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Gary Clayton and Marsha Clayton v. Planet Travel Holdings

May 9, 2013

GARY CLAYTON AND MARSHA CLAYTON,
PLAINTIFFS-APPELLEES,
v.
PLANET TRAVEL HOLDINGS, INC.; PLANET
TRAVEL GROUP, INC.; PLANET TRAVEL GROUP, A PARTNERSHIP; PLANET TRAVEL GROUP, A SOLE PROPRIETORSHIP; AND DONALD C. FUENER, INDIVIDUALLY AND AS SOLE PROPRIETOR,
DEFENDANTS-APPELLANTS.



Appeal from Circuit Court of Sangamon County No. 08LM1876 HonorableChris Perrin, Judge Presiding.

The opinion of the court was delivered by: Justice Pope

Illinois Court of Appeals, District 4

Carla Bender

4th District Appellate Court, IL

JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Holder White concurred in the judgment and opinion.

OPINION

¶ 1 In September 2011, the trial court awarded judgment in favor of plaintiffs and against defendants in the amount of $5,994.32 following a trial. In July 2012, the court entered judgment for attorney fees in favor of plaintiffs and against defendants in the amount of $32,306.25 and costs in the amount of $680.67.

¶ 2 Defendants appeal, arguing the trial court (1) abused its discretion in awarding attorney fees to plaintiffs; (2) erred in awarding attorney fees against defendant Donald Fuener individually; and (3) erred in refusing disclosure of the fee agreement between plaintiffs and their counsel. We affirm.

¶ 3 I. BACKGROUND

¶ 4 The following is gleaned from various pleadings and exhibits found in the common law record. No transcript of the trial was included in the record on appeal. The only transcript provided to this court concerns the attorney fee hearing on May 2, 2012.

¶ 5 Prior to August 3, 2007, plaintiffs, Gary and Marsha Clayton, spoke with defendant Planet Travel Group, Inc. (Planet Travel Group), an Illinois corporation, to make travel arrangements for a group of 11 people to Cancun, Mexico. On August 3, 2007, Planet Travel Group booked a Cancun vacation package for plaintiffs through Apple Vacations (Apple) for a total cost of $12,738.64. On that date, plaintiffs paid a $1,375 deposit to Planet Travel Group and received a $125 credit discount. The remaining balance of $11,238.64 was due on November 18, 2007. Following a phone call from Fuener stating he needed the balance to be paid that day, plaintiffs paid the remaining balance to Planet Travel Group with $5,619.32 being paid with plaintiffs' VISA charge card on November 6, 2007, and $5,619.32 being paid by personal check dated November 7, 2007.

¶ 6 On December 12, 2007, Apple contacted Marsha and informed her it had only received $1,000 from Planet Travel Group for their trip. Marsha contacted Planet Travel Group to advise Fuener, also a defendant and the president, agent, and majority shareholder of Planet Travel Group, of her conversation with Apple, at which time he told her Apple had been paid in full. Marsha requested proof of payment and Fuener sent a fax enclosing copies of four checks totaling $10,408.64 he claimed Planet Travel Group submitted to Apple on November 27, 2007. These checks were neither signed by an authorized agent of Planet Travel Group nor had they cleared the bank. According to defendants, after they became aware Apple had not received payment, they attempted to resend the money, but were unable to do so because Apple refused to work with them. On December 13, 2007, defendants booked a comparable vacation for plaintiffs through GoGo Worldwide Vacations (GoGo). However, at trial, defendants admitted full payment for plaintiffs' trip was never made to either Apple or GoGo.

¶ 7 On December 17, 2007, Gary wrote to Fuener at Planet Travel Group indicating this was the date defendants were to give plaintiffs confirmation of their bookings and proof of payment for their vacation. Gary advised Fuener if confirmation was not received by 4 p.m., plaintiffs expected the full amount they paid to be refunded by the end of the business day. Fuener faxed Gary a response informing him he was still waiting on confirmation from GoGo but should know something soon. Plaintiffs never received confirmation so they notified defendants in writing they were terminating their travel plans with Planet Travel Group and requested a refund in the amount of $11,238.64. Also on December 17, 2007, Gary contacted his credit card company, Chase, to dispute the $5,619.32 transaction made to Planet Travel Group on November 6, 2007. On December 18, 2007, Planet Travel Group informed Apple (1) it was no longer handling the transaction regarding plaintiffs' trip and (2) it would refund the monies it had received to plaintiffs. Plaintiffs then booked their trip directly through Apple.

¶ 8 On December 20, 2007, Gary wrote to Fuener and enclosed a copy of the $1,000 refund check Apple had mailed to Planet Travel Group that day. Gary requested the $1,000 deposit be added to the balance defendants owed plaintiffs, bringing the total owed to $12,238.64. On January 7, 2008, Planet Travel Group mailed a letter to Gary informing him it was processing his refund as quickly as possible. Planet Travel Group also enclosed the $1,000 check from Apple, explained it had processed Gary's credit card refund, and notified him it was still waiting on checks from GoGo which it intended to pass on to him as well. Planet Travel Group initially failed to endorse the check from Apple, although it eventually did so. On January 14, 2008, GoGo sent a letter to plaintiffs informing them it did not currently have any pending bookings for them nor had it ever received any money deposited on a booking for plaintiffs' family. GoGo explained Planet Travel Group did temporarily hold space but it was automatically cancelled because no deposit was made.

¶ 9 On December 31, 2007, Planet Travel Group sold all its assets to Planet Travel Holdings, Inc. (Planet Travel Holdings), for $1. The agreement for bulk sale contemplated the buyer (Fuener doing business as Planet Travel Holdings) would be liable for any claims related to Planet Travel Group (the agreement required Planet Travel Group to provide and continue to supplement a list of all present and future creditors). On February 8, 2008, Planet Travel Group was involuntarily dissolved.

¶ 10 Shortly after this date, Fuener, acting as a sole proprietor doing business as Planet Travel Holdings, forwarded a copy of a check made payable to plaintiffs in the amount of $5,619.32 to Chase claiming it had already reimbursed plaintiffs the amount charged to their credit card and asking Chase to reverse the credit and recharge plaintiffs' account. Plaintiffs never received this check and on April 11, 2008, Fuener's bank confirmed this check had neither cleared nor been processed. Fuener later admitted this check was never sent to plaintiffs.

ΒΆ 11 On April 17, 2008, Fuener sent plaintiffs a cashier's check in the amount of $5,619.32. "VISA Card Refund" was noted on the front of the check and the back of the check contained a restrictive endorsement indicating endorsement of the check by plaintiffs would be evidence all claims were paid in full. Plaintiffs' attorney returned this check to defendants' attorney, explaining plaintiffs could not accept the check because of the restrictive endorsement and suggesting defendant was attempting to use the check as a basis to reverse the VISA credit. At the same time, plaintiffs' attorney offered to settle the claim if defendants (1) allowed the $5,619.32 credit to plaintiffs' VISA to stand; (2) returned the cashier's check for $5,619.32 to plaintiffs; and (3) paid plaintiffs an additional $375. Fuener admitted he also sent a copy of this check to Chase in an attempt to have plaintiffs' credit card ...


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