




02-11-118-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00118-CV
 
 



Ed Gutierrez, Individually and dba J.E. &
  Associates


 


APPELLANT




 
V.
 




Classic Reflections Pools, Inc.


 


APPELLEE



 
 
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FROM THE 431st
District court OF Denton COUNTY
----------
MEMORANDUM
OPINION[1]
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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 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.
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




[1]See Tex. R. App. P. 47.4.


