This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 CORDELIA ABRAM, Deceased, 2 by the Personal Representative for 3 the Wrongful Death Estate, 4 MAE ROSE LOPEZ, 5 Plaintiff-Appellee, 6

v. No. 31,850 7 PALOMA BLANCA HEALTH CARE 8 ASSOCIATES, L.L.C. d/b/a PALOMA 9 BLANCA HEALTH and REHABILITATION, 10 L.L.C., ALPHA HEALTH CARE INVESTORS, 11 PROPERTIES, L.L.C., OMEGA HEALTHCARE 12 INVESTORS, INC., SHORELINE HEALTHCARE 13 MANAGEMENT, L.L.C., CENTENNIAL 14 HEALTHCARE MANAGEMENT CORPORATION, 15 Defendants, 16 and 17 SKILLED HEALTHCARE GROUP, INC., 18 SKILLED HEALTHCARE, L.L.C., CANYON 19 TRANSITIONAL HEALTHCARE and 20 REHABILITATION CENTER, L.L.C., and 21 ADMINISTRATOR, ANMARIE DVORAK, 22 Defendants-Appellants. 232 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 1 C. Shannon Bacon, District Judge 2 Harvey and Foote Law Firm 3 Dusti D. Harvey 4 Jennifer J. Foote 5 Albuquerque, NM 6 for Appellee 7 Rodey, Dickason, Sloan, Akin & Robb, P.A. 8 W. Robert Lasater, Jr. 9 Sandra L. Beerle 10 Jocelyn Drennan 11 Albuquerque, NM 12 for Appellants 13

MEMORANDUM OPINION 14 WECHSLER, Judge. 15 {1} In our memorandum opinion in this ca se filed June 17, 2013, this Court 16 affirmed the district court’s denial of th e motion to compel arbitration of Defendants 17 Skilled Healthcare Group, Inc., Skilled H ealthcare, L.L.C., Canyon Transitional 18 Healthcare and Rehabilitation Center, L.L.C ., and Administrator, AnMarie Dvorak. 19 Abram v. Paloma Blanca He alth Care Assocs., L.L.C. , No. 31,850, mem. op. ¶ 13 20 (N.M. Ct. App. June 17, 2013) (non-precedential). This Court affirmed the district 21 court, which had rule d that the arbitration agreement at issue in this case, which 223 “required arbitration of all claims excep t those of ‘collections or discharge of 1 residents,’” was substantively unconscionable. Id. ¶¶ 1, 5 (citati on omitted). We 2 relied on our Supreme Court cases of Rivera v. American General Financial Services, 3 Inc. , 2011-NMSC-033, 150 N.M. 398, 259 P.3d 803, and Cordova v. World Financial 4 Corp. of New Mexico , 2009-NMSC-021, 146 N.M. 256, 208 P.3d 901, and our recent 5 cases that interpreted arbitration agreements that “contained the same or similar 6 arbitration provisions as presented in this case[.]” Abram , No. 31,850, mem. op. ¶ 5; 7 Ruppelt v. Laurel Healthcare Providers, L.L.C. , 2013-NMCA-014, 293 P.3d 902, cert. 8 denied , Ruppelt v. Belen Meadows , 2013-NMCERT-012, 299 P.3d 422; Bargman v. 9 Skilled Healthcare Grp., Inc. , 2013-NMCA-006, 292 P.3d 1, cert. granted , 2013- 10 NMCERT-012, 299 P.3d 423; Figueroa v. THI of N.M. , 2013-NMCA-077, 306 P.3d 11 480, cert. denied , 2012-NMCERT-010, 297 P.3d 332. 12 {2} Our Supreme Court granted certiorari in this case. It subsequently decided 13 Strausberg v. Laurel Hea lthcare Providers, L.L.C. , 2013-NMSC-032, 304 P.3d 409 14 ( Strausberg II ), reversing this Court’s opinion in Strausberg v. Laurel Healthcare 15 Providers, L.L.C. , 2012-NMCA-006, 269 P.3d 914 ( Strausberg I ), and holding that 16 the party asserting unconscionability as anaffirmative defense has the burden of 17 proving that the contract should not be enforced based on unconscionability. 18 Strausberg II, 2013-NMSC-032, ¶ 48. Our Suprem e Court then remanded this case 194 “for consideration in light of” its opinion in Strausberg II

. Abram , No. 34,249, order 1 ¶ 4 (N.M. Sup. Ct. Oct. 25, 2013). On re mand, this Court requested supplemental 2 briefing “addressing the impact of” Strausberg II to this case. Abram , No. 31,850, 3 order ¶ 2 (N.M. Ct. App. Oct. 29, 2013). 4 {3} This Court does not believe that the Strausberg II case has any impact on this 5 case because Strausberg I was not a factor in the decisi on in this case of either the 6 district court or this Court. 7 {4} Strausberg I was decided three days before the district court held its hearing on 8 Defendant’s motion to compel arbitration. In announcing its ruling, the district court 9 acknowledged Strausberg I but reached a legal conclu sion based on the language of 10 the arbitration agreement and on th e prior Supreme Court cases of Riveraand 11 Cordova . Indeed, as discussed in our June17, 2013 memorandum opinion, this Court 12 has subsequently interpreted Riveraand Cordovato conclude that the same or similar 13 arbitration provisions as at issue in th is case were substantively unconscionable 14 “because they excluded from arbitration the claims most likely to be brought by the 15 health care facility while requiring arbitrati on of the claims most likely to be brought 16 by residents.” Abram , No. 31,850, mem. op. ¶ 5. 17 {5} This conclusion did not depend onStrausberg I. In Ruppelt and Figueroa, this 18 Court, as did the district court in this case, decided that the arb itration agreements that 195 were before the Court were substantively unconscionable under the standards of 1 Cordovaand Riveraas a matter of law. Ruppelt , 2013-NMCA-014, ¶¶ 16, 18; 2 Figueroa , 2013-NMCA-077, ¶ 30. 3 {6} In Strausberg I, this Court held that “w hen a nursing home relies upon an 4 arbitration agreement signed by a patient as a condition for admission to the nursing 5 home, and the patient contends that the arbitration agreement is unconscionable, the 6 nursing home has the burden of proving that the arbitration agreement is not 7 unconscionable.” 2012-NMCA-006, ¶ 20. In reversing, our Supreme Court 8 reaffirmed that “the party alleging unconscionability . . . bears the burden of proof 9 because unconscionability is an affirmative contract defense, and under settled 10 principles of New Mexico contract law, the party alleging an affirmative contract 11 defense has the burden to prove that the contract is unenforceable on that basis.” 12 Strausberg II, 2013-NMSC-032, ¶ 39. 13 {7} Defendants argue that at least implicitly the district court and this Court relied 14 upon Strausberg I in this case. In part, they make their argument based on this 15 Court’s statements concerning Defendants’ failure to offer evidence to rebut the 16 unreasonableness or unfairness of the faciallybilateral exceptions to the arbitration 17 agreement. However, Defendants’ ob ligation arose from the language of the 18 arbitration agreement that was undisputedly before the district court. As we have 196 discussed, the district court reached its legal conclusion as to the import of the 1 exceptions from the language of the agreement. 2 {8} In their supplemental brief, Defendants al so question whether the district court 3 could have determined the bilateral co llection exception to be substantively 4 unconscionable but for Strausberg I and request that this Court remand to the district 5 court to present evidence c oncerning the exception. In our memorandum opinion, we 6 declined to remand for an evidentiary hearing as to “whether there is a reasonable 7 basis for the exclusions from the arbitration agreement.” Abram , No. 31,850, mem. 8 op. ¶ 11. We distinguished Bargman , in which we issued such a remand when the 9 defendant made such a specific reque st in its appellate briefing. Abram , No. 31,850, 10 mem. op. ¶ 11. In Bargman , we remanded because, whenthe case was in district 11 court, “Rivera , Figueroa , and Ruppelt had not been decided and the burden of proof 12 was not all that clearly determined, and also because it is unclear that the district court 13 would have considered evidence[.]” Bargman , 2013-NMCA-006, ¶¶ 23, 24. In our 14 memorandum opinion, we determined that this case was different because Defendants 15 requested on appeal that we reverse the district court and remand “for further 16 proceedings under the correct approach.” Abram , No. 31,850, mem. op. ¶ 11 (internal 17 quotation marks omitted). Defendants did not request an evidentiary hearing or seek 18 to present evidence to the distri ct court, even in light of Strausberg I that had recently 197 been decided. Abram , No. 31,850, mem. op. ¶ 11. Mo reover, we determined in our 1 memorandum opinion, that Riverahad been essential to the district court’s decision. 2 In their supplemental brief, Defendants argue that their request for “further 3 proceedings” on appeal was comp arable to the request in Bargmanfor a remand for 4 an evidentiary hearing. We do not agree. Defendants’ requestedrelief was reversal. 5 They did not, as in Bargman , specifically request to develop an evidentiary record. 6 {9} Nor is this case in the same posture as Bargmanwith respect to existing 7 precedent. As we discussed in our memorandum opinion, Rivera , essential to the 8 district court’s analysis and decision, was argued extensively to the district court. In 9 addition, although the burden of proof was in flux, as indicated by the Strausberg I 10 and Strausberg II opinions, as we have discussed, the burden of proof was not a factor 11 in the district court’s decision. Based on the history of this case, we decline 12 Defendants’ request to remand at this time. 13 CONCLUSION 14 {10} We affirm the decision of the district court denying Defendants’ motion to 15 compel arbitration. 16 {11} IT IS SO ORDERED. 17

__________________________ ______ 18 JAMES J. WECHSLER, Judge 198 WE CONCUR: 1

___________________________________ 2 RODERICK T. KENNEDY, Chief Judge 3

___________________________________ 4 MICHAEL E. VIGIL, Judge 5