Procedural arbitrability issues, even if presented as waiver arguments, are reserved for resolution by the arbitrator and are not within the jurisdiction of the courts, according to a Texas appellate court.

In In re Frost National Bank, No. 13-07-00748-CV, 2008 WL 4889836 (Tex. App. Nov. 7, 2008), Goldbloom secured a loan from Frost for the construction of an office building. The contract contained a broadly-worded arbitration agreement. A dispute arose between Goldbloom and Frost, and Goldbloom sued for negligent misrepresentation, breach of fiduciary duty, and fraud. Frost moved to compel arbitration of the dispute, but the trial court denied the motion.

The Court granted Frost's petition for mandamus relief. After determining that an agreement between the parties existed and that the claims fell within its broad scope, the Court examined whether the agreement was unenforceable due to Frost's delay in commencing arbitral proceedings.

The Court observed that the parties' agreement required initiation of arbitral proceedings within 60 days of a party's written request to arbitrate in order to avoid waiving the right. However, the Court held it was without jurisdiction to decide whether Frost's conduct here constituted waiver, because "[i]ssues related to arbitration, including time limits, notice, and laches, are matters pertaining to procedural arbitrability" and are for the arbitrator to decide.

The Court also rejected Goldbloom's contention that Frost's motion to transfer venue waived the right to arbitrate, noting that a litigant may assert that a case has been filed in an improper venue and ask it to be transferred without waiving a contractual right to arbitrate.

Finally, the Court refused to find Frost waived its right to arbitrate by requesting a continuance during temporary injunction proceedings, agreeing to an extension of the resulting restraining order, filing an untimely motion to transfer venue, attempting to quash a deposition, responding to requests for disclosure, and filing a motion to dismiss. The Court found that Frost had taken all these actions within a few weeks of Goldbloom's initial filing, and as such, the actions constituted neither a substantial invocation of the judicial process nor prejudicial conduct supporting a finding of waiver.