# Zody v. Aran & Franklin Eng'g, Inc. Supreme Court of Texas, No. 25-0374 **Zody v. Aran & Franklin Eng'g, Inc., No. 25-0374, is before the Supreme Court of Texas. Key issue: Does Civil Practice and Remedies Code § 150.002 require a certificate-of-merit affiant to hold the same state appointment as an appointed qualified inspector, or only the same professional license and area of practice?** Practice areas: construction law, professional liability ## Key issues - Does Civil Practice and Remedies Code § 150.002 require a certificate-of-merit affiant to hold the same state appointment as an appointed qualified inspector, or only the same professional license and area of practice? - Does a certificate of merit filed in a prior, dismissed suit and on file when the new third-party petition was filed satisfy the requirement to file it "with the complaint"? ## Factual History Chris Zody, doing business as New Millennium Construction Group, was the general contractor on a roof reconstruction at the Hidden Oaks condominium complex in Rockport, and hired Goliath Building Services to do the work and Aran & Franklin Engineering to inspect it and issue the windstorm certification known as WPI 8 (Brief on the Merits (Petitioner), PDF pp. 11-12). Aran & Franklin told New Millennium in May 2018 that Goliath's work was satisfactory and the certification would issue, New Millennium paid Goliath, and as of October 2019 the certification had not been issued (Brief on the Merits (Petitioner), PDF p. 12). Aran & Franklin says it served as an "appointed qualified inspector," a role that requires a specific state appointment (Brief on the Merits (Respondent), PDF pp. 9-10). ## Procedural History New Millennium first sued Aran & Franklin, the Thirteenth Court of Appeals held a certificate of merit was required, and on remand the trial court dismissed the claims without prejudice (Brief on the Merits (Respondent), PDF pp. 10-11). New Millennium then filed a new third-party petition attaching an affidavit from engineer Jason Haisler, who is not and has never been an appointed qualified inspector, and relied in response on an affidavit from another expert, Rolando Rubiano, that had been filed in the earlier suit; the trial court denied Aran & Franklin's motion to dismiss on February 7, 2024 (Brief on the Merits (Respondent), PDF pp. 11-12; Brief on the Merits (Petitioner), PDF p. 8). The Thirteenth Court of Appeals, in an opinion by Justice West on March 20, 2025, reversed, holding the Rubiano affidavit was not filed contemporaneously with the petition and the Haisler affidavit was deficient because Haisler lacked the same registration, and remanded for dismissal (Brief on the Merits (Respondent), PDF pp. 8, 12-13). The Supreme Court granted review on March 27, 2026. ## Issues Presented - New Millennium (Brief on the Merits (Petitioner), PDF p. 10): (1) whether the court of appeals improperly reversed the trial court's acceptance of a certificate of merit from a licensed engineer who practiced in windstorm inspections but was not an appointed qualified inspector; and (2) whether an affidavit already on file in the proceeding when the third-party petition was filed satisfied section 150.002. - Aran & Franklin (Brief on the Merits (Respondent), PDF p. 9): (1) whether "with the complaint" permits reliance on an affidavit filed in a separate, previously dismissed lawsuit and not attached or incorporated into the operative petition; and (2) whether a certificate of merit suffices where the claim rests on the defendant's duties as an appointed qualified inspector and the affiant lacks that appointment and does not practice in that regulated field. ## Standard(s) of Review The case turns on the meaning of section 150.002's filing and qualification requirements, and New Millennium also argues the trial court did not abuse its discretion in accepting the Haisler affidavit (Brief on the Merits (Petitioner), PDF p. 7; Reply Brief (Petitioner), PDF p. 2). ## Legal Arguments **Whether the affiant was qualified.** **New Millennium (Petitioner):** Section 150.002 requires only that the affiant hold the same professional license category as the defendant and practice in the same area, not the same administrative appointment under separate Insurance Code requirements, and the trial court did not abuse its discretion in accepting Haisler (Reply Brief (Petitioner), PDF pp. 2, 4, 17). **Aran & Franklin (Respondent):** Under *Levinson Alcoser* and the current, more demanding statute the affiant must actively practice in the same area, here the specialized, regulated work of an appointed qualified inspector, and Haisler is not an inspector, does not practice in that field, and lacks the state registration (Brief on the Merits (Respondent), PDF p. 15). **Whether the certificate was filed "with the complaint."** **New Millennium (Petitioner):** The Rubiano affidavit, already on file in the proceeding when the new third-party petition was filed, meets the contemporaneous-filing requirement (Brief on the Merits (Petitioner), PDF p. 10; Reply Brief (Petitioner), PDF p. 2). **Aran & Franklin (Respondent):** Section 150.002 requires the affidavit to be filed "with the complaint," and relying on an affidavit from a separate, dismissed suit would write the contemporaneous-filing requirement out of the statute and let plaintiffs resurrect stale documents (Brief on the Merits (Respondent), PDF pp. 14-15). ## Stated Reasons the Court Should Take the Case New Millennium argued the court of appeals' decision is inconsistent with this Court's decision in *Melden & Hunt* and commits an error of law important to the state's jurisprudence (Brief on the Merits (Petitioner), PDF p. 9). Aran & Franklin argued the case presents no conflict and only routine enforcement of a gatekeeping statute, and that New Millennium failed twice to comply with its clear requirements (Brief on the Merits (Respondent), PDF p. 14). ## Oral Argument - **Same license, same area?** Asked whether an inspection engineer lacking an inspector appointment qualifies, counsel said yes: the license refers to the four listed professions, and he practiced in the same area. (Oral Argument, 0:09:07) - **Defining "area of practice."** Counsel defined it as wind and storm structural construction compliance and inspection, and said the right level of granularity, such as hospitals versus schools, is left to the trial court. (Oral Argument, 0:11:42; 0:15:09) - **Contemporaneous, not simultaneous.** Asked to address the filing requirement, counsel said contemporaneous does not mean simultaneous and conceded there is no case law on these unusual facts. (Oral Argument, 0:20:17) - **A third-party petition wrinkle?** Asked whether a third-party petition changes the analysis, the engineer's counsel said no, since the claims against it were dismissed, and incorporation by reference would not suffice. (Oral Argument, 0:24:18; 0:25:04) - **Why not what is already on file?** Asked why an affidavit already before the court could not suffice, the engineer's counsel said the statute's plain text requires filing the certificate with the complaint. (Oral Argument, 0:27:38) - **What the trial court considered.** The engineer's counsel said the trial court stated it considered only the Haisler affidavit, so the appeal challenged only Haisler's qualifications. (Oral Argument, 0:28:50) - **A clerical error?** Asked about a link to a website in the petition, counsel said the affidavit must be attached page for page, though a clerical slip might be treated differently. (Oral Argument, 0:29:52) - **Would an inspector satisfy it?** Asked why Haisler would fail the practice requirement even if an inspector qualified, counsel said nothing on the face of his affidavit shows he currently practices as an inspector. (Oral Argument, 0:31:34) ## Practice Area Tags construction-law, professional-liability ## Procedural Posture/Vehicle Petition for review from the Thirteenth Court of Appeals (Corpus Christi-Edinburg); granted March 27, 2026. Argued September 16, 2026. ## Amicus Involvement None noted --- Source: The SCOTX Report, https://scotxreport.com/cases/25-0374. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.