CTL Thompson Tex., LLC v. Morrison Homes & Sheffield Dev. Co
In CTL Thompson Tex., LLC v. Morrison Homes & Sheffield Dev. Co., 337 S.W.3d 437 (Tex. App.--Fort Worth 2011, pet. denied), Morrison bought land for a residential subdivision from Sheffield Development Company, and Sheffield received geotechnical engineering services from CTL and its professional engineers (collectively, "CTL"). Id. at 439.
Morrison sued Sheffield and CTL, alleging breach of warranty and negligence. Id. Morrison filed a certificate of merit with its original complaint. Id. at 440.
Sheffield filed a cross-claim seeking contribution and indemnity from CTL in case the plaintiff recovered damages from Sheffield, but did not file a certificate of merit with its cross-claim against CTL. Id. at 440, 444.
Sheffield's cross-claim did not seek to establish any additional factual allegations against CTL on the merits of the plaintiff's action, but sought by way of contribution and indemnity only to shift liability away from Sheffield if any was assessed. Id.
The court of appeals affirmed the denial of CTL's motion to dismiss Sheffield's cross-claim, reasoning that a "cross-claiming defendant may rely on the certificate of merit filed by the plaintiff and is not required to file a second, independent certificate of merit." Id. at 446.
Although there was no third-party plaintiff in that appeal, the court of appeals theorized in dicta that third-party plaintiffs were not entitled to rely on the plaintiff's affidavit because a plaintiff would not have filed a certificate of merit regarding the behavior of a third party whom the plaintiff had not sued Id.
As such, the Fort Worth court crafted a solution under which Tex. Civ. Prac. & Rem. Code section 150.002 would require third-party plaintiffs, but not cross-claimants, to file a certificate of merit. Id. at 445-46.