Abigail Dalila Cerna, as Next Friend of R.W. v. Pearland Urban Air, LLC

Supreme Court of Texas
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No. 24-0273
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Abigail Dalila Cerna, as Next Friend of R.W.,
Petitioner,

v.

Pearland Urban Air, LLC,
Respondent

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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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Argued March 19, 2025

JUSTICE BLAND delivered the opinion of the Court.

Before compelling arbitration, a court must conclude that the
parties agreed to arbitrate disputes arising out of their relationship. If
so, the court next determines whether the parties’ present claims fall
within the scope of their agreement to arbitrate. Parties sometimes
further agree, however, to require that an arbitrator decide the scope
question. In such cases, a court must compel arbitration upon finding
that (1) a valid agreement to arbitrate exists, and (2) the agreement
unmistakably delegates to the arbitrator the question of whether the
parties’ present claims fall within the agreement’s scope.
In this case, a mother signed a release agreement for herself and
her child upon their entry into a trampoline park. The agreement
includes a provision that sends disputes arising out of activity at the
park to arbitration, including disputes over the scope, validity, and
arbitrability of the provision. About three months after signing the
agreement, the mother and her child returned to the park, entering it
without signing another release. The mother later sued the park,
alleging that her child was injured during their second visit to the park.
The trial court denied the park’s motion to compel arbitration.
The court of appeals reversed, holding that whether the arbitration
agreement extended to a second visit to the park is a challenge related
to the scope of the signed release, not its existence. Because the parties
had agreed to delegate such issues to an arbitrator, the court of appeals
held that the trial court erred in declining to compel arbitration.
We agree with the court of appeals. Given the existence of a valid
agreement to arbitrate, the question of the agreement’s duration is one
asking whether the claims asserted fall within the agreement’s scope.
In this case, the parties agree that the arbitration agreement is valid
but disagree as to whether it governs beyond the first visit to the park.
Because the parties delegated this dispute to an arbitrator to decide, we
affirm the court of appeals’ judgment.
I
Abigail Cerna and her child visited Urban Air Trampoline and
Adventure Park in Pearland on August 30, 2020. Upon entering the

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park, Cerna signed a “Customer Release, Assumption of Risk, Waiver of
Liability, and Indemnification Agreement” (the August Agreement). In
the agreement, Cerna released all claims against Urban Air and its
related entities in exchange for entrance to the Pearland location “or any
other premises owned or operated by Urban Air wherever located.”
The August Agreement contains a broadly worded arbitration
clause. Among other provisions, the clause requires disputes relating to
“the scope, arbitrability, or validity” of the agreement to be “settled by
binding arbitration before a single arbitrator”:
Any 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 (Dispute) shall be brought by
the parties in their individual capacity and not as a
plaintiff or class member in any purported class or
representative capacity, and settled by binding arbitration
before a single arbitrator administered by the American
Arbitration Association (AAA) per its Commercial Industry
Arbitration Rules in effect at the time the demand for
arbitration is filed.
Neither the arbitration clause nor any other clause of the agreement
contains express language as to the duration of the agreement.
Cerna and her child returned to Pearland Urban Air on November
21, 2020, and did not sign another agreement. At this visit, Cerna
alleges that her child was seriously injured when he cut his foot while
jumping on a trampoline.
After Cerna filed suit against Urban Air, it moved to compel
arbitration. Urban Air contended that the August Agreement requires
Cerna to arbitrate her claims because they arise out of activity on Urban

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Air’s premises. Pertinent to the issue before our Court, Cerna responded
that the August Agreement cannot apply to the November visit, and
thus no agreement to arbitrate exists for the November visit. Following
a hearing, the trial court denied Urban Air’s motion.
On interlocutory appeal, the court of appeals reversed. 1 The court
first held that the August Agreement was a valid contract binding Cerna
and her child. 2 With an agreement established, the court then held that
Cerna’s argument—that the August Agreement did not apply to the
November visit—is a challenge to its scope. 3 Finally, the court held it
could not decide this question of scope because the August Agreement
expressly delegates this question to an arbitrator. 4
II
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.” 5 Courts decide the first inquiry—

1 693 S.W.3d 711, 717 (Tex. App.—Houston [14th Dist.] 2024).

2 Id. at 716.

3 Id. at 716–17.

4 Id. at 717. The court of appeals further held that the second issue

Cerna raised—whether the Texas Arbitration Act required the parties’
attorneys to sign the agreement—was delegated to the arbitrator. Id. The
concurring justice would have held that this argument is a formation challenge
that a court must decide, but that the agreement provides that the Federal
Arbitration Act governs it. Id. at 717–18 (Christopher, C.J., concurring). Cerna
does not raise this issue before this Court.
5 In re Rubiola, 334 S.W.3d 220, 223 (Tex. 2011).

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whether an agreement to arbitrate exists. 6 A court must not compel
arbitration absent a valid agreement to arbitrate. 7
The second inquiry accepts the existence of an agreement and
turns to examine the agreement’s breadth. Like other contractual
provisions, parties can agree to delegate this question to an arbitrator
to decide rather than a court. 8 Courts enforce these “delegation
provision[s],” however, only if they “clearly and unmistakably” delegate
matters of scope to an arbitrator. 9
In this case, Cerna contends that the relevant question is whether
an arbitration agreement exists for her and her child’s November visit
to Urban Air. In Cerna’s view, the trial court properly denied Urban
Air’s motion to compel arbitration because Urban Air produced no
release applicable to the November visit, and the August Agreement
does not state the length of its duration or that it governs beyond the
August visit. Under the court of appeals’ analysis, Cerna argues,

6 See Tex. Civ. Prac. & Rem. Code § 171.021(b) (“If a party opposing an

application [to compel arbitration] made under Subsection (a) denies the
existence of the agreement, the court shall summarily determine that issue.”);
9 U.S.C. § 4 (requiring courts to be “satisfied that the making of the agreement
for arbitration . . . is not in issue” before compelling arbitration under the
Federal Arbitration Act); see also TotalEnergies E&P USA, Inc. v. MP Gulf of
Mex., LLC, 667 S.W.3d 694, 720 (Tex. 2023) (“We recognize that because
arbitration is a matter of contract, courts must decide in the first instance
whether a valid arbitration agreement exists.”); Henry Schein, Inc. v. Archer &
White Sales, Inc., 586 U.S. 63, 69 (2019) (“To be sure, before referring a dispute
to an arbitrator, the court determines whether a valid arbitration agreement
exists.”).
7 TotalEnergies, 667 S.W.3d at 701.

8 RSL Funding, LLC v. Newsome, 569 S.W.3d 116, 121 (Tex. 2018).

9 TotalEnergies, 667 S.W.3d at 719.

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disputes will be delegated to arbitration in perpetuity and without
judicial inquiry as long as the parties once agreed to do so. Instead,
courts should examine whether an agreement exists that governs the
particular dispute—in this case, the November visit.
Urban Air responds that neither party disputes the existence of
an agreement to arbitrate—the August Agreement. Cerna simply
challenges whether the November visit falls within the agreement’s
scope. Because the August Agreement contains a clear and
unmistakable delegation provision, however, Urban Air argues an
arbitrator must decide this challenge in the first instance.
A
Courts decide challenges “to the very existence of an agreement
to arbitrate.” 10 If a party challenges whether an agreement to arbitrate
formed, a court applies ordinary contract law principles to ensure an
enforceable agreement exists. 11 So too when an arbitration agreement
signatory attempts to compel a non-signatory to arbitrate, which raises
the question of whether an agreement to arbitrate exists between those
parties. 12 Finally, if the parties to an arbitration agreement
subsequently enter into another agreement, that also may give rise to

10 In re Morgan Stanley & Co., 293 S.W.3d 182, 189 (Tex. 2009).

11 J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227–28 (Tex. 2003).

12 G.T. Leach Builders, LLC v. Sapphire V.P., LP, 458 S.W.3d 502, 524

(Tex. 2015).

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an existence challenge, because it raises a question whether the first
agreement compelling arbitration “still exists at all.” 13
Once a court determines that an agreement to arbitrate exists,
the particulars of the agreement control the court’s next steps.
Ordinarily, a court decides whether the parties’ claims fall within the
agreement’s scope. 14 But because arbitration agreements are contracts,
the parties can agree that an arbitrator must decide whether the parties’
claims fall within the agreement—or “are arbitrable.” 15 When an
agreement unmistakably delegates questions of the applicability of the
agreement to the parties’ claims, a court must compel arbitration on the
matters the parties delegated. 16 Such matters can include questions

13 Transcor Astra Grp. S.A. v. Petrobras Am. Inc., 650 S.W.3d 462, 480

(Tex. 2022). The United States Supreme Court adopted this holding last year
in Coinbase, Inc. v. Suski, 602 U.S. 143 (2024). See id. at 152 (“[W]here, as
here, 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.”).
14 See In re FirstMerit Bank, N.A., 52 S.W.3d 749, 753 (Tex. 2001) (“Once

the movant establishes an agreement, the court must then determine whether
the arbitration agreement covers the nonmovant’s claims.”).
15 RSL Funding, 569 S.W.3d at 120.

16 Id. The “question[s] of arbitrability” subject to the clear and
unmistakable standard are those that “contracting parties would likely have
expected a court to have decided” absent any agreement to the contrary.
Robinson v. Home Owners Mgmt. Enters., Inc., 590 S.W.3d 518, 525 (Tex. 2019)
(quoting Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002)). “Such
circumstances 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.” Id.

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about the scope or validity of the arbitration clause in a given context. 17
A delegation provision removes the court’s power to decide such
challenges. 18
In this Court, Cerna does not dispute that the August Agreement
is valid and binds her to arbitrate claims arising from the August visit.
But because the August Agreement lacks durational language, she
claims that her challenge to its application to the November visit is one
going to the existence of a contract for that visit.
Cerna’s challenge, however, is to the scope of the August
Agreement, not its existence. Cerna does not dispute its formation or
whether it applies to her; nor does she invoke a superseding agreement
for the November visit that could challenge the present existence of the
August Agreement. 19 Rather, Cerna questions the extent of the
agreement’s applicability—that is, whether it “exists as to the claims
[she] has asserted in this suit.” 20 Cerna argues that the August
Agreement does not apply to the present dispute because the agreement

17 See TotalEnergies, 667 S.W.3d at 702 (describing delegable
arbitrability disputes as those over “the validity and scope of [the parties’]
arbitration agreement”).
18 Robinson, 590 S.W.3d at 532.

19 See Transcor Astra, 650 S.W.3d at 480 (“Because the parties here

dispute whether their arbitration agreement continued to exist after the 2012
settlement agreement, we agree with the trial court and court of appeals
that courts must decide that issue.”).
20 TotalEnergies, 667 S.W.3d at 720.

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does not apply to her November visit. Such applicability arguments are
recognized as ones of scope. 21
Like Cerna, other parties seeking to avoid arbitration have
attempted to reframe a scope challenge into one that asks whether an
“arbitration agreement exists as to the claims it has asserted in this
suit.” 22 We rejected such an attempt in TotalEnergies E&P USA, Inc. v.
MP Gulf of Mexico, LLC, holding that this framing “collapses two
separate inquiries” of existence and scope. 23 We observed that the two
inquiries must remain separate in recognition of the principle that only
courts can decide existence but scope can be delegated. 24
An argument about an agreement’s “existence,” when confined to
a particular claim, crosses the threshold from existence to scope. Such a
dispute concerns not if an agreement to arbitrate exists, but which
claims are arbitrable under that valid agreement. 25 We have declined to
recognize such challenges as going to existence when a party otherwise
concedes that an agreement has formed. In TotalEnergies, the party
seeking to avoid arbitration contended that its claims did not arise out

21 E.g., Wagner v. Apache Corp., 627 S.W.3d 277, 283 (Tex. 2021) (“The

parties agree that there is a valid agreement to arbitrate. But plaintiffs assert
that their claims are not within the scope of the arbitration clause because it
includes a clear carve-out for disputes arising out of third-party claims.”).
22 TotalEnergies, 667 S.W.3d at 720 (emphasis added).

23 Id.

24 Id.

25See id. (explaining that an argument that “the valid arbitration
agreement does not apply to the claims it asserted in this suit because those
claims do not arise out of the agreement that contains the valid arbitration
agreement” goes to the scope of the agreement and not its existence).

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of the parties’ arbitration agreement. 26 But its challenge contested the
arbitrability of the particular dispute under that admittedly existing
agreement, and thus we held that the issue was one of scope properly
delegated to an arbitrator. 27 Similarly, in RSL Funding, LLC v.
Newsome, we held that a party who “concedes the existence of the
agreement” is subject to a delegation clause requiring an arbitrator to
decide the scope of the agreement. 28
B
To permit judicial inquiry into the present dispute would
subsume scope questions into existence questions, eroding enforcement
of the parties’ delegation provision. The arbitration provision within the
August Agreement states that Cerna and Urban Air will arbitrate any
dispute regarding the “scope, arbitrability, or validity of this arbitration
agreement.” We have recognized similar language as sufficiently clear
and unmistakable to enforce it, and we do so in this case. 29 The parties
have agreed that an arbitrator, not the courts, decides whether the
August Agreement applies to subsequent visits, and we must respect

26 Id. at 719.

27 Id. at 720; see also id. at 719 (“[T]he fact that the parties’ arbitration

agreement may cover only some disputes while carving out others does not
affect the fact that the delegation agreement clearly and unmistakably
requires the arbitrator to decide whether the present disputes must be resolved
through arbitration.”).
28 569 S.W.3d at 126.

29 See Baby Dolls Topless Saloons, Inc. v. Sotero, 642 S.W.3d 583, 587

(Tex. 2022) (holding language 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 (alterations in original)).

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this agreement. 30 We thus express no opinion on whether the August
Agreement governs the November visit. 31
Finally, we observe that existing law provides protection against
rubberstamping the delegation of disputes to an arbitrator. The “clear
and unmistakable” standard prevents parties from unwittingly
implying an agreement to delegate arbitrability questions. 32 A
subsequent agreement may also require a court to decide whether the
prior agreement containing a delegation provision remains in existence,
but Cerna does not contend that there was such an agreement here. 33 If,
as Cerna suggests, a party seeks to compel arbitration of a dispute
wholly outside an existing agreement, it is the arbitrator who decides
the question, including whether compelling arbitration in such
circumstances was frivolous. 34 This approach carries out the “two-step

30 See Morgan v. Sundance, Inc., 596 U.S. 411, 418 (2022) (“[A] court

must hold a party to its arbitration contract just as the court would to any
other kind.”).
31 See TotalEnergies, 667 S.W.3d at 721 (“We hold that the parties
clearly and unmistakably delegated to the . . . arbitrator the decision of
whether the parties’ controversy must be resolved by arbitration. We express
no opinion on the merits of the parties’ controversy or on whether the arbitrator
or the courts must resolve them.”).
32 Id. at 702 (quoting Robinson, 590 S.W.3d at 525, 532).

33 See Coinbase, 602 U.S. at 152 (recognizing that to allow such disputes

to be delegated to an arbitrator despite a challenge to the continued existence
of the agreement would “impermissibly elevate a delegation provision over
other forms of contract” (internal quotations omitted)).
34In eliminating the court-created “wholly groundless” exception to
delegations of arbitrability in Henry Schein, Inc. v. Archer & White Sales, the
United States Supreme Court held that the exception “confuses the question
of who decides arbitrability with the separate question of who prevails on

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process” of existence and scope necessary when a valid delegation
provision exists. 35 Courts decide whether an agreement exists in the
first step but lack the authority to engage in the second upon confirming
the validity of a delegation provision.
* * *
Upon deciding that the parties agreed to arbitrate, courts must
respect the agreement’s terms—including terms delegating to an
arbitrator disputes over whether particular claims fall within the
parties’ agreement. In challenging the August Agreement’s applicability
to her November visit, Cerna asks a court to decide that the claims she
brings are excluded from that agreement. The court of appeals properly
held that this decision is one reserved to the arbitrator under the terms
of the parties’ agreement. Accordingly, we affirm its judgment and
remand the case to the trial court to issue an order compelling
arbitration.

Jane N. Bland
Justice

arbitrability. When the parties’ contract delegates the arbitrability question to
an arbitrator, the courts must respect the parties’ decision as embodied in the
contract.” 586 U.S. at 71.
35 TotalEnergies, 667 S.W.3d at 720; see also RSL Funding, 569 S.W.3d

at 121 (“So the proper procedure is for a court to first determine if there is a
binding arbitration agreement that delegates arbitrability to the arbitrator. If
there is such an agreement, the court must then compel arbitration so the
arbitrator may decide gateway issues the parties have agreed to arbitrate.”).

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OPINION DELIVERED: May 23, 2025

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