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06/21/88 Bonnie Mccarthy Et Al., v. Carefree Vacations

June 21, 1988

BONNIE MCCARTHY ET AL., PLAINTIFFS-APPELLANTS

v.

CAREFREE VACATIONS, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

525 N.E.2d 271, 171 Ill. App. 3d 1050, 121 Ill. Dec. 465 1988.IL.979

Appeal from the Circuit Court of Du Page County; the Hon. Anthony Peccarelli, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiffs, Bonnie and John McCarthy, appeal from a directed verdict entered in favor of defendant Carefree Vacations, Inc., at the close of plaintiffs' case, contending that sufficient evidence was offered relating to the factual issue of whether Carefree was plaintiffs' agent and owed them a fiduciary duty of care and honesty to submit the case to the jury for determination.

This action arose after plaintiffs purchased a Carefree tour package for a trip to Jamaica through defendant Discount World Travel for $1,318; plaintiffs went on the tour, but were not permitted to return on the plane chartered by Carefree when Discount failed to remit plaintiffs' payment to Carefree. The case went to jury trial against this defendant on counts V and VI of plaintiffs' second amended complaint. In count V, plaintiffs apparently sought recovery of damages on a theory that Carefree breached a fiduciary duty to them as plaintiffs' agent, and in count VI they sought damages against Carefree for alleged violation of the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1985, ch. 121 1/2, par. 261 et seq.). In directing a verdict for defendant Carefree, the trial court stated that it found no evidence to support a fiduciary relationship with Carefree as to counts V and VI of the complaint.

Defendant Carefree has not filed a responsive brief in this court to assist our analysis of the claimed error. While a reviewing court is not required in such cases to serve as an advocate for the appellee, or search the record for the purpose of sustaining the judgment of the trial court, it must decide the merits of an appeal where the record is simple and the issues are capable of easy resolution. In other cases, we may reverse the trial court if "the appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record." (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493.) The 507-page record of this case is not simple and is supplemented with 451 pages of reports of proceedings and 32 exhibits. The legal and factual issues relating to the relationships between a travel agent, such as Discount; a company which arranges tours, such as defendant Carefree; and, consumers who deal with both to purchase a vacation trip has not been extensively litigated in Illinois. In addition, in this case plaintiffs' second amended complaint, upon which these issues were tried and a directed verdict for defendant entered, is not found in the record and was not before the trial court when it considered defendants' motion for a directed verdict at the close of plaintiffs' evidence. At that time, the Judge noted that the clerk had been unable to find that complaint in the file. Counsel for plaintiffs stated she thought it should be there, and counsel for defendant suggested the complaint was similar to that in a consolidated case brought by other plaintiffs against this defendant and tried together, to which the trial court may have referred. The consolidated case, however, has not been appealed, and we do not have its complaint for reference. We note that defendant answered and did not seek dismissal of plaintiffs' second amended complaint for failure to state a cause of action, and we will presume that the complaint does state a proper cause of action. Nevertheless, the inherent difficulties and uncertainties which exist where a trial court passes on a motion for directed verdict in absence of the complaint, and review of its decision, are apparent.

We consider this appeal under the Talandis standard that if appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record, the judgment of the trial court may be reversed.

Directed verdicts should be granted only when the evidence, viewed in a light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict could stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.) It is for the trier of fact to determine the facts and inferences to be drawn therefrom. (Mesick v. Johnson (1986), 141 Ill. App. 3d 195, 205, 490 N.E.2d 20.) Whether an agency relationship exists is a question of fact for the jury unless the relationship is so clear as to be indisputable. Perkinson v. Manion (1987), 163 Ill. App. 3d 262, 266, 516 N.E.2d 977.

Plaintiffs contend in their brief that the essential fact issue is whether Carefree was their agent, or travel agent, so as to raise a fiduciary duty to them, and whether Discount acted as agent for Carefree in receiving plaintiffs' payment for the tour and in securing plaintiffs' signature on a Carefree tour contract. Plaintiffs argue that evidence was presented showing that Discount was the agent of both Carefree and plaintiffs in the transaction and, as such, acted as Carefree's agent in the sale of the aborted tour to plaintiffs.

Evidence was presented in trial that plaintiff John McCarthy had seen advertisements for Carefree Vacations, Inc., tours in a newspaper in which Discount was listed as an authorized Carefree travel agent. Plaintiffs obtained several vacation trip pamphlets from Discount, including Carefree's brochure, and they chose, and paid Discount for, the Jamaican tour offered by Carefree. Mrs. McCarthy testified that she believed she had signed Carefree's tour contract at Discount's office, but she had not been given a copy of it.

On March 24, 1984, the plaintiffs arrived at O'Hare Airport, where a Carefree representative gave them a packet which contained round trip airline tickets to Jamaica, vouchers for ground transportation and hotel, and a letter from Carefree thanking plaintiffs for "selecting Carefree Vacations, Inc. as your tour company." The letter was on defendant's stationery, bore the insignia of American Society of Travel Agents , and declared defendant was a member of ASTA. Plaintiffs' were not informed at this time that Carefree had not received payment for their trip from Discount. At the Conclusion of their vacation, plaintiffs returned to the Montego Bay Airport in Jamaica, where Carefree's representatives informed them that Discount had not paid defendant for their trip and that they could not board the chartered airplane unless they paid defendant, in cash or by travelers checks, for the trip; a credit card was not acceptable. Plaintiffs returned to Chicago on another airline.

Plaintiffs called Terry O'Connor, vice-president of Carefree Vacations, Inc., as an adverse witness, and he testified that defendant packages tours, arranging ground transportation and hotel, and chartering planes. All documentation to their clients is issued by Carefree. O'Connor stated that Carefree advertises its tours in the newspapers and acknowledged that plaintiffs' exhibit, showing Carefree's advertisement listing authorized CVI travel agents, was their ad and that Discount was so listed thereon. He testified that defendant had been having difficulty obtaining payment from Discount for trips it booked, and required Discount to sign a guarantee policy before Carefree would continue their business relationship. O'Connor identified Carefree's reservation form which indicated that ...


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