                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00118-CV


ED GUTIERREZ, INDIVIDUALLY                                           APPELLANT
AND DBA J.E. & ASSOCIATES

                                        V.

CLASSIC REFLECTIONS POOLS,                                             APPELLEE
INC.


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          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION1

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      Appellant Ed Gutierrez, individually and d/b/a J.E. & Associates, appeals

the trial court’s order denying his motion to dismiss appellee Classic Reflections

Pools, Inc.’s cross-claim. In two issues, Gutierrez contends that the trial court

abused its discretion by denying his section 150.002 certificate-of-merit motion to


      1
       See Tex. R. App. P. 47.4.
dismiss because: (1) a certificate of merit was not timely filed by Classic, a

cross-claimant at the trial court, and (2) a certificate of merit was not filed by the

original plaintiff below and the trial court already dismissed the plaintiff’s claims

for failure to file a certificate of merit; thus, dismissal of cross-claimant Classic is

mandatory under this court’s holding in CTL/Thompson Texas, LLC v. Morrison

Homes. 337 S.W.3d 437, 441 (Tex. App.—Fort Worth 2011, pet. denied). We

will affirm.

       This appeal arises out of a suit brought against Gutierrez by Ken and

Deanna Murphy. The Murphys sued Gutierrez and Classic for the faulty design

and construction of a swimming pool at the Murphys’ home. Gutierrez, as the

engineer, designed the pool, and Classic constructed the pool.

       In this case’s companion case, Murphy v. Gutierrez, No. 02-11-00108-CV,

at *1 (Tex. App.—Fort Worth, July 12, 2012, no. pet. h.), the trial court dismissed

the Murphys’ claims because the Murphys failed to file a certificate of merit

contemporaneously with their original petition.       See Tex. Civ. Prac. & Rem.

Code. Ann. § 150.002 (West 2007). This court reversed the trial court holding

that the trial court abused its discretion by dismissing the case. Murphy, No. 02-

11-00108-CV, at *1. Specifically, we held that Gutierrez substantially invoked the

judicial process in this case and waived his right to assert a section 150.002

certificate-of-merit motion to dismiss. Id.




                                           2
      Because our holding in this case’s companion case relieves the certificate-

of-merit requirement by the original plaintiffs in this case, the foundation of both

of Gutierrez’s issues is eviscerated. Thus, we overrule both of Gutierrez’s issues

and affirm the trial court’s order denying his motion to dismiss appellee Classic

Reflections Pools, Inc.’s cross-claim.




                                                   BILL MEIER
                                                   JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DELIVERED: July 12, 2012




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