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Clay v. Mercado

Court of Appeals of Texas, Eighth District, El Paso

June 14, 2005

JESSE F. CLAY, III, Appellant
v.
MICHAEL A. MERCADO, Individually and d/b/a OCEAN GALLERY, INC., Appellee.

          Appeal from the 171st District Court of El Paso County, Texas (TC# 2003-1696)

          Before Barajas, McClure, and Chew, JJ.

          OPINION

          DAVID WELLINGTON CHEW, JUSTICE

         In this deceptive trade practices case, Appellant Jesse F. Clay, III sued Appellee Michael A. Mercado, Individually and d/b/a Ocean Gallery, Inc., for damages related to the sale of an aquarium system. In a bench trial, the trial court rendered a take-nothing judgment in favor of Mr. Mercado. On appeal, Mr. Clay challenges the legal and factual sufficiency of the evidence to support the trial court's findings that: (1) Mr. Mercado made no material misrepresentation to Mr. Clay which induced him to purchase the aquarium; and (2) Mr. Clay failed to mitigate his damages. We affirm.

         In February 2000, Mr. Clay purchased an aquarium system from Mr. Mercado's business, Ocean Gallery, Inc., after a period of negotiations back and forth about the proposed system. By letter, Mr. Mercado provided an amended proposal for the custom aquarium free-standing unit which included, among other things, the following: (1) “one all glass aquarium unit approx. 96 1/2 L x 24 1/2 W x 24 H (240 gallons);” (2) “custom smoked backdrop;” (3) “protein skimmer necessary for saltwater set ups;” (4) “fully automation of lighting system;” (5) “an assortment of stunning exotic saltwater fish. (between 15 to 20);” (6) “a stunning white marble Faux finish of your choice;” and (7) 'complete set up and installation.” In the proposal, Mr. Mercado stated, Awe guarantee that you will have a [sic] most beautiful free standing unit around.” Mr. Mercado also made the following statements: (1) “[w]e are [a] good standing member of the Southwest Interior Decorating Network, as well as the B.B.B.;” and (2) the company was offering Mr. Clay the aquarium system “in a full turnkey fashion, for $4, 700.00 with guaranteed results.”

         According to Mr. Clay's testimony, the aquarium unit was installed in his home sometime after February 2000 and before June 2000. A photograph of the unit shows that it was installed on a tile floor. Mr. Clay stated that he and Mr. Mercado mutually agreed to install the aquarium in that location. Mr. Clay testified that he was instructed to fill the tank slowly and then allow the tank to cycle for a minimum of three to four months before putting fish in the tank. He did not put any fish in the tank until December 2000 and those fish died. Mr. Clay spent $315 to replace the initial fish.

         In November 2001, Mr. Clay was at home watching television when he heard a crack or pop. He then heard a trickle or leak, and then all of a sudden the entire side of the aquarium tank blew out. The tank began spilling 220 gallons of saltwater, fish, and coral unto the floor. The fish in the tank died. The carpet was soaked and at trial, Mr. Clay testified that the bid to replace the carpet and repair the floor was $2, 752.06. After the tank blew out, Mr. Clay called Mr.Mercado and told him that the tank had failed. Mr. Mercado told him not to worry and that he would take care of it. Mr. Clay stated that Mr. Mercado took the aquarium back and returned the refurbished unit in January or February 2002. When the unit was redelivered, Mr. Clay asked that it be left on his covered back porch where it has remained. Even though it was reportedly fixed, Mr. Clay has not put water into it since it was returned to him. Mr. Clay explained that he wanted to make sure it did not leak and was concerned about the plastic reinforcement on the sides of the tank. Mr. Clay tried to discuss the matter with Mr. Mercado on numerous times, but after a while he gave up on getting an answer from him. Mr. Clay has never been able to get the aquarium functioning again.

         It was only after his problems with the tank that Mr. Clay determined the aquarium system he had received was different from the system he thought he had purchased pursuant to Mr. Mercado's proposal. Mr. Clay testified that he wanted a glass aquarium and had thought he was purchasing a glass aquarium, as stated in the proposal, but the aquarium he received was made of plastic acrylic. Mr. Clay stated that he first became aware that the aquarium was acrylic, not glass, when it broke in his home. The proposal also stated it would be a 240-gallon aquarium, but Mr. Clay later discovered that it was actually a 220-gallon aquarium. Mr. Clay also complained that he did not receive a custom smoke backdrop, a protein skimmer, a fully automated lighting system with the aquarium, or a stunning white marble faux finish. Although the proposal included an assortment of stunning exotic saltwater fish, Mr. Clay testified that the first batch of fish died within ten days and the second batch died within a week. Further, the proposal stated that the aquarium system would be delivered in a full “turnkey” fashion with guaranteed results, which Mr. Clay understood to mean that the tank would be up and functioning, completely set up, and the fish would be alive. After filing his lawsuit, Mr. Clay also discovered that Ocean Gallery was not a corporation in Texas, but rather is an assumed named for Mr. Mercado. Mr. Clay stated that the representation that the business was a corporation was important to him because “I wouldn't have to worry about it if I had problems. They would take care of it.”

         At trial, Mr. Mercado's testimony differed considerably from Mr. Clay's account of events. Mr. Mercado testified that he has been operating Ocean Gallery for about eight years and conceded that through a misunderstanding he thought he could use the business name Ocean Gallery, Incorporated. Mr. Mercado explained that in his proposal the exact quantity of water the aquarium could hold was not guaranteed, but rather was an approximation. According to Mr.Mercado, the aquarium system sold to Mr. Clay included a custom smoke backdrop, a protein skimmer, and a fully automated lighting system. Mr. Mercado agreed that the white marble faux finish was not done on the unit, but this change had been at the request of Mrs. Clay who had instructed him to paint it to match the interior walls of the house instead.

         Mr. Mercado agreed that the proposal stated that the aquarium would be “all glass, ” but he stated this was a typographical error. According to Mr. Mercado, he told Mr. Clay that he was going to give him an acrylic aquarium. Mr. Mercado stated that his company does not build glass aquariums and has never built glass aquariums. He also stated that Mr. Clay understood he was getting a custom aquarium made out of acrylic and saw that it was an acrylic aquarium when he went to Mr. Mercado's aquarium manufacturing facility on Lockheed to inspect the aquarium prior to installation. According to Mr. Mercado, he extensively discussed the benefits of acrylic versus glass with Mr. Clay.

         According to Mr. Mercado, he installed the aquarium in March 2000. At the time of delivery, Mrs. Clay was practicing Feng Shui and wanted to place the aquarium in a certain location on a tile floor. Mr. Mercado told them that it would leak because the floor was uneven. They both appeared to understand his concern, but they wanted him to install it there anyway. Mr. Mercado explained that if the floor is not level, pressure points will develop. Mr. Mercado does not normally place aquariums on tile floor because tile is not level. Mr. Mercado checked the tile floor in Mr. Clay's home and found that it was not level. However, because the Clays were so persistent, he installed the aquarium at that location even though he knew it would leak.

         In Mr. Mercado's opinion, he delivered the aquarium in “turnkey” fashion, that is a complete set up and installation. After turning over the aquarium, the client must begin to service it. Mr. Mercado explained that all clients are instructed that the tank water needs to be cycled. For a saltwater system, the salt is cycled out in order to balance out the salinity level. Within two or three days, the starter fish are then introduced to establish beneficial bacteria (ammonia and nitrate). Mr. Mercado stated that he explains to his clients that the starter fish are going to die in the cycling process. Mr. Mercado also stated that it takes four to six weeks for the tank to cycle and that after it cycles and nitrate level balances, the desired fish are introduced.

         After the leak developed in the aquarium, Mr. Mercado refurbished the unit and, per Mr.Clay's instructions, left it on the back porch. Mr. Clay told Mr. Mercado not to worry about the carpet and he did not complain about receiving an acrylic aquarium instead of a glass aquarium. The last time Mr. Clay and Mr. Mercado spoke, Mr. Clay had not done anything with the aquarium and wanted Mr. Mercado to install the aquarium as a fresh water system instead and for free. Mr. Mercado also testified that his representation that he was a good standing member of the Southwestern Interior Decorating Network and the B.B.B. was a correct statement in the 2000 letter proposal.

         Basilio Villegas, an employee of Ocean Gallery, testified that he built Mr. Clay's aquarium. Mr. Villegas has twenty years experience doing acrylic work and fabricating aquariums. He stated that the aquarium was returned in order to be refurbished. He had never had one fail before and remembered this aquarium because it was the only one that has ever been returned. Mr. Villegas recalled that when the aquarium was returned, it was bowed out in the middle and in the bottom. Mr. Villegas has never manufactured a glass aquarium, but believed acrylic is stronger than glass. Although Mr. Villegas had never before had to refurbish an aquarium, the aquarium was retested after refurbishment and he was satisfied with the product when it left the shop again.

         In Mr. Clay's testimony, he agreed that his wife had attended a Feng Shui class around the time that the aquarium was installed, but denied that her interest in Feng Shui was the deciding factor in placing the aquarium on the tile floor. According to Mr. Clay, Mr. Mercado never advised him not to place the aquarium on the tile floor because the floor was uneven. Mr.Mercado also never told him that the aquarium would have an acrylic tank even though the proposal stated it would be made of glass. Mr. Clay acknowledged that he visited the facility where the tank was manufactured, but at that time the tank was covered in paper and he thought the tank was made out of glass.

         Following the bench trial, the trial court entered a take-nothing judgment in favor of Mr.Mercado. Upon request, written findings of fact and conclusions of law were prepared and ...


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