This memorandum opinion was not selected for pub lication in the New Mexico Reports. Please 1 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 2 Please also note that this electronic memorandum opinion may contain computer-generated 3 errors or other deviations from the official paper version filed by the Court of Appeals and does 4 not include the filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6
PAUL SAIZ, M.D., 7 Plaintiff-Appellee, 8

v. NO. 30,521 9 PHC-LAS CRUCES, INC., d/b/a 10 MEMORIAL MEDICAL CENTER, 11 Defendant-Appellant. 12 APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY 13 Manuel I. Arrieta, District Judge 14 Joel T. Newton 15 Las Cruces, NM 16 for Appellee 17 Bannerman & Johnson, P.A. 18 David H. Johnson 19 Deborah E. Mann 20 Albuquerque, NM 21 for Appellant 22

MEMORANDUM OPINION 232 CASTILLO, Judge. 1 Defendant appeals an order denying its motion to compel arbitration of 2 Plaintiff’s claims against it. In our notice, we proposed to affirm the district court. 3 Defendant has timely responded. We have considered its arguments and not being 4 persuaded, we affirm. 5 In our notice, we proposed to agree withthe district court that the Professional 6 Services Agreement (PSA) clearly states an intention to substitute for any other 7 agreements that the parties may have had regarding on-call duties. As the PSA has 8 no provision for arbitration, there is no basi s to compel arbitration of the dispute 9 between the parties. See Salazar v. Citadel Commc’ns Corp. , 2004-NMSC-013, ¶ 8, 10 135 N.M. 447, 90 P.3d 466 (“Of cour se, a prerequisite to compelling arbitration is the 11 existence of a valid agreemen t to arbitrate.”). Defendant responds that Plaintiff’s 12 complaint was not at all clear regarding whether he sought a declaratory judgment on 13 the PSA or on both the PSA and the Recruiti ng Agreement (RA). It makes much of 14 the fact that the complaint refers to “contr acts” in one paragraph of the complaint for 15 declaratory judgment. [RP 14, ¶ 33] However, reading the entire complaint for 16 declaratory judgment makes it clear that Plaintiff seeks a decision on the provisions 17 of the PSA. [RP 14, ¶¶ 32-37] The complaint specifically refers to the PSA as the 18 agreement that Plaintiff wants the district court to construe. [RP 14, ¶ 34] 193 We are unpersuaded that Plaintiff seeks to have the RA cons trued as well. It 1 appears that the only claim relating to the RAhas to do with a breach of contract claim 2 regarding the payment of school loans. [RP 15, ¶¶ 38-42] Thus, weconclude that the 3 agreement Plaintiff seeks to have construed is the PSA, not the RA. 4 In our notice, we sought to address Defendant’s argument that Plaintiff 5 appeared to be relying on some provisions in the RA to support his claims by stating 6 that that did not mean that Plaintiff sought to have the RA construed in this action. 7 Rather, we noted the RA could be used as evidence to show ambiguities in the parties’ 8 intent in the PSA. In so doing, we did notintend to state that the PSA was ambiguous. 9 We were simply pointing to a reason w hy the RA would be mentioned in the 10 complaint without seeking to have it construed. We agree that whether or not the 11 RSA is ambiguous is still to be decided by th e district court. Our language in the 12 calendar notice [CN 3-4] should not be construed as a ruling on the merits of 13 Plaintiff’s claim. 14 We conclude that the district court di d not err in denying the motion to compel 15 arbitration as there was no provision for arbitration in the PSA, which was the 16 agreement about which Plaintiff sought a declaratory judgment. 17 For the reasons stated herein and inthe calendar notice, we affirm the denial of 18 Defendant’s motion to compel arbitration. 194 IT IS SO ORDERED. 1

________________________________ 2 CELIA FOY CASTILLO, Judge 3 WE CONCUR: 4

__________________________________ 5 RODERICK T. KENNEDY, Judge 6

__________________________________ 7 LINDA M. VANZI, Judge 8