The Subrogation Strategist

In Ryan Eng’g, Inc. v. Mond Homeowners Ass’n, Inc., No. 14-23-00960-CV, 2025 Tex. App. LEXIS 1681, the Court of Appeals of Texas (Court of Appeals) affirmed a trial court ruling denying the Motion to Dismiss of defendant Ryan Engineering Inc. (Ryan) with respect to the professional negligence claim asserted by the plaintiff, Mond Homeowners Association, Inc. (the Mond). Ryan argued that the Mond’s certificate of merit, filed pursuit to Tex. Civ. Prac. & Rem. Code Ann. § 150.002(f), made “collective assertions” of negligence against Ryan and two other defendants. The Court of Appeals rejected Ryan’s argument, finding that the affidavit made specific allegations against Ryan.

By way of background, the Mond is a residential condominium building in Houston, Texas.  Defendants Ryan, Henderson Rogers Structural Engineering LLC (Henderson) and EDI International, PC (EDI) all took part in designing, engineering, and/or constructing various parts of the Mond. The Mond alleged that Ryan had a nondelegable duty to supervise and control all of the construction activities relating to the residential units and common elements. At issue was the alleged improper installation of window and door systems. According to the Mond, the “window glass curtain wall design” - which was prepared by Ryan and reviewed by EDI and Henderson - did not match the original design specifications prepared by EDI. The Mond alleged that the failure to conform to the design specifications resulted in, among other things, falling glass, adverse inclusions, vibrations and structural damage to the glass doors and tracks. 

The Mond included the affidavit of a licensed architect and structural engineer with its petition pursuant to Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a). The code requires a claimant to file the affidavit of a third-party licensed professional setting out the negligence of the licensed professional defendant. Ryan filed the Motion to Dismiss arguing that the affidavit, i.e., certificate of merit, filed by the Mond improperly contained collective claims of negligence. The trial court denied the motion and Ryan filed an interlocutory appeal. 

Ryan argued that the trial court abused its discretion because the architect’s affidavit made collective assertions of negligence—not specific. The code requires that the affidavit set forth “specifically” for each theory of recovery for which damages are sought the negligence or other error of the licensed professional in providing the professional service and the factual basis for each claim. 

The Court of Appeals explained that while the affidavit must describe the facts giving rise to the claim, the plaintiff is not required to “marshal all of his evidence” and the code does not foreclose the defendant from challenging the sufficiency or admissibility of the evidence later on. The Court of Appeals noted, however, that when there are multiple professional defendants—as was the case here—the certificate of merit “should specifically address the conduct of the professional who provided the service at issue and identify each defendant and that defendant’s specific conduct.” Thus, the certificate of merit must let the court determine what each defendant did wrong or opine that multiple defendants were involved in all aspects of the work.

The Court of Appeals reviewed the licensed architect’s affidavit and rejected Ryan’s claim that the affidavit only made global assertions and failed to specifically identify Ryan’s conduct. The architect found, based on the documents and information reviewed, that Ryan was negligent in the design of the window curtain wall system and its coordination, review and oversight of the other defendants. Further, Ryan’s design did not match defendant EDI’s original design specifications and the wrong curtain wall system series was installed. The Court of Appeals found that these statements provided a specific factual basis for the Mond’s negligence claims against Ryan. Thus, the court affirmed the trial court’s denial of Ryan’s motion to dismiss.

This ruling should serve as a reminder to subrogation professionals that, in Texas, if a certificate of merit is required with your claim, it should be made with specificity against each defendant.