In CTL Thompson Texas, LLC v. Morrison Homes, 337 S.W.3d 437, 441 (Tex. App.--Fort Worth 2011, pet. denied), Morrison sued Sheffield and CTL, alleging professional negligence against CTL. Morrison Homes, 337 S.W.3d at 439.
Morrison filed a certificate of merit with his original petition. Id. CTL moved to dismiss Morrison's claims. The trial court denied the motion to dismiss, and CTL did not perfect an appeal. Id.
Morrison then amended its petition to allege additional claims against CTL. CTL's second motion to dismiss asserted that the certificate filed by Morrison--the same one CTL had challenged in the first motion--was inadequate.
Morrison argued that CTL had waived any further complaints about the certificate because CTL had not appealed the denial of the first motion. Id. at 440.
The Fort Worth Court of Appeals opined that an interlocutory order, not timely appealed, is not reviewable by the appellate court. Id. at 441.
The Court then determined that it did not have jurisdiction over the first order denying dismissal because it had not been appealed. Id.
The Fort Worth court then determined that it did not possess jurisdiction over the trial court's July 6, 2010 order denying CTL's second motion to dismiss, holding "to the extent the July 6, 2010 order simply rules on the same matter already ruled on by the trial court in the July 3, 2008 order, it is not an appealable order." Id. at 442.
In sum, Morrison Homes sued Sheffield Development Company ("Sheffield") for claims arising out of Sheffield's sale of land to Morrison Homes. Id. at 439.
Morrison Homes also sued several professional defendants (collectively, "CTL"), who had provided geotechnical engineering services for Sheffield, alleging negligence, professional negligence, and breach of warranty, and filed a certificate of merit with its original petition. Id. at 439-40.
Sheffield then filed a cross-claim seeking contribution and indemnity from CTL, but did not file a certificate of merit. Id. at 440, 444.
The Fort Worth court affirmed the trial court's denial of CTL's motion to dismiss Sheffield's cross-claim, holding that Sheffield, a cross-claimant, was not required to file a certificate of merit under section 150.002. Id. at 445-46.
The court reasoned 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.
Conversely, the court pointed out, "when a defendant files a third-party petition against a licensed or registered professional that the plaintiff has not sued, then obviously the plaintiff has not filed a certificate of merit concerning the conduct of that licensed or registered professional; consequently, the defendant acting as third-party plaintiff seeking contribution and indemnity must do so." Id. at 445-46.