Breanna Sanger, et ux v. MNM Entertainment, LLP d/b/a Max Air Tri-Cities

• Court: Court of Appeals of Washington
• Decided: February 3, 2026
• Docket: 40833-7
• Status: Unpublished

Opinion

FILED FEBRUARY 3, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

BREANNA SANGER and DYLAN ) CLARK, wife and husband, and the ) No. 40833-7-III marital community composed thereof, and ) BREANNA SANGER as guardian of P.C., ) a minor, ) ) Appellants, ) UNPUBLISHED OPINION ) v. ) ) MNM ENTERTAINMENT, LLP dpa ) MAX AIR TRI-CITIES, a Washington ) Limited Liability Partnership, ) ) Respondent. )

COONEY, J. — Breanna Sanger and Dylan Clark, the parents of P.C., a minor,

(collectively “Sangers”), brought negligence and parental consortium claims against

MNM Entertainment, LLP, (MNM) as a result of injuries P.C. sustained at a MNM

trampoline facility. Prior to P.C. using the facility, Mr. Clark signed a participation

agreement on P.C.’s behalf that contained a mandatory arbitration provision. Per the No. 40833-7-III Sanger v. MNM Entertainment

provision, MNM moved the superior court for an order compelling arbitration. The court

granted MNM’s motion and dismissed the complaint without prejudice to the Sangers’

right to pursue arbitration under the agreement.

The Sangers appeal arguing: (1) parents cannot waive their child’s constitutional

right to a jury trial; (2) P.C. cannot be precluded from pursuing her claims in court under

the doctrine of equitable estoppel; and (3) case law holding that P.C. can be estopped

from pursuing her claims violates her right to equal protection. We decline to review the

Sangers’ claimed errors and dismiss this appeal as it was brought in contravention of the

RAPs.

BACKGROUND

On May 11, 2023, then three-year-old P.C. was injured at Max Air Tri-Cities

(Max Air), a trampoline park. Mr. Clark signed a participation agreement on P.C.’s

behalf that contained a mandatory arbitration provision before P.C. accessed Max Air.

The Sangers filed a complaint against MNM, doing business as Max Air, alleging

negligence and a parental consortium claim following P.C.’s injury.

MNM requested the Sangers arbitrate the claim under the participation agreement,

and the Sangers declined. MNM then filed a motion to compel arbitration. The Sangers

responded that (1) Mr. Clark was unable to waive P.C.’s right to a jury trial, (2) that the

arbitration provision was procedurally unconscionable, and (3) that P.C. was not estopped

from seeking a jury trial by Mr. Clark signing the participation agreement.

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The trial court ultimately granted MNM’s motion to compel arbitration and

dismissed the Sangers’ claims without prejudice to the Sangers’ right to pursue

arbitration under the agreement.

The Sangers timely filed a notice of appeal seeking “review by the Washington

State Supreme Court of the Order Granting [MNM’s] Motion to Compel Arbitration.” 1

Notice of Appeal to Supreme Court, Sanger v. MNM Ent., LLP, No. 103435-1 (Wash.

Sept. 3, 2024). The Supreme Court transferred the matter to this court. Order, Sanger v.

MNM Ent., LLP, No. 103435-1 (Wash. Dec. 4, 2024).

ANALYSIS

A threshold issue to our review is the appealability of a trial court’s order

compelling arbitration, though neither party adequately addressed the issue in their

opening briefs. 2 Following oral argument, we requested the parties answer two

questions:

(1) whether this appeal comes within the scope of decisions reviewable under RAP 2.2(a); and, if not,

1 Notably, the Sangers did not appeal the trial court’s order dismissing their claims without prejudice. 2 In their opening brief, the Sangers, citing Herzog v. Foster & Marshall, Inc., 56 Wn. App. 437, 445, 783 P.2d 1124 (1989), write, “An order compelling arbitration is appealable as a matter of right.” Br. of Appellants at 10. Herzog held the exact opposite. The court in Herzog held “that an order denying a motion for stay pending arbitration is appealable as of right under the language of RAP 2.2(a)(3).” Herzog, 56 Wn. App. at 445.

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(2) whether this appeal comes within the scope of decisions reviewable under RAP 2.3(b).

Letter from Commissioner Hailey Landrus, Sanger v. MNM Ent., LLP, No. 40833-7-III

(Wash. Ct. App. Dec. 8, 2025). Both parties timely filed supplemental briefing.

The rules of appellate procedure provide two methods for seeking review of a trial

court’s decision: “[r]eview as a matter of right, called ‘appeal,’” under RAP 2.2 and

“[r]eview by permission of the reviewing court, called ‘discretionary review’” under

RAP 2.3. RAP 2.1(a)(1), (2).

RAP 2.2(a)—APPEAL

Order Compelling Arbitration

The Sangers filed an appeal under RAP 2.2(a) of the order compelling arbitration. 3

An order compelling arbitration is not subject to direct review under RAP 2.2(a).

The Uniform Arbitration Act (UAA), chapter 7.04 RCW, applies to agreements to

arbitrate. RCW 7.04A.030(2). The participation agreement before us contains an

agreement to arbitrate “disputes, claims, or controversies” arising out of or related to the

agreement. Clerk’s Papers at 27. Thus, the UAA applies.

Under the UAA, an appeal may be taken from:

3 It appears the Sangers seek reversal of the order compelling arbitration only as it relates to P.C. Although Ms. Sanger was not a signatory to the contract, the Sangers fail to address whether Mr. Clark, as the signatory, can waive Ms. Sanger’s right to a jury trial.

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(a) An order denying a motion to compel arbitration; (b) An order granting a motion to stay arbitration; (c) An order confirming or denying confirmation of an award; (d) An order modifying or correcting an award; (e) An order vacating an award without directing a rehearing; or (f) A final judgment entered under this chapter.

RCW 7.04A.280(1). Conspicuously absent from RCW 7.04A.280(1) is the authority for

a party to appeal an order granting a motion to compel arbitration.

The Sangers argue, “the [UAA] does not prohibit appeals from orders

granting motions to compel arbitration—it simply does not list such orders among those

expressly authorized for appeal.” Appellants’ Br. in Support of Review at 15. Under the

maxim expressio unius est exclusio alterius, we disagree. Because the legislature

specifically designated, in the UAA, the orders on which an appeal may be taken, there is

an inference that the legislature intentionally excluded all other orders from being

immediately appealable. See In re Pers. Restraint of Bowman, 109 Wn. App. 869, 875,

38 P.3d 1017 (2001).

Consistent with the UAA, our Supreme Court has held that a trial court’s order

granting a motion to compel arbitration is not appealable as a matter of right whereas an

order denying a motion to compel arbitration is immediately appealable. See

FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 190 Wn.2d 281, 287-

88, 413 P.3d 1 (2018); Hill v. Garda CL Nw., Inc., 179 Wn.2d 47, 54, 308 P.3d 635

(2013). The Supreme Court reasoned, “‘If a trial court does not compel arbitration and

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there is no immediate right to appeal, the party seeking arbitration must proceed through

costly and lengthy litigation before having the opportunity to appeal, by which time such

an appeal is too late to be effective.’” Hill, 179 Wn.2d at 54 (quoting Stein v. Geonerco,

Inc., 105 Wn. App. 41, 44, 17 P.3d 1266 (2001)).

Order of Dismissal Without Prejudice

The Sangers argue in their supplemental brief that the order dismissing their

claims without prejudice is appealable as a matter of right under RAP 2.2(a). We are

unpersuaded by their argument for two reasons. First, the Sangers did not appeal the

order dismissing their claims without prejudice. See Notice of Appeal to Supreme Court,

supra.

Secondly, the Sangers’ initial reference to the order of dismissal was presented in

their supplemental brief. Their opening brief does not address the order of dismissal, nor

does it present any argument as to how the court erred in entering the order. Passing

treatment of an issue or lack of reasoned argument is insufficient to merit this court’s

consideration. West v. Thurston County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012).

The only argument related to the order of dismissal offered by the Sangers is the

appealability of the order found in their supplemental brief. The deferment of their

argument deprived MNM of the opportunity to respond. See City of Spokane v. White,

102 Wn. App. 955, 963, 10 P.3d 1095 (2000).

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The trial court’s order compelling arbitration is not appealable as a matter of right

under RAP 2.2(a). We decline to rule on whether the order of dismissal is appealable as

a matter of right due to the Sangers’ failure to appeal the order of dismissal and present a

reasoned argument as to how the court erred in entering the order. Further, MNM was

deprived of the opportunity to respond to the Sangers’ argument as it was not raised in

their opening brief.

RAP 2.3(b)—DISCRETIONARY REVIEW

In adherence to the UAA, the Supreme Court has held that a party may only seek

discretionary review, under RAP 2.3, of an order compelling arbitration, not as a matter

of right under RAP 2.2. Saleemi v. Dr.’s Assocs., Inc., 176 Wn.2d 368, 376, 292 P.3d

108 (2013). The Sangers’ desire for review should have been brought as a petition for

discretionary review under RAP 2.3. Regardless of this procedural deficiency, this court

may exercise its discretion and grant discretionary review on its own motion to serve the

ends of justice. RAP 1.2(c). In applying the elements of RAP 2.3(b), we deny

discretionary review.

RAP 2.3(b) allows for discretionary review (1) where “[t]he superior court has

committed an obvious error which would render further proceedings useless,” or (2)

where “[t]he superior court has committed probable error and the decision of the superior

court substantially alters the status quo or substantially limits the freedom of a party to

act.” Citing Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6 (1992),

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the Sangers argue we should grant discretionary review under RAP 2.3(b)(1) because the

trial court committed an obvious error that would render further proceedings useless. In

Scott, our Supreme Court held that “a parent does not have legal authority to waive a

child’s own future cause of action for personal injuries resulting from a third party’s

negligence.” 119 Wn.2d at 492. Here, P.C.’s parents have not waived her future cause of

action for injuries she sustained due to MNM’s purported negligence. Rather, P.C.’s

parents have consented to a form of alternative dispute resolution that could resolve her

claims outside of traditional court litigation. This does not amount to an obvious error

that would render further proceedings useless.

The Sangers have failed to establish that the trial court committed an obvious error

that would render further proceedings useless. Rather, they merely present a debatable

issue about the constitutional infirmity of the arbitration provision of the participation

agreement.

The Sangers next argue we should grant discretionary review under RAP

2.3(b)(2). Without addressing the first element of RAP 2.3(b)(2), whether the court has

committed probable error, we conclude the Sangers have failed to demonstrate the second

element, that the order compelling arbitration alters the status quo or substantially limits

their freedom to act. The order compelling arbitration provides an alternative avenue of

resolving the Sangers’ claims. The Sangers can challenge the validity of the arbitration

provision if they are aggrieved following arbitration. See Saleemi, 176 Wn.2d at 376

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(“[W]e note with approval the Court of Appeals’ rejection of the proposition that the

failure to seek discretionary review of an order compelling arbitration waives a later

challenge.”).

The Sangers next argue that this “[c]ourt should accept review pursuant to RAP

2.3(d)(3) as the issue is of great public interest.” Appellants’ Br. in Support of Review at

10. RAP 2.3(d)(3) is irrelevant to the issue before us. RAP 2.3(d) applies to “review of a

superior court decision entered in a proceeding to review a decision of a court of limited

jurisdiction.” Here, the superior court was not reviewing a decision entered by a court of

limited jurisdiction.

Lastly, the Sangers argue that “[s]everal policy considerations support immediate

appellate review.” Appellants’ Br. in Support of Review at 13. Although the claimed

policy considerations may be compelling, the RAPs allow this court to grant

discretionary review only if one of the enumerated provisions in RAP 2.3(b) is met.

RAP 2.3(b) does not allow this court to accept discretionary review based on policy

considerations.

The orders compelling arbitration and dismissing the Sangers’ claims without

prejudice are not subject to review as a matter of right under RAP 2.2. The Sangers have

failed to demonstrate an entitlement to discretionary review under RAP 2.3.

Consequently, we dismiss this appeal.

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A majority of the panel has determined this opinion will not be printed in

the Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

Cooney, J.

I CONCUR:

Staab, J.

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LAWRENCE-BERREY, C.J. (concurring) — Breanna Sanger and Dylan Clark sought

direct review by the Washington State Supreme Court of the trial court’s order

compelling arbitration. As an alternative to direct review, the Sangers asked the Supreme

Court to transfer their appeal to this court, citing RAP 4.2(e)(1). Statement of Grounds

for Direct Review, Sanger v. MNM Ent., No. 103435-1, at 11 n.1 (Wash.

Sept. 17, 2024). That rule permits transfer by the Supreme Court to this court of

decisions appealable as a matter of right. On December 4, 2024, the Supreme Court

transferred the Sangers’ appeal to this court.

I concur with the majority that the order compelling arbitration is not appealable

as a matter of right. This places us in an untenable situation of either following our rules

of procedure or following the Supreme Court’s transfer order. The transfer order did not

cite a basis for transferring the Sangers’ direct appeal to this court, so I presume it did so

based on the Sangers’ alternative argument, RAP 4.2(e)(1). No. 40833-7-III Sanger v. MNM Ent. (concurring)

Were we to ignore RAP 4.2(e)(1) and consider accepting discretionary review, I

would accept discretionary review under RAP 2.3(b)(2)—probable error substantially

limiting the status quo. The trial court’s order compelling P.C. and Ms. Sanger to

arbitrate their claims is probable error. 1 And, compelling arbitration substantially alters

the status quo by stripping them of their constitutional rights to a jury, protected by article

I, section 21 of the Washington Constitution.

At this point, the Sangers might again petition the Supreme Court for review.

If they do, I encourage the Supreme Court to accept review. These “participation

agreements” allow owners of children’s play centers to minimize their liability for

dangerous conditions. 2 The full panoply of remedies should be available to

1 In general, an agreement to arbitrate is not enforceable against a nonsignatory. Satomi Owners Ass’n v. Satomi, LLC, 167 Wn.2d 781, 810, 225 P.3d 213 (2009). Here, Ms. Sanger and P.C. are nonsignatories to the participation agreement. However, nonsignatories may be bound by an agreement to arbitrate under principles of equitable estoppel. Id. at 811 n.22. Under principles of equitable estoppel, a party who knowingly exploits a contract for benefit cannot simultaneously avoid the burden of arbitrating. Townsend v. Quadrant Corp., 173 Wn.2d 451, 461, 268 P.3d 917 (2012). One “knowingly exploits” a contract by bringing an action based on rights arising from the contract. Id. at 460-62. But see Marshall v. Hipcamp Inc., 735 F. Supp. 3d 1283, 1296 (W.D. Wash. 2024) (construing “knowingly exploit” as referring to a plaintiff participating in the activity permitted by the contract, i.e., camping). We are bound by Townsend, not Marshall. Here, Ms. Sanger’s and P.C.’s causes of action are not dependent on the participation agreement; rather, they arise by common law. Therefore, the equitable estoppel exception does not apply to them, and they may avoid arbitration. 2 For instance, here, the agreement (1) released the park from all liability, including negligence, to the fullest extent permitted by law; (2) created a covenant not to sue, releasing the park from all claims; (3) required binding arbitration of all claims, and (4) waived the participant’s right to seek relief in court and have their claims decided by a jury or judge. No. 40833-7-III Sanger v. MNM Ent. (concurring)

nonsignatories. Providing nonsignatories to participation agreements the same remedies

they otherwise would have against businesses catering to children will not cause our

children’s play centers to close, it will cause them to be safe.

_________________________________ Lawrence-Berrey, C.J.