RESIDENTIAL LITIGATION STRATEGIES: FROM THE DEFENDANT'S COMMAND POST

1. Scope and Purpose………………………………………………………………….. 3
2. The Theater of Operations- Residential Environment…………………….. 3-6
3. Pre- Conflict Considerations- Preparing the Client for Battle…………… 6-9
4. First Contact with the Enemy- Notice and Response………………….…9-11
5. Commencement of the Conflict- Shaping the Terrain………………….11-16
1. Special Exceptions
2. Affirmative Defenses
3. Motions for Partial Summary Judgment
6. Skirmishes………………………………………………………………………..16-17
1. Mediation
2. Should the Allies be Brought Into the Conflict
7. The Final Battle-Jury Issues……………………………………….…18-20
1. Broad Form Required
2. Damages
1. Multiple Theories of Liability
2. Damages Issues must include a Measure
8. Conclusion…………………………………………………………………………20

APPENDIX A: RCLA CASES

APPENDIX C: A COMPLETE ARBITRATION CLAUSE

APPENDIX D: A SET OF RCLA SPECIAL EXCEPTIONS

APPENDIX E: RCLA JURY QUESTIONS AND INSTRUCTIONS

Abstract

In Dallas County alone there were 28,383 new home starts through October 2001. (Source- Home Builders Association of Greater Dallas). Even with our economy sagging the Texas home construction is still considered to be in fairly good shape. Over the years, residential construction has spawned a great deal of litigation, primarily due to the expansive nature of the soils that predominate in Texas and the use of slab-on-grade foundations as the predominant type of support for residential structures. The purpose of this paper is to acquaint the construction lawyer representing the contractor with some of the issues that arise during a legal dispute over the construction of a residence in Texas and provide some practical pointers in dealing with those issues. In addition, while more and more of residential construction cases are being filed, especially with the explosion in residential mold cases, there is a paucity of written authority dealing with the Texas Residential Construction Liability Act. In order to assist the practitioner in dealing with this issue all of the reported cases, a list of both published and unpublished opinions is attached as Appendix A. The paper will attempt to explore some of these issues from pre-construction litigation proofing, pre-litigation activities and, finally, during the course of litigation.

If you represent residential contractors or their subcontractors and consultants you probably can expect to continue to have work as long as there is rain, plumbing leaks, the need to build houses as economically and people to buy the houses that are built. This paper is not meant to cover every eventuality that might arise during a residential construction dispute, but hopefully will at least get you are your client thinking about the future residential construction battlefield and how you can best protect your client from a catastrophic loss. Good Luck!

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