Delegating Temporal Scope of Arbitration Agreements: Commentary on Cerna v. Pearland Urban Air, LLC

Delegating Temporal Scope of Arbitration Agreements: Cerna v. Pearland Urban Air, LLC

I. Introduction

The Supreme Court of Texas’s decision in Abigail Dalila Cerna, as Next Friend of R.W. v. Pearland Urban Air, LLC, No. 24‑0273 (Tex. May 23, 2025), sharpens a recurring and increasingly important distinction in arbitration law: the line between:

  • questions about whether an arbitration agreement exists, which courts must decide; and
  • questions about whether a concededly valid agreement covers a particular dispute (its scope or temporal reach), which may be delegated to the arbitrator if the parties clearly and unmistakably say so.

At stake was whether a mother who signed a broad trampoline-park release and arbitration clause on an initial visit was required to arbitrate claims arising from a later, separate visit for which she signed no new paperwork. The Court does not decide whether the first release in fact governs the second visit. Instead, it holds that—because the parties clearly delegated “scope, arbitrability, or validity” questions to the arbitrator—the temporal reach of that arbitration clause is itself a question for the arbitrator, not the courts.

The case thus establishes and reinforces a key principle in Texas arbitration jurisprudence:

When the existence and validity of an arbitration agreement are conceded, disputes over the agreement’s temporal duration or application to subsequent events are questions of scope and arbitrability that must be resolved by the arbitrator if clearly delegated.

II. Background: Facts and Procedural History

A. The underlying facts

Abigail Cerna and her child visited Urban Air Trampoline and Adventure Park in Pearland, Texas, on August 30, 2020. As a precondition of entry, Cerna signed a document titled:

“Customer Release, Assumption of Risk, Waiver of Liability, and Indemnification Agreement” (the August Agreement).

The August Agreement:

  • released Urban Air and related entities from liability in exchange for entry to the Pearland facility “or any other premises owned or operated by Urban Air wherever located”;
  • contained a broad arbitration clause applying to:
    • “[a]ny dispute or claim arising out of or relating to this Agreement, breach thereof, the Premises, Activities, property damage (real or personal), personal injury (including death), or the scope, arbitrability, or validity of this arbitration agreement”;
    • and required such disputes to be “settled by binding arbitration before a single arbitrator” administered by the AAA under its commercial rules.

The agreement did not contain any express language specifying how long it would remain in effect or whether it was limited to that single visit.

Roughly three months later, on November 21, 2020, Cerna and her child returned to the Pearland Urban Air location. They entered without signing any new release or agreement. During this second visit, Cerna alleges that her child suffered a serious foot injury while jumping on a trampoline.

B. Litigation in the trial court

Cerna, as next friend of her minor child, sued Pearland Urban Air, LLC, alleging negligence arising from the November incident. Urban Air moved to compel arbitration, arguing that:

  • the August Agreement was a valid contract; and
  • its arbitration clause covered any claims arising from activity on Urban Air’s premises, including the November visit.

Cerna opposed the motion, arguing:

  • the August Agreement, whatever its effect on the August visit, did not apply to the separate November visit; therefore,
  • there was no arbitration agreement in existence governing the November incident.

The trial court denied the motion to compel arbitration.

C. Court of appeals decision

Urban Air took an interlocutory appeal. The Fourteenth Court of Appeals:

  1. found that the August Agreement was a valid contract binding Cerna and her child to its terms;
  2. held that Cerna’s contention—that the agreement did not apply to the November visit—was a challenge to the agreement’s scope, not its existence;
  3. concluded that because the agreement expressly delegated disputes about “the scope, arbitrability, or validity” of the arbitration agreement to the arbitrator, the trial court lacked authority to decide that issue and should have compelled arbitration.

The court also addressed a second issue (not before the Supreme Court) about whether the Texas Arbitration Act (TAA) required attorneys’ signatures on the agreement. A concurrence would have resolved that issue by holding the Federal Arbitration Act (FAA) governed instead. Cerna did not petition for review on that question.

D. Proceedings in the Supreme Court of Texas

The Supreme Court granted review on the core question: Was the dispute about the August Agreement’s application to the November visit:

  • a formation/existence question for the court, or
  • a scope/arbitrability question for the arbitrator under the delegation clause?

Justice Bland, writing for a unanimous Court, affirmed the court of appeals and directed the trial court to compel arbitration.

III. Summary of the Opinion

A. The two-step framework for compelling arbitration

The Court reiterates the familiar two-step inquiry when a party moves to compel arbitration:

  1. Existence/validity: “there is a valid arbitration clause”; and
  2. Scope: “the claims in dispute fall within that agreement’s scope.”1

Courts must decide step one; they must not compel arbitration absent a valid arbitration agreement. But parties are free to contractually delegate step two (and some related “gateway” issues) to the arbitrator if they do so “clearly and unmistakably.”

B. Existence vs. scope: Cerna’s reframing rejected

Cerna framed her argument as a challenge to the existence of any agreement to arbitrate the November visit, on the theory that the August Agreement lacked durational language and therefore expired after that first visit. She argued that without evidence of a separate November arbitration agreement, the trial court correctly refused to compel arbitration.

The Court rejects this characterization. It holds that:

  • Cerna does not dispute the formation or present existence of the August Agreement as a contract;
  • she does not identify any superseding agreement that displaced it;
  • instead, she disputes “the extent of the agreement’s applicability”—whether it reaches the November visit.

That, the Court explains, is classic scope (or “arbitrability”) territory, not an existence or formation challenge. As Justice Bland puts it, Cerna “questions the extent of the agreement’s applicability—that is, whether it ‘exists as to the claims [she] has asserted in this suit.’”2 That framing, however, improperly collapses step one (existence) into step two (scope).

C. Clear delegation of arbitrability issues

The August Agreement’s arbitration clause expressly requires arbitration of disputes about the “scope, arbitrability, or validity of this arbitration agreement.” The Court—consistent with its prior precedent—holds this language is sufficiently “clear and unmistakable” to be an enforceable delegation clause.

Because:

  • the parties concede that a valid agreement to arbitrate exists; and
  • the agreement clearly delegates scope/arbitrability questions to the arbitrator,

the trial court was without authority to decide whether the November incident falls within that agreement. That determination belongs to the arbitrator.

The Court therefore:

  • affirms the court of appeals’ decision; and
  • remands with instructions for the trial court to compel arbitration.

Notably, the Court expressly declines to opine on the ultimate question of whether the August Agreement does or does not govern the November visit. That is for the arbitrator alone.

IV. Detailed Analysis

A. Precedents and Authorities Cited

1. In re Rubiola and the basic two-prong test

The Court cites In re Rubiola, 334 S.W.3d 220 (Tex. 2011), for the foundational test:

A party seeking to compel arbitration must establish that “(1) there is a valid arbitration clause, and (2) the claims in dispute fall within that agreement’s scope.”

Rubiola underpins the Court’s insistence on keeping existence and scope as distinct inquiries. Cerna’s argument attempted to fold the second prong into the first by redefining “existence” in terms of the specific dispute, but Rubiola and its progeny treat them as separate steps.

2. TotalEnergies E&P USA, Inc. v. MP Gulf of Mexico, LLC

The decision heavily relies on and extends TotalEnergies E&P USA, Inc. v. MP Gulf of Mex., LLC, 667 S.W.3d 694 (Tex. 2023). In TotalEnergies:

  • The parties agreed there was a valid arbitration agreement;
  • One side argued, however, that its claims did not arise out of the agreement and were therefore not arbitrable;
  • The contract also contained a delegation clause covering arbitrability issues.

The resisting party tried to frame its objection as whether the arbitration agreement “exists as to the claims it has asserted in this suit.”3 The Court in TotalEnergies rejected that framing, emphasizing that such language impermissibly “collapses” existence and scope. Once formation is conceded, whether a particular dispute is covered is a scope question—and, where delegated, for the arbitrator.

In Cerna, the Court:

  • quotes TotalEnergies at length;
  • treats “does the agreement reach later events or visits?” as equivalent in type to “does the agreement reach this class of claims?”; and
  • reaffirms that disputes confined to “whether the valid arbitration agreement applies to these claims” are scope challenges.

Thus, Cerna can be seen as applying and extending the TotalEnergies framework to a temporal-duration scenario.

3. RSL Funding, LLC v. Newsome

In RSL Funding, LLC v. Newsome, 569 S.W.3d 116 (Tex. 2018), the Court held that a party who “concedes the existence of the agreement” is subject to a valid delegation clause requiring arbitrability issues to be decided by the arbitrator.

RSL Funding reinforces the gatekeeping rule:

  • First, a court determines whether a binding arbitration agreement with a delegation provision exists;
  • If yes, the court must then compel arbitration and allow the arbitrator to decide gateway issues the parties delegated.

Cerna follows this approach: because Cerna does not deny formation of the August Agreement and because that agreement includes a delegation clause, the court is obliged to yield to the arbitrator on scope.

4. Robinson and Howsam: What counts as a “question of arbitrability”?

Citing Robinson v. Home Owners Mgmt. Enters., Inc., 590 S.W.3d 518 (Tex. 2019), which in turn relies on the U.S. Supreme Court’s decision in Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002), the Court reiterates:

  • “Questions of arbitrability” requiring “clear and unmistakable” delegation are those “contracting parties would likely have expected a court to have decided” absent agreement otherwise;
  • They are “limited to:
    1. whether the parties have a valid arbitration agreement at all; and
    2. whether an arbitration clause in a concededly binding contract applies to a particular type of controversy.”

The question in Cerna—whether the August Agreement’s arbitration clause applies to a claim from a later visit—is squarely within category (2). Consequently, it is a “question of arbitrability” that may be delegated, and was delegated, by the “scope, arbitrability, or validity” language.

5. Existence cases: In re Morgan Stanley, J.M. Davidson, G.T. Leach, and Transcor Astra

The Court contrasts Cerna with true “existence” disputes, invoking several precedents:

  • In re Morgan Stanley & Co., 293 S.W.3d 182 (Tex. 2009): Courts decide challenges “to the very existence of an agreement to arbitrate,” such as whether the parties ever agreed at all.
  • J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003): Courts apply ordinary contract principles to determine whether an enforceable arbitration agreement was formed.
  • G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502 (Tex. 2015): When a signatory seeks to compel a non-signatory to arbitrate, the question is whether an agreement to arbitrate exists between those parties.
  • Transcor Astra Grp. S.A. v. Petrobras Am. Inc., 650 S.W.3d 462 (Tex. 2022): When the parties later enter into another agreement, the question may be whether the earlier arbitration agreement “still exists at all” or has been superseded—an existence issue for the court.

In Transcor Astra, the Court held that a subsequent settlement agreement potentially displaced the earlier arbitration agreement, creating a genuine question whether the arbitration duty continued to exist. That kind of supersession dispute is jurisdictionally for the courts.

The U.S. Supreme Court “adopted this holding” in Coinbase, Inc. v. Suski, 602 U.S. 143 (2024), holding that where “parties have agreed to two contracts—one sending arbitrability disputes to arbitration, and the other either explicitly or implicitly sending arbitrability disputes to the courts,” a court must decide which contract governs.

By contrast, in Cerna:

  • There is only a single relevant contract (the August Agreement);
  • No later, potentially superseding November contract is alleged; and
  • The issue is not whether the August Agreement ceased to exist, but whether its coverage extends to a later event.

Thus, the Court distinguishes genuine “existence” disputes (formation, superseding contracts, non-signatories) from coverage disputes under an admittedly extant arbitration covenant.

6. Baby Dolls Topless Saloons, Inc. v. Sotero

In Baby Dolls Topless Saloons, Inc. v. Sotero, 642 S.W.3d 583 (Tex. 2022), the Court held that language providing that “[a]rbitration shall be the sole forum to determine the validity, scope and brea[d]th of this Agreement” was a clear and unmistakable delegation of arbitrability issues to the arbitrator.

Cerna explicitly analogizes its clause (“scope, arbitrability, or validity”) to Baby Dolls and reaches the same conclusion: such language suffices to delegate arbitrability. This further cements a drafting template for enforceable delegation clauses under Texas law.

7. Henry Schein and the “wholly groundless” doctrine

Addressing concerns about the breadth of delegation, the Court cites Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63 (2019), where the U.S. Supreme Court abolished the “wholly groundless” exception to enforcement of delegation clauses.

Before Schein, some lower courts had allowed judges to refuse to compel arbitration even under a delegation clause if the effort to arbitrate was “wholly groundless.” Schein held this was inconsistent with the FAA:

When the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract—even if the court thinks the argument for arbitration is wholly groundless.

Cerna leans on this authority to underscore that, if the parties clearly delegate arbitrability, courts must refer the arbitrability question to the arbitrator, regardless of how weak the pro-arbitration position might appear. The arbitrator, not the court, decides whether the claim is in fact arbitrable and can address frivolous conduct.

8. Statutory framework and related U.S. Supreme Court authorities

The opinion also references:

  • Tex. Civ. Prac. & Rem. Code § 171.021(b) (TAA): If a party opposing arbitration “denies the existence of the agreement,” the court must “summarily determine that issue.” This codifies the judiciary’s duty to decide step one (existence).
  • 9 U.S.C. § 4 (FAA): A court must be “satisfied that the making of the agreement for arbitration … is not in issue” before compelling arbitration, echoing the same principle at the federal level.
  • Henry Schein (again) and Morgan v. Sundance, Inc., 596 U.S. 411 (2022), to reiterate that courts must enforce arbitration agreements on equal footing with other contracts, neither favoring nor disfavoring arbitration through special rules.

Combined, these authorities frame the Court’s analysis: courts must first verify contract existence and validity; once a valid delegation clause is confirmed, all delegated issues—here, scope and duration—go to the arbitrator.

B. The Court’s Legal Reasoning

1. Step one: A valid agreement to arbitrate exists

The Court starts from the undisputed premise: the August Agreement is a valid contract binding Cerna and her child. Cerna does not challenge:

  • her signature;
  • the formation of the contract; or
  • the validity of the arbitration clause as to the August visit.

Nor does she identify any subsequent agreement that might have superseded or terminated the August Agreement. Therefore, the Court concludes step one is satisfied: a valid arbitration agreement exists.

2. Step two reframed: Is the dispute about existence or scope?

Cerna attempts to recast the coverage question as one of existence by arguing there is “no agreement to arbitrate” the November visit. The Court dissects this argument using the logic from TotalEnergies:

  • “Existence” questions concern whether an arbitration agreement (as a contract) was ever formed or continues to exist (e.g., due to supersession).
  • “Scope” questions concern whether a concededly existing agreement reaches particular claims, disputes, or time periods.

Because Cerna:

  • concedes the August Agreement is binding at least as to the August visit; and
  • does not argue there was a later contract displacing it,

her contention that the agreement does not apply to the November visit is a scope/applicability argument. The Court warns that allowing parties to freely label scope disputes as “existence” disputes (“the agreement does not exist as to these claims”) would completely undermine the delegation concept:

“[T]his framing ‘collapses two separate inquiries’ of existence and scope.”4

That collapse would, in turn, effectively nullify parties’ ability to delegate arbitrability, as every scope question could be rephrased into an “existence-as-to-this-dispute” argument reserved to courts.

3. The delegation clause and the “clear and unmistakable” standard

Having classified Cerna’s argument as a scope challenge, the Court then examines the delegation clause. The August Agreement requires arbitration of disputes about the:

“scope, arbitrability, or validity of this arbitration agreement.”

Under Baby Dolls and related cases, this language is paradigmatic “clear and unmistakable” delegation. The Court therefore holds:

  • Both prongs are satisfied:
    • a valid arbitration agreement exists; and
    • the parties clearly and unmistakably delegated scope/arbitrability issues to the arbitrator.
  • The trial court has no further role in deciding whether the present dispute is arbitrable; that decision must be made by the arbitrator.

4. The Court’s response to policy concerns

Cerna argued that, under the court of appeals’ analysis, “disputes will be delegated to arbitration in perpetuity and without judicial inquiry as long as the parties once agreed to do so.” The Supreme Court responds in two ways:

  1. The “clear and unmistakable” requirement is a meaningful safeguard. Courts will not infer delegation lightly; parties must clearly express their intent to send arbitrability questions to arbitration.
  2. Subsequent contracts can still create judicial existence questions. As in Transcor Astra and Coinbase, if parties later sign a contract that potentially supersedes or conflicts with an earlier delegation, courts must decide whether the prior arbitration obligation “still exists at all.” That remains a judicial question.

Additionally, the Court points out that if a party attempts to compel arbitration of a dispute “wholly outside an existing agreement,” it is the arbitrator who will decide that the dispute is not covered and can assess whether the attempt was frivolous—consistent with Henry Schein.

In other words, the procedural safeguard is contractual clarity (the “clear and unmistakable” test) plus judicial review at step one (existence); the substantive safeguard (whether this dispute really is arbitrable) is entrusted to the arbitrator once the parties have so agreed.

C. Impact and Implications

1. Reinforcing the existence–scope divide in Texas arbitration law

Cerna solidifies a line that Texas arbitration jurisprudence has been drawing over the last several years:

  • Courts decide:
    • whether an arbitration agreement was formed (signatures, assent, capacity, fraud in the factum, etc.);
    • whether a later contract supersedes an earlier arbitration obligation;
    • whether the party to be compelled is actually bound (non-signatory theories).
  • Arbitrators decide (if clearly delegated):
    • whether particular claims or factual disputes fall within the clause’s subject-matter scope;
    • whether carve-outs or exclusions apply;
    • whether the agreement’s temporal reach covers later events, repeat transactions, or ongoing relationships.

By treating disputes over the duration or later applicability of a concededly valid arbitration agreement as scope questions, Cerna prevents parties from circumventing delegation clauses through artful pleading.

2. Practical drafting implications

For drafters of consumer and recreational contracts (e.g., trampoline parks, gyms, amusement parks, escape rooms), Cerna carries several messages:

  • Explicit delegation language works. Phrases like “scope, arbitrability, or validity” are now firmly validated as clear delegation language under Texas law.
  • Consider duration language. Although the Court did not decide whether the August Agreement actually covers the November visit, the very fact of the dispute suggests that:
    • businesses may wish to specify whether a release/arbitration agreement covers:
      • only that visit;
      • a fixed period (e.g., one year); or
      • all future visits until revoked.
    • patrons may wish to negotiate or at least understand the temporal reach of such waivers.
  • Arbitrators will decide close temporal-coverage questions. Going forward, disputes like “does this waiver signed on day one cover day 100?” will, if delegation language is present, be decided in arbitration rather than court.

3. Litigation strategy implications

For litigants:

  • A party seeking to avoid arbitration must carefully evaluate whether its challenge is truly to formation/existence—for example:
    • no assent;
    • forgery;
    • lack of capacity;
    • a later contract abrogating arbitration.
    Pure coverage or duration arguments are less likely to keep them in court if a delegation clause exists.
  • A party seeking to compel arbitration should:
    • focus the court on the conceded validity of the arbitration clause; and
    • highlight delegation language to argue that all arbitrability disputes (including duration or repeated-visit coverage) belong to the arbitrator.

4. Alignment with federal arbitration jurisprudence

Cerna keeps Texas in close alignment with U.S. Supreme Court arbitration doctrine:

  • Henry Schein: No “wholly groundless” judicial carve-outs once arbitrability is delegated.
  • Coinbase and Transcor Astra: Courts decide which of multiple potentially conflicting contracts governs arbitrability.
  • Howsam, Robinson: “Questions of arbitrability” include whether a concededly valid clause covers a particular controversy.

By explicitly citing these decisions and harmonizing its reasoning with them, the Court reduces the risk of conflict between Texas and federal law on gateway arbitration questions.

5. Substantive rights not decided

The Court carefuly cabins its holding. It does not decide:

  • whether the August Agreement’s release of liability or arbitration clause is enforceable as to a minor’s personal injury claim under Texas substantive law;
  • whether the agreement’s language, properly construed, in fact extends to:
    • all future visits to the same park;
    • visits to other Urban Air locations; or
    • a defined period of time.

Those issues, if raised, are for the arbitrator given the delegation clause. The decision is thus about who decides, not what the ultimate answer is.

V. Simplifying the Key Legal Concepts

For readers less familiar with arbitration doctrine, the following explanations may be useful.

A. Arbitration agreement

An arbitration agreement is a contract clause where the parties agree to resolve disputes before a private arbitrator instead of in court. Arbitration can be:

  • binding: the arbitrator’s decision is final (subject to very limited judicial review);
  • administered by organizations like the American Arbitration Association (AAA), using their established procedural rules.

B. Existence (or formation) vs. scope

  • Existence / Formation:
    • Did the parties actually make an agreement to arbitrate?
    • Was there assent, consideration, capacity?
    • Has a later contract nullified or replaced that agreement?
    Courts must decide these issues.
  • Scope:
    • Assuming a valid arbitration agreement exists, which disputes does it cover?
    • Does it cover tort as well as contract claims?
    • Does it cover disputes arising after a certain date, or in a certain location?
    • Does it include or exclude certain types of controversies (e.g., injunctive relief)?
    These questions can be delegated to the arbitrator.

C. Delegation clause

A delegation clause is a provision within an arbitration agreement that says the arbitrator, not a court, will decide gateway questions about the arbitration clause itself—such as:

  • whether the clause is valid;
  • whether it covers a particular dispute (scope);
  • whether the dispute is arbitrable at all.

Because such a clause effectively shifts decision-making about “who decides what” away from the courts, the law requires proof that the parties did this “clearly and unmistakably.” Language expressly referring to “scope,” “arbitrability,” and “validity” has now repeatedly been held sufficient in Texas.

D. “Question of arbitrability”

Not every procedural or timing issue is a “question of arbitrability.” Under Howsam and Robinson, the term usually refers to:

  • whether a valid arbitration agreement exists at all; and
  • whether that agreement covers the type of dispute at issue.

By contrast, many “procedural arbitrability” issues (like deadlines under arbitration rules) are presumptively for the arbitrator even without express delegation.

E. The “clear and unmistakable” standard

Courts presume that parties expect judges—not arbitrators—to decide whether they must arbitrate. To overcome that presumption, the contract must clearly indicate that arbitrability itself is delegated to the arbitrator. This is the “clear and unmistakable” test.

In Cerna, the Court finds that the language:

“scope, arbitrability, or validity of this arbitration agreement”

meets this standard.

VI. Conclusion: Significance of Cerna v. Pearland Urban Air

Cerna v. Pearland Urban Air, LLC is an important increment in Texas arbitration law, with several key takeaways:

  1. Temporal coverage disputes are scope questions when formation is conceded. If both sides agree that a valid arbitration agreement exists, but disagree about whether it covers later events (such as a second visit to a trampoline park), that is a question of scope and arbitrability, not existence—subject to delegation.
  2. Clear delegation clauses are fully enforceable. Language delegating disputes about “scope, arbitrability, or validity” to the arbitrator satisfies the “clear and unmistakable” standard. Once a court confirms such a delegation clause in a valid agreement, it must compel arbitration and leave arbitrability questions to the arbitrator.
  3. The existence–scope divide is reaffirmed and sharpened. The opinion follows and extends TotalEnergies, RSL Funding, and Baby Dolls, making clear that parties cannot defeat delegation clauses simply by re-labeling arbitrability issues as “existence” questions “as to these claims.”
  4. Subsequent contracts remain a judicial domain. In line with Transcor Astra and Coinbase, if a subsequent contract arguably supersedes an earlier arbitration obligation, courts—not arbitrators—decide which contract governs. Cerna thus preserves an important judicial check where multiple documents conflict.
  5. The decision focuses on who decides, not on the merits. The Court expressly declines to say whether the August Agreement actually covers the November visit. That merits question—like other issues of arbitrability and scope—has been allocated by the parties to the arbitrator.

In the broader legal context, Cerna reinforces party autonomy in arbitration: when sophisticated or semi-sophisticated parties clearly agree that arbitrability itself is a matter for the arbitrator, courts must respect that allocation, intervening only to ensure that a valid agreement exists and has not been superseded. For recurring-entry and recreational businesses, it underscores the importance and efficacy of explicit delegation language—and signals that disputes over the temporal reach of such agreements are likely to play out in arbitration rather than in court.

1 In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011).
2 Quoting TotalEnergies E&P USA, Inc. v. MP Gulf of Mex., LLC, 667 S.W.3d 694, 720 (Tex. 2023).
3 TotalEnergies, 667 S.W.3d at 720.
4 Id.

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