 1       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2   MARGARET TAFOYA, AS PERSONAL
 3   REPRESENTATIVE OF THE WRONGFUL
 4   DEATH ESTATE OF LEOPOLDO TAFOYA,
 5   DECEASED,

 6        Plaintiff-Appellant,

 7 v.                                                NO. 29,165

 8   THI OF NEW MEXICO AT VIDA
 9   ENCANTADA, LLC, THI OF NEW MEXICO, LLC,
10   THI OF BALTIMORE, INC., THI OF BALTIMORE
11   MANAGEMENT, LLC, TRANS HEALTH MANAGEMENT, INC.,
12   FUNDAMENTAL LONG TERM CARE HOLDINGS, LLC,
13   WILLIAM CHALTRY, ADMINISTRATOR, AND DOES
14   1 THROUGH 10,

15        Defendants-Appellees.

16 APPEAL FROM THE DISTRICT COURT OF SAN MIGUEL COUNTY
17 Donald C. Schutte, District Judge

18   Harvey Law Firm
19   Dusti D. Harvey
20   Jennifer J. Foote
21   Feliz A. Rael
22   Albuquerque, NM

23 for Appellant

24   Keleher & Mcleod, P.A.
25   Thomas C. Bird
26   Mary Behm
27   Albuquerque, NM

28 Johnson, Spalding, Doyle, West & Trent, LLP
 1 Lori D. Proctor
 2 Houston, Tx

 3 for Appellees

 4                             MEMORANDUM OPINION

 5 KENNEDY, Judge.

 6        Plaintiff is appealing from a district court order compelling arbitration. We

 7 issued a calendar notice proposing to reverse. Defendants have filed a memorandum

 8 in opposition. We reverse.

 9        In the district court order compelling arbitration, it states that “an agreement to

10 arbitrate exists” and “[t]he arbitrator shall decide whether the agreement to arbitrate

11 is enforceable.” [RP 1231] Notwithstanding the arguments made in the memorandum

12 in opposition, we conclude that New Mexico law dictates that the court, not the

13 arbitrator, shall determine whether an arbitration clause is valid.       See Salazar v.

14 Citadel Communcations Corp., 2004-NMSC-013, ¶ 8, 135 N.M. 447, 90 P.3d 466

15 (stating “a prerequisite to compelling arbitration is the existence of a valid agreement

16 to arbitrate”); see also Heye v. Am. Golf Corp., 2003-NMCA-138, ¶ 8, 134 N.M. 558,

17 80 P.3d 495. In determining whether a valid arbitration agreement exists, courts apply

18 general state contract law. See Salazar, 2004-NMSC-013, ¶ 8. Defenses to an

19 arbitration agreement include fraud, duress, or unconscionability. See Fiser v. Dell

20 Computer Corp., 2008-NMSC-046, ¶ 23, 144 N.M. 464, 188 P.3d 1215.

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 1        Here, Plaintiff argued that there was never any formal acceptance of the

 2 admission agreement that contained the arbitration clause because Decedent had

 3 withheld the signature page of the contract. [RP 1091, 1227] We believe that the

 4 district court did in fact address this issue because it found that an agreement exists.

 5 [RP 1231] In other words, by concluding that an agreement exists, the court

 6 necessarily rejected Plaintiff’s argument that Decedent did not enter into the contract.

 7 However, pursuant to the discussions set forth in Fiser, Salazar, and Heye, as referred

 8 to above, we believe that the district court erred in refusing to consider Plaintiff’s

 9 additional defenses [RP 1090] as to the validity of the arbitration agreement.

10 Subsequent to the issuance of our calendar notice, the Supreme Court reiterated the

11 district court’s role in deciding unconscionability and the existence of a valid

12 arbitration agreement, notwithstanding arbitration legislation suggesting otherwise.

13 See Cordova v. World Finance Corp. of New Mexico, No. 30,536, slip op., ¶¶ 35-37

14 (N.M. Sup. Ct. Apr. 29, 2009). To the extent that Defendants believe that the

15 arguments made in the memorandum in opposition are persuasive, they need to be

16 directed to the Supreme Court. See Alexander v. Delgado, 84 N.M. 717, 718, 507

17 P.2d 778, 779 (1973) (holding that Supreme Court precedent controls).

18        In summary, to the extent that these arguments were directed to the arbitration

19 agreement, and not other provisions of the contract, we believe that the district court


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 1 should have addressed them. Cf. Murken v. Deutsche Morgan Grenfell, Inc.,

 2 2006-NMCA-080, ¶¶ 29-31, 140 N.M. 68, 139 P.3d 864 (affirming order compelling

 3 arbitration where fraud claim was directed to whole contract and there was no specific

 4 challenge to the validity of the arbitration agreement). We also note that the district

 5 court is free to address Defendants’ claim that Plaintiff may have waived some of her

 6 arguments. [MIO 6]

 7        For the reasons set forth above, we reverse.

 8        IT IS SO ORDERED.


 9
10                                                RODERICK T. KENNEDY, Judge

11 WE CONCUR:



12
13 CELIA FOY CASTILLO, Judge




14
15 TIMOTHY L. GARCIA, Judge




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