July 18, 2012 – Didier L. Figueroa, individually, and as Personal Representative for the Estate of Dolores Figueroa, Deceased v. Thi of New Mexico at Casa Arena Blanca LLC, a Foreign Limited Liability Company d/b/a Casa Arena Blanca Nursing Home, Thi of Baltimore, Inc., a Foreign Corporation, John Doe and Jane Doe, No. 30,477

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: July 18, 2012

NO. 30,477

DIDIER L. FIGUEROA, Individually, and
as Personal Representative for the ESTATE
OF DOLORES FIGUEROA, Deceased,

Plaintiff-A ppellee,
V.

THI OF NEW MEXICO AT CASA ARENA
BLANCA LLC, a Foreign Limited Liability
Company d/b/a CASA ARENA BLANCA
NURSING HOME, THI OF BALTIMORE,
INC., a Foreign Corporation, JOHN DOE
and J ANE DOE,

Defendants-A ppellants.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Sarah M. Singleton, District Judge

Yenson, Lynn, Allen & Wosick, P.C.
Patrick D. Allen

Apnil D. White

Albuquerque, NM

for Appellee

Johnson, Trent, West & Taylor, LLP
Lon D. Proctor

Houston, TX

for Appellant

OPINION
VIGIL, Judge.
{1} 	This case requires us to examine whether an arbitration agreement that a
nursing home requires to be signed as a condition of admission is substantively
unconscionable. Agreeing with the district court that the agreement is unfairly and
unreasonably one-sided in favor of the nursing home, we affirm.
I. 	BACKGROUND
{2} 	Defendant, THI of New Mexico at Casa Arena Blanca, LLC (THICAB),
operates Casa Arena Blanca, a nursing home in Alamogordo, New Mexico. Marlene
Urbina sought to admit her mother, Dolores Figueroa, to Casa Arena Blanca in August
2008. 	Ms. Urbina had been granted a general power of attorney by Ms. Figueroa,
upon which she acted during the admissions process. 	As a condition of Ms.
Figueroa’s admission to Casa Arena Blanca, Ms. Urbina was required to sign various
admission agreements, including an arbitration agreement. 	The agreement states:
“Resident/Representative understands that signing this Agreement to arbitrate is a
precondition for medical treatment or admission to the Health Care Center.” It further
provides in pertinent part:
In the event of any controversy or dispute between the parties arising out
of or relating to Resident’s stay at the Health Care Center, the Health
Care Center’s Admission Agreement, or breach thereof, or relating to the
provision of care or services to Resident, including but not limited to any
alleged tort, personal injury, negligence, contract, consumer protection,
claims under the New Mexico Unfair Practices Act, or other claim; or

2
any federal or state statutory or regulatory claim of any kind; or whether
or not there has been a violation of any right or rights granted under State
law (collectively “Disputes”), and the parties are unable to resolve such
through negotiation, then the parties agree that such Dispute(s) shall be
resolved by arbitration, as provided by the National Arbitration Forum
Code of Procedure or other such association.
The parties agree that guardianship proceedings, collection and eviction
actions initiated by the Health Care Center, any dispute where the
amount in controversy is less than Two Thousand Five Hundred Dollars
($2,500.00) will be excluded from binding arbitration and may be filed
and litigated in any court which may have jurisdiction over the dispute.
{3} 	Ms. Figueroa was a resident at Casa Arena Blanca for four months: from her
admission on September 2, 2008, to the date of her death, January 18, 2009. After her
death, Ms. Figueroa’s son, Didier Figueroa (Plaintiff), individually, and as her
personal representative, filed a complaint in the district court against Defendant. The
complaint contained allegations of: wrongful death; personal injury; negligent hiring,
training and supervision; negligence per se; misrepresentation; violation of the Unfair
Practices Act; and loss of consortium. Plaintiff stated that “[d]espite her advanced
age, Ms. Figueroa was relatively active at the time of her admission,” but her health
“rapidly declined” following her admission to Casa Arena Blanca due to Defendants’
failure to provide proper care. 	Plaintiff further alleged that while residing at Casa
Arena Blanca, Ms. Figueroa suffered unsanitary hygiene conditions, numerous

3
avoidable falls and resulting injuries, skin breakdown, urinary tract infections,
dehydration, bruises, pain and suffering, mental anguish, humiliation, and wrongful
death.
{4} 	In response to Plaintiff’s complaint, Defendant filed a motion to dismiss the
lawsuit from district court for lack of subject matter jurisdiction, to compel arbitration,
and to stay litigation. Defendant asserted that the causes of action in the complaint
were subject to arbitration under the terms of the agreement that Ms. Urbina had
signed on behalf of Ms. Figueroa when she was admitted to Casa Arena Blanca.
{5} 	The district court ruled that the arbitration agreement was unenforceable under
Cordova v. World Finance Corporation of New Mexico, in which our Supreme Court
held an arbitration agreement that was unfairly and unreasonably one-sided in favor
of the drafter substantively unconscionable and unenforceable. 2009-NMSC-021, ¶
25, 146 N.M. 256, 208 P.3d 901. 	The district court noted that the agreement is
unreasonably and unfairly one-sided stating: “really this is not a mutual obligation .
. . the nursing home has, for all practical purposes, excluded almost every kind of case
it would bring against the resident or resident family from arbitration but has bound
the resident in almost every instance where the resident and his or her family would

¹We note that Judge Browning of the United States District Court for the District of
New Mexico ruled contrarily to Judge Singleton on an identical arbitration clause in
a different case. 	See THI of N.M. at Hobbs Ctr., LLC v. Patton, Civ. No. 11-537
LH/CG, 2012 WL 112216, at *21-22 (D.N.M. Jan. 3, 2012). 	Judge Browning
concluded that the arbitration clause was not unconscionable and noted that even if
it were, the court could have only stricken the exclusions portion and saved the
parties’ bilateral agreement to arbitrate all other claims. See id. For the reasons herein
stated in this opinion, we agree with Judge Singleton’s application of New Mexico
law to this arbitration clause.
4
be suing the nursing home, so I think the Cordova case would be applied in this
context to find that the arbitration clause was unenforceable.” 1
{6} 	Defendant appeals pursuant to NMSA 1978, Section 44-7A-29(a)(1) (2001)
(allowing an appeal to be taken from an order denying a motion to compel arbitration).
The district court stayed further proceedings pending our decision on appeal.
II. 	ANALYSIS
{7} 	Defendant argues: (1) that the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-6
(2006), preempts our state law that applies a substantive unconscionability analysis
to the terms of arbitration agreements; (2) that the agreement was not unfairly and
unreasonably 	one-sided 	in 	favor 	of 	Defendant, 	because 	the 	district 	court
misinterpreted the meaning and effect of the exemptions from arbitration; and (3) that
even if the exemptions from arbitration are substantively unconscionable, the
remainder of the arbitration agreement should be severed and enforced, because the

5
parties have bilateral obligations to arbitrate tort claims. We address each argument
in turn.
A. 	Preemption by the Federal Arbitration Act
{8} 	We agree with Defendant that the FAA applies to its arbitration agreement. See
9 U.S.C. §§ 1-2 (stating that the FAA governs all arbitration agreements that involve
commerce). The FAA requires that state courts enforce arbitration agreements unless
the agreement is otherwise revocable under existing legal or equitable principles. See
9 U.S.C. § 2 (“A written provision . . . or a contract [to arbitrate] . . . shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law or in equity for
the revocation of any contract.”). Accordingly, arbitration agreements must be placed
on “equal footing” with other contracts, and are revocable only by “generally
applicable contract defenses, such as fraud, duress, or unconscionability,” but not by
defenses that single out arbitration agreements or “that derive their meaning from the
fact that an agreement to arbitrate is at issue.” 	Rivera v. Am. Gen. Fin. Servs. Inc.,
2011-NMSC-033, ¶¶ 16-17, 150 N.M. 398, 259 P.3d 803 (internal quotation marks
and citation omitted). 	Thus, if a state law or judicial doctrine treats arbitration
agreements disparately, it is inconsistent with, and preempted by, the FAA and cannot
be used to render the arbitration agreement unenforceable. See id.; AT&T Mobility
LLC v. Concepcion, 563 U.S. __ , 131 S. Ct. 1740, 1747-53 (2011); Doctor’s Assocs.,
Inc. v. Casarotto, 517 U.S. 681, 686-88 (1996). However, if state law governs issues

2Section 44-7A-5 states: 	“In the arbitration of a dispute between a consumer,
borrower, tenant or employee and another party, a disabling civil dispute clause
contained in a document relevant to the dispute is unenforceable against and voidable
by the consumer, borrower, tenant or employee.” Section 44-7A-1(b)(4)(f) defines
“disabling civil dispute clause” as: “a provision modifying or limiting procedural
rights necessary or useful to a consumer, borrower, tenant or employee in the
enforcement of substantive rights against a party drafting a standard form contract or
lease, such as, by way of example, a clause requiring the consumer, tenant or
employee to . . . decline to participate in a class action.” (Emphasis added.)
6
concerning the validity, revocability, and enforceability of contracts generally, that
law’s application to arbitration agreements is not preempted by the FAA. 	See
Cordova, 2009-NMSC-021, ¶ 37 (“‘[S]tate law, whether of legislative or judicial
origin, is applicable [and does not contravene the FAA] if that law arose to govern
issues 	concerning 	the 	validity, 	revocability, 	and 	enforceability 	of 	contracts
generally.’” (quoting Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987)).
{9} 	For example, in Fiser v. Dell Computer Corp., the defendant sought to enforce
an arbitration agreement that precluded the consumer from bringing a class action
against the defendant. 	2008-NMSC-046, ¶ 4, 144 N.M. 464, 188 P.3d 1215. 	In
analyzing the defendant’s arguments, the Court considered a New Mexico statute
providing that any waiver of a consumer’s right to a class action in an arbitration
agreement was void and unenforceable. See id. ¶ 13 (citing NMSA 1978, § 44-7A-
1(b)(4)(f) (2001) and § 44-7A-5 (2001)).2 The New Mexico Supreme Court noted that
the statute may have been preempted by the FAA because it specifically singled out

7
arbitration agreements, but nevertheless, the Court reasoned that the statute was
evidence of New Mexico’s strong public policy to provide a procedure for consumers
to have a remedy for small claims. See Fiser, 2008-NMSC-046, ¶ 13. Therefore, the
Court concluded that the provision waiving the plaintiff’s right to a class action in the
arbitration agreement was substantively unconscionable and unenforceable as contrary
to our state’s public policy. See id. ¶¶ 13-22. In considering the dictates of the FAA,
the Court reasoned that because unconscionability is a doctrine that applies to all
contracts under New Mexico law, its holding was not preempted by the FAA. See id.
¶ 23 (“Because our invalidation of the ban on class relief rests on the doctrine of
unconscionability, a doctrine that exists for the revocation of any contract, the FAA
does not preempt our holding.”).
{10} 	Additionally, 	in 	Cordova, 	in 	concluding 	that 	the 	application 	of
unconscionability was not preempted by the FAA, the Court stated:
New Mexico’s legal doctrine of contractual unconscionability, like that
of other jurisdictions, was not developed to target or invalidate this or
any other arbitration agreement. Our unconscionability analysis, which
is applied in the same manner to arbitration clauses as to any other
clauses of a contract, is therefore not inconsistent with the dictates of
the FAA. 	The FAA is intended to promote inexpensive, fair, and
reasonable arbitration alternatives to litigation. 	It is not a license for
businesses to take advantage of consumers by the imposition of one-
sided, unfair, and legally unconscionable arbitration schemes. We will
not allow our courts to be used to enforce unconscionable arbitration
clauses any more than we will allow them to be used to enforce any
other unconscionable contract in New Mexico.

8
Id. ¶ 38 (citation omitted).
{11} 	In spite of the clarity of these Supreme Court cases, Defendant contends that
New Mexico’s unconscionability analysis, as applied to arbitration agreements, is
preempted by the FAA. In support of its argument, Defendant cites Concepcion, in
which the United States Supreme Court overturned California’s Discover Bank rule,
that invalidated class action waivers in arbitration agreements on the grounds of
substantive unconscionability. The Discover Bank rule provides:
When [a class action] waiver is found in a consumer contract of adhesion
in a setting in which disputes between the contracting parties predictably
involve small amounts of damages, and when it is alleged that the party
with the superior bargaining power has carried out a scheme to
deliberately cheat large numbers of consumers out of individually small
sums of money, then . . . the waiver becomes in practice the exemption
of the party “from responsibility for [its] own fraud, or willful injury to
the person or property of another.” 	Under these circumstances, such
waivers are unconscionable under California law and should not be
enforced.
See Concepcion, 131 S. Ct. at 1746 (quoting Discover Bank v. Superior Ct. , 113 P.3d
1100, 1110 (Cal. 2005), overruled by Concepcion). In Concepcion, the Court found
that the Discover Bank rule targeted arbitration agreements in a manner inconsistent
with the dictates of the FAA, and was therefore preempted. Concepcion, 131 S. Ct.
at 1750-51.
{12} 	Based on Concepcion’s reference to the substantive unconscionability analysis
of Discover Bank, Defendant argues that Fiser was implicitly overruled, that Cordova

9
is likewise “inapposite,” and therefore, the district court erred in relying on Cordova
as authority for precluding enforcement of its agreement. 	We disagree that
Concepcion controls. As an initial matter, we note that Concepcion is inapplicable to
the issues raised by the arbitration agreement in this case. 	No class action ban is
before us. 	Furthermore, to the extent that Defendant argues that the substantive
unconscionability analysis as applied to class action bans in Fiser was overruled by
Concepcion, we conclude that different public policies underlie the Court’s holdings
in Fiser from the Court’s holding in Cordova.
{13} 	Our substantive unconscionability analysis as applied in Cordova to one-sided
arbitration agreements is distinguishable from the application of the Discover Bank
rule at issue in Concepcion. The equitable doctrine of substantive unconscionability
is not a rule that directly targets a specific term of an agreement or an entire class of
agreements. 	See Concepcion, 131 S. Ct. at 1750-53 (concluding that the rule that
rendered class action waiver provisions in an arbitration contract unenforceable was
preempted by the FAA); Doctor’s Assocs., Inc., 517 U.S. at 684 (concluding that a
statute targeted arbitration agreements by requiring any agreement for arbitration,
specifically, to have a notice provision on the first page in capital, underlined letters
and was therefore preempted by the FAA). 	Rather, under New Mexico law,
substantive unconscionability is an equitable remedy, applied on a case-by-case basis,
analyzing the particular contract and its terms for unfair and unreasonable one-sided

10
favorability towards the drafter. See Guthmann v. La Vida Llena, 103 N.M. 506, 510,
709 P.2d 675, 679 (1985) (stating that “contract terms which are unreasonably
favorable to the other party” can contribute to a finding of unconscionability),
overruled on other grounds by Cordova, 2009-NMSC-021, ¶ 31; Pugh v. Phelps, 37
N.M. 126, 131, 19 P.2d 315, 318 (1932) (“[A] court of equity will not enforce and
should not enforce a contract which is unfair, unequal, and unjust, nor one, the
performance of which would be in any way unconscionable.”).
{14} 	Thus, we decline to construe Concepcion in the broad manner that Defendant
requests. 	See Concepcion, 131 S. Ct. at 1750-53. 	Construing Concepcion to
invalidate the district court’s ruling would be inconsistent with our New Mexico
Supreme Court precedent. Further, if we were to conclude that arbitration agreements
are, as a matter of law, exempted from the unconscionability analysis as it is applied
to all other contracts, this would place arbitration agreements on an unequal footing,
and provide them special treatment under the law. See Rivera, 2011-NMSC-033, ¶
16 (stating that the FAA mandates that arbitration agreements be placed on “equal
footing” with other contracts (quoting Concepcion, 131 S. Ct. at 1745)). 	Placing
arbitration agreements in a special status would be inconsistent with United States
Supreme Court precedent, New Mexico precedent, and the FAA. 	See Concepcion,
131 S. Ct. at 1745 (“[C]ourts must place arbitration agreements on an equal footing
with other contracts[.]”); Rivera, 2011-NMSC-033, ¶ 16. In addition to our reasoning

3See Brewer v. Mo. Title Loans, No. SC 90647, 2012 WL 716878, at *4 (Mo. Mar. 6,
2012) (en banc) (“Although the majority [in Concepcion] held that the Discover Bank
rule was preempted by the [FAA], it does not follow, as the title company contends,
that all state law unconscionability defenses are preempted by the [FAA] in all
cases. . . . consistent with the stated issue in Concepcion, the Supreme Court’s holding
was expressly limited to finding that California’s Discover Bank rule is preempted by
the [FAA].” (internal quotation marks and citations omitted)); Palmer v. Infosys
Techs. Ltd., No. 2:11cv217-MHT, 2011 WL 5434258, at *4-5 (M.D. Ala. Nov. 9,
2011) (stating that California’s rule to invalidate arbitration agreements where a “lack
of mutuality” exists on the grounds of substantive unconscionability survives the
ruling of Concepcion, because it “does not interfere with fundamental attributes of
arbitration and is not preempted by the FAA.” (alteration, internal quotation marks,
and citation omitted)); Mission Viejo Emergency Med. Assocs. v. Beta Healthcare
Group, 128 Cal. Rptr. 3d 330, 339 n.4 (“Defendants appear to argue that [Concepcion]
essentially preempts all California law relating to unconscionability. We disagree, as
the case simply does not go that far. 	General state law doctrine pertaining to
unconscionability is preserved unless it involves a defense that applies only to
arbitration or that derives its meaning from the fact that an agreement to arbitrate is
at issue.” (alteration, internal quotation marks, and citation omitted)); Kanbar v.
O’Melveny & Myers, No. C-11-0892 EMC, 2011 WL 2940690, at *6 (N.D. Cal. July
21, 2011) (rejecting the defendant’s assertion that Concepcion precludes a challenge
to an arbitration agreement on the grounds of unconscionability, and concluding that
arbitration agreements are still subject to unconscionability analysis in spite of the
ruling in Concepcion).
11
under New Mexico law, we also find support for our conclusion from other
jurisdictions.3
{15} 	Furthermore, after the United States Supreme Court issued Concepcion, our
own Supreme Court reaffirmed its holding in Cordova. See Rivera, 2011-NMSC-033,
¶¶ 16, 42 (citing Concepcion for a general rule of law). 	In Rivera, the Court
concluded that an unfairly one-sided arbitration agreement was substantively

12
unconscionable, and explicitly reversed our conclusion that the agreement was not
one-sided, stating that we construed Cordova too narrowly. See Rivera, 2011-NMSC-
033, ¶ 42. Thus, to the extent that Defendant disagrees with our analysis, and argues
that Concepcion governs, we are nonetheless bound by New Mexico Supreme Court
precedent. See State v. Manzanares, 100 N.M. 621, 622, 674 P.2d 511, 512 (1983)
(stating that we are bound by New Mexico Supreme Court precedent even when a
United States Supreme Court decision seems contra).
{16} 	Defendant further asserts that the district court’s ruling is inconsistent with the
dictates of the FAA because it requires “mutuality of obligation” for arbitration
agreements, and mandates the “type” of consideration required for arbitration
agreements. Defendant argues: “the FAA would preempt a judicial rule classifying
as unconscionable contracts lacking symmetrical promises to arbitrate because such
a rule would impose a special consideration requirement applicable solely and
uniquely to arbitration agreements.” Thus, Defendant contends that the substantive
unconscionability analysis acts to treat arbitration agreements differently from other
contracts, because we don’t generally inquire into the adequacy of consideration to
support a contract.
{17} 	However, Defendant’s argument fails to appreciate that consideration and
unconscionability are two different analyses under contract law. Consideration is a
prerequisite to the legal formation of a valid contract. 	See Nance v. L.J. Dolloff

13
Assocs., Inc., 2006-NMCA-012, ¶ 19, 138 N.M. 851, 126 P.3d 1215 (“To be legally
enforceable[, a contract must have] an offer, acceptance, consideration, and mutual
assent.”); Smith v. Vill .of Ruidoso, 1999-NMCA-151, ¶ 33, 128 N.M. 470, 994 P.2d
50 (“Consideration is essential to the enforcement of a promise.”). Unconscionability,
on the other hand, “is an equitable doctrine, rooted in public policy, which allows
courts to render unenforceable an agreement that is unreasonably favorable to one
party while precluding a meaningful choice of the other party.” 	Cordova, 2009-
NMSC-021, ¶ 21 (emphasis added).
{18} 	New Mexico law does not equate adequate consideration with a conscionable
contract. As Fraser v. State Savings Bank, states:
Mere inadequacy of price, or any other inequality in a bargain, we are
told, is not to be understood as constituting per se a ground to avoid a
bargain in equity. For courts of equity, as well as courts of law, act upon
the ground that every person who is not . . . under disability, is entitled
to dispose of his property in such manner and upon such terms as he
chooses; and whether his bargain be wise and discreet or otherwise, or
profitable or unprofitable, are considerations not for the courts of justice,
but for the party himself to deliberate upon. . . . Still there may be such
unconscionableness or inadequacy of consideration in a bargain, as to
demonstrate some gross imposition or some undue influence; and in such
case, courts of equity ought to interfere, upon satisfactory ground of
fraud.
18 N.M. 340, 355-56, 137 P. 592, 596 (1913). Unconscionability is examined by the
court where, in spite of adequate consideration to support a contract, the unfair terms
of the contract do not warrant enforcement. See Rivera v. Rivera, 2010-NMCA-106,

14
¶¶ 20-26, 149 N.M. 66, 243 P.3d 1148 (concluding that a premarital agreement was
valid, but unenforceable as unconscionable, because the agreement restricted the
husband’s right to spousal support, and was therefore against the public policy of our
state), cert. denied, 2010-NMCERT-010, 149 N.M. 64, 243 P.3d 1146; Manzano
Indus., Inc. v. Mathis, 101 N.M. 104, 104, 678 P.2d 1179, 1179 (1984) (“This Court
has, however, refused to enforce the literal terms of such [otherwise enforceable]
contracts when to do so would work an unfairness which shocks the conscience of the
court.”); Smith & Lowe Constr. Co. v. Herrera, 79 N.M. 239, 240, 442 P.2d 197, 198
(1968) (“[C]ourts generally allow rescission of [a subcontractor’s] contract without
forfeiture of the bid bond where it appears that . . . the mistake was of such grave
consequence that to enforce the contract would be unconscionable” and the mistake
was material, not committed negligently or in bad faith, reasonable notice was given,
and no serious prejudice would occur to the offeree); Pugh, 37 N.M. at 131, 19 P.2d
at 318 (stating that contracts will not be enforced that are unconscionable, and
“[h]owever valid or legal a contract may be in its execution, he who comes into a
court of equity asking its enforcement and seeking equity must at all times be willing
to do equity”); Fraser, 18 N.M. at 355-56, 137 P. at 596; see also Motsinger v. Lithia
Rose-FT, Inc., 156 P.3d 156, 163 (Or. Ct. App. 2007) (“In our view, however, it is
possible for a contractual term to be supported by adequate consideration and yet still
be so unreasonable as to be unconscionable in the context of a contract of adhesion.”).

15
{19} 	We find further support for the separate treatment of unconscionability and
consideration in the Supreme Court’s analysis of the arbitration agreement in
Cordova. There, the Court concluded that the consideration to support the contract
was not illusory, and therefore, the proper analysis of the alleged unfair terms should
be examined “through the framework of a traditional unconscionability analysis.”
Cordova, 2009-NMSC-021, ¶ 16. In spite of the existing consideration to support the
agreement, the Court concluded that the terms were unfairly and unreasonably one-
sided, and thereby, substantively unconscionable. See id. ¶¶ 16, 32.
{20} 	Thus, because unconscionability and consideration are different analyses under
New Mexico law, we disagree with Defendant’s contention that our unconscionability
analysis equates to a disparate treatment of arbitration agreements. Consideration to
support the arbitration agreement is not the issue. Rather, the district court’s ruling
is predicated on the agreement’s unenforceability under the equitable doctrine of
substantive unconscionability.
{21} 	We inquire, on an equal basis for all contracts, whether terms of a contract are
so unfairly unequal as to prevent enforcement of the contract under the equitable
doctrine of unconscionability. See, e.g., Bowlin’s, Inc. v. Ramsey Oil Co., 99 N.M.
660, 	668, 	662 	P.2d 	661, 	669 	(Ct. 	App. 	1983) 	(discussing 	substantive
unconscionability as applied to all contracts, stating that it applies to “contract clauses
which are illegal or contrary to public policy” and that “‘[u]nconscionability has

16
generally been recognized to include . . . contract terms which are unreasonably
favorable to the other party,’” (quoting Williams v. Walker-Thomas Furniture Co.,
350 F.2d 445, 449 (D.C. Cir. 1965))); Nearburg v. Yates Petroleum Corp., 1997-
NMCA-069, ¶ 31, 123 N.M. 526, 943 P.2d 560 (“A court should thus not interfere
with the bargain reached by the parties unless the court concludes that the policy
favoring freedom of contract ought to give way to one of the well-defined equitable
exceptions, 	such 	as 	unconscionability, 	mistake, 	fraud 	or 	illegality.”). 	Equal
application of a generally applicable contract defense does not violate the FAA. See
Cordova, 2009-NMSC-021, ¶¶ 36-37; 	see also Armendariz v. Found. Health
Psychcare Servs., Inc., 6 P.3d 669, 771 (Cal. 2000) (“We disagree that enforcing a
‘modicum of bilaterality’ in arbitration agreements singles out arbitration for suspect
status. . . . the ordinary principles of unconscionability may manifest themselves in
forms peculiar to the arbitration context. One such form is an agreement requiring
arbitration only for the claims of the weaker party but a choice of forums for the
claims of the stronger party.”). Accordingly, we conclude that our unconscionability
analysis does not “stand[] as an obstacle to the accomplishment and execution of the
full purposes and objectives of [the FAA].” 	See Concepcion, 131 S. Ct. at 1753
(internal quotation marks and citation omitted). 	We therefore turn to address
Defendant’s argument that the district court erred in ruling that Defendant’s
mandatory arbitration agreement is substantively unconscionable.

17
B. 	Unconscionability of the Arbitration Agreement
{22} 	Unconscionability “can be analyzed from both procedural and substantive
perspectives.” 	Cordova, 2009-NMSC-021, ¶ 21. 	Substantive unconscionability
concerns the “legality and fairness of the contract terms themselves,” including
“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.” Id. ¶ 22. Procedural unconscionability, on the other hand, “examines the
particular factual circumstances surrounding the formation of the contract, including
the relative bargaining strength, sophistication of the parties, and the extent to which
either party felt free to accept or decline terms demanded by the other.” Id. ¶ 23.
{23} 	“While there is a greater likelihood of a contract’s being invalidated for
unconscionability if there is a combination of both procedural and substantive
unconscionability, 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.” 	Id. ¶ 24. Thus, our
courts have concluded that where an agreement is so one-sided that the substantive
unconscionability is apparent on the face of the contract, analysis of the procedural
unconscionability of the formation of the contract is unnecessary to establish that the
contract is unconscionable. See id. ¶¶ 32-34 (concluding that an arbitration provision
that gave no judicial remedies to the consumer while reserving the right to take almost
all of the claims the lender would have to court was one-sided, and stating “the

18
substantive 	unconscionability 	of 	these 	one-sided 	arbitration 	provisions 	is 	so
compelling that we need not rely on any finding of procedural unconscionability”);
Rivera, 2011-NMSC-033, ¶ 54 (same). 	Likewise, here, only the substantive
unconscionability of the one-sided terms of the agreement are at issue. We review
issues relating to the unconscionability of an arbitration agreement de novo. 	See
Cordova, 2009-NMSC-021, ¶ 11 (providing that review of a district court’s denial of
a motion to compel arbitration, review of the applicability and construction of a
contractual provision requiring arbitration, and whether a contract is unconscionable
are all issues of law which are reviewed de novo).
{24} 	Our Supreme Court invalidated arbitration agreements that were unfairly and
unreasonably one-sided in favor of the drafter in Cordova and in Rivera. In Cordova,
the Court invalidated an arbitration agreement in a loan contract. 	The provision
required that the parties arbitrate all their claims, but in the event of a default, the
lender was entitled to “seek its remedies in an action at law or in equity, including but
not limited to, judicial foreclosure or repossession.” Cordova, 2009-NMSC-021, ¶ 4
(internal quotation marks omitted). The Court concluded that the arbitration scheme
was “self-serving” to the lender and was “so unfairly and unreasonably one-sided that
it [was] substantively unconscionable.” Id. ¶ 32.
{25} 	Likewise, in Rivera, the Court addressed the substantive unconscionability of
an arbitration agreement in a car title loan contract that required the borrower to

19
arbitrate any claims that she might have against the lender, but exempted from
arbitration the lender’s “self-help or judicial remedies including, without limitation,
repossession or foreclosure.” 	2011-NMSC-033, ¶ 3 (internal quotation marks
omitted). When the case was in the Court of Appeals, we concluded that the clause
was not “completely one-sided,” because some claims of the lender would be required
to be arbitrated, and the exemptions from arbitration were related to highly statutorily
regulated causes of action, and therefore, the agreement to arbitrate was not
substantively unconscionable. See Rivera v. Am. Gen. Fin. Servs., Inc., 2010-NMCA-
046, ¶¶ 9-13, 148 N.M. 784, 242 P.3d 351, rev’d by 2011-NMSC-033. The case was
appealed to our Supreme Court, and although it was unnecessary to the disposition of
the case, the Court addressed the unconscionability of the agreement because it
wanted to correct this Court’s “overly narrow construction on New Mexico’s
unconscionability jurisprudence and [misapplication] of [the Supreme Court’s]
holding in Cordova.” Rivera, 2011-NMSC-033, ¶ 1. The Supreme Court explicitly
reversed our ruling in Rivera, stating that “complete one-sidedness” is not required for
the terms of a contract to be substantively unconscionable. 	See id. ¶¶ 39-54
(alteration, internal quotation marks, and citation omitted). The Court reasoned that,
in spite of the lender’s bilateral obligation to arbitrate certain claims, the arbitration
agreement was, in effect, unfairly and unreasonably one-sided in favor of the lender.
See id. ¶¶ 53-54. The Court stated: “By excepting foreclosure and repossession from

20
arbitration, [the lender] retained the right to obtain through the judicial system the
only remedies it was likely to need.” 	Id. ¶ 53. Thus, the Court concluded that the
lender’s ability “to seek judicial redress of its likeliest claims while forcing [the
borrower] to arbitrate any claim she may have is unreasonably one-sided.” Id.
{26} 	The arbitration agreement signed on behalf of Ms. Figueroa exempts:
“guardianship proceedings, collection and eviction actions initiated by the Health Care
Center, any dispute where the amount in controversy is less than Two Thousand Five
Hundred Dollars ($2,500.00).” Defendant argues that the district court misinterpreted
“collection actions” to mean suits against a resident for fees, because in drafting the
clause, Defendant meant that exemption to be construed solely to the “enforcement
of judgments.” 	Thus, Defendant asserts that the practical effect of the arbitration
clause does not reserve its most likely claims for a judicial forum. Defendant asserts
that “collection actions” must be construed as being limited to judgment enforcement
actions because of its proximity between guardianship and eviction actions in the
clause that Defendant asserts require judicial enforcement, like judgment enforcement
actions; and because “any dispute” in the exemption for claims under $2,500 covers
claims against residents for fees. We disagree with Defendant’s construction of the
arbitration agreement.
{27} 	Terms in a contract are to be afforded their usual and ordinary meaning. See
H-B-S P’ship v. Aircoa Hospitality Servs., Inc., 2005-NMCA-068, ¶ 19, 137 N.M.

4We note that Judge Browning came to the same conclusion in THI of New Mexico at
Hobbs Center, LLC v. Patton, Civ. No. 11-537 LH/CG, 2012 WL 112216, at *20
(D.N.M. Jan. 3, 2012) (rejecting the same argument on the grounds that collection
actions in its regular usage does not refer solely to enforcement of judgments, but
rather, is a broader term and because judgment enforcement is a term of art that could
have been used if the nursing home had intended to limit the exclusion to only those
actions).
21
626, 114 P.3d 306. “Collect” is defined in the dictionary as “to present as due and
receive payment for.” Webster’s Third New Int’l Dictionary 444 (unabridged) (2002);
see also Black’s Law Dictionary 180 (6th ed. 1991) (defining collect as “[t]o receive
payment”). “Collection actions” in its usual and ordinary meaning is broader than
enforcement of judgments. Had Defendant intended to limit the exclusion to actions
for enforcement of a judgment, it could have narrowly drafted the agreement to refer
to those specifically, instead of using the broader term “collection actions.” See Heye
v. Am. Golf Corp., 2003-NMCA-138, ¶ 14, 134 N.M. 558, 80 P.3d 495 (“We construe
ambiguities in a contract against the drafter to protect the rights of the party who did
not draft it.”). We therefore reject Defendant’s argument that the district court erred
in construing collection actions as including actions against a resident for fees. 4
{28} 	Defendant asserts that even if the “collection actions” exemption is construed
to 	include 	lawsuits 	against 	residents 	for 	fees, 	that 	this 	arbitration 	clause 	is
distinguishable from those in Rivera and Cordova because they prevented the resident
from bringing any claims to court. 	See Rivera, 2011-NMSC-033, ¶ 53; Cordova,

22
2009-NMSC-021, ¶ 27. 	Thus, Defendant asserts that residents’ rights under the
agreement to bring claims under $2,500 and guardianship proceedings in a judicial
forum are sufficient to prevent this agreement from being egregiously one-sided, and
that Cordova and Rivera do not require mirror obligations between the parties to
arbitrate claims. We agree that Cordova and Rivera do not mandate equal obligations,
and we recognize that in this case, the arbitration agreement can be construed to grant
some rights to a judicial forum to the resident, unlike Cordova and Rivera. However,
even assuming that the exclusions in the agreement allow residents to bring
guardianship and claims under $2,500 in a judicial forum as Defendant contends, we
conclude that these rights to a judicial forum do not sufficiently act to remedy the
gross disparity that results from Defendant’s reservation of its most likely claims to
a judicial forum, while the resident’s most likely claims are subject to arbitration.
{29} 	First, we question when a circumstance could arise where the resident would
have a guardianship action against the nursing home. 	See Black’s Law Dictionary
776 (9th ed. 2009) (stating that “[a] guardianship is almost always an involuntary
procedure imposed by the state on the ward[,]” and defining guardianship as “[t]he
fiduciary relationship between a guardian and a ward or other incapacitated person,
whereby the guardian assumes the power to make decisions about the ward’s person
or property”). 	If there are any, Defendant has failed to point the Court to them.
Further, although the exemption from arbitration for claims under $2,500 grants some

23
judicial rights to the resident, this bilateral right to a judicial forum is de minimis.
Rather, the practical effect of this agreement is no different from Cordova and Rivera:
the resident is precluded from bringing any claims that he or she would likely have,
while the most likely claims the nursing home would have against the resident are
excluded from arbitration.
{30} 	Thus, we conclude that like the arbitration agreements in Rivera and Cordova,
the arbitration agreement in this case is unreasonably and unfairly one-sided in favor
of Defendant. 	While we agree that arbitration obligations do not have to be
completely equal, and that parties may freely enter into reasonable agreements to
exempt certain claims from arbitration, we refuse to enforce an agreement where the
drafter unreasonably reserved the vast majority of his claims for the courts, while
subjecting the weaker party to arbitration on essentially all of the claims that party is
likely to bring. 	See Rivera, 2011-NMSC-033, ¶ 53. 	Defendant cannot avoid the
equitable doctrine of unconscionability by drafting an agreement that reserves its most
likely claims for a judicial forum, and provides some exemptions from arbitration to
the resident so that there is some appearance of bilaterality, when that exemption is
completely meaningless in practicality because the resident would rarely, if ever, raise
that type of claim against the nursing home. See, e.g., Iwen v. U.S. W. Direct, 1999
MT 63, ¶ 32, 293 Mont. 512, 977 P.2d 989 (concluding that an arbitration agreement
that lacked mutuality of obligation, was one-sided, and contained terms that were

24
unreasonably favorable to the drafter was unconscionable the court stated: “this does
not mean arbitration agreements must contain mutual promises that give the parties
identical rights and obligations, or that the parties must be bound in the exact same
manner. 	This simply restates the rule of law that disparities in the rights of the
contracting parties must not be so one-sided and unreasonably favorable to the drafter,
as they are in this case, that the agreement becomes unconscionable and oppressive”).
{31} 	In further support of its claim, Defendant asserts that Plaintiff failed to present
evidence that the arbitration agreement exempts the most likely claims Defendant
would bring against a resident. 	We conclude that the inference that guardianship,
collection, and eviction proceedings would be the most likely claims of the nursing
home is self-evident. These claims are, by definition, more likely to be initiated by
the nursing home against the resident, as they involve proceedings that are incident
to the nursing home’s relationship with its resident tenants. 	See generally NMSA
1978, § 47-8-3(G) (1999) (“‘[E]viction’ means any action initiated by the owner to
regain possession of a dwelling unit and use the premises under terms of the Uniform
Owner-Resident Relations Act.”); Black’s Law Dictionary 635 (9th ed. 2009)
(defining eviction as “[t]he act or process of legally dispossessing a person of land or
rental property”); NMSA 1978, § 45-5A-102(F) (2011) (effective January 1, 2012)
(“‘[G]uardianship proceeding’ means a judicial proceeding in which an order for the

5Defendant points out in its brief that “the Facility pursues fee collections through the
formation of a deceased resident’s estate or through guardianship proceedings (to
obtain Medicaid payments).”
25
appointment of a guardian is sought or has been issued.”) 5; Webster’s Third New Int’l
Dictionary, supra, at 444 	(defining “collect” as “to present as due and receive
payment for”). Common sense dictates that the most likely claims Defendant would
have against a resident would be related to its provision of services to that resident:
i.e., the collection of fees for services through guardianship proceedings and collection
actions, and the procedure for discontinuing those services through eviction. 	We
therefore reject Defendant’s contention that the lack of evidence pertaining to the
likelihood of Defendant bringing the exempted claims requires reversal of the district
court’s ruling.
{32} 	Defendant also argues that the agreement is not unfairly one-sided because it
is subject to arbitration on many potential lawsuits it could have against the resident,
including the following: (1) tort actions against a resident to recover money damages
for negligent or intentional destruction of facility property or injury to other residents
or staff; (2) claims for contribution or equitable indemnification arising from tort
injuries inflicted by residents on other residents; (3) malicious abuse of process; (4)
declaratory judgment to adjudicate resident rights and for injunctive relief; and (5)
defamation actions. Despite Defendant’s argument that it is conceivable that some

26
claims could be brought by the nursing home that would be subject to arbitration, we
reiterate that the agreement nonetheless exempts the most likely claims that the nursing
home would have against a resident at its facility: guardianship proceedings,
collection actions, and evictions. 	These bilateral obligations that both parties may
have to arbitrate certain types of claims do not act to rescind the gross disparity in
reservation of the nursing home’s most likely claims to a judicial forum, while
subjecting the resident’s most likely claims to arbitration. See Cordova, 2009-NMSC-
021, ¶ 25 (“Contract provisions that unreasonably benefit one party over another are
substantively unconscionable.”). 	As was the case in Rivera, where the lender is
subject to arbitration for some claims, but exempts those claims it is “likely to need,”
the agreement is unconscionable as unfairly and unreasonably one-sided. See Rivera,
2011-NMSC-033, ¶ 53.
{33} 	Defendant further argues that the arbitration clause was drafted to exclude
guardianship proceedings, collection actions, and evictions because those actions
result in remedies that a court must enforce, and because small claims are not cost-
effective in arbitration. Therefore, Defendant argues that the clause was drafted to
exclude claims from arbitration that are better suited to a judicial forum. However,
our Supreme Court rejected a similar proposition in Rivera. 2011-NMSC-033, ¶ 51.
When Rivera was before this Court, we had concluded that because judicial
foreclosure and repossession were highly statutorily regulated, it was reasonable for

27
the lender to exempt those proceedings from arbitration in order to maintain statutory
protections as a secured creditor. See id. ¶ 50. However, our Supreme Court reversed,
stating: “As a matter of law arbitrators have broad authority and are deemed capable
of granting any remedy necessary to resolve a case,” and that “an arbitrator can be
given the authority to address any claims a lender may have against a borrower.” Id.
¶¶ 51-52; see also NMSA 1978, § 44-7A-22 (2001) (providing that an arbitrator may
award punitive damages, attorney’s fees and costs, and all other remedies the
arbitrator deems “just and appropriate”); NMSA 1978, § 44-7A-23 (2001) (providing
that a party may make a motion to the court to confirm an award of the arbitrator).
Likewise, here, the assertion that claims might be better suited to a judicial forum does
not justify a grossly one-sided arbitration agreement, when an arbitrator can be given
the authority to address those claims, and judicial enforcement can be invoked for any
remedy granted by the arbitrator.
{34} 	Finally, 	Defendant 	asserts 	that 	even 	if 	the 	arbitration 	agreement 	is
unconscionable on the grounds of its one-sided terms; the agreement was supported
by other consideration and is therefore enforceable. 	Defendant argues that it gave
alternate consideration in allowing Ms. Figueroa’s admission to the nursing home in
exchange for her promise to arbitrate, and thus, the fact that mutual promises to
arbitrate were not given by both parties is immaterial. However, we reiterate that the
unconscionability analysis is a separate matter from whether consideration existed to

28
support the legal formation of a contract. Rather, unconscionability voids a contract
when it is unfair and grossly unreasonable, even if otherwise legally enforceable under
contract formation principles. See Cordova, 2009-NMSC-021, ¶¶ 16, 21 (applying
equitable doctrine of unconscionability in spite of consideration to support the
contract). Thus, the existence of alternative consideration to support the agreement
is immaterial under these circumstances, because the arbitration agreement is
unenforceable 	for 	its 	inequitable 	unfairness 	to 	the 	resident, 	not 	for 	lack 	of
consideration.
{35} 	We recognize Defendant’s argument that other jurisdictions do not inquire into
the substantive unconscionability of the terms of an arbitration agreement, provided
there is adequate consideration to support the agreement. See Motsinger, 156 P.3d at
162-63 (noting other jurisdictions follow a contrary approach and stating that “[a]
number of courts—if not a majority—have rejected challenges of unconscionability,
based on the theory that agreements to arbitrate do not require ‘mutuality of
obligation’ but only adequate consideration; that is, as long as the agreement is
supported by adequate consideration, the arbitration clause need not apply equally to
both parties” (internal quotation marks omitted) (citing Harris v. Green Tree Fin.
Corp., 183 F.3d 173, 183 (3d Cir. 1999); Blue Cross Blue Shield of Ala. v. Rigas, 923
So. 2d 1077, 1091, (Ala. 2005); Rains v. Found. Health Sys. Life & Health, 23 P.3d
1249, 1255 (Colo. App. 2001); State ex rel Vincent v. Schneider, 194 S.W.3d 853, 859

29
(Mo. 2006) (en banc); In re FirstMerit Bank, N.A., 52 S.W.3d 749, 757 (Tex. 2001)).
In spite of other jurisdictions’ approaches to the issue, our Supreme Court has spoken,
and has explicitly stated that New Mexico courts will not enforce unfairly one-sided
agreements under our equitable doctrine of unconscionability. 	Cordova, 2009-
NMSC-021, ¶ 25. 	We therefore decline to follow these other jurisdictions’
approaches to the application of substantive unconscionability that is inconsistent
with our own. We conclude that the district court accurately applied the holdings of
Cordova and Rivera to this case and appropriately concluded that the terms of this
arbitration agreement were unfairly and unreasonably one-sided and thereby,
substantively unconscionable.
C. 	Severability of the Arbitration Provision
{36} 	Defendant next argues that even if we affirm the district court’s ruling that the
“collection” portion of the arbitration agreement is substantively unconscionable, the
agreement’s savings clause should act to sever and enforce the remainder of the
arbitration agreement, including the portion that bilaterally subjects the nursing home
and the resident’s tort claims to arbitration. The Arbitration Agreement’s “savings
clause” states: 	“In the event a court having jurisdiction finds any portion of this
Agreement unenforceable, that portion shall not be effective and the remainder of the
Agreement shall remain effective.”

30
{37} 	Defendant did not preserve its argument that the arbitration agreement could be
severed from the provisions that were unconscionable. However, Defendant argues
that we should address the argument in spite of the lack of preservation because it is
a matter of widespread public interest. See Andrews v. Saylor, 2003-NMCA-132, ¶
25, 134 N.M. 545, 80 P.3d 482 (reviewing a matter that was not preserved, but was
a matter of “general public interest” (internal quotation marks and citation omitted)).
We agree.
{38} 	When a provision of a contract is deemed unconscionable, “we may refuse to
enforce the contract, or we may enforce the remainder of the contract without the
unconscionable clause, or we may so limit the application of any unconscionable
clause as to avoid any unconscionable result.” 	See Fiser, 2008-NMSC-046, ¶ 24
(alterations, internal quotation marks, and citation omitted). In Cordova and Rivera,
the Court concluded that the one-sided arbitration provisions were central to the
overall arbitration scheme, and therefore, could not be severed from the arbitration
provisions so as to save the parties’ general agreement to arbitrate. 	Rivera, 2011-
NMSC-033, ¶ 56; Cordova, 2009-NMSC-021, ¶ 40. The Court stated in Cordova:
“we must strike down the arbitration clause in its entirety to avoid a type of judicial
surgery that inevitably would remove provisions that were central to the original
mechanisms for resolving disputes between the parties.” 2009-NMSC-021, ¶ 40.

31
{39} 	Here, like the arbitration clauses in Cordova and Rivera, the exemptions of
certain claims from arbitration are so central to the agreement that they are incapable
of separation from the agreement to arbitrate, irrespective of any savings clause
included in the agreement. 	See Rivera, 2011-NMSC-033, ¶ 56; Cordova, 2009-
NMSC-021, ¶ 40. 	Were we to adopt Defendant’s suggested severance, it would
circumvent our application of the equitable doctrine of unconscionability. 	The
unconscionability of the arbitration clause subjects claims to arbitration that the
nursing home resident would most likely bring, while allowing the nursing home’s
most likely claims to go to court. 	Cordova, 2009-NMSC-021, ¶ 25. 	Thus, the
unbalanced terms of the arbitration agreement, in whole, cause the unfairness and
unconscionability of the arbitration agreement. 	Severing this clause and requiring
Plaintiff to arbitrate because this particular claim is bilateral to both parties, but
unlikely to be brought by Defendant, would perpetuate the unfairness for which we
impose the equitable unconscionability defense. We decline to do so.
{40} 	Defendant argues that even if Cordova applies to prevent severance of the
unconscionable provisions, the agreement should still be enforced under the savings
clause because Cordova was not decided until 2009, one year after the arbitration
agreement had been signed by the parties. We are required to presume that judicial
decisions in civil cases apply retroactively, unless the case announcing the new rule
states that it should only be applied prospectively, or the presumption of retroactivity

32
is overcome. Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 26, 149 N.M. 162, 245
P.3d 1214. To overcome the presumption, a three-factor test is used: (1) the decision
must establish a new principle of law or decide an issue of first impression, id. ¶ 27,
(2) the Court must “weigh the merits and demerits in each case by looking to the prior
history of the rule in question, its purpose and effect, and whether retrospective
operation will further or retard its operation,” id. ¶ 28 (internal quotation marks and
citations omitted), and (3) the Court must consider “the inequity imposed by
retroactive application, for where a decision of [the] Court could produce substantial
inequitable results if applied retroactively, there is ample basis in our cases for
avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.” 	Id. ¶ 29
(internal quotation marks and citations omitted).
{41} 	Cordova did not create new law, but rather, applied the well settled equitable
doctrine of unconscionability to a contract, and clarified our standard for substantive
unconscionability. 	See Cordova, 2009-NMSC-021, ¶ 32 (“Applying the settled
standards of New Mexico unconscionability law, we conclude that [the arbitration
scheme] 	is 	so 	unfairly 	and 	unreasonably 	one-sided 	that 	it 	is 	substantively
unconscionable.”). No new rule was created in Cordova as to the severance of terms
of a contract. See id. ¶ 40 (distinguishing the severance from Padilla, 2003-NMSC-
011, ¶¶ 10, 18, and likening the severance to Fiser, 2008-NMSC-046, ¶ 24). Thus,
without considering the other factors of the test to overcome the presumption, we

33
conclude that Defendant has failed to establish that retroactivity is at issue in the
application of settled law to an arbitration agreement. See Gomez v. Chavarria, 2009-
NMCA-035, ¶ 12-14, 146 N.M. 46, 206 P.3d 157 (rejecting the plaintiff’s argument
that an interpretation of a statute should not apply retroactively to his case because we
concluded that the judicial decision did not constitute a new rule).
III. 	CONCLUSION
{42} 	The judgment of the district court is affirmed.
{43} 	IT IS SO ORDERED.
______________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

TIMOTHY L. GARCIA, Judge