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As in lawsuit? Sue them both. As in getting it fixed, as in new construction, as in how old is the construction....and on and on. In other words some details might help.
In TX all builder complaints must go thru the Texas Residential Construction Commission now: http://www.trcc.state.tx.us/ From what I have heard/read, it's more builder-friendly than consumer-friendly. Google the agency's name and you should find lots of news on it.
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