Strausberg v. Laurel Healthcare Providers, LLC , 2012 NMCA 6 ( 2011 )


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  •                                                         I attest to the accuracy and
    integrity of this document
    New Mexico Compilation
    Commission, Santa Fe, NM
    '00'05- 14:40:45 2012.11.16
    Certiorari Granted January 6, 2012, No. 33,331
    IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
    Opinion Number: 
    2012-NMCA-006
    Filing Date: November 4, 2011
    Docket No. 29,238
    NINA R. STRAUSBERG,
    Plaintiff-Appellant,
    v.
    LAUREL HEALTHCARE PROVIDERS,
    LLC, and ARBOR BROOK, LLC, d/b/a
    ARBOR BROOK HEALTHCARE,
    Defendants-Appellees.
    APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
    Clay P. Campbell, District Judge
    Harvey Law Firm, LLC
    Dusti D. Harvey
    Jennifer J. Foote
    Albuquerque, NM
    for Appellant
    Keleher & McLeod, P.A.
    Mary Behm
    Hari-Amrit Khalsa
    Albuquerque, NM
    for Appellees
    OPINION
    VIGIL, Judge.
    {1}    A party who seeks to compel arbitration has the burden to prove the existence of a
    1
    valid agreement to arbitrate. In this case, however, the district court shifted the burden to
    Plaintiff to prove that the agreement is invalid, and granted Defendants’ motion to compel
    arbitration under a nursing home mandatory arbitration agreement. We reverse and remand.
    BACKGROUND
    {2}      Plaintiff was required to sign an arbitration agreement in order to be admitted into
    a nursing home, Arbor Brook Healthcare (Arbor Brook) to rehabilitate from back surgery.
    Notwithstanding the agreement to arbitrate, Plaintiff filed a complaint for damages in the
    district court against the operator of Arbor Brook, Arbor Brook LLC, d/b/a Arbor Brook
    Healthcare, and Laurel Healthcare Providers, LLC as its owner, operator, or manager
    (Defendants). Plaintiff alleged that during her stay at Arbor Brook, she developed painful
    and preventable decubitus ulcers at or near her surgical wound; that her surgical wound
    became infected; that the infection was ignored or not properly treated, leading to a staph
    infection; and that her care was negligent in several other respects.
    {3}     Defendants responded by filing a motion to dismiss the complaint and compel
    arbitration, alleging that under the arbitration agreement between Plaintiff and Arbor Brook,
    all of Plaintiff’s claims are subject to arbitration. Plaintiff replied that the arbitration
    agreement is invalid because it is unconscionable. The district court first ruled that the
    arbitration agreement is not substantively unconscionable and then held an evidentiary
    hearing to determine whether the arbitration agreement is procedurally unconscionable. At
    the hearing, Plaintiff and the nurse liaison who obtained Plaintiff’s signature to the
    arbitration agreement testified what they recalled about the circumstances under which
    Plaintiff signed the arbitration agreement.
    {4}    The district court then issued a letter decision setting forth its ruling and reasoning.
    The district court said,
    the issue presented was difficult because of the credibility of the witnesses,
    not in the sense of their truthfulness, but in the sense of their ability to recall
    the events surrounding the signing of the contract. Only two witnesses
    testified, one for the Plaintiff and one for Defendant. Ultimately, however,
    it was Plaintiff’s burden to establish the contract she signed is unenforceable.
    The district court specifically noted that Plaintiff’s testimony demonstrated she was confused
    about signing the arbitration agreement and attributed her confusion to the pain medication
    she was under at the time. The district court also ruled that the factors considered to
    determine the validity of the arbitration agreement “generally are evenly balanced[.]” One
    of the factors it considered was whether Plaintiff had the option of going to another nursing
    home facility. As to this factor, the district court found, “Plaintiff believed that her only
    option was to be discharged from the hospital to Defendant[s’] care, but did not testify
    whether she looked into other placement options, and it was her burden to prove the contract
    at issue is unenforceable.” Ultimately, the district court ruled that the arbitration agreement
    2
    was not procedurally unconscionable. A formal order was filed granting Defendants’ motion
    to dismiss and to compel arbitration, and Plaintiff appeals.
    {5}     To place our holding in context, we first address our standard of review, followed by
    a discussion of: (1) the enforcement of a valid arbitration agreement; (2) the elements of
    substantive unconscionability in an arbitration agreement; and (3) the elements of procedural
    unconscionability in an arbitration agreement. Within this context we then address: (4)
    which party has the burden of proof when one party seeks dismissal of a suit to compel
    arbitration under an arbitration agreement, and the other party asserts it is unconscionable;
    and (5) whether shifting the burden of proof resulted in reversible error.
    DISCUSSION
    Standard of Review
    {6}     “Whether a contract provision is unconscionable and unenforceable is a question of
    law that we review de novo.” Rivera v. Am. Gen. Fin. Servs., Inc., 
    2011-NMSC-033
    , ¶ 42,
    
    150 N.M. 398
    , 
    259 P.3d 803
    . Our review of a district court order granting or denying a
    motion to compel arbitration is also de novo. Piano v. Premier Distrib. Co., 2005-NMCA-
    018, ¶ 4, 
    137 N.M. 57
    , 
    107 P.3d 11
    ; Heye v. Am. Golf Corp., Inc., 
    2003-NMCA-138
    , ¶ 4,
    
    134 N.M. 558
    , 
    80 P.3d 495
    . Finally, our review of whether the district court applied the
    correct evidentiary rule or legal standard in deciding the claim before it is likewise de novo.
    See Mayeux v. Winder, 
    2006-NMCA-028
    , ¶ 14, 
    139 N.M. 235
    , 
    131 P.3d 85
     (stating that the
    plaintiff’s argument that the district court erred in applying the wrong legal standard to their
    breach of fiduciary claim is reviewed de novo); see also State v. Torres, 
    1999-NMSC-010
    ,
    ¶ 28, 
    127 N.M. 20
    , 
    976 P.2d 20
     (“[T]he threshold question of whether the trial court applied
    the correct evidentiary rule or standard is subject to de novo review on appeal.”).
    The Enforcement of Arbitration Agreements
    {7}    Arbitration agreements are enforced under both New Mexico and federal law. See
    Piano, 
    2005-NMCA-018
    , ¶ 5; see also NMSA 1978, § 44-7A-7(a) (2001) (“An agreement
    contained in a record to submit to arbitration any existing or subsequent controversy arising
    between the parties to the agreement is valid, enforceable and irrevocable except upon a
    ground that exists at law or in equity for the revocation of a contract.”); 
    9 U.S.C. § 2
     (2006)
    (“[A] contract evidencing a transaction involving commerce to settle by arbitration a
    controversy thereafter arising out of such contract or transaction . . . shall be valid,
    irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the
    revocation of any contract.”).
    {8}    However, unconscionability is an equitable doctrine rooted in public policy under
    which an arbitration agreement may be deemed unenforceable. Rivera, 
    2011-NMSC-033
    ,
    ¶ 43; Cordova v. World Fin. Corp. of N.M., 
    2009-NMSC-021
    , ¶ 21, 
    146 N.M. 256
    , 
    208 P.3d 901
    . New Mexico recognizes both substantive unconscionability and procedural
    3
    unconscionability under the doctrine of contractual unconscionability. Rivera, 2011-NMSC-
    033, ¶ 43; Cordova, 
    2009-NMSC-021
    , ¶ 21. While a mandatory arbitration clause may be
    invalidated for unconscionability when both substantive and procedural unconscionability
    are present, “there is no absolute requirement in our law that both must be present to the
    same degree or that they both be present at all.” Cordova, 
    2009-NMSC-021
    , ¶ 24.
    {9}     When a contractual term is deemed to be unconscionable, two possible remedial
    actions can be taken.
    If a contract or term thereof is unconscionable at the time the contract is
    made a court may refuse to enforce the contract, or may enforce the
    remainder of the contract without the unconscionable term, or may so limit
    the application of any unconscionable term as to avoid any unconscionable
    result.
    Id. ¶ 39 (internal quotation marks and citation omitted); see also Smith v. Price’s
    Creameries, 
    98 N.M. 541
    , 545, 
    650 P.2d 825
    , 829 (1982) (setting forth the same options
    under Article II of the Uniform Commercial Code).
    Substantive Unconscionability
    {10} Contract terms themselves determine whether they are illegal, contrary to public
    policy, or grossly unfair, and therefore, substantively unconscionable. Rivera, 2011-NMSC-
    033, ¶ 45 (“Substantive unconscionability concerns the legality and fairness of the contract
    terms themselves.” (quoting Cordova, 
    2009-NMSC-021
    , ¶ 22)); Fiser v. Dell Computer
    Corp., 
    2008-NMSC-046
    , ¶ 20, 
    144 N.M. 464
    , 
    188 P.3d 1215
     (“Substantive
    unconscionability relates to the content of the contract terms and whether they are illegal,
    contrary to public policy, or grossly unfair.”); Guthmann v. La Vida Llena, 
    103 N.M. 506
    ,
    510, 
    709 P.2d 675
    , 679 (1985) (“Substantive unconscionability is concerned with contract
    terms that are illegal, contrary to public policy, or grossly unfair.”); State ex rel. State
    Highway & Transp. Dep’t v. Garley, 
    111 N.M. 383
    , 390, 
    806 P.2d 32
    , 39 (1991) (stating that
    the touchstone for substantive unconscionability is gross unfairness). In determining
    whether a contract suffers substantive unconscionability, the “analysis focuses on such issues
    as whether the contract terms are commercially reasonable and fair, the purpose and effect
    of the terms, the one-sidedness of the terms, and other similar public policy concerns.”
    Rivera, 
    2011-NMSC-033
    , ¶ 45 (quoting Cordova, 
    2009-NMSC-021
    , ¶ 22).
    {11} In New Mexico, a contract provision that unreasonably benefits one party over
    another is substantively unconscionable. Rivera, 
    2011-NMSC-033
    , ¶ 46; Cordova, 2009-
    NMSC-021, ¶ 25; Guthmann, 
    103 N.M. at 511
    , 
    709 P.2d at 680
    ; Monette v. Tinsley, 1999-
    NMCA-040, ¶ 19, 
    126 N.M. 748
    , 
    975 P.2d 361
    . In making this determination, a New
    Mexico court no longer needs to find that the terms must be “‘such as no man in his senses
    and not under delusion would make on the one hand, and as no honest and fair man would
    accept on the other.”’ Cordova, 
    2009-NMSC-021
    , ¶ 31 (quoting Hume v. United States, 132
    
    4 U.S. 406
    , 411 (1889) (quoting Earl of Chesterfield v. Janssen, 2 Ves. Sen. 125, 155, 28 Eng.
    Rep. 82, 100 (Ch. 1750)). “It is sufficient if the provision is grossly unreasonable and
    against our public policy under the circumstances.” 
    Id.
    Procedural Unconscionability
    {12} A contract or provision therein is procedurally unconscionable where there is such
    gross inequality in bargaining power between the parties that one party’s choice is
    effectively non-existent. Guthmann, 
    103 N.M. at 510
    , 
    709 P.2d at 679
    .
    {13} While not a prerequisite, a contract of adhesion may result in a procedurally
    unconscionable agreement. Rivera, 
    2011-NMSC-033
    , ¶ 44. But see Cordova, 2009-NMSC-
    021, ¶ 34 (noting that a contract of adhesion may result in substantive unconscionability) ;
    Fiser, 
    2008-NMSC-046
    , ¶ 22 (same). To determine whether an adhesion contract exists, the
    court inquires into three factors: “(1) whether it was prepared entirely by one party for the
    acceptance of the other; (2) whether the party proffering the contract enjoyed superior
    bargaining power because the weaker party could not avoid doing business under the
    particular terms; and [(3)] whether the contract was offered to the weaker party without an
    opportunity for bargaining on a take-it-or-leave-it basis.” Fiser, 
    2008-NMCA-046
    , ¶ 22;
    Guthmann, 
    103 N.M. at 509
    , 
    709 P.2d at 678
    ; Rivera v. Am. Gen. Fin. Servs., Inc., 2010-
    NMCA-046, ¶ 15, 
    148 N.M. 784
    , 
    242 P.3d 351
    , rev’d by 
    2011-NMSC-033
    . Accordingly,
    a contract of adhesion may result if all the competitors of the dominate party use essentially
    the same contract terms or when that dominate party has a monopoly on the relevant
    geographic market. Guthmann, 
    103 N.M. at 509
    , 
    709 P.2d at 678
    .
    {14} Thus, to determine if a contractual provision has the stigma of procedural
    unconscionability, the circumstances surrounding the formation of the contract must be
    examined. Cordova, 
    2009-NMSC-021
    , ¶ 23; Fiser, 
    2008-NMSC-046
    , ¶ 20; Guthmann, 
    103 N.M. at 510
    , 
    709 P.2d at 679
    . Circumstances in the contract formation to be examined
    include whether sharp practices or high pressure tactics were used, the relative
    sophistication, education, and wealth of the parties, a particular party’s ability to understand
    the terms of the contract, the relative bargaining power of the parties, the relative scarcity
    of the subject matter of the contract, and the extent to which either party felt free to accept
    or decline the terms demanded by the other. Cordova, 
    2009-NMSC-021
    , ¶ 23; Guthmann,
    
    103 N.M. at 510
    , 
    709 P.2d at 679
    .
    Who Has the Burden of Proof
    {15} A legally enforceable contract is a prerequisite to arbitration under the New Mexico
    Uniform Arbitration Act, and without such a contract, the parties will not be forced to
    arbitrate. Piano, 
    2005-NMCA-018
    , ¶ 5; Heye, 
    2003-NMCA-138
    , ¶ 8; DeArmond v.
    Halliburton Energy Servs., Inc., 
    2003-NMCA-148
    , ¶ 9, 
    134 N.M. 630
    , 
    81 P.3d 573
    . The
    party who seeks to compel arbitration has the burden of proof to establish the existence of
    a valid agreement to arbitrate. See Corum v. Roswell Senior Living, LLC, 
    2010-NMCA-105
    ,
    5
    ¶¶ 3, 16, 
    149 N.M. 287
    , 
    248 P.3d 329
     (stating that the party attempting to compel arbitration
    has the burden to demonstrate a valid agreement to arbitrate), cert. denied, 2010-NMCERT-
    010, 
    149 N.M. 64
    , 
    243 P.3d 1146
    ; DeArmond, 
    2003-NMCA-148
    , ¶ 9 (stating that party
    relying on a contract has the burden to prove it is legally valid and enforceable). Moreover,
    when the parties dispute the existence of a valid arbitration agreement, any presumption in
    favor of arbitration disappears. See DeArmond, 
    2003-NMCA-148
    , ¶ 8; see also Dumais v.
    Am. Golf Corp., 
    299 F.3d 1216
    , 1220 (10th Cir. 2002) (“The presumption in favor of
    arbitration . . . disappears when the parties dispute the existence of a valid arbitration
    agreement.”).
    {16} The foregoing rules are well embedded in New Mexico jurisprudence. For example,
    in Shaw v. Kuhnel & Associates, Inc., 
    102 N.M. 607
    , 608, 
    698 P.2d 880
    , 881 (1985),
    superceded by statute as stated in Aguilera v. Palm Harbor Homes, Inc., 
    2002-NMSC-029
    ,
    ¶ 6, 
    132 N.M. 715
    , 
    54 P.3d 993
    , our Supreme Court repeats that parties are generally bound
    to resolve disputes by arbitration when they have contractually agreed to do so. “However,
    a motion to compel arbitration is essentially a suit for specific performance of an agreement
    to arbitrate.” 
    Id.
     Clearly, a party seeking specific performance has the burden of proving
    grounds for such relief. In this case, it is the existence of a legally valid and enforceable
    contractual agreement to arbitrate.
    {17} We acknowledge and recognize that most courts that have considered the question,
    place the burden on the party seeking to set aside an arbitration agreement on
    unconscionability grounds.1 However, these cases all deal with commercial transactions, and
    1
    See, e.g., Rogers v. Royal Caribbean Cruise Line, 
    547 F.3d 1148
    , 1158 (9th Cir.
    2008) (holding that employees challenging the arbitration agreement in their employment
    contract failed to meet “their burden of establishing that the arbitration clause at issue in this
    case is unconscionable”); Faber v. Menard, Inc., 
    367 F.3d 1048
    , 1053 (8th Cir. 2004)
    (noting that “[u]nder Iowa law, the burden of proof that a particular provision or contract is
    unconscionable rests on the party claiming it is unconscionable” and concluding that the
    employee failed to meet his burden of proving that the arbitrator’s fees made the agreement
    unconscionable due to their prohibitive cost); Parilla v. IAP Worldwide Servs. VI, Inc., 
    368 F.3d 269
    , 277 (3d Cir. 2004) (stating that “the burden of proving such unconscionability lies
    with the party challenging the contract provision” in a case addressing whether the
    arbitration agreement in an employment contract is unconscionable) (citing E. Allen
    Farnsworth, Farnsworth on Contracts § 4.28 & n.14 (3d ed. 1999)); Bess v. Check Express,
    
    294 F.3d 1298
    , 1306-07 (11th Cir. 2002) (stating that “[u]nder Alabama law,
    unconscionability is an affirmative defense to the enforcement of a contract, and the party
    asserting that defense bears the burden of proving it by substantial evidence” in a class
    action case for alleged violations of state and federal law arising out of “cash advances” or
    deferred payment transactions between the plaintiffs and the defendants); Harris v. Green
    Tree Fin. Corp., 
    183 F.3d 173
    , 181 (3d Cir. 1999) (applying Pennsylvania law in a suit
    where the plaintiffs claimed to be victims of a fraudulent home improvement scheme that
    the “party challenging a contract provision as unconscionable generally bears the burden of
    6
    we conclude that they are distinguishable and unpersuasive in the context before us.
    {18} The case before us is not a mere commercial transaction. When individuals are
    dealing with admission into a nursing home, the health issue making nursing home care a
    necessity is often so grave, critical, or severe, that the only focus is on getting proper
    treatment, with everything else being secondary. In a nutshell, such individuals are often at
    their most vulnerable, emotionally or physically, or both. And this often includes immediate
    family members. Moreover, the context does not usually allow for measured consideration
    of what nursing homes are available, the terms required for admission, and the like. Thus,
    we have already noted that admission agreements and other admission-related documents
    such as mandatory arbitration agreements are often presented to aging and infirmed
    individuals and their families “when they are at their most vulnerable, in need of quick
    assistance, and potentially can easily be taken advantage of.” Barron v. The Evangelical
    Lutheran Good Samaritan Soc’y, 
    2011-NMCA-094
    , ¶ 41, 
    150 N.M. 669
    , 
    265 P.3d 720
    .
    {19} In recognition of these realities, the West Virginia Supreme Court has declared that
    all mandatory arbitration clauses in nursing home admission agreements are unconscionable
    and unenforceable. Brown v. Genesis Healthcare Corp., No. 35494, 
    2011 WL 2611327
     (W.
    Va. 2011). We have not been asked to, and therefore decline to adopt the holding of Brown.
    Nevertheless, we consider the following expressed reasons for treating nursing home
    contracts with mandatory arbitration agreements differently from mere commercial contracts
    very persuasive:
    Because of illness, incapacitation, or physical or mental impairment,
    people being admitted to a nursing home are usually quite vulnerable . . . .
    ....
    [I]n the 1980s, the government changed the way hospitals were paid
    for their Medicare patients; since the change, discharge planning occurs
    “quicker and sicker.” The weakened physical and emotional condition of a
    person from an acute illness is one of the most significant factors that
    compels a decision to seek post-hospital nursing home placement.
    Compounding the dangers of this decision-making time, not only is the
    person being discharged “quicker and sicker,” but the hospital treatment
    itself often further debilitates the person. A person’s “decision” to enter a
    nursing home is, therefore, often made when the person’s decision-making
    abilities are seriously impaired.
    Unlike the situation that exists when a consumer signs a contract for
    a product or service, people entering a nursing home have to sign admissions
    contracts in the midst of a crisis, without time to comparison shop or to
    proving unconscionability”).
    7
    negotiate the best service and price combination. Put simply, there is usually
    little time to investigate options or to wait for an opening at a nursing home
    of choice. Time pressure during the hospital discharge process significantly
    impairs people’s ability to seek and carefully consider alternatives.
    ....
    Ultimately, people being admitted to long-term care facilities and
    their families have to sign admission contracts without time to comparison
    shop or to negotiate the best service and price combination. The pressures of
    deciding placement at such a time, coupled with physical and/or mental
    infirmities, facing discharge from the hospital, financial limitations, and/or
    lack of knowledge about long-term care options make consumers vulnerable
    and dependent on full disclosure by facilities.
    (internal quotation marks and footnotes omitted).
    {20} We therefore hold that when a nursing home relies upon an arbitration agreement
    signed by a patient as a condition for admission to the nursing home, and the patient
    contends that the arbitration agreement is unconscionable, the nursing home has the burden
    of proving that the arbitration agreement is not unconscionable.
    Shifting The Burden of Proof Resulted in Reversible Error
    {21} Defendants had the burden of proving that the arbitration agreement is not
    unconscionable. However, the district court shifted the burden to Plaintiff to prove that the
    arbitration agreement is not unconscionable. We conclude this was reversible error.
    {22} We have demonstrated that many factual issues must be decided by a district court
    in determining whether an arbitration agreement is unconscionable. In determining whether
    the contract is procedurally unconscionable, the district court said the issues were difficult
    to decide because neither Plaintiff nor the nurse who obtained her signature on the arbitration
    agreement had clear recollections of the factual circumstances, and that the factors it
    considered to determine whether the arbitration agreement is unconscionable “generally are
    evenly balanced[.]” The district court said that the “deciding factor” in its mind was
    Plaintiff’s understanding of the arbitration agreement at the time she signed it. However, we
    have no way of assessing what weight the court would have given this evidence, or whether
    the district court would have come to the same conclusion if the burden of proof had been
    properly allocated to Defendants. In addition, we have no way of determining whether the
    district court applied the correct burden of proof in ruling that the mandatory arbitration
    agreement is not substantively unconscionable. Moreover, when the issue of substantive
    unconscionability was first considered, the parties and the district court did not have the
    benefit of our Supreme Court’s opinion in Rivera, 
    2011-NMSC-033
    . We therefore reverse
    the order of the district court. See State v. Fernandez, 
    128 N.M. 111
    , ¶ 36, 
    990 P.2d 224
     (Ct.
    App. 1999) (reversing and remanding for a new suppression hearing where trial court
    8
    applied incorrect standard in reviewing alleged falsehoods and omissions in a search warrant
    affidavit); see also State v. Young, 
    117 N.M. 688
    , 692, 
    875 P.2d 1119
    , 1123 (Ct. App. 1994)
    (remanding because the district court applied the wrong legal standard in deciding whether
    voluntary intoxication was relevant to a waiver of Miranda rights).
    {23} On remand, we encourage the district court to enter findings of fact and conclusions
    of law pursuant to Rule 1-052 NMRA to facilitate appellate review of its factual
    determinations relating to unconscionability and its legal ruling on whether the arbitration
    is legally unconscionable.
    CONCLUSION
    {24}   We reverse and remand for further proceedings in accordance with this Opinion.
    {25}   IT IS SO ORDERED.
    ____________________________________
    MICHAEL E. VIGIL, Judge
    I CONCUR:
    ____________________________________
    MICHAEL D. BUSTAMANTE, Judge
    JAMES J. WECHSLER, Judge (dissenting).
    WECHSLER, Judge (dissenting).
    {26} Our Supreme Court has stated the “fundamental principle that arbitration is a matter
    of contract.” Rivera, 
    2011-NMSC-033
    , ¶ 16 (internal quotation marks and citation omitted).
    To this end, “courts must place arbitration agreements on an equal footing with other
    contracts[.]” 
    Id.
     (internal quotation marks and citation omitted). I therefore do not agree
    with shifting the burden to the party seeking to enforce an arbitration agreement to prove that
    an arbitration agreement is not unconscionable, because this position does not have a basis
    in well-established contract law. As a result, I respectfully dissent.
    {27} The majority correctly states that “[t]he party who seeks to compel arbitration has
    the burden of proof to establish the existence of a valid agreement to arbitration.” Majority
    Opinion ¶ 15. However, the cases cited by the majority indicate that this burden applies to
    contract formation issues, not to defenses by a party seeking to stop the enforcement of an
    otherwise valid contract. For example, in DeArmond, 
    2003-NMCA-148
    , ¶¶ 11-14, the issues
    addressed by this Court were whether a party to an arbitration agreement had knowledge of
    a change in his employment contract that included a mandatory arbitration clause and
    therefore accepted the modification and, alternatively, whether mutuality existed to form a
    binding contract. Corum, 
    2010-NMCA-105
    , ¶ 16, similarly addresses contract formation
    9
    issues. In particular, the issue in Corum was whether the individual who entered into an
    arbitration agreement on behalf of a nursing home patient had statutory authority to enter
    into the agreement. 
    Id.
    {28} Unconscionability, on the other hand, is an equitable doctrine that is a defense or
    “exception” to enforcing an otherwise valid contract. See Montano v. N.M. Real Estate
    Appraiser’s Bd., 
    2009-NMCA-009
    , ¶ 12, 
    145 N.M. 494
    , 
    200 P.3d 544
     (“We will allow
    equity to interfere with enforcing clear contractual obligations only when well-defined
    equitable exceptions, such as unconscionability, mistake, fraud, or illegality justify deviation
    from the parties’ contract.” (internal quotation marks and citation omitted)); see also Fidelity
    Nat’l Bank v. Tommy L. Goff, Inc., 
    92 N.M. 106
    , 107, 
    583 P.2d 470
    , 471 (1978) (stating that
    the answer to a complaint contained the “affirmative defense” of unconscionability).
    Generally, a party seeking to set aside enforcement of a contract based on a defense or
    exception, such as unconscionability, has the burden of proof. See Mason v. Salomon, 
    62 N.M. 425
    , 429, 
    311 P.2d 652
    , 654 (1957) (holding that the party seeking to set a contract
    aside for fraud has the burden of proof); see also W. Commerce Bank v. Gillespie, 
    108 N.M. 535
    , 538, 
    775 P.2d 737
    , 740 (1989) (declining to shift the burden of persuasion to the party
    challenging a contract because the action was “a simple contract issue” requiring the court
    to determine whether the “making of the contract” satisfied the “condition[s] precedent” as
    opposed to an action seeking to set aside a contract on a ground such as fraud, mistake,
    misrepresentation, or undue influence). Similarly, Farmington Police Officers Ass’n
    Commc’n Workers of Am. Local 7911 v. City of Farmington, 
    2006-NMCA-077
    , ¶ 16, 
    139 N.M. 750
    , 
    137 P.3d 1204
    , addressed the burden of proof in an arbitration case and concluded
    that the party seeking to enforce an arbitration clause in a collective bargaining agreement
    had the burden of persuasion as to whether the clause applied to the dispute. In Farmington
    Police Officers Ass’n, this Court stated that
    we believe that where the meaning of a material contract term is in dispute
    a party seeking affirmative relief based upon its interpretation necessarily
    bears the burden of establishing that its interpretation controls. This
    approach is consistent with the general default rule allocating the burden of
    persuasion in civil cases to the party who invokes the authority of a court to
    alter the extrajudicial status quo.
    
    Id.
     (citation omitted).
    {29} As the majority acknowledges, most courts that have addressed the issue have placed
    the burden on the party seeking to set aside an arbitration agreement on unconscionability
    grounds. Majority Opinion ¶ 17 n.1. Consistent with these other courts, this Court has
    recently clarified that the party challenging a provision of an arbitration agreement that
    banned class action claims on unconscionability grounds has the burden of proof. See Felts
    v. CLK Mgmt., Inc., 
    2011-NMCA-062
    , ¶¶ 34, 37, 
    149 N.M. 681
    , 
    254 P.3d 124
    , cert. granted,
    
    2011-NMCERT-006
    , 
    150 N.M. 763
    , 
    266 P.3d 632
     (Nos. 33,011 and 33,013, June 8, 2011).
    {30}    The majority distinguishes Felts and cases from other jurisdictions because the cases
    10
    involve “commercial transactions.” Majority Opinion ¶ 17. However, even cases in other
    jurisdictions specifically involving challenges to arbitration agreements in nursing home
    admission documents impose the burden of proof upon the party challenging the agreement.
    See, e.g., Briarcliff Nursing Home, Inc. v. Turcotte, 
    894 So. 2d 661
    , 665 (Ala. 2004) (“The
    burden of proving unconscionability of an arbitration agreement rests with the party
    challenging the agreement.” (internal quotation marks and citation omitted)); Estate of Perez
    v. Life Care Ctrs. of Am. Inc., 
    23 So. 3d 741
    , 742 (Fla. Dist. Ct. App. 2009) (“The party
    seeking to avoid the arbitration provision has the burden to establish unconscionability.”);
    Hayes v. Oakridge Home, 
    122 Ohio St. 3d 63
    , 
    2009-Ohio-2054
    , 
    908 N.E.2d 408
    , at ¶ 20
    (“The party asserting unconscionability of a contract bears the burden of proving that the
    agreement is both procedurally and substantively unconscionable.”).
    {31} I also note that in Brown, 
    2011 WL 2611327
    , the West Virginia Supreme Court
    stated the policy considerations quoted in Paragraph 19 of the majority opinion as
    background to establish the context of the agreements in the case, rather than as the basis for
    its holding that mandatory arbitration clauses in nursing home admission documents adopted
    prior to the negligent incident at issue are unconscionable. West Virginia recognizes, as a
    matter of public policy, a “public service” exception to the enforcement of pre-injury
    contracts that either absolves a public service provider of liability for personal injuries or
    wrongful death or that allows a public service provider to escape public scrutiny in the
    courtroom. 
    Id.
     Brown invalidated the arbitration agreements based on the public service
    exception because a nursing home is a public service provider and the arbitration agreements
    prevented the nursing homes from “courtroom scrutiny of their negligent conduct that caused
    a personal injury or wrongful death[.]” 
    Id.
    {32} Although I share the majority’s concern that “individuals are often at their most
    vulnerable, emotionally or physically, or both” when seeking admission to a nursing home,
    I do not believe this concern justifies a sweeping exception to well-established law for
    nursing home patients that the majority creates. Majority Opinion ¶ 18. I would therefore
    treat an arbitration agreement signed by a patient as a condition for nursing home admission
    the same as any other arbitration agreement and would hold that, generally, a party seeking
    to set aside the arbitration agreement has the burden of proving that the arbitration agreement
    is unconscionable. A party’s vulnerability is a fact for the court to consider in determining
    the issue of procedural unconscionability.
    {33} Moreover, even assuming that there may be appropriate cases for a district court to
    shift the burden of proof to a party seeking to set aside an arbitration agreement when the
    facts of the case indicate that the party seeking to enforce the arbitration agreement would
    be in a better position to prove whether an arbitration agreement is unconscionable, this is
    not such a case. The district court found that upon admission to the nursing home on April
    11, 2007, Plaintiff was confused as the result of pain medication, that she had ten minutes
    to complete forty minutes of paperwork during the admission process, and that she did not
    have her glasses. However, the district court further found that Plaintiff signed the arbitration
    agreement on April 10, 2007, before the transfer to the nursing home; and Plaintiff presented
    no testimony regarding her state of mind or condition on that date. Additionally, the district
    11
    court stated that the “deciding factor” in determining that the arbitration agreement was not
    unconscionable was Plaintiff’s understanding of the agreement at the time she signed it.
    Importantly, Plaintiff admitted that she understood that the arbitration agreement
    “significantly limited her rights,” even though she was medicated. Under these
    circumstances, the district court did not err in determining that Plaintiff had the burden to
    prove that the arbitration agreement was unconscionable, and I respectfully dissent.
    ____________________________________
    JAMES J. WECHSLER, Judge
    Topic Index for Strausberg v. Laurel Healthcare Providers, LLC, No. 29,238
    AE                     APPEAL AND ERROR
    AE-FE                  Fundamental Error
    AE-SR                  Standard of Review
    CP                     CIVIL PROCEDURE
    CP-BP                  Burden of Proof
    CP-DC                  Discovery
    CN                     CONTRACTS
    CN-UC                  Unconscionable
    RE                     REMEDIES
    RE-AN                  Arbitration
    TR                     TORTS
    TR-MG                  Malpractice, General
    TR-MM                  Medical Malpractice
    12
    

Document Info

Docket Number: 29,238

Citation Numbers: 2012 NMCA 6

Filed Date: 11/4/2011

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (31)

Rivera v. AMERICAN GEN. FINANCIAL SVCS. , 242 P.3d 351 ( 2010 )

Briarcliff Nursing Home, Inc. v. Turcotte , 894 So. 2d 661 ( 2004 )

State v. Torres , 127 N.M. 20 ( 1999 )

Piano v. Premier Distributing Co. , 137 N.M. 57 ( 2004 )

Smith v. PRICE'S CREAMERIES, DIV., ETC. , 98 N.M. 541 ( 1982 )

charles-harris-christine-harris-willie-davis-nora-wilson-on-behalf-of , 183 F.3d 173 ( 1999 )

Cordova v. World Finance Corp. of NM , 146 N.M. 256 ( 2009 )

Elizabeth Bess v. Check Express , 294 F.3d 1298 ( 2002 )

Shaw v. Kuhnel & Associates, Inc. , 102 N.M. 607 ( 1985 )

Fidelity National Bank v. Tommy L. Goff, Inc. , 92 N.M. 106 ( 1978 )

Farmington Police Officers Ass'n Communication Workers ... , 139 N.M. 750 ( 2006 )

Aguilera v. Palm Harbor Homes, Inc. , 132 N.M. 715 ( 2002 )

Mayeux v. Winder , 139 N.M. 235 ( 2005 )

Heye v. American Golf Corp., Inc. , 134 N.M. 558 ( 2003 )

Steve R. Faber v. Menard, Inc. , 367 F.3d 1048 ( 2004 )

Montano v. New Mexico Real Estate Appraiser's Board , 145 N.M. 494 ( 2008 )

Rivera v. American General Financial Services, Inc. , 150 N.M. 398 ( 2011 )

Felts v. CLK Management, Inc. , 149 N.M. 681 ( 2011 )

Barron v. Evangelical Lutheran Good Samaritan Society , 150 N.M. 669 ( 2011 )

Fiser v. Dell Computer Corporation , 144 N.M. 464 ( 2008 )

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