Reno v. Continuum at Sharmar, Inc.

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
June 4, 2026

2026 COA 46

No. 25CA0491, Reno v. Continuum at Sharmar, Inc. — Health
and Welfare — Health Care Availability Act — Arbitration
Agreements; Agency — Principal-Agent Relationship — Medical
Durable Power of Attorney — Actual Authority — Apparent
Authority

A division of the court of appeals holds that a medical durable

power of attorney (MDPOA) does not confer authority on the agent

to enter into an arbitration agreement on behalf of her principal

unless the MDPOA expressly grants that authority. Applying this

holding, the division affirms the district court’s denial of a health

care facility’s motion to compel arbitration.
COLORADO COURT OF APPEALS 2026 COA 46

Court of Appeals No. 25CA0491
Pueblo County District Court No. 24CV30331
Honorable Michelle Chostner, Judge

Vicki Reno, individually and as Personal Representative of the Estate of
Marjorie Henderson, deceased,

Plaintiff-Appellee,

v.

Continuum at Sharmar, Inc. d/b/a Sharmar Village Care Center, Inc.,

Defendant-Appellant.

ORDER AFFIRMED

Division VI
Opinion by JUDGE BERGER*
Gomez and Moultrie, JJ., concur

Announced June 4, 2026

Reddick Law, PLLC, Brian D. Reddick, Matthew D. Swindle, Heather G.
Zarchary, Little Rock, Arkansas, for Plaintiff-Appellee

Hall & Evans, L.L.C., David B. Gelman, Jared R. Ellis, Denver, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, Continuum at Sharmar, Inc. d/b/a Sharmar

Village Care Center, Inc. (Sharmar), appeals the district court’s

order denying its motion to compel arbitration with plaintiff, Vicki

Reno, individually and as personal representative of the Estate of

Marjorie Henderson. We affirm the order.

¶2 Following the analysis in Lujan v. Life Care Centers of America,

222 P.3d 970 (Colo. App. 2009), and Fresquez v. Trinidad Inn, Inc.,

2022 COA 96, but disagreeing with one of the holdings in Moffett v.

Life Care Centers of America, 187 P.3d 1140 (Colo. App. 2008)

(Moffett I), aff’d on other grounds, 219 P.3d 1068 (Colo. 2009)

(Moffett II), we hold that a medical durable power of attorney

(MDPOA) does not confer authority on the agent to enter into an

arbitration agreement with a health care provider on behalf of the

principal unless that authority is expressly stated in the MDPOA.

I. Relevant Facts and Procedural History

¶3 In 2014, Marjorie Henderson signed an MDPOA, appointing

one of her daughters, Brenda Wills, as her attorney-in-fact.1 The

1 We use the terms “attorney-in-fact” and “agent” interchangeably

throughout this opinion.

1
MDPOA specified the scope of actions Wills was authorized to take

on Henderson’s behalf, including giving Wills authority

(1) to act for her “in all matters relating to [Henderson’s]

health care”;

(2) “to consent . . . to all medical, surgical, hospital, and

related health care treatments and procedures on

[Henderson’s] behalf”;

(3) “to sign any documents required to request [release from

a facility]. . . or to be released . . . to another facility”;

(4) “to provide . . . consent to health care treatments or

procedures on [Henderson’s] behalf”; and

(5) “to authorize [Henderson’s] admission to or transfer from

a health care facility.”

¶4 The MDPOA specifically prohibited Wills from acting for

Henderson “for any other purpose unrelated to [her] health care.” It

authorized Wills to act on Henderson’s behalf once the MDPOA was

signed. It also provided that the power became effective when

Henderson had been determined “to be incapable of providing

2
informed consent for medical treatment and surgical and diagnostic

procedures.”2

¶5 Henderson was admitted to Sharmar’s nursing home in Pueblo

nearly one decade after she signed the MDPOA. Henderson, Wills,

and a Sharmar representative initially met to sign the admission

paperwork. Henderson left midway through the meeting to attend

another appointment, and Wills completed the paperwork alone,

including signing the arbitration agreement.

¶6 Arbitration agreements between patients and health care

providers are governed by Colorado’s Health Care Availability Act

(HCAA). §§ 13-64-101 to -503, C.R.S. 2025. The HCAA mandates

that health care arbitration agreements be voluntary, contain

several disclosures, and be subject to rescission for any reason

within three months of signing. § 13-64-403(1), (3)-(4), C.R.S.

2025. Sharmar’s arbitration agreement contained the mandatory

disclosures — including a disclaimer that no health care providers

2 Because of our disposition of this appeal, we need not consider

whether these terms regarding the effective date of the MDPOA are
inconsistent or whether any inconsistency bears on the dispositive
question in this case.

3
are allowed to refuse services to a patient solely because they

refused to sign an arbitration agreement. § 13-64-403(4), (7).3

¶7 The agreement provided that “any legal dispute, controversy,

demand, or claim . . . that arises out of or relates to the Admissions

Agreement or any service or health care provided by [Sharmar] to

[Henderson]” would be arbitrated. The arbitration agreement

encompassed any claims of wrongful death, negligence, gross

negligence, or other “departure[s] from accepted standards of

medical or health care or safety,” and it extended to Henderson’s

heirs.

¶8 Approximately one month after Henderson was admitted to

Sharmar, she suffered two falls in roughly forty-eight hours.

Doctors determined palliative care was the best course of action

based on her injuries, and she died three days after her first fall.

¶9 Following Henderson’s death, Vicki Reno, another of

Henderson’s daughters and the personal representative of

Henderson’s estate, sued Sharmar and its administrator for

3 There is no dispute that Wills signed the admission paperwork,

including the arbitration agreement.

4
negligence, violations of the Colorado Consumer Protection Act, and

wrongful death.

¶ 10 Sharmar moved to compel arbitration and stay proceedings

based on the arbitration agreement signed by Wills. Reno opposed

the motion, arguing the agreement was invalid because Wills had

no authority to enter into an arbitration agreement on behalf of

Henderson.

¶ 11 Limited discovery was conducted regarding the scope of Wills’s

authority and the circumstances under which the arbitration

agreement was signed. Without holding an evidentiary hearing, the

district court denied Sharmar’s motion to compel arbitration, ruling

that the MDPOA did not grant Wills the authority to enter into the

arbitration agreement on Henderson’s behalf and that Wills did not

have actual or apparent authority to do so based on her words or

actions.

¶ 12 Sharmar appeals, arguing that the district court (1)

misinterpreted the scope of Wills’s MDPOA; (2) erroneously

determined Wills lacked actual or apparent authority to execute the

arbitration agreement; and (3) failed to address Sharmar’s

argument that Reno was estopped from challenging the validity of

5
the arbitration agreement. We address and reject each contention

below.

II. Standard of Review

¶ 13 In considering a motion to compel arbitration, the district

court must determine whether a valid agreement to arbitrate exists

between the parties and whether the issues being disputed are

within the scope of the arbitration agreement. Vallagio at Inverness

Residential Condo. Ass’n v. Metro. Homes, Inc., 2015 COA 65, ¶ 14,

aff’d, 2017 CO 69. The court may refuse to compel arbitration

“only upon a showing that there is no agreement to arbitrate or if

the issue sought to be arbitrated is clearly beyond the scope of the

arbitration provision.” Id. (quoting Eychner v. Van Vleet, 870 P.2d

486, 489 (Colo. App. 1993)). An agreement is invalid when an

agent, acting on a principal’s behalf, did not have the authority to

enter into the agreement. See Wilson v. Mosko, 130 P.2d 927, 928

(Colo. 1942).

¶ 14 Whether an enforceable agreement to arbitrate exists, and if

so, the scope of that agreement, is a question of law we review de

novo. Moffett II, 219 P.3d at 1072; N.A. Rugby Union LLC v. U.S.

Rugby Football Union, 2019 CO 56, ¶ 19. However, “[w]hether an

6
agency relationship exists generally is a question of fact, though the

court may decide the question as one of law when the facts are

undisputed.” Villalpando v. Denv. Health & Hosp. Auth., 181 P.3d

357, 363 (Colo. App. 2007).

III. The Medical Durable Power of Attorney Did Not Invest Wills
with Authority to Enter into a Voluntary Arbitration Agreement

¶ 15 Sharmar argues that the district court erred when it

determined as a matter of law that the MDPOA Henderson signed

did not authorize Wills to enter into the arbitration agreement. We

disagree.

A. Health Care Arbitration Agreements

¶ 16 Colorado favors arbitration agreements. See J.A. Walker Co. v.

Cambria Corp., 159 P.3d 126, 128 (Colo. 2007). But health care

arbitration agreements, unlike other types of arbitration

agreements, are subject to the strict requirements set forth in the

HCAA. See § 13-64-403. Although the HCAA allows arbitration of

disputes, it “also contains protective provisions curbing abusive

practices in obtaining agreements to arbitrate.” Moffett II, 219 P.3d

at 1073. Section 13-64-403 requires that parties enter into an

arbitration agreement voluntarily and, relatedly, that a patient’s

7
admission to a health care facility cannot be solely conditioned

upon the signing of an arbitration agreement. § 13-64-403(4), (7).

B. Principal-Agent Relationships

¶ 17 There are several ways to create a principal-agent relationship,

but it is essentially “a legal relation having its source in the mutual

consent of the parties” that results in the agent acting with legal

consequence on behalf of the principal. Stortroen v. Beneficial Fin.

Co. of Colo., 736 P.2d 391, 395 (Colo. 1987).

¶ 18 One way to establish a principal-agent relationship is through

execution of a power of attorney. Lujan, 222 P.3d at 973. A power

of attorney is a document by which one party, as principal,

appoints another as agent and confers upon the latter the authority

to perform certain specified acts or kinds of acts on behalf of the

principal. Willey v. Mayer, 876 P.2d 1260, 1264 (Colo. 1994). In

Colorado, the use and interpretation of powers of attorney are

governed by statute, In re Tr. of Franzen, 955 P.2d 1018, 1021

(Colo. 1998), while the document defines the extent of the agent’s

express authority, Willey, 876 P.2d at 1264. It is undisputed that

Henderson did not grant Wills a general or unlimited power of

attorney.

8
¶ 19 Henderson did, however, grant an MDPOA to Wills. An

MDPOA grants an agent powers “in consenting to or refusing

medical treatment” on behalf of a principal. § 15-14-506(1), C.R.S.

2025. The MDPOA governing statute defines “medical treatment” as

the “provision, withholding, or withdrawal of any health care,

medical procedure . . . or service to maintain, diagnose, treat, or

provide for a patient’s physical or mental health or personal care.”

§ 15-14-505(7), C.R.S. 2025.

C. An Agent’s Scope of Authority

¶ 20 Sharmar contends the district court erroneously relied on

Fresquez, ¶ 46, in concluding that the MDPOA did not include the

authority to enter into the arbitration agreement because it did not

expressly authorize Wills to enter into an arbitration agreement.

According to Sharmar, the court should have instead applied

Moffett I because Moffett I’s factual circumstances, a principal-agent

relationship arising out of an MDPOA, and its legal holding, that an

MDPOA agent’s authority to enter into an arbitration agreement

when executing medical facility admissions forms is assumed

unless otherwise restricted, are directly on point. See 187 P.3d at

1147.

9
¶ 21 In Moffett I, unlike this case, the patient had executed two

separate powers of attorney — a general power of attorney and an

MDPOA. Id. at 1141. The Moffett I division held that “absent a

limitation in the [MDPOA], an attorney-in-fact can make exactly the

same types of medical treatment decisions that the principal could

make if he or she had the mental capacity to do so.” Id. at 1145.

Applying that general principle, the division concluded that a

person who holds an MDPOA has the power to execute any

applicable admission forms, including arbitration agreements,

unless that power is restricted by the principal. Id. at 1147. Put

another way, under Moffett I, an MDPOA need not expressly grant

authority for the agent to execute an arbitration agreement in

connection with the patient’s admission to a long-term health care

facility; the power to agree to arbitration is subsumed in the powers

granted by the MDPOA. Id.

¶ 22 In Moffett II, the supreme court affirmed the judgment of the

division in Moffett I on the basis of the general power of attorney

that the patient had executed. 219 P.3d at 1071. But the supreme

court expressly stated that “we need not and do not reach the issue

of whether a person holding [an MDPOA] is authorized to sign an

10
arbitration agreement on behalf of an incapacitated patient.” Id.

Thus, the supreme court did not address the holding in Moffett I on

which Sharmar relies in this case.

¶ 23 In Lujan, Judge (now Justice) Gabriel, writing for a division of

this court, addressed whether a person holding a health care proxy

under sections 15-18.5-103 and -104, C.R.S. 2009, had the

authority to agree to an arbitration agreement on behalf of an

incapacitated person. 222 P.3d at 972-78. The division analyzed

whether the statute’s grant of authority for “the provision,

withholding, or withdrawal of any health care, medical

procedure . . . or service to maintain diagnose, treat, or provide for

a patient’s physical or mental health or personal care” authorized

the proxy to execute an arbitration agreement. Id. at 973 (quoting

§ 15-14-505(7)). The division held that it did not and affirmed the

district court’s invalidation of the arbitration agreement at issue.

Id. at 973-78.

¶ 24 More recently, in Fresquez, another division of this court held

that an agent does not possess the authority to enter into a

voluntary arbitration agreement unless the principal expressly

grants that power. Fresquez, ¶ 4.

11
¶ 25 We recognize the factual differences between Lujan and

Fresquez, on the one hand, and this case, on the other hand. Lujan

analyzed whether a person holding a health care proxy — a status

provided by statute, not by the consent of the principal — had the

authority to execute an arbitration agreement. 222 P.3d at 972-78.

There was no MDPOA in Lujan. Similarly, in Fresquez, there was

no MDPOA or other written power of attorney at all — the court

analyzed the words and conduct of the patient. Fresquez, ¶¶ 26-36.

Nevertheless, the extensive analyses contained in both Lujan and

Fresquez are essential in analyzing whether the grant of authority

under an MDPOA includes the execution of an arbitration

agreement. The division in Fresquez held:

[A]n agent’s actual authority to make health
care decisions for a patient and to sign the
documents necessary to admit the patient to a
health care facility does not encompass the
authority to bind the patient to an arbitration
agreement, unless the patient has granted the
agent an unlimited power of attorney or
otherwise clearly granted the agent the specific
authority to bind the patient to an arbitration
agreement.

Id. at ¶ 46.

12
¶ 26 The question in this case is whether the execution of a

voluntary arbitration agreement constitutes “medical treatment”

within the meaning of the MDPOA statute. Although factually

distinguishable, both Lujan and Fresquez convincingly demonstrate

that the answer is “no.” For several reasons, we conclude that the

district court did not err in invalidating the MDPOA

notwithstanding Moffett I.

¶ 27 First, the out-of-state cases relied on by Moffett I have since

been substantially distinguished or disapproved. 187 P.3d at 1145-

47. The first out-of-state case relied on by the Moffett I division was

Owens v. National Health Corp., 263 S.W.3d 876 (Tenn. 2007),

overruled on other grounds by, Welch v. Oaktree Health & Rehab.

Ctr. LLC, 674 S.W.3d 881 (Tenn. 2023). In that case, the Tennessee

Supreme Court concluded that the decision to admit a patient to a

nursing home constituted a medical treatment decision and upheld

the enforceability of an arbitration agreement. Id. at 883-85. But

in 2024, the Tennessee Supreme Court distinguished Owens on the

basis that Owens’s arbitration agreement had been a condition for

providing health care. Williams v. Smyrna Residential, LLC, 685

S.W.3d 718, 725-26 (Tenn. 2024). As noted above, in Colorado, the

13
provision of medical treatment cannot be conditioned on the

execution of an arbitration agreement.

¶ 28 Additionally, the California cases relied on by Moffett I have

been disapproved. In Harrod v. Country Oaks Partners, LLC, the

California Supreme Court held that an agent’s authority under an

MDPOA to make “health care decisions” — a statutorily defined

term — prohibited the agent from executing a voluntary arbitration

agreement. 544 P.3d 1138, 1152-53 (Cal. 2024) (disapproving

Garrison v. Superior Ct., 33 Cal. Rptr. 3d 350 (Ct. App. 2005), and

Hogan v. Country Villa Health Servs., 55 Cal. Rptr. 3d 450 (Ct. App.

2007).

¶ 29 Other out-of-state cases have similarly distinguished between

an MDPOA agent’s authority to make health care decisions and the

execution of a voluntary arbitration agreement. See Miss. Care Ctr.

of Greenville, LLC v. Hinyub, 975 So. 2d 211, 217-19 (Miss. 2008);

Arredondo v. SNH SE Ashley River Tenant, LLC, 856 S.E.2d 550,

558 (S.C. 2021); Life Care Ctrs. of Am. v. Smith, 681 S.E.2d 182,

185-86 (Ga. Ct. App. 2009); Coleman v. United Health Servs. of Ga.,

Inc., 812 S.E.2d 24 (Ga. Ct. App. 2018).

14
¶ 30 A recent decision of the Wyoming Supreme Court is directly on

point. Miller v. Life Care Ctrs. of Am., Inc., 2020 WY 155, ¶ 3.

There, a principal executed an MDPOA to appoint an agent to act

on her behalf when she was determined “incapable of providing

informed consent” in certain circumstances. Id. The agent was

given the statutory authority to “make health care decisions for [the

principal] in accordance with what [the principal’s] agent

determines to be in [the principal’s] best interest” should the

principal’s wishes be unknown. Id. at ¶ 21 (compare with § 15-14-

506(2), C.R.S. 2025).

¶ 31 As in the other out-of-state cases, the Miller court reasoned

that because a voluntary arbitration agreement was not necessary

for the provision of health care, entering into an arbitration

agreement was not a health care decision. Id. at ¶¶ 27-34.

Therefore, the agent’s authority to make health care decisions did

not constitute authority to enter into a voluntary arbitration

agreement related to admission to a nursing home. Id.

¶ 32 Second, Fresquez appropriately focuses on the nature of a

voluntary arbitration agreement. Fresquez, ¶¶ 37-46. Whether a

different result would be mandated if an arbitration agreement were

15
a condition of admission to a medical facility is not before us

because the HCAA prohibits such mandatory arbitration

agreements. § 13-64-403(4), (7).

¶ 33 Third, we believe that the Fresquez court’s analysis is more

consistent with the concerns that led the General Assembly to enact

the HCAA. When, as is the case in Colorado, an arbitration

agreement has been untethered to the patient’s admission to the

medical facility, the relationship of the arbitration agreement to

health care decisions made by the agent is tenuous and supports

the Fresquez division’s holding. See Fresquez, ¶ 45 (“The General

Assembly’s decision to delink the concept of arbitration from the

concept of providing medical services underscores that granting an

agent authority to make medical care decisions for a patient does

not authorize the agent to waive the patient’s right to seek relief in a

court of law.”).

¶ 34 Accordingly, we apply Lujan’s and Fresquez’s analyses of what

constitutes a medical treatment decision and hold that an MDPOA

does not grant authority to the agent to enter into an arbitration

16
agreement unless such authority is expressly stated in the

MDPOA.4

IV. Actual and Apparent Authority

¶ 35 Sharmar next maintains that the district court erred in ruling

Wills also lacked actual or apparent authority to enter into an

arbitration agreement with Sharmar. We reject both contentions.

¶ 36 A principal-agent relationship can be established by the

conduct of the parties. W. Fire Truck, Inc. v. Emergency One, Inc.,

134 P.3d 570, 575 (Colo. App. 2006). “An agent can make his

principal responsible for his actions if he is acting pursuant to

either actual or apparent authority . . . .” Willey, 876 P.2d at 1264.

¶ 37 Actual authority is premised on “a principal’s expressive

conduct toward an agent, through which the principal manifests

assent to be affected by the agent’s action, and the agent’s

reasonable understanding of the principal’s manifestation.”

4 Because of our conclusion, we need not address whether the

district court was required to apply Moffett I. While trial courts are
bound by holdings in published court of appeals opinions, see
C.A.R. 35(e), one division of the court of appeals is not bound by the
decision of a prior division. People in Interest of M.B., 2020 COA 13,
¶ 21. Because we hold that the district court correctly invalidated
the arbitration agreement, it is immaterial whether the court should
have followed Moffett I.

17
Restatement (Third) of Agency § 2.01 cmt. c (A.L.I. 2006). Actual

authority includes both express and implied authority. Willey, 876

P.2d at 1264. Actual authority may be either express, as when the

principal directly states that the agent has the authority to perform

a particular act on the principal’s behalf, or implied, as when an

agent’s acts are incidental to or necessary to accomplish the main

authority the principal has expressly delegated to the agent.

Fresquez, ¶ 21.

¶ 38 Apparent authority, in contrast, “is the power held by an agent

or other actor to affect a principal’s legal relations with third parties

when a third party reasonably believes the actor has authority to

act on behalf of the principal and that belief is traceable to the

principal’s manifestations.” Restatement (Third) of Agency § 2.03

(emphasis added). “Apparent authority . . . ‘flows only from the acts

and conduct of the principal.’” State Farm Mut. Auto. Ins. Co. v.

Johnson, 2017 CO 68, ¶ 20 (citation omitted). It is “established by

proof of ‘written or spoken words or other conduct of the principal

which, reasonably interpreted, causes a person to believe that the

principal consents to have the act done on his behalf by a person

18
purporting to act for him.’” Villalpando, 181 P.3d at 363 (citation

omitted).

A. Actual Authority

¶ 39 Sharmar claims that Wills possessed express actual authority

to enter into an arbitration agreement on Henderson’s behalf. To

the extent this argument is based on the MDPOA, we reject it for

the reasons stated above.

¶ 40 Apart from the language of the MDPOA, there is no evidence in

the record that would support a finding that Wills had express

authority to execute the arbitration agreement. Despite the limited

discovery authorized by the district court and the depositions

taken, Sharmar points to no evidence that Henderson granted

express authority to Wills to execute the arbitration agreement.

¶ 41 Sharmar’s implied authority argument also fails. Sharmar

points to undisputed evidence that Henderson attended part (but

not all) of the meeting where Wills signed admission paperwork.

This, Sharmar argues, combined with Wills’s testimony that she

understood her authority to extend to making “medical decisions”

like “going into a rehab facility” and executing “whatever

documentation was necessary” to place Henderson “into a facility or

19
get her any sort of care,” shows that Wills acted with implied

authority when signing the agreement. See Fresquez, ¶¶ 18-19

(explaining that a principal’s express manifestation of assent and

the agent’s reasonable understanding of this assent at the time of

the manifestation demonstrates actual authority).

¶ 42 But these arguments do nothing more than rehash the

argument that the MDPOA conferred authority on Wills to sign the

arbitration agreement. By law, the arbitration agreement was not

“documentation [that] was necessary” for Henderson’s admission to

a health care facility.

¶ 43 Despite the depositions taken, Sharmar did not in the district

court and does not on appeal proffer any evidence that there were

discussions between Henderson and Wills regarding an arbitration

agreement, much less proffer any admissible evidence that

Henderson orally authorized Wills to enter into an arbitration

agreement. Therefore, we uphold the district court’s decision that

Wills lacked implied authority to execute the arbitration agreement.

B. Apparent Authority

¶ 44 Sharmar next asserts that Wills had apparent authority to

agree to arbitration because Henderson’s decision to leave Wills to

20
finish signing admissions paperwork gave rise to Sharmar’s

reasonable belief that Henderson authorized Wills to execute

paperwork on her behalf. For the same reasons that we rejected

the claim of actual authority, we reject this contention.

¶ 45 We agree with the district court that there was no proof or

reasonable interpretation “of Henderson’s written or spoken words

or other conduct” that could have caused Sharmar to reasonably

believe that Henderson consented to Wills’s signing the arbitration

agreement on her behalf. See Fresquez, ¶ 25 (explaining apparent

authority “flows only from the acts and conduct of the principal”

that, when reasonably interpreted, cause a third party to believe the

principal consented to an act done by the agent on his behalf

(citation omitted)). As the district court observed, Henderson’s

actions and Wills’s testimony only show that Henderson authorized

Wills to sign paperwork necessary for her admittance to Sharmar —

not unnecessary arbitration agreements. See id. at ¶¶ 50-58

(noting general authority to sign admission paperwork and a lack of

evidence showing authority to sign an arbitration agreement did not

constitute apparent authority).

21
C. Evidentiary Hearing

¶ 46 Sharmar relatedly contends that, regardless of the district

court’s rulings on actual or apparent authority, an evidentiary

hearing was required (1) because the district court relied on cases

involving arbitration agreements executed as part of a nursing

home’s admission paperwork and (2) because the act of Henderson

leaving Wills to sign admissions paperwork could have supported a

different interpretation of Wills’s authority.

¶ 47 As noted above, despite the discovery authorized by the

district court, at no time prior to the entry of the district court’s

order denying arbitration did Sharmar proffer any evidence that

would support a finding of either express or implied authority. The

appellate record is devoid of any such proffer. Because Sharmar

had the burden to establish that Wills had authority to execute the

arbitration agreement and failed to do so, the district had no

obligation to hold an evidentiary hearing.

V. Estoppel

¶ 48 Lastly, Sharmar insists the district court erred when it did not

address whether Reno was estopped from denying the validity of the

arbitration agreement. This argument was first raised in Sharmar’s

22
reply brief in the district court. The district court was under no

obligation to address an argument made for the first time in a reply

brief. See Grohn v. Sisters of Charity Health Servs. Colo., 960 P.2d

722, 727 (Colo. App. 1998). Because the opposing party was

unable to respond and the district court made no findings or

conclusions with respect to the contention, the argument was not

preserved for appeal and we do not address it further. See id.

VI. Disposition

¶ 49 The order denying Sharmar’s motion to compel arbitration is

affirmed.

JUDGE GOMEZ and JUDGE MOULTRIE concur.

23