Court of Appeals of Texas, Eighth District, El Paso
JESSE F. CLAY, III, Appellant
MICHAEL A. MERCADO, Individually and d/b/a OCEAN GALLERY, INC., Appellee.
from the 171st District Court of El Paso County, Texas (TC#
Barajas, McClure, and Chew, JJ.
WELLINGTON CHEW, JUSTICE
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.
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
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.
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
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.”
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.
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.
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.
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.
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
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.
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.
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