Ed Gutierrez, Individually and dba J.E. & Associates v. Classic Reflections Pools, Inc.--Appeal from 431st District Court of Denton County (majority)
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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 ---------FROM THE 431ST DISTRICT COURT OF DENTON COUNTY ---------- MEMORANDUM OPINION1 ---------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. ยง 150.002 (West 2007). This court reversed the trial court holding that the trial court abused its discretion by dismissing the case. Murphy, No. 0211-00108-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 certificateof-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 3
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