Bollier Ciccone | Construction Law Attorneys in Austin, Texas

Bollier Ciccone LLP has a proven history of successfully representing clients in a wide variety of civil and construction law matters.

Resolving construction disputes is often time-consuming and tedious so attention to detail is very important because there are numerous procedural rules that must be followed.

Bollier Ciccone handles each case with a team approach consisting of attorneys, paralegals, and legal assistants. There is typically two to three different people monitoring and working on each case to increase efficiency while reducing the Client’s overall costs.  Additionally, the team at Bollier Ciccone works with a network of established outside professionals and consultants to thoroughly develop each case.

Our attorneys are experienced in litigation, mediation, and arbitration and they regularly represent clients throughout the State of Texas.

Anthony Ciccone is board certified by the Texas Board of Legal Specialization in Construction Law and he is rated AV Preeminent by Martindale-Hubbell. He leads the Civil Law team at Bollier Ciccone LLP. Read more about Tony’s construction law experience here.

Construction Law

The practice of construction law refers to the legal representation of contractors, subcontractors, owners, and/or material suppliers in a construction matters.  Construction law issues are typically complicated and often involve a wide range of legal matters such as the quality of construction to property easements to fiduciary liability for the management of construction trust funds.

Construction matters are often divided into the following two categories, Commercial and Residential Construction:

Commercial Construction Law

Commercial construction typically refers to construction matters involving projects that are non-residential and can include anything from building a commercial retail space to roads and bridges.

Commercial construction is typically further sub-divided into the two following categories:

    1. Private construction. Private construction projects are those that are not government owned or financed such as a retail space, office buildings, or churches.
    2. Public construction. Public construction projects are those that are government owned such as schools, universities, airports, or other government facility.

Residential Construction Law

Residential construction typically refers to construction matters involving projects that are related to a person’s home, town house, or condominium.  Residential construction matters are governed by Chapter 27 of the Texas Property Code which is called the Residential Construction Liability Act (“RCLA”).  The RCLA is a very detailed process to be followed if a dispute arises between the contractor and owner.  If the RCLA process is not properly followed it could have a very negative impact on the claims and/or defenses.

Common Construction Law Services

BC Law provides a full range of construction law services and has extensive experience with both commercial and residential construction law matters.  The following is a short list of matters that we regularly manage:

  • Warranty issues
  • Construction defects
  • Lien preparation & defense
  • Bond preparation & defense
  • Change orders
  • Water penetration issues
  • Contract drafting
  • Contract negotiation
  • Business partnership disputes
  • Breach of contract and contract disputes
  • Easements
  • Disclosure and/or Nondisclosure
  • Flooding issues
  • Homeowner associations
  • Bond releases and waivers
  • Lien waivers and releases
  • Real estate disputes
  • Property line disputes
  • Restrictive covenants
  • Warranty claims and issues (in real estate and construction matters)
  • Nonpayment of Draws
  • Change order disputes
  • Draw requests and payment disputes
  • Project delay claims
  • Project accounting issues
  • Construction Trust Fund Act
  • Project design issues
  • Contract disputes
  • All bills paid affidavit
  • Risk management

Typical Construction Dispute Claims

A. Breach of Contract

Breach of contract is the most common claim in a construction dispute.  Typically either a contractor has not been paid or there is a complaint about the quality of construction or performance.

A contract is a promise or set of promises to which the law attaches legal obligations or an agreement between two or more parties creating legal obligations.

A breach of contract occurs when there is a valid, enforceable contract (either verbal or written), between two or more parties and one party alleges the contract was violated.  For a valid breach of contract to exist, the claimant must have performed its obligations, tendered performance of its obligations, or be excused from performing its contractual obligations, and the defending party has breached the contract which caused the damages.

In construction, when a contractor asserts breach of contract against an owner, it is usually a claim for non-payment. Typically the contractor is claiming that it has not been paid by the project owner or the general contractor. Similarly, when a project owner asserts breach of contract against a contractor, the allegation is usually that the work has not been property performed (defective construction work) or the work has not been timely performed, and the delay has caused the owner damages.  Occasionally, a project owner may assert financial or accounting based claims against a contractor alleging that the contractor has been overpaid in violation of the contract.

B. Construction Defect Disputes / Breach of Warranty

Breach of warranty claims arise when a project owner or a general contractor complain that a specific scope of work was not properly performed by a particular trade and the subcontractor has refused to repair or remedy the error. For example, the builder or owner may allege that the roofer did not properly construct the roof which resulted in water penetration.  The defense raised by the subcontractor is often that they followed the design plans and the design plans were incorrect or that the owner is seeking an upgrade rather than a typical detail or industry standard of care.

Negligence

Negligence is the failure to exercise reasonable care toward another party which causes injury.  The failure to exercise reasonable care creates a claim against the party who caused the injury.

Construction defects usually occur due to the negligence or error of a contractor as opposed to intentional misconduct.  Negligence generally refers to accidental, unintentional, or reckless behavior.   On a construction project negligence can range from improper flashing to driving over a construction worker in a work zone. Negligence is a very common cause of action in a construction-based dispute because most contractors do not intentionally screw up a job.

D. Unpaid Wages and Claims – Prompt Payment To Contractors and Subcontractors

Texas requires prompt payment to contractors for private work done to improve real property, including repairing and renovating the property.

A Prompt Payment claim arises when a contractor has not been paid on a project for properly performed work without excuse.  The State of Texas passed the Texas Prompt Payment Act to assist subcontractors and stop payment abuses.  The Texas Prompt Payment Act requires an owner or contractor to pay its subcontractors within thirty-five days of demand for properly performed work.  If payment is not properly rendered then the subcontractor may also recover its attorney fees plus interest in the amount of one and a half percent per month (1.5% per month).

E. Delay Claims / Time is Of the Essence

A delay in the timely completion of a construction project has consequences for all parties to the project.

A claim for a time delay is common on construction projects.  Delay claims typically arise when the project owner complains that the construction was not performed on time and the project was not completed in accordance with the schedule. Delay claims can also arise when other subcontractors are either delayed or accelerated on a project thus making a claim for additional compensation.  Claims for delay are challenging to prosecute and defend due to the intricate and detailed nature of time delay claims.  Delay claims can be caused by inclement weather, labor or material shortages, owner cause delays, negligence, or breach of contract.

Texas Residential Construction Liability Act (RCLA)

The Residential Construction Liability Act (RCLA) governs claims of homeowners against contractors for damages or other relief arising from construction defects solely related to residential construction.

The RCLA applies to any action to recover damages or other relief arising from a construction defect except a claim for personal injury, survival, or wrongful death or for damage to goods.

The Residential Construction Liability Act (RCLA) was created by the legislature of the State of Texas to develop a process that residential owners follow to try and resolve their dispute(s) with a contractor before filing a lawsuit.  The RCLA provides that an aggrieved homeowner can give a contractor formal notice of a construction defect and an opportunity to inspect the defect(s) before initiating legal action.    If the RCLA’s processes are not followed a contractor can abate the lawsuit.

It is important to understand that the RCLA is not a claim or cause of action but rather it a procedural process that should be followed before initiating litigation against a contractor.

The RCLA process is complicated and the assistance of an attorney is advised.

Liens and Bond Claims

The roots of today’s mechanic’s lien laws in Texas can be traced back to the enactments of “An Act for the Relief of Master Builders and Mechanics of Texas” by the Congress of the Republic of Texas in 1839. See Cavazos v. Munoz, 305 B.R. 661 (S.D. Texas 2004).  Contractors working on projects in Texas face some of the most complicated mechanic’s lien laws found anywhere in the United States.

If a contractor fails to comply with the technical statutory requirements of the laws of the State of Texas their lien or bond claim is likely invalid and of no force or effect.   It is important to note that the laws governing lien and bond matters change and are different based on whether you are an original contractor or subcontractor and whether the project is commercial, residential, private, and/or public.  The rules and time periods applicable to a contractor are likely different on each project.

Texas Construction Trust Fund Act (CTFA)

The Texas Construction Trust Fund Act (CTFA) is a statute that creates fiduciary and trust liability for any person who is in possession of or has control of construction funds.  Construction funds are considered to be trust funds and any person who has possession or control of those funds is considered a fiduciary and has individual liability to those that are in privity if the trust funds are misappropriated or otherwise disbursed in violation of the CTFA.

Methods of Dispute Resolution

Litigation

BC Law has extensive experience in commercial and civil litigation and trial law. The firm’s partners and attorneys have extensive trial and litigation experience. BC Law’s judgment and problem-solving skills have been essential to our Clients’ success and trial track record.

The ability to know when a party is likely to prevail in a lawsuit is fundamental to almost all legal issues ranging from contract negotiation to contract disputes.  It is also important to know that sometimes ‘winning’ can actually mean ‘losing’ and knowing the difference is essential to good legal representation.

The lawyers at BC Law understand which issues really matter to the bottom line and develop their strategy from that angle. Often litigants will argue for the sake of fighting, but it is more important to pick and choose the right battles, and that can make all the difference.

BC Law attorneys regularly appear in state and federal trial courts, and various arbitration tribunals.  BC Law’s team has litigated a wide range of legal disputes including the following matters:

  • Business partnership disputes
  • Breach of lease
  • Breach of contract and contract disputes
  • Construction defects & claims
  • Easements
  • Employment disputes
  • Flooding issues
  • Homeowner associations
  • Lien and bond foreclosure
  • Real estate disputes
  • Property line disputes
  • Restrictive covenants
  • Warranty claims and issues (in real estate and construction matters)
  • Water penetration

Mediation

Mediation is a voluntary process.  Mediation is a  process whereby the parties hire a trained neutral (the mediator) to meet with them and assist them in trying to reach a voluntary resolution to their dispute.  The mediator will typically shuttle between the parties to assist them in reaching a mutual resolution to their dispute.

Mediation is typically required by the by the court before the parties to a lawsuit can proceed to trial.

Arbitration

Arbitration is not voluntary.  Arbitration is a private process where the disputing parties hire an independent third-party to listen to their dispute and make a decision as to which party is right.

Arbitration can only be compelled if both parties agree.  An agreement to arbitrate is usually contained in a written contract between the parties.

Contact Bollier Ciccone Today

BC Law represents project owners, contractors, subcontractors, suppliers, and homeowners. Get started by calling Bollier Ciccone LLP today at 512-477-5796. Our team of construction attorneys has a proven record of successfully resolving disputes in the Austin, San Antonio, and Houston, Texas greater metro areas. The following list includes some of our services:

  • Warranty issues
  • Construction defect issues (commercial & residential)
  • Lien preparation & defense
  • Bond claims & defense
  • Change orders
  • Construction defect issues
  • Water penetration issues
  • Contract drafting
  • Contract negotiation
  • Contract preparation
  • Debt collection (commercial)
  • Design errors and omissions
  • Defense against claims
  • Business formation
  • General legal representation
  • Mechanic’s and materialmen’s lien filings & defense
  • Constitutional lien filings & defense
  • Risk management
  • Residential Construction Disputes
  • Residential Construction Liability Act
  • Deceptive Trade Practices Act
  • Delay Claims – Time is of the Essence
  • Construction Trust Fund Act (CTFA)
  • Fiduciary Duty
  • Litigation / arbitration / mediation