A recently published decision from the Washington Court of Appeals provides important guidance regarding the limited circumstances under which a construction lien may be summarily released as frivolous or reduced as clearly excessive. In Feekes v. Triple M Construction, LLC, No. 41176-1-III, the court affirmed the denial of a homeowners' attempt to invalidate or reduce a contractor's lien under RCW 60.04.081. It emphasized the statute provides a narrowly framed remedy for liens that are indisputably without merit or unquestionably excessive, not an expedited vehicle for resolving genuine disputes over contract performance.
In addition to reinforcing the demanding standard for obtaining summary relief under RCW 60.04.081, the court addressed when a contractor performing work on a residential project must provide the statutory Notice to Customer under RCW 18.27.114. The court also resolved a significant attorney-fee question, holding that RCW 60.04.081(4) authorizes fees incurred in a trial court proceeding, but not on appeal.
Together these holdings emphasize that a summary lien proceeding is designed to eliminate claims that plainly have no legitimate basis, while disputes requiring the court to weigh competing evidence generally must await resolution through the ordinary litigation process.
The Dispute
David Feekes and Megan Kriete-Feekes hired Triple M Construction LLC to perform work associated with construction of a pole building that would serve as their residence. Rather than contracting with Triple M to construct the entire residence, the homeowners entered into two separate agreements: one for $27,405.98 in excavation work and another for $32,257.99 in concrete work. A subsequent change order increased the concrete contract to $35,509.99.
The homeowners paid half of each contract price before work began. After Triple M completed most of the excavation and a portion of the concrete work, Mr. Feekes terminated the contracts. Triple M subsequently invoiced the homeowners for $12,321.27 in remaining excavation charges and $328.23 for concrete work. When the invoices went unpaid, Triple M recorded a claim of lien for the outstanding amounts.
The homeowners challenged the lien under RCW 60.04.081, arguing that it should be released as frivolous because Triple M failed to provide the Notice to Customer required by RCW 18.27.114(1). Alternatively, they sought to reduce the lien as clearly excessive, contending that Triple M had performed less than half of the contracted work, that portions of its work were deficient, and that the payments made exceeded the value received.
Triple M disputed those allegations. The parties also disagreed over whether the homeowners themselves functioned as the general contractor on the project, an issue potentially affecting whether Triple M was required to provide the statutory notice.
The trial court determined that the validity of the lien presented debatable issues and that the amount claimed was not clearly excessive. It denied the homeowners' motion and awarded Triple M its reasonable attorney fees and costs. The homeowners appealed.
A Narrow Remedy
Washington law authorizes those furnishing labor, professional services, materials, or equipment for the improvement of real property at the owner's request to assert a lien under RCW 60.04.021, provided the lien is properly perfected under RCW 60.04.091.
RCW 60.04.081, in turn, establishes a summary procedure for addressing liens that are frivolous and made without reasonable cause or clearly excessive. As the court explained, however, the procedure is deliberately narrow. Citing Woodley v. Style Corp., 7 Wn. App.2d 543, 551, 453 P.3d 739 (2019), the court reiterated that a lien is frivolous only when it is "improperly filed beyond legitimate dispute" and "so devoid of merit that it has no possibility of succeeding." Id. at 551-52. See also Williams v. Athletic Field, Inc., 172 Wn.2d 683, 699, 261 P.3d 109 (2011).
The stringent standard serves to protect a lien claimant's right to litigate a legitimate claim. A lien therefore is not frivolous merely because its validity is contested or because the property owner has substantial defenses. If the dispute presents debatable questions of law or fact, summary release is inappropriate.
Residential Work Did Not Automatically Trigger the Notice Requirement
The homeowners first argued that Triple M's lien was unenforceable because the contractor failed to provide the Notice to Customer required by RCW 18.27.114(1). The statute requires contractors to provide residential customers with a prescribed notice in certain circumstances before work begins. The notice advises customers about potential construction liens and measures they may take to protect their property. When the statute requires notice and a contractor fails to provide it, RCW 18.27.114(4) precludes enforcement of the contractor's lien.
The Court of Appeals concluded, however, that Triple M was not required to provide the notice based on the scope of the work it had agreed to perform. RCW 18.27.114(1) applies when a contractor agrees to repair, alter, or construct "four or fewer residential units or accessory structures." Although Triple M's excavation and concrete work contributed to construction of the homeowners' residence, Triple M had not contracted to construct the residential unit itself. The agreements were limited to discrete components of the larger project. That distinction was dispositive. Since Triple M had not agreed to construct any residential units, the court concluded that the statutory notice requirement did not apply.
The Homeowners' Role on the Project Presented an Additional Debatable Issue
The court also considered a separate statutory exception that further supported its conclusion. Under RCW 18.27.114(5), a contractor need not provide the Notice to Customer when contracting with another contractor. RCW 18.27.010(1)(a), in turn, defines a contractor to include a person who, on his or her own property, employs members of more than one trade on a single project.
Because the notice must be provided before work begins, the relevant inquiry was whether the homeowners initially intended to hire multiple trades, not merely whether they ultimately did so. The record pointed in both directions. The agreements were labeled "General Contractor Agreements," which arguably suggested that Triple M was serving in that capacity. At the same time, the building permit identified the homeowners as the general contractor, and the evidence showed that Mr. Feekes had separately arranged plumbing and electrical work.
For purposes of summary proceeding, the court did not need to resolve that conflict. The competing evidence itself demonstrated that the issue was debatable. The standard delineated under RCW 60.04.081 was enough to defeat the homeowners' effort to characterize the lien as frivolous.
Contractual Evidence Over Contract Performance Belonged at Trial
The homeowners alternatively sought to reduce Triple M's lien as clearly excessive. That argument also encountered substantial factual disagreement. Under Woodley, a lien is clearly excessive when its amount is unquestionably above the usual or agreed amount, 7 Wn. App.2d at 560. Here, there was nothing indicating an excessive amount allegedly owed.
The parties disputed how much of the excavation and concrete work Triple M had completed, whether the concrete work was deficient, whether Triple M had breached the contract, and which party owed money to the other. The court concluded that these issues could not properly be resolved through competing affidavits in an expedited lien proceeding. Questions concerning performance, breach, and damages required the type of evidentiary development available at trial, including witness examination and cross-examination. Accordingly, the existence of genuine factual disputes not only prevented the lien from being declared frivolous but also foreclosed a summary reduction of the amount claimed.
A Significant Limitation on Attorney Fees
Although Triple M prevailed in defending its lien, the Court of Appeals rejected its request to recover attorney fees incurred on appeal. RCW 60.04.081(4) directs that when a court determines a lien is not frivolous an order awarding the lien claimant its costs and reasonable attorney fees is appropriate. Triple M argued that this provision entitled it to recovery.
RAP 18.1(a) provides: "If applicable law grants to a party the right to recover reasonable attorney fees or expenses on review before either the Court of Appeals or Supreme Court, the party must request the fees or expenses as provided in this rule, unless a statute specifies that the request is to be directed to the trial court." The court here noted that the statute does not authorize the court to award attorney fees on appeal under these circumstances. The rule allows recovery of attorney fees on appeal only if "applicable law grants that right and the party requests fees as prescribed by RAP 18.1." Wachovia SBA Lending, Inc. v. Kraft, 165 Wn.2d 481, 493, 200 P.3d 683 (2009).
Applying the statutory language, the court focused on the legislature's references to a decision made "following a hearing" and to the court issuing an "order." Those terms, the court concluded, describe a trial court proceeding. Appellate matters may be decided without a hearing, and appellate courts generally resolve cases through opinions rather than the type of order contemplated by the statute. The court therefore held that RCW 60.04.081(4) authorizes attorney fees at the trial court level but does not independently authorize recovery of fees on appeal.
Key Takeaways
- Feekes reinforces the distinction between challenging legal viability of a lien and litigating the underlying construction dispute. RCW 60.04.081 provides an important mechanism for removing liens that plainly lack a legitimate basis, but it is not designed to resolve contested questions of performance, workmanship, breach, or damages.
- For property owners, this means a strong defense to the underlying construction claim does not necessarily translate into a successful summary lien challenge. Unless the lien is beyond legitimate dispute or its amount unquestionably excessive, factual conflicts generally will prevent summary relief.
- For contractors, the decision provides meaningful protection against premature extinguishment of legitimate lien rights. At the same time, it highlights the importance of determining before work begins whether RCW 18.27.114 requires a Notice to Customer. That analysis should focus not only on whether the overall project is residential, but also on the scope of the parties involved in the project.
- The decision adds an important consideration when assessing the cost of lien litigation. A successful lien claimant may recover fees for prevailing in the trial court proceeding under RCW 60.04.081(4), but under the court's interpretation, that statutory entitlement does not extend to the cost of defending the ruling on appeal.
The broader message from Feekes is straightforward. Washington's summary lien procedure is intended to dispose of plainly defective claims, not to adjudicate legitimate construction disputes on a truncated record. Where the parties' disagreement turns on competing evidence and credibility, the lien may remain in place while those issues proceed toward resolution on the merits.
