Vezina v. Nautilus Pools, Inc., 10314

• Decision Date: 16 June 1992
• Docket Number: No. 10314,10314
• Citation: 27 Conn.App. 810,610 A.2d 1312
• Court: Connecticut Court of Appeals
• Parties: Robert L. VEZINA et al. v. NAUTILUS POOLS, INC.

Page 1312

610 A.2d 1312

27 Conn.App. 810

Robert L. VEZINA et al. v. NAUTILUS POOLS, INC.

No. 10314.

Appellate Court of Connecticut.

Argued March 26, 1992.

Decided June 16, 1992.

[27 Conn.App. 811] John C. Monroe, Waterbury, for appellants (plaintiffs).

Brian Thomas Walsh, New Britain, for appellee (defendant).

Before NORCOTT, LAVERY and LANDAU, JJ.

LANDAU, Judge.

This is an appeal by the plaintiffs ¹ from a judgment of the trial court, rendered after a trial to the court, awarding them damages in the amount of $250. The plaintiffs claim that the trial court improperly (1) failed to apply the parol evidence rule, (2) found that the plaintiffs failed to sustain their burden of proving a breach of any warranties and any violation of the Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110b et seq.; (3) failed to award attorney's fees, disbursements, or punitive damages, and (4) computed damages. We agree with the plaintiffs' fourth claim only.

The following facts are necessary to our resolution of this appeal. In 1986, the plaintiffs responded to an advertisement placed by the defendant for the sale of a swimming pool for $988 and were visited by one of the defendant's sales representatives, Scott Zirkus. As a result of this meeting, the plaintiffs purchased an aboveground pool from the defendant at a cost of over $7000. The parties entered into a sales contract that contained an integration clause stating that "this contract and agreement contains the entire agreement between the parties hereto, and all prior negotiations, representations, agreements and understandings of every name, nature and description have been merged into or superseded by this brief." Subsequent to the installation of the pool, the plaintiffs instituted an action against the defendant alleging (1) violation of CUTPA, (2) breach of contract, (3) breach of implied warranties, and (4) negligence in the installation of the pool. The trial court found in favor of the defendant on the first, third and fourth counts of the plaintiffs' complaint and in favor of the plaintiffs on the second count of their complaint, and awarded them $250.

I

The plaintiffs' first claim involves the applicability of the parol evidence rule. In relation to this claim, the plaintiffs allege that Zirkus, in his capacity as the defendant's representative, made several representations to induce them to purchase the pool. Specifically, they allege that he represented that (1) the pool would be installed with a "bowled center," ² (2) the metal decking would contain an air coolant system, (3) the pool wall would accommodate a standard twenty-four foot pool cover, (4) the defendant would provide a "showplace installation," (5) service calls would be made within forty-eight hours, and (6) the written contract would contain a twenty year, transferable, prorated limited manufacturer's warranty. The plaintiffs claim that the trial court improperly concluded that the parol evidence rule did not apply to the representations made by Zirkus relating to the installation of the pool, the pool decking, the pool cover and the forty-eight hour service. We disagree.

It often has been noted that the parol evidence rule is not a rule of evidence, but a substantive rule of contract law. Security Equities v. Giamba, 210 Conn. 71, 77-78, 553 A.2d 1135 (1989); Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851 (1930); see also 2 Restatement (Second), Contracts § 213, comment (a); 3 A. Corbin, Contracts § 573. The rule "provides that '[w]hen two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings "The general rule with regard to appeals of this nature is that the judgment appealed from will not be reversed in matters of fact unless it clearly appears to be erroneous. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980)." Web Press Services Corporation v. New London Motors, Inc., 203 Conn. 342, 345-46, 525 A.2d 57 (1987). In its memorandum of decision, the trial court stated that "any inaccurate representations of Mr. Zirkus were not material in view of the express provisions of the parties' contract." Thus, the parol evidence rule is not in issue because once the trial court made the determination that the representations were not material nothing to which the parol evidence rule could apply remained. Only where the representations are deemed to be material by the trial court, and the remaining requirements for the admission of parol evidence have been satisfied, will such evidence be admitted. The trial court thoroughly reviewed the sales contract before reaching its conclusion. There is nothing in the record to indicate that the trial court was clearly erroneous in concluding that the representations were not material.

                and negotiations will not be admitted for the purpose of varying or contradicting the writing.'   3 Corbin, Contracts § 573."  Greene v. Scott, 3 Conn.App. 34, 36, 484 A.2d 474 (1984).   The rule is premised on the idea that " 'when the parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed, that the whole engagement of the parties, and the extent and manner of their understanding, was reduced to writing.   After this, to permit oral testimony, or prior or contemporaneous conversations, or circumstances, or usages [etc.], in order to learn what was intended, or to contradict what is written, would be dangerous and unjust in the extreme.' "  TIE Communications, Inc. v. Kopp, 218 Conn. 281, 288, 589 A.2d 329 (1991), quoting Glendale Woolen Co. v. Protection Ins. Co., 21 Conn. 19, 37.   Whether there is a complete integrated agreement is "to be determined by the court as a question preliminary ... to application of the parol evidence [27 Conn.App. 814] rule."   2 Restatement (Second), Contracts §§ 209(2), 210(3);  Suburban Sanitation Service, Inc. v. Millstein, 19 Conn.App. 283, 287, 562 A.2d 551 (1989)
                

II

The plaintiffs next challenge the trial court's finding that they failed to meet their burden of proof on the breach of any warranties and the CUTPA claims. They argue that Zirkus' representations relating to the installation of the pool and the manufacturer's warranty constituted express warranties. They further argue that the installation of the pool skimmer breached an implied warranty of merchantability and that that breach and the defendant's failure to provide a bowled center to the pool, a special deck coolant system, forty-eight hour service, and a transferable prorated warranty satisfy all three requirements for a CUTPA cause of action. We disagree.

"Whether a plaintiff sustains [the] burden of proof is a question of fact for the trier. Capmar Construction, Inc. v. Coyle, 4 Conn.App. 579, 580, 495 A.2d 1115 (1985). We are limited to an examination of the record to determine if it contains sufficient evidence to support the decision of the trial court. Northeast Gunite & Grouting Corporation v. Chapman, 20 Conn.App. 201, 203-204, 565 A.2d 256 (1989). This court is entitled to presume that the trial court properly considered all of the evidence that was before it. Chomko v. Patmon, 19 Conn.App. 483, 563 A.2d 311, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989)." Dorsey v. Mancuso, 23 Conn.App. 629, 632-33, 583 A.2d 646 (1990), cert. denied, 217 Conn. 809, 585 A.2d 1234 (1991).

A

EXPRESS WARRANTY

We next consider the plaintiffs' claim that the court should have found a breach of an express warranty. According to the plaintiffs, the defendant's representative The plaintiffs bear the burden of proving the existence of an express warranty. Because the question of whether an express warranty exists is one of fact, we will not reverse a court's finding on this matter unless it is clearly erroneous. Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., 184 Conn. 10, 17, 441 A.2d 43 (1981). Here, we cannot find that the court's conclusion was clearly erroneous. See Web Press Services Corporation v. New London Motors, Inc., supra.

                made various oral statements relating to the installation of the pool and a manufacturer's warranty that amounted to an express warranty under General Statutes § 42a-2-313(1)(a).   That section provides that an express warranty is created by "[a]ny affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain...."  Subsection (1)(b) provides that "[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods conform to the description."
                

The Uniform Commercial Code recognizes that some statements of sellers are merely "puffing" and do not create express warranties. Drawing the line between puffing and the creation of a warranty is often difficult, but several factors have been identified as helpful in making that determination. See generally J. White & R. Summers, Uniform Commercial Code (2d Ed.) § 9-3. One such factor is the specificity of the statements made. Another factor to be considered in determining whether a statement creates an express warranty is whether it was written or oral, the latter being more likely to be considered puffing. J. White & R. Summers, supra; Web Press Services Corporation v. New London Motors, Inc., supra, 203 Conn. at 352, 525 A.2d 57.

We interpret the challenged statements to be more akin to mere "puffing," as opposed to an affirmative fact or promise that can form the basis of a warranty. See Web Press Services Corporation v. New London Motors, Inc., 205 Conn. 479, 483, 533 A.2d 1211 (1987). "Such 'favorable comments by...