All You Need to Know About Residential Construction Law In An Hour DBA Construction Law Section May 1, 2008 J. Paulo Flores Flores & Figueroa, P.C. Founders.

All You Need to Know All You Need to Know About Residential About Residential

Construction Law In An Construction Law In An Hour Hour

DBA Construction Law SectionDBA Construction Law Section

May 1, 2008May 1, 2008

J. Paulo FloresJ. Paulo FloresFlores & Figueroa, P.C.Flores & Figueroa, P.C.

Founders SquareFounders Square900 Jackson Street, Suite 550900 Jackson Street, Suite 550

Dallas TX 75202Dallas TX 75202(214) 747-5700(214) 747-5700

Fax:  (214) 747-5705Fax:  (214) [email protected]@floresandfig.com

www.floresandfig.comwww.floresandfig.com

I. Owner/General I. Owner/General Contractor Contractor

RelationshipRelationship Contract between Builder and Homeowner really should be Contract between Builder and Homeowner really should be

in writing, signed by all owners. Tex. Prop. Code §41.007 in writing, signed by all owners. Tex. Prop. Code §41.007 requires a written contract, signed by husband and wife, if requires a written contract, signed by husband and wife, if applicable, in order to be able to lien homestead. The applicable, in order to be able to lien homestead. The same section, as amended in 2007, requires Builder’s TRCC same section, as amended in 2007, requires Builder’s TRCC registration number to be listed. Additional disclosure registration number to be listed. Additional disclosure requirements as outlined below.requirements as outlined below.

Generally little homeowner bargaining powerGenerally little homeowner bargaining power Exception – Upper end custom house ($1 million +)Exception – Upper end custom house ($1 million +)

Majority of contracts contain an arbitration clause (same as Majority of contracts contain an arbitration clause (same as commercial)commercial)

Warranty statutorily set in residential construction – 1 Warranty statutorily set in residential construction – 1 yr/2yr/10yr + 10 year warranty of habitability. Can yr/2yr/10yr + 10 year warranty of habitability. Can contract for better warranty, but not for less.contract for better warranty, but not for less.

Prompt Payment Act – no statutory right to stop work for Prompt Payment Act – no statutory right to stop work for non-payment as there is in commercial construction. Can non-payment as there is in commercial construction. Can build, in my opinion, into contract.build, in my opinion, into contract.

Statutorily Required Statutorily Required Notice ProvisionsNotice Provisions

Tex. Prop. Code §53.255 – Extensive disclosure in Tex. Prop. Code §53.255 – Extensive disclosure in contract – set forth in statute.contract – set forth in statute.

Tex. Prop. Code §41.007 – Homestead disclosure – Tex. Prop. Code §41.007 – Homestead disclosure – “Know your rights under the law.”“Know your rights under the law.”

HB 1038 (eff. 9/1/07) – Added TRCC registration HB 1038 (eff. 9/1/07) – Added TRCC registration number disclosure requirement to Tex. Prop. Code number disclosure requirement to Tex. Prop. Code §41.007; and arbitration clause disclosure requirement §41.007; and arbitration clause disclosure requirement to Tex. Prop. Code §41.007 and to Tex. Prop. Code to Tex. Prop. Code §41.007 and to Tex. Prop. Code §420.002(2).§420.002(2).

Tex. Prop. Code §53.256 – “List of Subcontractors and Tex. Prop. Code §53.256 – “List of Subcontractors and Suppliers” – Disclosure of subcontractors used on Suppliers” – Disclosure of subcontractors used on project – Also, must be updated. Can be waived.project – Also, must be updated. Can be waived.

RCLA disclosure (if RCLA but RCLA disclosure (if RCLA but notnot TRCCA applies) – Tex. TRCCA applies) – Tex. Prop. Code §27.007.Prop. Code §27.007.

TRCCA disclosure (if TRCCA applies) – Tex. Prop. Code TRCCA disclosure (if TRCCA applies) – Tex. Prop. Code Chapter 420 (including the arbitration clause Chapter 420 (including the arbitration clause disclosure mentioned above, if applicable).disclosure mentioned above, if applicable).

Prompt Payment ActPrompt Payment Act – Owner can – Owner can withhold 110% of disputed amount (as withhold 110% of disputed amount (as opposed to 100% in commercial opposed to 100% in commercial construction context).construction context).

Texas Trust Fund ActTexas Trust Fund Act (Tex. Prop. (Tex. Prop. Code Chapter 162) – In residential Code Chapter 162) – In residential homestead construction over $5,000, homestead construction over $5,000, contractor must have dedicated contractor must have dedicated construction trust bank account, with a construction trust bank account, with a number of management requirements. number of management requirements. These requirements are set forth in These requirements are set forth in Tex. Prop. Code §§162.006 and Tex. Prop. Code §§162.006 and 162.007.162.007.

II.II. SubcontractorsSubcontractors

Rare to see written Rare to see written subcontract agreements.subcontract agreements.

Rare to see retainage.Rare to see retainage.

III. TypicalIII. TypicalCauses of ActionCauses of Action

Breach of ContractBreach of Contract – – Typical fact patterns same as commercial Typical fact patterns same as commercial construction projects – (a) from contractor’s perspective – failure to construction projects – (a) from contractor’s perspective – failure to pay; (b) from owner’s perspective – defective, incomplete, and/or pay; (b) from owner’s perspective – defective, incomplete, and/or slow work.slow work.

Breach of WarrantyBreach of Warranty – – Again – statutorily set. Performance of Again – statutorily set. Performance of residence will be measured against TRCC’s performance standards.residence will be measured against TRCC’s performance standards.

Delay ClaimsDelay Claims – – Do not see the delay and impact claims that you Do not see the delay and impact claims that you encounter in commercial, especially governmental, project claims.encounter in commercial, especially governmental, project claims.

DTPADTPA – – Historically used much more in residential construction Historically used much more in residential construction disputes than in commercial ones. Ability to proceed under the disputes than in commercial ones. Ability to proceed under the DTPA is lessening under case law and the TRCCA. Example – Breach DTPA is lessening under case law and the TRCCA. Example – Breach of TRCCA warranties, by itself, will not support a DTPA action – Tex. of TRCCA warranties, by itself, will not support a DTPA action – Tex. Prop. Code §430.011(c).Prop. Code §430.011(c).

Texas Prompt Payment ActTexas Prompt Payment Act (Tex. Prop. Code Chapter 28) – (Tex. Prop. Code Chapter 28) – As stated above, owner can retain 110% of disputed amount; and As stated above, owner can retain 110% of disputed amount; and there is no statutory provision for demobilizing on project for non-there is no statutory provision for demobilizing on project for non-payment, like there is in the commercial context.payment, like there is in the commercial context.

Uniform Declaratory Judgments ActUniform Declaratory Judgments Act – – Use in voiding Use in voiding mechanic’s liens (see below)(same for residential and commercial, mechanic’s liens (see below)(same for residential and commercial, just even easier in residential).just even easier in residential).

IV. Mechanic’s Liens – IV. Mechanic’s Liens – PlacingPlacing

The trapping notice period is shortened for those involved in The trapping notice period is shortened for those involved in residential construction to the 15th day of the second month residential construction to the 15th day of the second month after the performance of labor and/or delivery of materials. after the performance of labor and/or delivery of materials. Tex. Prop. Code §53.252(b).Tex. Prop. Code §53.252(b).

For residential construction subcontractors and suppliers, For residential construction subcontractors and suppliers, regardless of in which tier they fall, they must give notice to regardless of in which tier they fall, they must give notice to the original contractor in addition to the owner(s). Tex. Prop. the original contractor in addition to the owner(s). Tex. Prop. Code §53.252(b). One simplification is that since the Code §53.252(b). One simplification is that since the subcontractor or supplier is required to copy the original subcontractor or supplier is required to copy the original contractor with the notice anyway, it does not matter what contractor with the notice anyway, it does not matter what tier claimant they are. In other words, if one is involved in tier claimant they are. In other words, if one is involved in residential construction, and their contract is not directly residential construction, and their contract is not directly with the owner, they need to send a trapping notice with the owner, they need to send a trapping notice regarding their claim by the 15th day of the second month regarding their claim by the 15th day of the second month to the owner, with a copy to the original contractor.to the owner, with a copy to the original contractor.

If the property is homestead property, must have the If the property is homestead property, must have the additional disclosure in the trapping notice found at Tex. additional disclosure in the trapping notice found at Tex. Prop. Code §§53.254. Prop. Code §§53.254.

Mechanics Liens – Placing Mechanics Liens – Placing cont.cont.

Any contract for work on a homestead must contain the Any contract for work on a homestead must contain the notice required by Tex. Prop. Code §41.007.notice required by Tex. Prop. Code §41.007.

Residential construction claimants have to file their Residential construction claimants have to file their mechanic’s lien affidavit by the 15th day of the third month, mechanic’s lien affidavit by the 15th day of the third month, as opposed to the 15th day of the fourth month. Tex. Prop. as opposed to the 15th day of the fourth month. Tex. Prop. Code §53.052(b).Code §53.052(b).

Additional requirements for the lien affidavit if liening Additional requirements for the lien affidavit if liening homestead property. Tex. Prop. Code §53.254.homestead property. Tex. Prop. Code §53.254.

The time period in which to file suit to foreclose a residential The time period in which to file suit to foreclose a residential mechanic’s lien is, “within one year after the last day a mechanic’s lien is, “within one year after the last day a claimant may file a lien affidavit under Section 53.052 or claimant may file a lien affidavit under Section 53.052 or within one year after completion, termination, or within one year after completion, termination, or abandonment of the work under the original contract under abandonment of the work under the original contract under which the lien is claimed, whichever is later.” Tex. Prop. which the lien is claimed, whichever is later.” Tex. Prop. Code §53.158. This as opposed to Code §53.158. This as opposed to two two years on non-years on non-residential construction projects.residential construction projects.

V. Mechanic’s Liens – V. Mechanic’s Liens – RemovingRemoving

No difference in procedure from No difference in procedure from commercial context. However, commercial context. However, typically removal is even easier typically removal is even easier than in commercial context due than in commercial context due to the many additional grounds to the many additional grounds for lien removal, as we have for lien removal, as we have reviewed.reviewed.

VI. Texas Residential VI. Texas Residential ConstructionConstruction

Commission ActCommission Act

Residential construction is governed Residential construction is governed by Title 16 of the Texas Property Code.by Title 16 of the Texas Property Code.

Extensive changes to the TRCCA were Extensive changes to the TRCCA were made in last legislative session. These made in last legislative session. These are charted in Appendix “A” to the are charted in Appendix “A” to the paper.paper.

VII. TRCCA – VII. TRCCA – RegistrationRegistration

Have to register as a Builder with Have to register as a Builder with the TRCC.the TRCC.

Have to register houses Have to register houses (projects).(projects).

VIII. TRCCA – Statutory VIII. TRCCA – Statutory Warranties and Warranties and

Performance StandardsPerformance Standards

Warranties are set by statute – 1 Warranties are set by statute – 1 yr/2 yr/ 10 yr & 10 yr warranty of yr/2 yr/ 10 yr & 10 yr warranty of habitability.habitability.

TRCC has published standards to TRCC has published standards to which home must perform – Tex. which home must perform – Tex. Admin. Code Chapter 304.Admin. Code Chapter 304.

IX. TRCCA – State-IX. TRCCA – State-Sponsored Inspection Sponsored Inspection

and Dispute Resolution and Dispute Resolution ProcessProcess

For post-construction, defective For post-construction, defective work claims, Builder and work claims, Builder and Homeowner Homeowner mustmust go through go through state sponsored dispute state sponsored dispute resolution process resolution process beforebefore litigation or arbitration can be litigation or arbitration can be filed.filed.

X. Residential X. Residential Construction Liability Construction Liability Act Act

Understand the difference between applicability of RCLA Understand the difference between applicability of RCLA and TRCCA.and TRCCA.

The RCLA’s scope is larger than that of the TRCCA. The RCLA’s scope is larger than that of the TRCCA. Therefore, not all RCLA claims will be subject to the Therefore, not all RCLA claims will be subject to the TRCCA. Conversely, for claims covered by the TRCCA, TRCCA. Conversely, for claims covered by the TRCCA, some TRCCA procedures will supplant or supplement some TRCCA procedures will supplant or supplement those under the RCLA.those under the RCLA.

The RCLA’s definition of “Contractor” is more expansive The RCLA’s definition of “Contractor” is more expansive than the TRCCA’s definition of “Builder.” than the TRCCA’s definition of “Builder.” SeeSee, Tex. Prop. , Tex. Prop. Code §27.001(5) and Tex. Prop. Code §401.003.Code §27.001(5) and Tex. Prop. Code §401.003.

As examples, claims against roofers, licensed plumbers or As examples, claims against roofers, licensed plumbers or electricians who contract directly with the owner, or interior-electricians who contract directly with the owner, or interior-only remodelers whose work costs less than $10,000, would only remodelers whose work costs less than $10,000, would fall under the RCLA, but not under the TRCCA.fall under the RCLA, but not under the TRCCA.

X. RCLA Cont.X. RCLA Cont.

The TRCCA and the RCLA, albeit indirectly, also differ The TRCCA and the RCLA, albeit indirectly, also differ in their definition of who is a “Homeowner.” The in their definition of who is a “Homeowner.” The TRCCA defines a “Homeowner” as, “a person who TRCCA defines a “Homeowner” as, “a person who owns a home or a subrogee or assignee of a person owns a home or a subrogee or assignee of a person who owns a home.” TRCCA §401.002(7). “Home” is who owns a home.” TRCCA §401.002(7). “Home” is defined as, “the real property and improvements and defined as, “the real property and improvements and appurtenances for a single-family house or duplex.” appurtenances for a single-family house or duplex.” TRCCA §401.002(6). Although the RCLA does not TRCCA §401.002(6). Although the RCLA does not define “Homeowner,” it states, under its definition of define “Homeowner,” it states, under its definition of “Residence,” that it applies not just to the owners of “Residence,” that it applies not just to the owners of single-family houses or duplexes, but also to, “triplex, single-family houses or duplexes, but also to, “triplex, or quadruplex or a unit in a multiunit residential or quadruplex or a unit in a multiunit residential structure in which title to the individual units is structure in which title to the individual units is transferred to the owners under a condominium or transferred to the owners under a condominium or cooperative system.” Tex. Prop. Code §27.001(7). As cooperative system.” Tex. Prop. Code §27.001(7). As such, these units other than single-family residences such, these units other than single-family residences and duplexes fall under the RCLA, but not under the and duplexes fall under the RCLA, but not under the TRCCA.TRCCA.

X. RCLA Cont.X. RCLA Cont. Finally, the RCLA contains a more Finally, the RCLA contains a more

expansive definition of “construction expansive definition of “construction defect,” than does the TRCCA (although defect,” than does the TRCCA (although in the 2003 amendments, the RCLA in the 2003 amendments, the RCLA definition was amended to include the definition was amended to include the TRCCA’s definition). TRCCA’s definition). SeeSee, Tex. Prop. Code , Tex. Prop. Code §27.001(4) and Tex. Prop. Code §401.004.§27.001(4) and Tex. Prop. Code §401.004.

Attached as Appendix “B” to the paper Attached as Appendix “B” to the paper are examples of situations in which the are examples of situations in which the TRCCA SIRP process will TRCCA SIRP process will notnot apply, but apply, but the RCLA the RCLA willwill apply. Also in Appendix apply. Also in Appendix “B” are examples of when “B” are examples of when neither neither will will apply.apply.

XI. Complaints to the TRCC, XI. Complaints to the TRCC, TRCC Discipline, and State TRCC Discipline, and State

Office of Administrative Office of Administrative Hearings (SOAH) Practice Hearings (SOAH) Practice

and Procedureand Procedure

The TRCC has extensive jurisdiction and The TRCC has extensive jurisdiction and disciplinary powers over Builders. These can disciplinary powers over Builders. These can be found at Tex. Prop. Code §401.003 be found at Tex. Prop. Code §401.003 (expanded definition of “Builder”); §401.007 (expanded definition of “Builder”); §401.007 (new TRCC injunctive powers); §418.001 (new TRCC injunctive powers); §418.001 (grounds for disciplinary action); §418.002 (grounds for disciplinary action); §418.002 (TRCC’s disciplinary powers); §418.005 (TRCC (TRCC’s disciplinary powers); §418.005 (TRCC jurisdiction over actual Builder jurisdiction over actual Builder andand Builder’s Builder’s majority owners); and §419.001 (maximum majority owners); and §419.001 (maximum fines raised from $5,000 per day per violation fines raised from $5,000 per day per violation to $10,000 per day per violation, and up to to $10,000 per day per violation, and up to $100,000 for certain fraud and trust fund $100,000 for certain fraud and trust fund violations).violations).

Statutory Grounds for Disciplinary Statutory Grounds for Disciplinary Action After the 2007 Amendments to Action After the 2007 Amendments to

the TRCCA [15 – 18] - the TRCCA [15 – 18] - TRCCA TRCCA §418.001, as amended effective §418.001, as amended effective September 1, 2007.September 1, 2007.GROUNDS FOR DISCIPLINARY ACTION. A personGROUNDS FOR DISCIPLINARY ACTION. A person, including a , including a

builder or a person who is designated as a builder’s agent builder or a person who is designated as a builder’s agent under Section 416.006, or a person who owns or controls a under Section 416.006, or a person who owns or controls a majority ownership interest in the buildermajority ownership interest in the builder is subject to is subject to disciplinary action under this chapter for:               disciplinary action under this chapter for:               

(1)  fraud or deceit in obtaining a registration or (1)  fraud or deceit in obtaining a registration or certification under this subtitle;certification under this subtitle;

(2)  misappropriation (2)  misappropriation or misapplicationor misapplication of trust funds in of trust funds in the practice of residential constructionthe practice of residential construction, including a violation of , including a violation of Chapter 32, Penal Code, or Chapter 162, if found by a final Chapter 32, Penal Code, or Chapter 162, if found by a final nonappealable court judgmentnonappealable court judgment;;

(3)  naming false consideration in a contract to sell a (3)  naming false consideration in a contract to sell a new home or in a construction contract;new home or in a construction contract;

(4)  discriminating on the basis of race, color, religion, (4)  discriminating on the basis of race, color, religion, sex, national origin, or ancestry;sex, national origin, or ancestry;

(5)  publishing a false or misleading advertisement; (5)  publishing a false or misleading advertisement; (cont.)(cont.)

Amended TRCCA §418.001 Amended TRCCA §418.001 Cont.Cont.

(6)  failure to honor, within a reasonable time, a check (6)  failure to honor, within a reasonable time, a check issued to the commissionissued to the commission, or any other instrument of payment, , or any other instrument of payment, including a credit or debit card or electronic funds transfer, including a credit or debit card or electronic funds transfer, after after the commission has sent by certified mail a request for payment the commission has sent by certified mail a request for payment to the person's last known business address, according to to the person's last known business address, according to commission records;commission records;

(7)  failure to pay an administrative penalty assessed by (7)  failure to pay an administrative penalty assessed by the commission under Chapter 419 the commission under Chapter 419 or a fee due under Chapter or a fee due under Chapter 426426; ; 

(8)  (8)  failure to payfailure to pay [nonpayment of] a final nonappealable [nonpayment of] a final nonappealable courtcourt judgment arising from a construction defect or other judgment arising from a construction defect or other transaction between the person and a homeowner;             transaction between the person and a homeowner;             

(9)  failure to register a home as required by Section (9)  failure to register a home as required by Section 426.003;             426.003;             

(10)  failure to remit the fee for registration of a home (10)  failure to remit the fee for registration of a home under Section 426.003; [or]             under Section 426.003; [or]             

(11)  failure to reimburse a homeowner the amount (11)  failure to reimburse a homeowner the amount ordered by the commission as provided ordered by the commission as provided byby [in] Section [in] Section 428.004(d)428.004(d); ;

Amended TRCCA §418.001 Amended TRCCA §418.001 Cont.Cont.

(12)  engaging in statutory or common-law fraud or (12)  engaging in statutory or common-law fraud or misappropriation of funds, as determined by the commission after a misappropriation of funds, as determined by the commission after a hearing under Section 418.003;hearing under Section 418.003;                          

(13)  a repeated failure to participate in the state-(13)  a repeated failure to participate in the state-sponsored inspection and dispute resolution process if required by sponsored inspection and dispute resolution process if required by this title;this title;                          

(14)  failure to register as a builder as required under (14)  failure to register as a builder as required under Chapter 416;Chapter 416;                          

(15)  using or attempting to use a certificate of registration (15)  using or attempting to use a certificate of registration that has expired or that has been revoked;that has expired or that has been revoked;                          

(16)  falsely representing that the person holds a certificate (16)  falsely representing that the person holds a certificate of registration issued under Chapter 416;of registration issued under Chapter 416;                          

(17)  acting as a builder using a name other than the name (17)  acting as a builder using a name other than the name or names disclosed to the commission;or names disclosed to the commission;                          

(18)  aiding, abetting, or conspiring with a person who does (18)  aiding, abetting, or conspiring with a person who does not hold a certificate of registration to evade the provisions of this not hold a certificate of registration to evade the provisions of this title or rules adopted under this title, if found by a final title or rules adopted under this title, if found by a final nonappealable court judgment;nonappealable court judgment;

Amended TRCCA §418.001 Amended TRCCA §418.001 Cont.Cont.

(19)  allowing the person’s certificate of (19)  allowing the person’s certificate of registration to be used by another person;registration to be used by another person;                          (20)  acting as an agent, partner, or associate of a (20)  acting as an agent, partner, or associate of a person who does not hold a certificate of person who does not hold a certificate of registration with the intent to evade the registration with the intent to evade the provisions of this title or rules adopted under this provisions of this title or rules adopted under this title;title;                          (21)  a failure to reasonably perform on an (21)  a failure to reasonably perform on an accepted offer to repair or a repeated failure to accepted offer to repair or a repeated failure to make an offer to repair based on:make an offer to repair based on:                                      

(A)  the recommendation of a third-party (A)  the recommendation of a third-party inspector under Section 428.004; orinspector under Section 428.004; or                                      

(B)  the final holding of an appeal under (B)  the final holding of an appeal under Chapter 429;Chapter 429;                          (22)  a repeated failure to respond to a (22)  a repeated failure to respond to a commission request for information;commission request for information;      

Amended TRCCA Amended TRCCA §418.001 Cont.§418.001 Cont.

(23)  a failure to obtain a building permit (23)  a failure to obtain a building permit required by a political subdivision before required by a political subdivision before constructing a new home or an improvement to constructing a new home or an improvement to an existing home;an existing home;(24)  abandoning, without justification, any home (24)  abandoning, without justification, any home improvement contract or new home construction improvement contract or new home construction project engaged in or undertaken by the person, project engaged in or undertaken by the person, if found to have done so by a final, if found to have done so by a final, nonappealable court judgment;nonappealable court judgment;                          (25)  a repeated failure to comply with the (25)  a repeated failure to comply with the requirements of Subtitle F; orrequirements of Subtitle F; or                          (26)  otherwise violating this title or a (26)  otherwise violating this title or a commission rule adopted under this titlecommission rule adopted under this title..

XII. ArbitrationXII. Arbitration Important to understand that TRCCA actually has very little to do Important to understand that TRCCA actually has very little to do

with arbitrationwith arbitration TRCC tasked to report on arbitration to 79th and 80th Legislative TRCC tasked to report on arbitration to 79th and 80th Legislative

sessions. This has been done.sessions. This has been done. TRCCA provides for venue of arbitration in county in which project is TRCCA provides for venue of arbitration in county in which project is

located. Tex. Prop. Code §436.003.located. Tex. Prop. Code §436.003. TRCCA added a “manifest disregard for Texas law” ground for TRCCA added a “manifest disregard for Texas law” ground for

vacating a residential construction arbitration award. Tex. Prop. vacating a residential construction arbitration award. Tex. Prop. Code §438.001.Code §438.001.

TRCCA imposes a requirement for recording a residential TRCCA imposes a requirement for recording a residential construction arbitration award if it is filed with a court for construction arbitration award if it is filed with a court for enforcement. Tex. Prop. Code §437.001.enforcement. Tex. Prop. Code §437.001.

TRCCA provides for the voluntary registration of arbitrators with the TRCCA provides for the voluntary registration of arbitrators with the TRCC.TRCC.

One rather substantive change – arbitration clause One rather substantive change – arbitration clause conspicuousness requirement, as added by HB 1038 – Although I conspicuousness requirement, as added by HB 1038 – Although I believe unenforceable under the United States Supreme Court believe unenforceable under the United States Supreme Court opinion in opinion in Doctor’s Associates, Inc. v. CasarottoDoctor’s Associates, Inc. v. Casarotto, 517 U.S. 681 , 517 U.S. 681 (1996).(1996).

This is a prime example of why any discussion of arbitration This is a prime example of why any discussion of arbitration needs to begin with an understanding of federal preemption needs to begin with an understanding of federal preemption under the Federal Arbitration Act.under the Federal Arbitration Act.