a decision on the provisions

18 of the PSA. [RP 14, ¶¶ 32-37] The complaint specifically refers to the PSA as the

19 agreement that Plaintiff wants the district court to construe. [RP 14, ¶ 34]

                                              2
 1        We are unpersuaded that Plaintiff seeks to have the RA construed as well. It

 2 appears that the only claim relating to the RA has to do with a breach of contract claim

 3 regarding the payment of school loans. [RP 15, ¶¶ 38-42] Thus, we conclude that the

 4 agreement Plaintiff seeks to have construed is the PSA, not the RA.

 5        In our notice, we sought to address Defendant’s argument that Plaintiff

 6 appeared to be relying on some provisions in the RA to support his claims by stating

 7 that that did not mean that Plaintiff sought to have the RA construed in this action.

 8 Rather, we noted the RA could be used as evidence to show ambiguities in the parties’

 9 intent in the PSA. In so doing, we did not intend to state that the PSA was ambiguous.

10 We were simply pointing to a reason why the RA would be mentioned in the

11 complaint without seeking to have it construed. We agree that whether or not the

12 RSA is ambiguous is still to be decided by the district court. Our language in the

13 calendar notice [CN 3-4] should not be construed as a ruling on the merits of

14 Plaintiff’s claim.

15        We conclude that the district court did not err in denying the motion to compel

16 arbitration as there was no provision for arbitration in the PSA, which was the

17 agreement about which Plaintiff sought a declaratory judgment.

18        For the reasons stated herein and in the calendar notice, we affirm the denial of

19 Defendant’s motion to compel arbitration.


                                              3
1      IT IS SO ORDERED.

2                               ________________________________
3                               CELIA FOY CASTILLO, Judge

4 WE CONCUR:




5 __________________________________
6 RODERICK T. KENNEDY, Judge




7 __________________________________
8 LINDA M. VANZI, Judge




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