July 29, 2010 – Sherri Corum, as Personal Representative of the wrongful death beneficiaries of Mary Jo Hebert, deceased v. Roswell Senior Living, LLC, d/b/a Roswell Senior Living Community, a/k/a La Villa, Sunwest Management, Inc.; Jon M. Harder; Darryl E. Fisher; Divine Investments, LLC; The Fisher Joint Revocable Trust; Diedra J. Duvall, Administrator; and Does 1 through 100, No. 28,314

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: July 29, 2010

NO. 28,314

SHERRI CORUM, as Personal Representative
of the wrongful death beneficiaries of
MARY JO HEBERT, deceased,

Plaintiff-A ppellee,
V.

ROSWELL SENIOR LIVING, LLC, d/b/a
ROSWELL SENIOR LIVING COMMUNITY,
a/k/a LA VILLA, SUNWEST MANAGEMENT,
INC., JON M. HARDER, DARRYL E. FISHER,
DIVINE INVESTMENTS, LLC, THE FISHER
JOINT REVOCABLE TRUST, DIEDRA J.
DUVALL, Administrator, and DOES 1 through 100,

Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
James A. Hall, District Judge

Harvey Law Firm, LLC
Dust D. Harvey

Feliz A. Rael
Jennifer J. Foote
Albuquerque, NM

for Appellee

Keleher & McLeod, P.A.
Thomas C. Bird
Spring V. Schofield
Kathleen M. Wilson
Albuquerque, NM
for Appellants
AARP Foundation
Kelly Bagby
Washington, DC
Doerr & Knudson P.A.
Randy Knudson
Portales, NM
for Amicus Curiae, AARP

OPINION
ROBLES, Judge.
{1} 	Roswell Senior Living, LLC, d/b/a Roswell Senior Living Community, a/k/a
La Villa, Sunwest Management, Inc., and other investors (collectively, Defendants)
appeal from the district court’s denial of a motion to compel arbitration. On appeal,
we are asked to clarify the authority of surrogacy within the context of the New
Mexico Health-Care Decisions Act (the Act), NMSA 1978, §§ 24-7A-1 to -18 (1995,
as amended through 2009). In this case, a purported surrogate for a person admitted
into the Roswell Senior Living Community signed an admission agreement that
contained an arbitration clause. On appeal, the parties take opposite positions as to
whether the purported surrogate had authority to agree to arbitration. They argue over
whether the agreement to arbitrate is a health-care decision that, under the Act,
surrogates are permitted to make. We conclude that the critical, first-step requirement
or condition precedent to admission was not followed, and because proof of that first
step must be established before we can venture into whether a surrogate’s agreement
to arbitrate was a permitted health-care decision, we do not discuss whether a
surrogate has the authority to enter an agreement to arbitrate. That first, critical, and
essential requirement or condition precedent is whether the person admitted to the
facility was admitted based on conclusions of two physicians in regard to the capacity

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of the person admitted. In addition, a second requirement is that, if there exists an
individual with the express power to make health-care decisions on behalf of a
principal, there must be a showing of that individual’s approval or unavailability
before a surrogate may make health-care decisions. We hold that there is no showing
in the record that either of the two foregoing requirements were satisfied. We also
address Defendants’ final contention that the district court applied special scrutiny to
the agreement to arbitrate, which is not allowed by the Federal Arbitration Act. Upon
review, we do not come to the conclusion that the district court applied special
scrutiny. We therefore affirm the district court’s denial of the motion to compel.
I. 	BACKGROUND
{2} 	In December 2003, Mary Jo Hebert executed a two-part power of attorney titled
“DURABLE FINANCIAL & MEDICAL POWER OF ATTORNEY,” in which
Article I set forth financial powers granted, and Article II set forth medical powers
granted. Both sections became effective immediately upon signing and designated
Hebert’s daughter, Sherri Lynn Corum, as attorney-in-fact. 	On March 15, 2006,
Hebert was admitted into Defendants’ nursing home facility, La Villa, by her husband,
Edward Hebert (Husband). At the time, Husband had no written authority designating
him as an agent with power of attorney, guardian, or designation as a surrogate.
Husband signed La Villa’s “Assisted Living Admission Agreement” in the areas

3
provided, which were titled “Responsible Party” and as “Guarantor.” The document
stated:
[T]he term “Responsible Party” shall have the same meaning as “agent,”
“concerned person” and “surrogate decision maker” under New Mexico
law and means an agent under a valid power of attorney or designated in
writing by the Resident; a legally appointed guardian; or an executor,
executrix, administrator or administratrix of the estate of the deceased
Resident.
(Emphasis omitted.) The parties are in agreement that, on the day of admission to La
Villa, Hebert lacked capacity to enter the agreement for herself. On June 4, 2007,
Corum filed a complaint against Defendants on behalf of Hebert, alleging wrongful
death, negligence, misrepresentation, and violation of the Unfair Trade Practices Act.
Defendants responded by requesting that the district court stay the proceedings and
compel arbitration. Attached to their motion to compel, Defendants supplied the court
with an affidavit of La Villa’s administrator, which stated that, on the day Husband
signed 	the 	agreement, 	the 	administrator 	attempted 	to 	call 	Corum, 	but 	was
unsuccessful. 	Following a hearing on the motion, the district court denied
Defendants’ motion, finding that Husband did not have the power to enter the
arbitration agreement.
II. 	DISCUSSION
{3} 	“We apply a de novo standard of review [from a lower] court’s denial of a
motion to compel arbitration.” Cordova v. World Fin. Corp. of N.M., 2009-NMSC-

4
021, ¶ 11, 146 N.M. 256, 208 P.3d 901; Medina v. Holguin, 2008-NMCA-161, ¶ 7,
145 N.M. 303, 197 P.3d 1085. The question of whether a valid contract to arbitrate
a dispute exists is a question of contract law. DeArmond v. Halliburton Energy Servs.,
Inc., 2003-NMCA-148, ¶ 9, 134 N.M. 630, 81 P.3d 573. 	The party attempting to
compel arbitration carries the burden of demonstrating a valid arbitration agreement.
See id.; Flores v. Evergreen at San Diego, LLC, 55 Cal. Rptr. 3d 823, 826 (Ct. App.
2007); Goliger v. AMS Props., Inc., 19 Cal. Rptr. 3d 819, 820 (Ct. App. 2004).
A. 	The Parties’ Arguments Relating to Surrogacy
{4} 	Both parties allege that Husband was a surrogate. 	Defendants argue that
regardless of Hebert’s designation of Corum as attorney-in-fact, Husband had the
authority as surrogate to sign the admission agreement and bind Hebert and, therefore,
Corum, to the arbitration clause within the agreement. 	Corum contends that the
arbitration clause within the admission agreement can be held as void as a matter of
law without nullifying the rest of the admission agreement, that the clause is void
because a surrogate only has power to make health-care decisions, and an agreement
to arbitrate is not focused on health care. Corum notes that the admission agreement
contains a severability clause that states “[i]f any term or provision of this Agreement
proves to be invalid, illegal or unenforceable, the remainder of this Agreement shall
remain in full force and effect.”

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{5} 	The Act closely follows the Uniform Health-Care Decisions Act (the Uniform
Act) approved in 1993 by the National Conference of Commissioners on Uniform
State Laws. See Unif. Health-Care Decs. Act §§ 1 to 19 (1993); see also Protection
& Advocacy Sys., Inc. v. Presbyterian Healthcare Servs., 1999-NMCA-122, ¶ 6, 128
N.M. 73, 989 P.2d 890. Our interpretation of the Act should effectuate the purpose
of uniformity with other states that have likewise adopted the Uniform Act. 	See
NMSA 1978, § 12-2A-18(B) (1997). Both parties in this appeal urge this Court to
consider other jurisdictions that have interpreted the same or similar statute or have
applied a rule that provides guidance in similar situations. See NMSA 1978, § 12-2A-
20(B)(1), (2) (1997) (stating that as an aide to construction, courts may consider other
jurisdictions’ interpretations of uniform acts or same or similar statutes). Statutory
interpretation “should begin with an examination of the statute’s language, which is
the primary indicator of legislative intent[.]” Gonzales v. State Pub. Employees Ret.
Ass’n, 2009-NMCA-109, ¶ 13, 147 N.M. 201, 218 P.3d 1249 (internal quotation
marks and citation omitted). “In construing a statute, our charge is to determine and
give effect to the Legislature’s intent.” 	Marbob Energy Corp. v. N.M. Oil
Conservation Comm’n, 2009-NMSC-013, ¶ 9, 146 N.M. 24, 206 P.3d 135. The plain
meaning rule requires a court to give effect to the statute’s language and refrain from
further interpretation when the language is clear and unambiguous. U.S. Xpress, Inc.

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v. State ex rel. N.M. Taxation & Revenue Dep’t, 2006-NMSC-017, ¶ 11, 139 N.M.
589, 136 P.3d 999. “If, however, the language of the statute is ambiguous, we must
interpret 	the 	statute, 	and 	determine 	legislative 	intent.” 	Hanson 	v. 	Turney,
2004-NMCA-069, ¶ 7, 136 N.M. 1, 94 P.3d 1.
{6} 	In New Mexico,
[a] surrogate may make a health-care decision for a patient who is an
adult or emancipated minor if the patient has been determined according
to the provisions of Section 24-7A-11 . . . to lack capacity and no agent
or guardian has been appointed or the agent or guardian is not reasonably
available.
Section 24-7A-5(A). A “surrogate” is defined as “an individual, other than a patient’s
agent or guardian, authorized under the [Uniform Act] to make a health-care decision
for the patient.” Section 24-7A-1(V). A surrogate may be created in one of two ways.
First, a principal may designate an individual as a surrogate “by personally informing
the supervising health-care provider.” Section 24-7A-5(B). Second, the statute also
provides that
[i]n the absence of a designation or if the designee is not reasonably
available, any member of the following classes of the patient’s family
who is reasonably available, in descending order of priority, may act as
surrogate:
(1) 	the spouse, unless legally separated or unless there is a
pending petition for annulment, divorce, dissolution of marriage or legal
separation;
(2) 	an individual in a long-term relationship of indefinite
duration with the patient in which the individual has demonstrated an
actual commitment to the patient similar to the commitment of a spouse

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and in which the individual and the patient consider themselves to be
responsible for each other’s well-being;
(3) 	an adult child;
(4) 	a parent;
(5) 	an adult brother or sister; or
(6) 	a grandparent.
C. 	If none of the individuals eligible to act as surrogate under
Subsection B of this section is reasonably available, an adult who has
exhibited special care and concern for the patient, who is familiar with
the patient’s personal values and who is reasonably available may act as
surrogate.
Section 24-7A-5(B), (C).
{7} 	A surrogate’s power is limited to making health-care decisions, which are
defined as:
G. 	[A] decision made by an individual or the individual’s agent,
guardian or surrogate, regarding the individual’s health care, including:
(1) 	selection 	and 	discharge 	of 	health-care 	providers 	and
institutions;
(2) 	approval 	or 	disapproval 	of 	diagnostic 	tests, 	surgical
procedures, programs of medication and orders not to resuscitate;
(3) 	directions relating to life-sustaining treatment, including
withholding or withdrawing life-sustaining treatment and the termination
of life support; and
(4) 	directions to provide, withhold or withdraw artificial
nutrition and hydration and all other forms of health care[.]
Section 24-7A-1(G).
{8} 	We note that other jurisdictions have concluded that an individual with the
power to make health-care decisions lacks the authority to bind a principal to an
arbitration clause within a nursing home’s admission agreement based on the rationale

8
that an agreement to arbitrate a potential future dispute is not a health-care decision.
Pagarigan v. Libby Care Ctr., Inc., 120 Cal. Rptr. 2d 892, 895 (Ct. App. 2002);
Flores, 55 Cal. Rptr. 3d at 828-29; Goliger, 19 Cal. Rptr. 3d at 821; Lujan v. Life Care
Ctrs. of Am., 222 P.3d 970, 976 (Colo. App. 2009); Life Care Ctrs. of Am. v. Smith,
681 S.E.2d 182, 185 (Ga. Ct. App. 2009). Other courts have held that entering into
an arbitration agreement that is part of a nursing home’s admissions criteria is part of
the health-care decision-making process. Hogan v. Country Villa Health Servs., 55
Cal. Rptr. 3d 450, 451 (Ct. App. 2007); Garrison v. Super. Ct., 33 Cal. Rptr. 3d 350,
359-60 (Ct. App. 2005). 	Before we reach the question of whether a decision to
arbitrate can be considered a health-care decision, we examine the arbitration
agreement 	to 	determine 	whether 	there 	is 	a 	valid 	contract. 	DeArmond,
2003-NMCA-148, ¶ 8 (“However, a legally enforceable contract is still a prerequisite
for arbitration; without such a contract, parties will not be forced to arbitrate.”).
{9} 	We do not reach the question of whether an agreement to arbitrate can be
considered a health-care decision because it is clear from the record no evidence exists
that Husband met a statutory condition precedent to permit him to act in any regard
as a health-care surrogate. Neither side claims that Hebert designated Husband as a
surrogate pursuant to Section 24-7A-5(B) while she had capacity. Instead, both sides
claim that Husband had surrogacy authority, presumably because (1) both sides agree

9
that Hebert lacked capacity; (2) there is no dispute as to whether Corum was or was
not reasonably available; and (3) Husband, as a spouse, qualifies as a class of person
that can make health-care decisions for Hebert given this set of circumstances. See
§ 24-7A-5(B)(1). But these agreements are not supported by findings in the record,
and the circumstances of the case cause us to disagree with both parties’ assertions.
{10} 	Under the Act, a patient is presumed to have the capacity to make his or her
own health-care decisions. Section 24-7A-11(B) (“An individual is presumed to have
capacity to make a health-care decision, to give or revoke an advance health-care
directive and to designate a surrogate.”). This presumption may be rebutted with the
conclusion by two qualified health-care professionals that the patient lacks capacity.
Section 24-7A-11(C) (“Unless otherwise specified in a written advance health-care
directive, a determination that an individual lacks or has recovered capacity or that
another condition exists that affects an individual instruction or the authority of an
agent shall be made by two qualified health-care professionals, one of whom shall be
the primary physician.” 	(emphasis added)); NMSA 1978, § 12-2A-4 (1997)
(constructing statutes and rules that contain “[s]hall’ and ‘must’ to express a duty,
obligation, requirement or condition precedent”). There is no indication in the record
before this Court that there was a determination by two physicians that Hebert lacked

10
capacity at the time Husband signed the admission agreement.
{11} 	The New Mexico Legislature has provided a specific framework in plain and
unambiguous terms as to how the presumption of capacity is to be rebutted. 	We
additionally observe that other courts have come to similar conclusions with regard
to similar surrogacy statutes. In Compere’s Nursing Home, Inc. v. Estate of Farish
ex rel. Lewis, the Mississippi Supreme Court concluded that absent evidence in the
record that the statutory requirement or precondition for a person to be a surrogate or
to act in any regard as one had been met, the court would not hold that an individual
was a surrogate. 982 So. 2d 382, 384 (Miss. 2008). Compare Miss. Code Ann. § 41-
41-211(1) (Rev. 2005) (“A surrogate may make a health-care decision for a patient
who is an adult or emancipated minor if the patient has been determined by the
primary physician to lack capacity and no agent or guardian has been appointed or the
agent or guardian is not reasonably available.”), with Section 24-7A-5(A) (“A
surrogate may make a health-care decision for a patient who is an adult or
emancipated minor if the patient has been determined according to the provisions of
Section 24-7A-11 . . . to lack capacity and no agent or guardian has been appointed
or the agent or guardian is not reasonably available.”), and Section 24-7A-11(C)
(“Unless 	otherwise 	specified 	in 	a 	written 	advance 	health-care 	directive, 	a
determination that an individual lacks or has recovered capacity . . . shall be made by

11
two 	qualified 	health-care 	professionals, 	one 	of 	whom 	shall 	be 	the 	primary
physician.”). The district court in Compere’s Nursing Home had concluded that the
signatory of the arbitration agreement had the authority to make health-care and
business-related decisions, but lacked the authority to bind the principal to an
arbitration agreement, presumably because an arbitration agreement was neither health
care or business related. In Compere’s Nursing Home, Inc., the Mississippi Supreme
Court affirmed by concluding that there was no statutorily required demonstration that
the signatory qualified as a surrogate and, therefore, the signatory lacked the authority
to bind the principal to the arbitration agreement. Id. at 384. The court declined to
address the district court’s conclusions concerning whether an agreement to arbitrate
is a health-care decision. Id.; see Magnolia Healthcare, Inc. v. Barnes ex rel. Grigsby,
994 So. 2d 159, 162 (Miss. 2008) (Dickinson, J., concurring) (stating that an
individual cannot serve as a statutory health-care surrogate without fulfilling the
statutory requirements that include a determination as to whether a patient lacks
capacity to make a health-care decision on their own behalf). Likewise, in Monticello
Community Care Center, LLC v. Estate of Martin ex rel. Peyton, neither the plaintiff
nor the defendant had submitted a statement from the principal’s primary physician
stating that, at the time the arbitration agreement was signed by the signatory, the
principal lacked capacity to make health-care decisions on his own. 17 So. 3d 172,

12
180 (Miss. Ct. App. 2009). The court concluded that without evidence by a physician
that the principal lacked the capacity to make his own health-care choices, there was
insufficient evidence in the record to support a finding that the signatory qualified as
a health-care surrogate. Id. at 180.
{12} 	Tennessee, a state with a similar statutory scheme to that in New Mexico has
likewise addressed this issue. 	See Tenn. Code Ann. §§ 68-11-1801 to -15 (2004).
The court in McKey v. National Healthcare Corporation determined that even when
the plaintiff had conceded at oral argument that the principal lacked capacity at the
time that her daughter admitted her into a nursing home and signed an agreement to
arbitrate, such a concession did not equate to a finding by a physician that a principal
lacked 	capacity 	to 	make 	their 	own 	health-care 	decisions. 	No.
M2007-02341-COA-R3-CV, 2008 WL 3833714, at *3 (Tenn. Ct. App. Aug. 15,
2008). The court stated that “[t]he Tennessee Health Care Decision Act affects what
our courts have described as a fundamental right: personal autonomy, which includes
the ability to make one’s own decisions about health care.” 	Id. 	Without a
determination in the record that the principal lacked capacity, the court was “unwilling
to overlook the statutory requirements” necessary to overcome the presumption of
capacity. Id. Compare Tenn. Code Ann. § 68-11-1803(d) (“A determination that an
individual lacks or has recovered capacity, or that another condition exists that affects

13
an individual instruction or the authority of an agent, must be made by the designated
physician.”), with Section 24-7A-11(C) (“Unless otherwise specified in a written
advance health-care directive, a determination that an individual lacks or has
recovered capacity or that another condition exists that affects an individual
instruction or the authority of an agent shall be made by two qualified health-care
professionals, one of whom shall be the primary physician.”). Several months later,
Tennessee reaffirmed the proposition that the Tennessee Health Care Decisions Act
requires a determination that a principal lacks capacity before an individual has the
authority to act as a surrogate on behalf of the principal. 	Barbee v. Kindred
Healthcare Operating, Inc., No. W2007-00517-COA-R3-CV, 2008 WL 4615858, at
*11-12 (Tenn. Ct. App. Oct. 20, 2008). 	We consider such a required exercise of
caution before assuming incapacity to be essential in protecting patient rights.
{13} 	The Act also requires that, if an agent or guardian has been appointed, a
determination must be made that the agent or guardian is not reasonably available
before another individual may assume the role of a surrogate with the authority to
make health-care decisions on behalf of a principal. Section 24-7A-5(A); § 24-7A-
1(S) (defining “reasonably available” as “readily able to be contacted without undue
effort and willing and able to act in a timely manner considering the urgency of the
patient’s health-care needs”). In this case, Corum had durable financial and medical

14
power of attorney over Hebert. Defendants supplied the district court with an affidavit
of La Villa’s administrator, which stated that, on the day Husband signed the
agreement, the administrator “attempted to contact . . . Corum at the phone number
provided by [Husband] but determined that it was not a valid phone number for . . .
Corum.” 	The administrator’s affidavit also states that she “inquired as to any
additional phone numbers for . . . Corum but was advised by [Husband] that he was
unaware of any other phone numbers for . . . Corum.” These facts, however, do not
demonstrate that Corum could not be contacted without undue effort, that she was
unwilling or unable to participate, or that she could not respond in a timely fashion
given the urgency of the situation. Section 24-7A-5(A); § 24-7A-1(S). Moreover,
there is no finding on this point from the district court. 	If an individual has been
selected and given authority by a principal to make health-care decisions on the
principal’s behalf, it is statutorily required that the selected person with authority be
unavailable before another individual will be given the authority to make health-care
decisions on the principal’s behalf. Id.; see Compere’s Nursing Home, Inc., 982 So.2d
at 384-85 (concluding that the record was devoid of evidence that demonstrated that
the principal’s adult child, who would have had priority to serve as surrogate under
the statute, was unavailable or unwilling to act as a surrogate); Monticello Cmty. Care
Ctr., LLC, 17 So. 3d at 180-81 (concluding that a signatory of a nursing home

15
admission agreement with an arbitration clause lacked power as a surrogate to bind
the principal when the principal’s sister was appointed as the attorney-in-fact to make
health-care decisions on his behalf, and there was no showing that she was not
reasonably available).
{14} 	In Protection and Advocacy System, Inc., this Court held that the Uniform Act
“focuses primarily on the procedures for decision making rather than the content of
decisions.” 1999-NMCA-122, ¶ 16. Because “different patients can make markedly
different, but still reasonable, choices, depending on their religious beliefs, their
assessments of the joys of life, their tolerance for pain, their regard for others, and a
multitude of other factors,” a patient’s individual preferences should be paramount.
Id. The Act gives a patient the choice of who is most capable of making the decisions
that the patient would want made on their behalf. Id. It is only when there has been
no selection of an agent, guardian, or surrogate that the default surrogate selection
comes into place and health-care decisions can be made by individuals who were not
previously chosen to make decisions on behalf of the patient. Id. We also observe
that other provisions of the Act underscore the rights of the patient/principal.
See § 24-7A-5(F) (“A surrogate shall make a health-care decision in accordance with
the patient’s individual instructions, if any, and other wishes to the extent known to
the surrogate. Otherwise, the surrogate shall make the decision in accordance with the

16
surrogate’s determination of the patient’s best interest. In determining the patient’s
best interest, the surrogate shall consider the patient’s personal values to the extent
known to the surrogate.” (emphasis added)); § 24-7A-5(I) (“A patient, at any time,
may disqualify any person, including a member of the patient’s family, from acting
as the patient’s surrogate.”); § 24-7A-7(A) (“Before implementing a health-care
decision made for a patient, a supervising health-care provider shall promptly
communicate to the patient the decision made and the identity of the person making
the decision.”); § 24-7A-11(E) (“An individual, at any time, may challenge a
determination that the individual lacks capacity . . . . Such a challenge shall prevail
unless otherwise ordered by the court.”).
{15} 	As we have already stated, the Act closely mirrors the Uniform Act approved
in 1993 by the National Conference of Commissioners on Uniform State Laws. The
Prefactory Note of the Uniform Act likewise recognizes a patient’s right to make their
own medical decisions. The note states, in pertinent part:
[T]he Act acknowledges the right of a competent individual to decide all
aspects of his or her own health care in all circumstances, including the
right to decline health care or to direct that health care be discontinued,
even if death ensues. An individual’s instructions may extend to any and
all health-care decisions that might arise and, unless limited by the
principal, an agent has authority to make all health-care decisions which
the individual could have made. The Act recognizes and validates an
individual’s authority to define the scope of an instruction or agency as
broadly or as narrowly as the individual chooses.

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{16} 	Regardless of any concessions made below, the statutory presumption is that
an individual has capacity to make their own health-care choices. 	Section 24-7A-
11(B); McKey, 2008 WL 3833714, at *3. Our Legislature, in adopting the various
provisions outlined above, created a framework that protects the citizens of our state
and assures that medical decisions are made according to each individual’s desires and
best interests. Neither party in this case had the ability to stipulate to a circumstance
in conformity with an essential initial requirement of the statute or statutory condition
precedent without proof that the requirement or condition was fulfilled. As the party
moving to compel arbitration, Defendants had the burden to demonstrate a valid
agreement to arbitrate. 	DeArmond, 2003-NMCA-148, ¶ 9. 	The district court
concluded that there was not a valid contract to arbitrate because Husband lacked the
power to enter into the agreement. It is not entirely clear from the record on what
specific basis this was concluded. 	However, as stated earlier in this Opinion, we
decline to reach the question of whether agreeing to arbitration is a health-care
decision, and we conclude that the district court’s denial of the motion to compel was
correct because, as we determine in this Opinion, Husband lacked any authority to be
a surrogate in any regard. See Compere’s Nursing Home, Inc., 982 So. 2d at 384; see
also Cordova, 2009-NMSC-021, ¶ 18 (“Even if the issue had not been preserved
below, it is established law that our appellate courts will affirm a district court’s

18
decision if it is right for any reason, so long as the circumstances do not make it unfair
to the appellant to affirm.”).
B. 	The Federal Arbitration Act
{17} 	The nursing facility’s admission agreement specifies that “the Agreement is
subject to the Federal Arbitration Act [FAA] regarding dispute resolution[,]” and both
parties agree that the FAA governs the arbitration agreement. On appeal, Defendants
assert that the district court’s oral statements made while denying the motion to
compel arbitration evidences reasoning that “implies that a contractual agreement to
arbitrate is entitled to more careful scrutiny under the [Act].” Specifically, Defendants
quote the district court’s statement: “And while our case law, like all states’ case law,
includes a strong belief in enforcing agreements to arbitrate, I think it’s a completely
different matter when we’re talking about waiving the right to trial.” {18}
Defendants correctly note that the FAA does not allow for special scrutiny to be
applied to arbitration agreements. See 9 U.S.C. § 2 (2006) (“A written provision . .
. 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.” (emphasis added));
Fiser v. Dell Computer Corp., 2008-NMSC-046, ¶ 23, 144 N.M. 464, 188 P.3d 1215
(stating that the FAA only requires that arbitration agreements be placed on “the same

19
footing as other contracts” (internal quotation marks and citation omitted)). However,
on review of the district court’s statements, we view the ruling as simply concluding
that the agreement to arbitrate fell outside of the authority granted by the Act. The
district court also stated: “I do not believe [Husband] had the power to . . . enter into
an agreement to arbitrate. This really comes down to an evaluation of the statutory
scope of the [H]ealth[-C]are [D]ecision [A]ct, specifically, the decision by surrogate
clause.” We therefore cannot say that the district court reviewed the arbitration clause
with any special scrutiny.
III. 	CONCLUSION
{19} 	We affirm the district court’s denial of Defendants’ motion to compel
arbitration, and we remand for further proceedings.
{20} 	IT IS SO ORDERED.
_______________________________
ROBERT E. ROBLES, Judge

WE CONCUR:

JONATHANB. SUTIN, Judge

RODERICK T. KENNEDY, J udge

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