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Click here for the full text of this decision FACTS:In February 2000, Jesse F. Clay III purchased an aquarium system from Michael A. Mercado business, Ocean Gallery Inc., after a period of negotiations back and forth about the proposed system. By letter, 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, Mercado stated, “we 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 Clay the aquarium system “in a full turnkey fashion, for $4,700.00 with guaranteed results.” Clay received an acrylic aquarium. Clay alleged that the fish initially placed in the aquarium died and the side of the aquarium blew out. The trial court found, inter alia, that: 1. uncontroverted expert testimony indicated that acrylic is 10 times stronger than glass, 12 times the better insulator and 5 times clearer; In addition, Plaintiff visited the plant where said aquarium was being built; 2. March 2000, Defendant delivered to Plaintiff an acrylic, 230 gallon plus, free standing custom aquarium; 3. Prior to installation, Defendant informed Plaintiff that an aquarium should not be installed on a tile floor; 4. November 2001, a leak developed; 5. Plaintiff was home when the leak began, therefore water damage was minimal; 6. January 2002, the aquarium was refurbished by Defendant, and Defendant was instructed by Plaintiff to leave the aquarium outside in the back porch, exposed to the elements; 7. June 18, 2002, Plaintiff began calling Defendant requesting Defendant to set up the tank again. In its conclusions of law, the court determined that: 1. There was no material misrepresentation made by Defendant to Plaintiff which induced Plaintiff to purchase the aquarium; and 2. Plaintiff failed to mitigate his damages. The trial court rendered a take-nothing judgment in favor of Mercado. HOLDING:Affirmed. The court concludes that there was evidence at trial that supports the finding. Mercado testified that the amended proposal stated all-glass aquarium, but Clay knew that he would be receiving an acrylic aquarium. Clay visited the manufacturing facility where only acrylic aquariums were being manufactured. With regard to the size of the aquarium, the court observes that the amended proposal states that the size was only an approximation. While Clay testified that he understood “turnkey” to mean complete installation and with live fish, Mercado testified that he instructs all of his clients about the dynamics of an aquatic ecosystem and the necessary death of the starter fish in the process. Mercado admitted that he had misrepresented the corporate statute of Ocean Gallery Inc., however, the evidence showed that this misrepresentation was not material and was in no way the cause in fact of Clay’s damages. OPINION:Chew, J.; Barajas, McClure and Chew, JJ.

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