Put A Bird On It, LLC v. Seattle Arena Holdings, LLC, No. 87756-9-I (2026)

Case details
Country
United States
Jurisdiction
Washington (WA)
Court
Washington Supreme Court
Decided
2026
Disposition
Affirmed
PUT A BIRD ON IT, LLC, a Washington Limited Liability..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 579399Only the Westlaw citation is currently available.NOTE: UNPUBLISHED OPINION,SEE WA R GEN GR 14.1UNPUBLISHED OPINIONCourt of Appeals of Washington, Division 1.PUT A BIRD ON IT, LLC, a WashingtonLimited Liability Company, d/b/a ARROWFISH CONCEPTS, Appellant,v.SEATTLE ARENA HOLDINGS, LLC, a DelawareLimited Liability Company; SEATTLE AREACOMPANY, LLC, a Delaware Limited LiabilityCompany; SAH HOLDINGS, LLC, a Delaware LimitedLiability Company; SAH BRESSI LANDLORD,LLC, a Delaware Limited Liability Company; SAHBRESSI INVESTMENT, LLC, a WashingtonState Limited Liability Company, Respondents.No. 87756-9-I|03/02/2026OpinionFeldman, J.*1 Put A Bird On It LLC d/b/a Arrowfish Concepts(Arrowfish) appeals the trial court's CR 12(b)(6) rulingdismissing Arrowfish's breach of contract, breach of the dutyof good faith and fair dealing, breach of implied-in-factcontract, promissory estoppel, and unjust enrichment claimsagainst Seattle Arena Holdings, LLC (SAH), Seattle ArenaCompany, LLC (SAC), SAH Bressi Holdings, LLC (SAHBressi Holdings), SAH Bressi Landlord, LLC (SAH BressiLandlord), and SAH Bressi Investment, LLC (SAH BressiInvestment) (collectively the SAH Defendants). Finding noerror, we affirm.IBecause Arrowfish assigns error to the trial court's dismissalof its claims against the SAH Defendants under CR 12(b)(6), the following statement of facts accepts as true theallegations contained in the complaint. See Tang Real EstateInvs., Corp. v. Escrow Servs. of Wash., 30 Wn. App. 2d 602,604, 546 P.3d 453 (2024). We also consider and describeseveral documents that were referenced in the complaint. SeeWatkins v. ESA Mgmt., LLC, 30 Wn. App. 2d 916, 921, 547P.3d 271 (2024) (in ruling on a motion to dismiss, courts mayconsider documents not physically attached to the pleadingwhose contents are alleged in a complaint).Arrowfish is a Seattle-based company specializing inconcept development, innovation, and brand development.In November 2020, Arrowfish met with representatives ofSAH. SAH is a company owned, operated, and managed byowners of the Seattle Kraken and members of Oak ViewGroup (OVG), a global sports and entertainment developmentand investment company. During the meeting, representativesof Arrowfish and SAH discussed entering a partnership todevelop a large format “eatertainment” venue, which wouldlater be called “Bressi Garage,” in a building located nearClimate Pledge Arena in Seattle, Washington. By December2020, SAH had approved Arrowfish's work on the BressiGarage project, and the parties began drafting a Memorandumof Understanding (MOU). In June 2021, after several monthsof negotiations, Arrowfish and SAH executed the MOU.The MOU was effective as of June 22, 2021, and was“intended to document the proposed strategic partnershipbetween [SAH] and [Arrowfish].” The MOU states thatthe “[p]arties intend to rely on this MOU as a frameworkdocument” and that the “[p]arties agree that this MOU willserve as a non-binding understanding of the intent of theParties and negotiations towards definitive documentationwill commence in good faith upon the execution ofthis MOU.” Following execution of the MOU, Arrowfish“dedicated all of its resources to working on the Bressi Garageproject,” performing work such as fundraising, designingbrand assets, licensing efforts, marketing, and building aproprietary technology platform. Additionally, in consultationwith or at the direction of the SAH Defendants, Arrowfishhired numerous third parties and vendors to work on theBressi Garage project.Throughout the next three years, Arrowfish and theSAH Defendants worked to prepare and execute variousagreements “meant to memorialize the nature and scopeof the Bressi Garage project.” There were five agreementsthat involved several different parties that Arrowfish andthe SAH Defendants collectively referred to as the “BressiAgreements.” The Bressi Agreements included a LimitedLiability Agreement of Bressi Garage LLC (Operating
PUT A BIRD ON IT, LLC, a Washington Limited Liability..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Agreement), a Site Development and Work Letter Agreement(Site Development Agreement), a Lease Agreement, aSublease Agreement, and a Facility Management Agreement(Management Agreement). As discussed below, each of thesedocuments varied in level of execution and completion.*2 After they executed the MOU, the parties draftedthe Operating Agreement. The terms of this agreementlisted the members of Bressi Garage LLC as SAH BressiInvestment, Arrowfish, and Columbia Hospitality Inc. (CHI).When the parties were negotiating the terms to theOperating Agreement, the SAH Defendants “suddenly senta dramatically marked up version” of the ManagementAgreement to CHI, which was originally intended to assistwith the hospitality and management operations of BressiGarage. When the parties could not agree on the terms ofthe updated Management Agreement, the SAH Defendants“effectively pushed out CHI as Arrowfish's operatingpartner for the Bressi Garage.” The SAH Defendants,“who were managed by OVG, then installed OVG's ownhospitality and management division, Oak View GroupHospitality” (OVGH), as the Bressi Garage operating partner.Thus, CHI did not sign the Operating Agreement, andArrowfish and the SAH Defendants never signed or circulateda new draft of the Operating Agreement replacing CHI withOVGH. Additionally, the Management Agreement remainedin a heavily redlined draft version and was never signed byany party.Though the SAH Defendants’ conduct was “distressing toArrowfish,” the project moved forward and “Arrowfishand the SAH Defendants ultimately agreed to executethe Management Agreement.” “Arrowfish was repeatedlyassured by the SAH Defendants that they ‘remained veryexcited to work with Arrowfish’ ” and the parties met inNovember of 2023 to discuss plans for further businessopportunities. Arrowfish then “resumed its day-to-day duties,which included continued fundraising efforts, further build-out of the technology and concept, and other Bressi Garageproject related tasks.” When Arrowfish repeatedly followedup with the SAH Defendants about the final execution ofthe remaining documents, they were assured “everything wasfine, and the documents would be executed in short order.”The SAH Defendants indicated that “[a]ll is good, we are justwaiting for a couple of final approvals.”The three remaining Bressi Agreements also varied inlevel of execution. To be effective, the Lease Agreement,which included an initial term of ten years, required the“full execution and delivery of this Lease by Landlordand Tenant” and the “full execution and delivery” of theOperating Agreement, the Site Development Agreement,and the Management Agreement, all by 5:00 p.m. PDT onNovember 30, 2023. But the Lease Agreement was neversigned by any party. And although the Site DevelopmentAgreement was signed by all parties to the agreement,its terms similarly stated the agreement would becomeeffective after a lease agreement was executed and delivered,which never happened. Lastly, the Sublease Agreement, anagreement between SAC and SAH Bressi Landlord, wasnever signed by either party.Before the Bressi Agreements were finalized, the SAHDefendants learned that Tom's Watch Bar, a national sportsbar chain, intended to open a competing business across thestreet from Bressi Garage. The SAH Defendants began havingconversations with Tom's Watch Bar, including discussionsabout Tom's Watch Bar taking over the Bressi Garage site.After “months of radio silence,” Arrowfish became frustratedwith the SAH Defendants’ lack of responsiveness. In lateMarch of 2024, Arrowfish asked the SAH Defendants foran update on the finalized documents. In April 2024, SAHterminated its business relationship with Arrowfish. AfterArrowfish requested an explanation, a representative ofthe SAH Defendants explained that “[w]e had OVG hereyesterday and it looks like full focus on Tom's Watch Bar...[t]he rational[e] provided for the change was ‘meaningfulcompetitor across the street eliminated ... less ambitious butvery positive relationship with Arrow Fish and our supportfor the concept going forward.’ ”On October 18, 2024, Arrowfish filed a complaint allegingfive causes of action: breach of contract, breach of the dutyof good faith and fair dealing, breach of implied-in-factcontract, promissory estoppel, and unjust enrichment. TheSAH Defendants filed a Motion to Dismiss under CR 12(b)(6), arguing that this was “the classic case of a negotiationthat never led to a final deal.” Following a hearing, at whichall parties agreed the trial court could properly consider theabove agreements in ruling on the motion, the trial courtgranted the motion and entered an order dismissing Plaintiff'sclaims with prejudice. This timely appeal followed.II*3 Arrowfish argues the trial court erred in granting the SAHDefendants’ motion to dismiss its claims under CR 12(b)(6).
PUT A BIRD ON IT, LLC, a Washington Limited Liability..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.3This court reviews a trial court's order granting a motion todismiss under CR 12(b)(6) de novo. Wahkiakum Sch. Dist. No.200 v. State, 2 Wn.3d 63, 77, 534 P.3d 808 (2023). Dismissalunder CR 12(b)(6) is appropriate if “ ‘it appears beyond doubtthat the plaintiff can prove no set of facts, consistent withthe complaint, which would entitle the plaintiff to relief.’ ”Bowman v. John Doe Two, 104 Wn.2d 181, 183, 704 P.2d 140(1985) (quoting Orwick v. Seattle, 103 Wn.2d 249, 254, 692P.2d 793 (1984)). “We presume the facts in the complaint aretrue and reject the motion to dismiss if ‘[a]ny hypotheticalsituation conceivably raised by the complaint ... is legallysufficient to support the plaintiff's claim.’ ” Tavaglione v.Dehkhoda & Qadri, P.C., 34 Wn. App. 2d 515, 520, 568 P.3d1158 (2025) (quoting Jackson v. Quality Loan Serv. Corp. ofWash., 186 Wn. App. 838, 843, 347 P.3d 487 (2015)).While the standard for deciding a CR 12(b)(6) motion is“forgiving,” as Arrowfish repeatedly emphasizes, it is nottoothless. See, e.g., Kinney v. Cook, 159 Wn.2d 837, 846, 154P.3d 206 (2007) (reinstating order of dismissal “[d]espite theforgiving standard of a CR 12(b)(6) motion”). As the abovecases confirm, any hypothetical facts offered in support of aclaim must be “consistent with” and “conceivably raised” bythe complaint. Additionally, the complaint's legal conclusionsneed not be accepted as true. Jackson, 186 Wn. App. at 843.“If a plaintiff's claim remains legally insufficient even underhis or her proffered hypothetical facts, dismissal pursuant toCR 12(b)(6) is appropriate.” Id. at 843-44 (quoting Gormanv. Garlock, Inc., 155 Wn.2d 198, 215, 118 P.3d 311 (2005)).And in some circumstances, a CR 12 motion may provide anappropriate vehicle to determine a “ ‘core issue ... of law’ ”where the “ ‘basic operative facts are undisputed.’ ” Trujillov. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 830 n.7, 355 P.3d1100 (2015) (quoting Trujillo v. Nw. Tr. Servs., Inc., 181 Wn.App. 484, 492, 326 P.3d 768 (2014)). This is so when “‘[n]o purpose’ ” exists for allowing an opportunity to presentevidence under CR 56 because “ ‘whatever might be provenwould be immaterial.’ ” Ortblad v. State, 85 Wn.2d 109, 111,530 P.2d 635 (1975) (quoting Loger v. Wash. Timber Prods.,Inc., 8 Wn. App. 921, 924, 509 P.2d 1009 (1973)).Applying these legal standards, we address each ofArrowfish's claims in turn.AArrowfish first argues the trial court erred in dismissing itsbreach of contract claim. That is so, it avers, because its“allegations demonstrate there was a meeting of the minds”sufficient to create an enforceable contract even if certaindocuments between the parties were not fully signed. Wedisagree.A plaintiff alleging a claim for breach of contract must showa valid contract, a breach of duty arising under that contract,and resulting damage. Silvey v. Numerica Credit Union, 23Wn. App. 2d 535, 544, 519 P.3d 920 (2022). To establish thata valid contract was formed, the party alleging the existenceof the contract must demonstrate that the parties objectivelymanifested their mutual assent to be bound by all materialterms of the same agreement at the same time. Becker v. Wash.State Univ., 165 Wn. App. 235, 246, 266 P.3d 893 (2011),review denied, 173 Wn.2d 1033, 277 P.3d 668 (2012); Burnettv. Pagliacci Pizza, Inc., 196 Wn.2d 38, 48, 470 P.3d 486(2020); P.E. Systems, LLC v. CPI Corp., 176 Wn.2d 198, 207,209, 289 P.3d 638 (2012). Additionally, the terms assentedto must be sufficiently definite. Becker, 165 Wn. App. at246. The essential terms to a contract include the “subjectmatter, parties, promise, terms and conditions, and price orconsideration.” Id. While the parties’ mutual assent to definiteterms is normally a question of fact, it may be determinedas a matter of law if reasonable minds could not differ. P.E.Systems, 176 Wn.2d at 207.*4 Applying these legal principles to the facts alleged inthe complaint as well as the Bressi Agreements themselves,the trial court did not err in dismissing Arrowfish's breachof contract claim because Arrowfish's allegations andhypothetical facts that may be drawn consistent with thecomplaint and the documents do not show that the partiesobjectively manifested their mutual assent to be bound by theagreements. Arrowfish relies on the Lease Agreement, theSite Development Agreement, and the Operating Agreementfor its breach of contract claim, but none of these documentsare enforceable contracts that could give rise to a breach ofcontract claim.1 The Lease Agreement explicitly conditionedits effectiveness on the full execution and delivery of theLease, the Operating Agreement, the Site DevelopmentAgreement, and the Management Agreement. Additionally,as a real estate lease agreement with an initial term of tenyears, the Lease Agreement falls under the statute of fraudsand must be signed by the party to be charged under thecontract to be valid. See CP 273; RCW 19.36.010 (“[e]veryagreement that by its terms is not to be performed in one yearfrom the making thereof” must “be in writing, and signed bythe party to be charged therewith”); RCW 64.04.010 (“[e]veryconveyance of real estate, or any interest therein ... shall be by
PUT A BIRD ON IT, LLC, a Washington Limited Liability..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.4deed”). The undisputed record shows the Lease Agreementwas never signed by any party and was never fully executed.Similarly, the Site Development Agreement, though signedby the parties, explicitly conditioned its effectiveness on theexecution of the Lease Agreement, which never happened.These documents demonstrate the parties’ intent to be boundonly upon execution of various other agreements. Becausesuch execution never occurred, these documents cannot helpArrowfish demonstrate the parties’ mutual assent to be boundby their terms.Moreover, the Operating Agreement is not an enforceablecontract because Arrowfish cannot demonstrate the partiesmutually assented to an essential term to the contract: theparties involved. Originally, the parties to the OperatingAgreement were Arrowfish, SAH Bressi Investment, andCHI. But sometime after September 2023, CHI was “pushedout” and replaced in negotiations with OVGH. From 2023to April 2024, when the SAH Defendants ended the parties’negotiations, Arrowfish and SAH Bressi Investment nevercirculated a modified, updated, or edited version of theOperating Agreement replacing CHI with OVGH. WhenArrowfish “revisited the final execution of the remainingdocuments” and repeatedly requested updates from the SAHDefendants, all it received was “months of radio silence.”Thus, the record does not show there was mutual assentto all essential terms to the Operating Agreement sufficientto create an enforceable contract. Given this analysis,Arrowfish's breach of contract claim fails as a matter of law.Despite this, Arrowfish argues “the parties’ course of conductestablishes an agreement between the parties existed.” ButArrowfish relies on cases about contract interpretation, notcontract formation. For example, Arrowfish relies on U.S.Life Credit Life Ins. Co. v. Williams, 129 Wn.2d 565, 569, 919P.2d 594 (1996), to argue “extrinsic evidence is admissiblein order to assist the court in ascertaining the intent of theparties.” Viewed in context, U.S. Life Credit instructs thatextrinsic evidence may be admissible when “interpreting thecontract,” not when determining the validity of a contract'sformation. 129 Wn.2d at 569. Indeed, U.S. Life Creditstates that “extrinsic evidence cannot be considered for thepurpose of varying the terms of a written contract,” as suchevidence is not admitted to show “intention independent ofthe instrument.” Id. at 569-70 (quoting Berg v. Hudesman,115 Wn.2d 657, 669, 801 P.2d 222 (1990)). The instrumentshere—the Bressi Agreements—are interdependent and wereintended (by their plain language) to function together as acohesive set of agreements. As detailed above, some of thedocuments fail to comply with the statute of frauds whileothers are unsigned and not effective by their terms. On thisrecord, Arrowfish cannot conceivably allege, nor does therecord show, that the parties’ course of conduct establishesthe existence of a valid and binding agreement.*5 Nor has Arrowfish established that we can properlyoverlook the fact that most of the agreements are unsignedor not signed by all of the parties to the agreement. In aRAP 10.8 statement of additional authorities addressing thisissue, Arrowfish cited Shelcon Const. Grp., LLC v. Haymond,187 Wn. App. 878, 895, 351 P.3d 895 (2015), Stephens v.Carrara, 401 A.2d 821, 824 (Pa. Super. Ct. 1979), and ShovelTransfer & Storage, Inc. v. Pa. Liquor Control Bd., 559 Pa.56, 67, 739 A.2d 133 (1999). These cases address other issues,such as satisfying the requirement that an agreement be inwriting (Shelcon), and ultimately turn on the intent of theparties to be bound despite the lack of a signature (Stephensand Shovel Transfer). Here, as noted, the agreements at issueare unsigned, incomplete, ineffective, and/or dependent onother agreements that are likewise unsigned, incomplete, orineffective—thus precluding any argument that the partiesnonetheless intended to be bound.Arrowfish also argues part performance has “evolved toprevent the SOF [(Statute of Frauds)] from being used asan instrument of fraud” “even if certain documents ... werenot fully signed.” In so arguing, Arrowfish relies on Friedlv. Benson, 25 Wn. App. 381, 609 P.2d 449 (1980), andMiller v. McCamish, 78 Wn.2d 821, 479 P.2d 919 (1971),but such reliance is misplaced. In Friedl, the plaintiffs soughtenforceability of several proposed agreements, including twowritten lease documents signed by all parties and an optionagreement to purchase a new building that referred to thepurchase price only as a “price to be determined.” Id. at385, 388-89. The lease documents contained the subjectmatter of the contract, the parties, the promise, the termsand conditions, and the consideration. Id. at 387-88. Thus,the court held the lease contract satisfied the statute offrauds because it “contained all of the essential and materialparts” of a lease. Id. at 388. But the court concluded theoption agreement was not in compliance with the statute offrauds because it did not contain all essential and materialparts of an option to purchase real estate. Id. at 389.Additionally, the court concluded the plaintiff's alleged actsof part performance were insufficient to remove it from therequirement of the statute of frauds. Id.
PUT A BIRD ON IT, LLC, a Washington Limited Liability..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.5In Miller, the parties entered into an oral agreement wherebyMcCamish hired Miller to run McCamish's farm and Millerwould live on the farm rent free. 78 Wn.2d at 822. McCamishwould pay Miller $6,000 yearly but retain $3,000 of thatamount to be applied to the purchase price of the farm shouldMiller wish to buy it at some future time. Id. Miller beganrunning the farm and moved there. Id. at 823. Thereafter, theparties had a falling out and Miller sued McCamish for moneydamages based on McCamish's alleged breach of the parties’oral contract. Id. at 823-24. In this context, the WashingtonSupreme Court held that oral contracts for the sale or leaseof real property may be taken out of the statute of frauds ifacts constituting part performance “point unmistakably andexclusively to the existence of the claimed agreement.” Id. at826.Here, in contrast, even assuming Arrowfish pled sufficientfacts to demonstrate an oral contract existed betweenthe parties, Arrowfish has not conceivably alleged actsconstituting part performance that “point unmistakably andexclusively to the existence” of a real estate contract.Instead, Arrowfish alleged it performed services for the SAHDefendants, including “designing brand assets,” “[a]ssistingwith the creation of marketing and PR plans,” and “creatinga menu and list of food vendors.” Additionally, unlike thesigned lease agreements in Friedl that contained all theessential parts of a lease, the Lease Agreement Arrowfishrelies on here remained unsigned by any party. Thus, Millerand Friedl are inapposite. Despite the forgiving standard ofa CR 12(b)(6) motion, the trial court did not err in grantingthe SAH Defendants’ motion to dismiss Arrowfish's breachof contract claim.B*6 Arrowfish next argues the trial court erred in dismissingits breach of the duty of good faith and fair dealing claim. Thatis so, it asserts, because it alleged in its complaint numerousfacts demonstrating the SAH Defendants engaged in conductthat “abused its contractual discretion” and “evaded the spiritof the parties’ bargain.” Because Arrowfish misapplies thelegal principles governing such a claim, its argument fails.The implied duty of good faith and fair dealing obligatesparties to a contract to cooperate with each other so that eachmay obtain the full benefit of performance. Rekhter v. Dep'tof Soc. & Health Srvs., 180 Wn.2d 102, 112-13, 323 P.3d1036 (2014). But this duty does not create a “free-floatingobligation” of good faith. Silvey, 23 Wn. App. 2d at 556. Itarises only in the context of an enforceable contract and inconnection with the specific terms agreed to by the parties.Rekhter, 180 Wn.2d at 113. “In particular, the duty of goodfaith and fair dealing arises ‘when the contract gives one partydiscretionary authority to determine a contract term.’ ” Id.(quoting Goodyear Tire & Rubber Co. v. Whiteman Tire, Inc.,86 Wn. App. 732, 738, 935 P.2d 628 (1997)).The trial court did not err in dismissing Arrowfish's breachof the duty of good faith and fair dealing claim becauseArrowfish's allegations and hypothetical facts that may bedrawn consistent with them fail to show a valid, enforceablecontract on which it could base such a claim. As discussedin part II.A above, Arrowfish has not demonstrated that anyof the Bressi Agreements were enforceable contracts thatgave rise to legal obligations between the parties. Becausethere was no mutual assent as to the terms of the agreementsand thus no valid contracts between Arrowfish and the SAHDefendants, the SAH Defendants did not have discretionaryauthority to determine a future contract term and therefore didnot owe Arrowfish a duty of good faith and fair dealing. SeeRekhter, 180 Wn.2d at 113. Thus, the trial court did not err indismissing Arrowfish's claim for breach of this duty.Arrowfish now presents a new argument on appeal regardingthe Washington Limited Liability Company Act. Arrowfishargues its “claims are not dependent on the existence ofa written contract” because “they flow directly from itsstatutory rights as a managing member of a lawfully formedLLC.” Arrowfish thus requests that we evaluate whether thefacts alleged in its complaint can establish a breach of animplied fiduciary duty under the Limited Liability CompanyAct. But Arrowfish never raised these arguments below anddid not include a claim for breach of fiduciary duty in itscomplaint. Instead, the complaint alleged only a breach ofthe implied duty of good faith and fair dealing based on theBressi Agreements. In accordance with RAP, 2.5 we declineto address Arrowfish's argument regarding this new claim.CArrowfish likewise argues the trial court erred in dismissingits breach of an implied-in-fact contract claim. In support ofthis claim, Arrowfish alleges the parties had a longstandingbusiness relationship and course of conduct that showed“both parties acting in accordance with terms set forth in the
PUT A BIRD ON IT, LLC, a Washington Limited Liability..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.6agreements.” Again, the trial court correctly dismissed thisclaim.An implied-in-fact contract is “an agreement depending forits existence on some act or conduct of the party sought tobe charged and arising by implication from circumstanceswhich ... show a mutual intention on the part of the partiesto contract with each other.” Young v. Young, 164 Wn.2d477, 485-86, 191 P.3d 1258 (2008) (quoting Johnson v. Nasi,50 Wn.2d 87, 91, 309 P.2d 380 (1957)). An implied-in-fact contract is “founded in the law of contracts,” not onnotions of justice and equity. Id. at 486. Thus, it requires“a meeting of the minds, and an agreement of the partiesarrived at from their conduct rather than their expressions ofassent.” MacDonald v. Hayner, 43 Wn. App. 81, 85, 715 P.2d519 (1986). An implied-in-fact contract has “no distinctionfrom an express or written contract in terms of its legalconsequences. It simply differs in the mode of its proof.”Plumbing Shop, Inc. v. Pitts, 67 Wn.2d 514, 517, 408 P.2d382 (1965).*7 The trial court did not err in dismissing Arrowfish'simplied-in-fact contract claim because Arrowfish had notdemonstrated the parties’ mutual assent to the BressiAgreements. Arrowfish appears to argue the parties’ conductembraced the written terms of the Bressi Agreements andtherefore created obligations under those agreements eventhough the written documents were never fully executed.But Arrowfish has not shown how these unenforceableagreements can form the basis for the parties’ mutual assentto contract with each other. Arrowfish itself acknowledgedthe unenforceable nature of the Bressi Agreements in itscomplaint, wherein it states that it “revisited the finalexecution of the remaining documents” and was assured“everything was fine, and the documents would be executedin short order.” Additionally, the record does not show theparties mutually assented to the Bressi Agreements by theirconduct because the agreements clearly reflect the parties’intention to be bound only upon final execution of theagreements. Thus, Arrowfish cannot demonstrate the partiescreated an implied-in-fact contract.Despite this, Arrowfish argues the parties “mutuallyconsented and intended to agree to the terms of the BressiAgreement.” But this argument appears to allege the creationof an unenforceable agreement to agree, not an enforceableimplied-in-fact contract. Under Washington contract law, anagreement to agree is “an agreement to do something whichrequires a further meeting of the minds of the parties andwithout which it would not be complete.” Keystone Land &Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 175-76, 94 P.3d 945(2004) (quoting Sandeman v. Sayres, 50 Wn.2d 539, 541-42,314 P.2d 428 (1957)).As Keystone confirms, agreements to agree areunenforceable. Id. at 176. There, Xerox decided to sell afacility it owned and Keystone submitted a letter of intent topurchase the facility. Id. at 174. After more communication,Xerox responded it was “prepared to negotiate a Purchaseand Sale Agreement ... subject to two modifications toyour Proposal.” Id. at 175. After Keystone accepted themodifications to its proposal, it alleged all the key terms ofthe agreement were settled and Xerox was therefore obligatedto prepare a purchase and sale agreement. Id. However,the Washington Supreme Court concluded Xerox at mostmanifested an intent to negotiate with Keystone. Id. at 179.The court noted “an intention to do something ‘is evidenceof a future contractual intent, not the present contractualintent essential to an operative offer.’ ” Id. (quoting Pac.Cascade Corp. v. Nimmer, 25 Wn. App. 552, 556, 608 P.2d266 (1980)).Similarly here, Arrowfish argues the parties createdenforceable contractual obligations based on their intentionto agree to the terms of the Bressi Agreements. But theparties’ intent to agree to the terms of the Bressi Agreementat a future time cannot show the present mutual assentrequired to establish either a written contract or an implied-in-fact contract. Instead, it is, at most, an unenforceableagreement to agree. Thus, neither Arrowfish's allegations norany hypothetical facts that may be drawn consistent with themestablish the essential elements of an implied-in-fact contract,and the trial court did not err in so concluding.DArrowfish next argues the trial court erred in dismissingits promissory estoppel claim. It asserts such a claim “isgrounded in equitable principles and does not depend onthe existence of a finalized written agreement.” Here too,Arrowfish's argument is unavailing because it misapplies thelegal principles that govern this claim.To recover on a claim of promissory estoppel, a plaintiff mustestablish five elements: (1) a promise which (2) the promisorshould reasonably expect to cause the promisee to changetheir position and (3) which does cause the promisee to
PUT A BIRD ON IT, LLC, a Washington Limited Liability..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.7change their position (4) justifiably relying upon the promise,in such a manner that (5) injustice can be avoided onlyby enforcement of the promise. Washington Educ. Ass'n v.Wash. Dep't of Ret. Sys., 181 Wn.2d 212, 224-25, 332 P.3d428 (2014). Critically, promissory estoppel “ ‘requires theexistence of a promise.’ ” Id. at 225 (quoting Havens v. C &D Plastics, Inc., 124 Wn.2d 158, 172, 876 P.2d 435 (1994)).For purposes of a promissory estoppel claim, Washingtoncourts have adopted the Second Restatement's definition of“promise,” which defines the term as “a manifestation ofintention to act or refrain from acting in a specified way,so made as to justify a promisee in understanding that acommitment has been made.” RESTATEMENT (SECOND)OF CONTRACTS § 2(1) (AM. LAW INST. 1981). “Astatement of future intent is not sufficient to constitute apromise for the purpose of promissory estoppel,” as the“intention to do a thing is not a promise to do it.” Elliott BaySeafoods, Inc. v. Port of Seattle, 124 Wn. App. 5, 13, 98 P.3d491 (2004). While promissory estoppel “may apply in theabsence of mutual assent or consideration,” it “may not beused as a way of supplying a promise.” Havens, 124 Wn.2dat 173.*8 The trial court did not err in dismissing Arrowfish'spromissory estoppel claim for two reasons. First, Arrowfishcannot establish the requisite promise needed for apromissory estoppel claim. As discussed above, the BressiAgreements Arrowfish relies on for its promissory estoppelclaim were not enforceable contracts. And neither couldthe Bressi Agreements form the basis for Arrowfish'spromissory estoppel claim because the terms contained in theagreements were not promises. These were five documentsin an interdependent set of agreements that were still beingnegotiated when the SAH Defendants ended negotiationswith Arrowfish. No commitment to perform had yet beenmade and the allegations in the complaint show that theparties understood the documents were not final contracts orpromises because Arrowfish continuously requested updates“regarding the status of finalized documents” and was toldthat the SAH Defendants were “waiting for a couple offinal approvals.” These unenforceable agreements illustratethe parties’ intent to negotiate; but as Washington courtshave held, statements of future intent are not sufficient toconstitute a promise. See Elliott Bay, 124 Wn. App. at 13. Norcan the doctrine of promissory estoppel enable Arrowfish toartificially create a promise where, as here, none exists.Second, Arrowfish does not conceivably allege that itchanged its position in reliance on any oral promise theSAH Defendants made. In its complaint, Arrowfish allegedit “dedicated all of its resources to working on the BressiGarage project” after the parties executed the MOU. AfterArrowfish was already working on the Bressi Garage project,the parties began to prepare and negotiate the final agreementsthat would govern their relationship. With this backgroundas context, Arrowfish alleged the SAH Defendants “madea number of oral promises to Arrowfish regarding theBressi Garage project” that it “relied on ... as it continuedto dedicate significant resources and money on the BressiGarage project.” (Emphasis added.) Arrowfish did not changeits position because it had already performed work anddedicated resources to the Bressi Garage project while theparties continued to negotiate toward enforceable contractualagreements. Thus, taking the facts in the complaint as trueand considering additional hypothetical facts consistent withand raised by the complaint, Arrowfish's promissory estoppelclaim is and remains legally insufficient. The trial courtcorrectly granted this portion of the SAH Defendants’ motionto dismiss. See Jackson, 186 Wn. App. at 843-44 (“If aplaintiff's claim remains legally insufficient even under hisor her proffered hypothetical facts, dismissal pursuant to CR12(b)(6) is appropriate.”).Arrowfish's contrary argument lacks merit. It argues it“alleged facts consistent with Klinke [v. Famous RecipeFried Chicken, Inc., 94 Wn.2d 255, 616 P.2d 644 (1980)],”which it claims illustrates how “Washington courts recognizepromissory estoppel as an exception to the SOF.” ButArrowfish's reliance on Klinke is misplaced. There, Klinke, afranchisee, brought an action for damages against Famous, afranchisor, for breach of an oral contract under which Klinkewas to open and operate a fried chicken franchise outlet.Id. at 256-58. The court concluded that promissory estoppelmay serve as the basis for Klinke's action for damagesbecause Famous promised to make and execute a writtenfranchise agreement. Id. at 259-60. This promise to makea memorandum of the party's oral contract and Famous’corresponding breach allowed Klinke to bring the action forpromissory estoppel notwithstanding the statute of frauds. Id.at 260.By contrast, Arrowfish has not alleged what oral promisethe SAH Defendants made that it relied on to even establishwhether such a promise is within the statute of frauds.Arrowfish has not, for example, alleged any facts either inits complaint or on appeal that the SAH Defendants madeand breached an oral promise to memorialize the parties’agreement in a written memorandum. Thus, Klinke is not
PUT A BIRD ON IT, LLC, a Washington Limited Liability..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.8applicable to these facts. Additionally, as discussed above,even considering hypothetical facts alleged by Arrowfishon appeal, Arrowfish can prove no set of facts, consistentwith the complaint, that would entitle it to relief on itspromissory estoppel claim because the parties’ relationshipand obligations were intended to be fully prescribed anddetailed by the written, unenforceable Bressi Agreements.Thus, Arrowfish has not established the trial court erred indismissing its promissory estoppel claim.E*9 Next, Arrowfish argues the trial court erred in dismissingits unjust enrichment claim. We again disagree.Unjust enrichment is a type of implied contract betweenparties. Lavington v. Hillier, 22 Wn. App. 2d 134, 143, 510P.3d 373 (2022) (citing Young, 164 Wn.2d at 483-84). Thiscause of action allows a plaintiff to recover for the valueof a benefit the defendant retained based on principles ofequity and fairness, despite the lack of a formal contractualrelationship. Id. at 143-44. A claim for unjust enrichmentrequires three elements: (1) the defendant receives a benefit,(2) the benefit received is at the plaintiff's expense, and(3) the circumstances make it unjust for the defendant toretain the benefit without payment. Id. at 144. Critical here,“[e]nrichment alone will not suffice to invoke the remedialpowers of a court of equity. It is critical that the enrichment beunjust both under the circumstances and as between the twoparties to the transaction.” Puget Sound Sec. Patrol, Inc., v.Bates, 197 Wn. App. 461, 475, 389 P.3d 709 (2017) (quotingFarwest Steel Corp. v. Mainline Metal Works, Inc., 48 Wn.App. 719, 732, 741 P.2d 58 (1987)). This equitable relief isintended to “undo an inequity, such as the receipt of ill-gottengains, and to ‘force the defendant to give up a gain that hadbeen acquired wrongfully or that would be wrongful to bekept without payment.’ ” Nwauzor v. The Geo Grp., Inc., 2Wn.3d 505, 525, 540 P.3d 93 (2023) (quoting HOWARD O.HUNTER, MODERN LAW OF CONTRACTS § 15:4 (2023)(Concepts of Public Law and Justice, Unjust Enrichment, andReceipt of Benefit)).The trial court did not err in dismissing Arrowfish's unjustenrichment claim because there was nothing unjust about theSAH Defendants benefiting from Arrowfish's work on theBressi Garage project. The record shows the SAH Defendantsand Arrowfish executed a MOU that served as a “frameworkdocument” for future “definitive documentation.” After theparties executed the MOU, Arrowfish worked on the BressiGarage project and was “provided certain compensation ... forits work” until the SAH Defendants decided to walk awayfrom the relationship and end negotiations with Arrowfish.All the work Arrowfish alleged it dedicated to the BressiGarage project and which allegedly benefited the SAHDefendants was completed within the bounds and frameworkof the MOU. Arrowfish thus fails to allege that the SAHDefendants wrongfully acquired any benefit or that it waswrongful for the SAH Defendants to benefit from Arrowfish'swork under the parties’ arrangement. The trial court correctlydismissed this claim.Despite this, Arrowfish argues the SAH Defendants “inducedArrowfish to believe it would share in a highly profitableventure” and “should not be permitted to retain those benefitsunjustly.” Austin v. Ettl, 171 Wn. App. 82, 286 P.3d 85(2012), is instructive regarding this third prong of an unjustenrichment claim— whether circumstances exist that make itunjust for the defendant to retain the benefit. In Austin, Austinpurchased the Ettls’ Tacoma property which contained twoproposed local improvement districts (LIDs). Id. at 84-85. Onthe closing date, the Ettls disclosed the two proposed LIDson the property but did not disclose the potential costs ofeach LID assessment. Id. at 85. Austin signed the closingdocuments without requesting more information and withoutasking to extend the closing date. Id. After Austin learnedthe proposed LIDs were approved and the City of Tacomahad assessed the LIDs’ costs against the property at over$40,000, Austin sued the Ettls, alleging the Ettls’ failure todisclose the potential costs of the proposed LIDs resulted intheir unjust enrichment. Id. at 85-86. The trial court dismissedAustin's suit under CR 12(b)(6). Id. at 86. The court ofappeals affirmed the trial court's dismissal of Austin's unjustenrichment claim, noting the claim failed as a matter of lawbecause the Ettls had “no duty to disclose the potential costs ofthe not-yet-extant LIDs.” Id. at 92. Thus, because no statute orcommon law required anything more of the Ettls, “there wasnothing inequitable about the Ettls’ benefiting from Austin'slanguid approach to purchasing their home.” Id.*10 Similarly, here, the SAH Defendants were under noobligation to continue their relationship with Arrowfishuntil a final agreement was reached. Washington courtshave refused to impose a duty to continue negotiationsin the absence of an enforceable contract. See Keystone,152 Wn.2d at 180 (“Keystone asks us to imply a duty tocontinue negotiations until a final agreement is reached ...We decline to create and impose a duty to go forward in
PUT A BIRD ON IT, LLC, a Washington Limited Liability..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.9the absence of an enforceable contract.”). The parties heredid not have a contract to continue negotiations until afinal, enforceable agreement was reached and thus had noduty to do so. Just as the circumstances in Austin revealednothing inequitable about the Ettls retaining a benefit, therewas nothing inequitable here about the SAH Defendantsending negotiations before a final, enforceable agreementwas reached and retaining a benefit from Arrowfish's worktoward such an agreement. Thus, the trial court did not err indismissing Arrowfish's unjust enrichment claim.FNext, Arrowfish argues the trial court abused its discretion indismissing its claims “with prejudice” and thus without leaveto amend. Again, we disagree.The decision to grant leave to amend the pleadings is withinthe discretion of the trial court. Wilson v. Horsley, 137 Wn.2d500, 505, 974 P.2d 316 (1999). Thus, we review the trialcourt's denial of leave to amend for abuse of discretion.Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 728-29, 189P.3d 168 (2008). Such abuse occurs when the decision ismanifestly unreasonable or based on untenable grounds oruntenable reasons. Wilson, 137 Wn.2d at 505. Critical here,Washington courts have consistently held that a trial courtdoes not abuse its discretion in denying a motion for leaveto amend if amendment would be futile. See, e.g., Colvin v.Inslee, 195 Wn.2d 879, 901, 467 P.3d 953 (2020); Ino Ino,Inc. v. City of Bellevue, 132 Wn.2d 103, 142, 937 P.2d 154(1997) (plurality opinion); Orwick v. Fox, 65 Wn. App. 71,89, 828 P.2d 12 (1992) (citing Doyle v. Planned Parenthoodof Seattle-King County, Inc., 31 Wn. App. 126, 131, 639 P.2d240 (1982)).Given our analysis above, the trial court did not abuse itsdiscretion in denying leave to amend because any suchamendment would have been futile. Arrowfish's variousclaims can be described as an injury in search of a causeof action. While the SAH Defendants do not deny thatArrowfish devoted substantial time and money in pursuinga binding—and mutually beneficial—contractual agreement,the only agreement that was signed and effective was theMOU, which expressly states that it “will serve as a non-binding understanding of the intent of the Parties” and willguide the parties in their “negotiations towards definitivedocumentation.” Given this “agreement” and the relatedagreements (none of which is both signed and effective),the trial court correctly dismissed Arrowfish's complaintwith prejudice without granting leave to amend as any suchamendment would have been futile.2*11 Affirmed.WE CONCUR:All CitationsNot Reported in Pac. Rptr., 2026 WL 579399Footnotes1While in its complaint Arrowfish appeared to base its breach of contract claim, in part, on the ManagementAgreement and the Sublease Agreement, Arrowfish has since abandoned that argument and now appearsto use the Management Agreement and Sublease Agreement to “illustrate SAH”s bad faith and deceptiveconduct” and “provide critical context about SAH's role in the larger ownership and control structuresurrounding the Bressi Garage property.” Thus, we do not address the complaint's allegations regarding theManagement Agreement and the Sublease Agreement for Arrowfish's breach of contract claims.2While not germane to our substantive analysis, the court notes that appellant's opening brief included severalerroneous citations that the responsible attorneys at Corr|Downs PLLC have since indicated were generatedby “AI-based search engines.” The citations for these cases appear to be a compilation of (a) a real or fictitiouscaption, (b) citations to other entirely different cases, and (c) legal principles that cannot reasonably be foundin the cited cases. The conduct leading to these citations falls below our expectations of counsel, particularly
PUT A BIRD ON IT, LLC, a Washington Limited Liability..., Not Reported in Pac.... © 2026 Thomson Reuters. No claim to original U.S. Government Works.10since it is now well known in the legal community that AI resources can generate erroneous citations andfalse quotations. Understanding the gravity of this conduct, the responsible attorneys have taken steps toremediate the situation, have apologized to the court, and have represented that they are implementingadditional quality-control protocols (as all lawyers should) to ensure this does not happen again.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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