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.