In a case concerning the definition of the practice of engineering for purposes of Chapter 150, CPRC, the Corpus Christi Court of Appeals has reversed a trial court order denying an engineering firm’s motion to dismiss because plaintiff failed to file a certificate of merit.

Aran & Franklin Engineering, Inc. v. Chris Zody d/b/a Millenium Construction Group (No. 13-21-00262-CV; filed December 22, 2022) is a third-party action arising from a subcontract under which Millenium hired Aran & Franklin to serve as appointed qualified inspectors (AQI) for a roofing project. The propert owner hired Millenium as general contractor for the project. Millenium then contracted with Goliath Building Services, Inc. to repair the roof and obtain a TWIA WPI 8 certification. Millenium alleges that Aran & Franklin produced an inspection report representing that Goliath’s work was satisfactory, that a WPI 8 certification would be issued, and that Goliath should be paid for the work. In the event, the WPI 8 certification was not issued, causing the property owner to sue Millenium for negligence, breach of contract, and intentional misrepresentations. Millenium then sued Aran & Franklin for negligence. Aran & Franklin moved to dismiss the suit under § 150.002, CPRC, which requires a certificate of merit in a suit “for damages arising out of the provision of professional services by a licensed or registered professional.” The trial court denied the motion. Aran & Franklin appealed.

The court of appeals reversed. “To determine whether a cause of action against an engineering firm is ‘for damages arising out of the provision of professional services,’” the court began, “we compare the allegations in the petition to the definition of the practice of engineering in § 1001.003 of the Texas Occupations Code” (citations omitted). The question, then, was whether Aran & Franklin “was providing professional services and operating in an engineering capacity in performing its role as AQI for the roofing project.” Millenium argued that Aran & Franklin was not performing engineering services but merely inspecting the roof repair. It argued further that the firm violated its duties and responsibilities as an AQI under applicable law, specifically 28 TAC § 5.4621. The problem with that argument, however, is that the regulations also state that “an AQI is ‘[a]n engineer licensed by the Texas Board of Engineers and appointed by [the Texas Department of Insurance] as a qualified inspector under” the Insurance Code. Attempting to sidestep this problem, Millenium argued that the regulations also allow non-engineers to perform TWIA inspections, so the inspection at issue could not be considered an engineering service.

The court didn’t buy it. “Here, according to its petition, New Millenium hired Aran & Franklin to inspect and analyze Goliath’s work on the roof of the building for compliance with applicable windstorm building code,” the court stated. “Comparing New Millenium’s allegations to the definition of the practice of engineering, we hold that the allegations arise out of Aran & Franklin’s provision of professional services as New Millenium alleges Aran & Franklin failed to properly inspect a building or structure for compliance in order to receive a WPI 8 certificate.” In other words, just because non-engineers can perform such inspections doesn’t mean that Aran & Franklin was not providing engineering services when it conducted the inspection. The court reversed the trial court and remanded for a determination of whether dismissal should be with or without prejudice.

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