David Mathieu v. Rizzo Pools et al. (2011)

MEMORANDUM OF DECISION

I

PROCEDURAL HISTORY

The plaintiff, David Mathieu, commenced a civil action against defendant Rizzo Pool Company (Rizzo) and Plastic Development Company (PDC).¹  The December 23, 2009 second revised complaint alleges seven causes of action against Rizzo:  Count 1 Fraud;  Count 3 Negligent Misrepresentation;  Count 5 Breach of Contract;  Count 7 Violation of the Unfair Trade Practices Act (CUTPA), General Statutes § 42–110 et seq.;   Count 9 Breach of Express Warranties, General Statutes § 42a–2–313;  Count 11 Breach of Implied Warranty of Merchantability, General Statutes § 42a–2–314;  Count 13 Breach of 15 U.S.C. § 2301 Magnuson–Moss Act. In a pleading dated February 11, 2010 Rizzo joined issue with the complaint through its answer and counterclaim.²  Briefly stated, the dispute concerns a PDC spa which was sold by Rizzo to Mathieu in June 2007.   Mathieu alleges that the spa had defects, mechanical problems and was missing parts.   He alleges that Rizzo misrepresented that the spa was in working condition.   He further claims that Rizzo unlawfully refused to accept the return of the spa and refund the purchase price.

The trial was held on December 16, 2010, January 19, 2011, January 20, 2011, January 21, 2011 and March 23, 2011.   The parties introduced witness testimony and exhibits.   Thereafter the parties filed post-trial briefs and proposed findings of facts.

II

DISCUSSIONA. FACTS

From the credible evidence presented at trial the court finds the following relevant facts.   The plaintiff David Mathieu resides at 35 Bull Hill Road, Colchester, Connecticut.   He is employed as a mechanical engineer at his design and engineering firm.

The defendant, Rizzo Pool Company is in the business of selling spas and other items at its sales office located at 3388 Berlin Turnpike, Newington, Connecticut.   Rizzo also has a service department and construction company.   The construction portion of the company builds swimming pools.   It is located at 338 Stamm Road, Newington, Connecticut.   Albert Rizzo Jr. is the owner of the company.   Mr. Rizzo does not oversee the day to day operations of the sales office, he delegates that responsibility to his employees.   Mr. Rizzo works primarily in the construction part of the business.

In the year of 2007, Andrew Hefferon was employed by Rizzo as the retail store manager.   Mr. Hefferon had years of prior experience selling spas and was very familiar with the mechanics of a PDC spa unit.

On June 15, 2007, Mr. Mathieu came to the retail store and spoke to Mr. Hefferon.   Mr. Mathieu expressed an interest in purchasing a spa.   During this initial conversation Mr. Mathieu stated that he previously owned a spa and he was dissatisfied with it.   The manufacturer of that spa was Jacuzzi.   Mr. Mathieu indicated that he had returned the Jacuzzi spa to the seller.   Mr. Hefferon informed him that Rizzo had a no return policy on large ticket items, like spas.   On June 15, 2007 when Mr. Mathieu was in the store there were a number of signs throughout the showroom which informed customers of the no return policy.

Mr. Mathieu expressed an interest in a PDC Aruba model spa.   That particular spa was considered a high end unit which could accommodate multiple persons at the same time.   The PDC unit had been used by Rizzo as a display model for approximately 18 months.   When Mr. Mathieu looked at the spa, it had been removed from the showroom floor and put into storage.   Because of Mr. Mathieu's interest in the spa he was given a written price quote of $5,000.00 plus tax.   (Plaintiff's Exhibit 1.) This was a discounted price and was intended to be a cash sale of a demonstration model.   Mr. Mathieu left the store without completing the purchase.

Thereafter, Mr. Mathieu placed a phone call to Mr. Hefferon during which he expressed a continuing interest in the PDC spa.   He requested a break down of the exact cost of the unit.   In response, Mr. Hefferon prepared a second quote.  (Plaintiff's Exhibit 2.) This quote specified a sales tax of $309.00 and a Visa charge card charge of $150.00 for a total sales price of $5,459.00.   At Mr. Mathieu's request the document was faxed to him.   Mr. Rizzo instructed Mr. Hefferon to charge $150.00 for the use of the credit card because the price quoted was intended to be a discounted cash sale.   Mr. Rizzo later learned that this practice was not appropriate.³  Mr. Mathieu did not object to the credit card surcharge.   This is the only time that Rizzo charged a customer a credit card surcharge.   In a subsequent telephone conversation, Mr. Mathieu provided a credit card number.   Mr. Hefferon was then able to create what Rizzo refers to as a “house account.”   The effect of which is that Mr. Hefferon was able to generate a transaction which demonstrates the intent to purchase the unit which removed it from the inventory of products available for sale.   Several Rizzo documents were created at that point in time.  (Plaintiff's Exhibits 11, 12.)   This transaction took place on or about June 24, 2007.   However, Mr. Mathieu's credit card was not charged at that point in time.

On June 30, 2007, Mr. Hefferon and his assistant delivered the spa to Mr. Mathieu's home in Colchester, Connecticut.   Mr. Mathieu was present at the time of delivery.   The spa had been previously examined by Mr. Hefferon and it was intact with all the necessary components in place, including the pumps.   Mr. Mathieu was given a number of documents at the time of delivery, including the owners manual and warranty certificate.  (Defendants Exhibits E, F.) A charge in the amount of $5,459.00 was also processed on Mr. Mathieu's Visa credit card.  (Plaintiff's Exhibit 3.)

It was the responsibility of Mr. Mathieu to retain an electrician to make the necessary electrical connections to the spa.   At the time of the delivery, Mr. Mathieu showed Mr. Hefferon an electrical box and wiring adjacent to the location where the spa was to be placed.   This electrical service was apparently used by the Jacuzzi spa that Mr. Mathieu previously owned.   Mr. Hefferon informed Mr. Mathieu that the service in place was not compatible with a PDC spa.   He indicated that he would return to inspect the spa after an electrician performed the necessary work.   An electrician, who was a friend of Mr. Mathieu's, performed the work for him as a favor.   This individual connected the PDC spa to the incompatible Jacuzzi spa wiring.

On Sunday, July 1, 2007, Mr. Mathieu contacted Mr. Hefferon by telephone and informed him that the spa was wired but not operational.   Mr. Hefferon proceeded to the residence to inspect the PDC spa.   Mr. Mathieu was not at his home at that time, but his wife was present.   Upon examination, Mr. Hefferon discovered that electrical components, specifically a circuit board known as a “half-can” was in his words “fried” and “charred black.”   The spa was not operational and the electrical circuitry was damaged.   Mr. Hefferon shut off the power to the spa in the interest of safety.   He then explained to Mrs. Mathieu what had occurred.

Later in the day, Mr. Hefferon had another telephone conversation with Mr. Mathieu.   He informed him that the spa had been improperly wired causing it to be damaged.   Mr. Hefferon indicated that he would obtain a replacement electrical component from PDC on Monday, and fix the damaged spa.   Because of the July 4th holiday, the PDC company was closed for the entire week, and as a result Mr. Hefferon was unable to obtain the replacement electrical components.   In a subsequent conversation, Mr. Mathieu was advised of the situation.   Mr. Mathieu became very upset and informed Mr. Hefferon that he wanted to return the spa to Rizzo.   Mr. Hefferon informed his supervisor Gordon McGregor of the situation.   Mr. McGregor contacted Mr. Mathieu in an effort to assure him that the parts would be obtained as soon as possible, and the spa repaired.

On or about July 10, 2007, Mr. Hefferon returned to the residence with the replacement parts.   Mr. Hefferon performed the work, but observed that the faulty wiring had not yet been corrected.   In a conversation that followed, Mr. Mathieu was instructed to have an electrician wire the spa in the appropriate manner.

On July 13, 2007, Mr. Mathieu called Mr. Hefferon and informed him that the electrician had not yet performed the necessary work.   Thereafter, on or about July 18, 2007 Mr. Mathieu telephoned and informed Mr. Hefferon that the spa was operational but the blower unit was not working.   Mr. Hefferon indicated that he would order a new blower from PDC and replace it.   The purpose of the blower is to make the water bubble.

On or about July 21, 2007 Mr. Hefferon became aware that the blower had been received by Rizzo's Stamm Road facility on July 19, 2007.   An appointment was made with Mr. Mathieu to replace the blower, however, it was cancelled because of foul weather.   On August 3, 2007, Mr. Mathieu called and spoke with the Assistant Retail Manager, Jon Greenwood.   Mr. Mathieu inquired about the installation of the blower and also indicated that the spa lights were now not operational.   At a subsequent point in time, the blower and lights were repaired.

The failure of the half can, blower and lights were caused by the improper wiring and use of the PDC spa.   Mr. Mathieu was not charged for the corrective work rather these items were covered under the PDC warranty.  (Defendant's Exhibit E.)

On August 21, 2007, Mr. Mathieu sent a certified letter to Mr. Hefferon.   (Plaintiff's Exhibit 8.) Mr. Mathieu expressed his strong dissatisfaction with the PDC spa and the service from Rizzo.   Mr. Mathieu demanded that the spa be returned with a full refund or he would file a lawsuit.   In a letter dated August 29, 2007, Mr. Rizzo responded to the correspondence.  (Plaintiff's Exhibit 9.) He indicated in part that all future spa parts would be ordered immediately and that he would guarantee that the parts would be installed within 48 hours of their receipt.   Mr. Rizzo explained in his letter that once the spa had been “purchased, delivered and used by you, it is impossible to take it back.”   Id.

Mr. Mathieu made an attempt to have the spa purchase cancelled on his Visa credit card but was unsuccessful.   The PDC spa remained at Mr. Mathieu's residence until December 2009.   During the period of September 2007 and December 2009, other problems occurred to the spa but they are unrelated to the issues presented in this civil action.   In late December 2009, Mr. Mathieu prevailed upon PDC to accept delivery of the spa.  (Defendant's Exhibits T, U.) PDC agreed that they would fix any problems covered under warranty and charge Mr. Mathieu for any non-warranty repairs.

In February 2009, Mr. Mathieu sent an e-mail to Mr. Rizzo.   In relevant part, Mr. Mathieu stated that he was going to file suit;  make a complaint to the Better Business Bureau, “BBB;” use the web to broadcast issues to blogs and consumer websites;  create a website, and purchase full-page newspaper ads.   (Defendant's Exhibit V.) Mr. Mathieu did file his complaint with the BBB and brought suit but he did not follow through on the remaining courses of action.

B. PLAINTIFF CLAIMS

The plaintiff has alleged seven causes of action against the defendant.   The court has applied the relevant law to the proven facts and finds that the plaintiff has not sustained his burden of proof on any of his claims.

The credible evidence demonstrates that Mr. Mathieu purchased a spa which was not missing any components.   At the time of the purchase he was aware of the fact that it was not returnable and he accepted that term as a condition of the sale.   It was Mr. Mathieu's responsibility to have the spa connected to a compatible electrical source.   This did not occur, and as a result the spa sustained damages to the electrical components previously discussed.   Rizzo replaced the damaged parts at no cost to Mr. Mathieu.   Rizzo performed all of its obligation under the contract.   Accordingly, judgment shall enter in favor of the defendant on the plaintiff's claims.

C. DEFENDANT'S COUNTERCLAIM

Rizzo has asserted a defamation claim against Mr. Mathieu.   The court has applied the relevant law to the proven facts and finds that Rizzo has not sustained his burden of proof on this claim.

The credible evidence discloses that Mr. Mathieu made representations that he would make defamatory statements about Rizzo, but he never did.   Accordingly, judgment shall enter in favor of the plaintiff on the counterclaim.

III.

CONCLUSION

Judgment shall enter in favor of the defendant on the plaintiff's claims.   Judgment shall enter in favor of the plaintiff on the counterclaim.

So ordered.

BY THE COURT

PETER EMMETT WIESE, JUDGE

FOOTNOTES

FN1. The claims made against PDC were withdrawn on December 13, 2010..  FN1. The claims made against PDC were withdrawn on December 13, 2010.

FN2. The counterclaim alleges defamation..  FN2. The counterclaim alleges defamation.

FN3. The $150.00 was never refunded to Mr. Mathieu because Mr. Rizzo felt that he had already compensated him through other services provided at no cost..  FN3. The $150.00 was never refunded to Mr. Mathieu because Mr. Rizzo felt that he had already compensated him through other services provided at no cost.

Wiese, Peter E., J.