116 A.3d 466 (Me. 2015), BCD-14-294, Remmes v. Mark Travel Corp.

Docket Nº:BCD-14-294
Citation:116 A.3d 466, 2015 ME 63
Opinion Judge:ALEXANDER, J.
Party Name:PAUL REMMES et al. v. THE MARK TRAVEL CORPORATION et al
Attorney:On the briefs and at oral argument: James L. Audiffred, Esq., Saco, for appellants Paul Remmes, Holly Remmes, Robert Begin, and Lucy Begin. Christine Kennedy-Jensen, Esq., Douglas, Denham, Buccina & Ernst, Portland, for appellee The Mark Travel Corporation.
Judge Panel:Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
Case Date:May 12, 2015
Court:Supreme Judicial Court of Maine

Page 466

116 A.3d 466 (Me. 2015)

2015 ME 63

PAUL REMMES et al.

v.

THE MARK TRAVEL CORPORATION et al

BCD-14-294

Supreme Judicial Court of Maine

May 12, 2015

Argued April 9, 2015

Judgment affirmed.

On the briefs and at oral argument: James L. Audiffred, Esq., Saco, for appellants Paul Remmes, Holly Remmes, Robert Begin, and Lucy Begin.

Christine Kennedy-Jensen, Esq., Douglas, Denham, Buccina & Ernst, Portland, for appellee The Mark Travel Corporation.

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

OPINION

Page 467

ALEXANDER, J.

[¶1] Plaintiffs Paul and Holly Remmes and Robert H. and Lucy Begin appeal from a judgment entered in the Business and Consumer Docket ( Horton, J. ) granting The Mark Travel Corporation's motion for summary judgment. On appeal, the plaintiffs contend that the trial court erred by determining that (1) the plaintiffs' travel agent was not an agent of Mark Travel;

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(2) the plaintiffs' original hotel accommodations, arranged through Mark Travel, were properly rescinded for failure of consideration; and (3) releases signed by the plaintiffs as a precondition for rebooking their accommodations barred their claims against Mark Travel.

[¶2] The trial court correctly determined that the plaintiffs' breach of contract and other claims against Mark Travel failed as a matter of law because the plaintiffs' travel agent never acted as Mark Travel's agent and because Mark Travel did not authorize the travel agent to act on its behalf, see Restatement (Third) of Agency § 3.14 cmt. c (2006), ratify the travel agent's fraudulent conduct, see Perkins v. Philbrick, 443 A.2d 73, 75 (Me. 1982), or hold the travel agent out as its agent, see Levesque v. Cent. Me. Med. Ctr., 2012 ME 109, ¶ 10 n.7, 52 A.3d 933. Therefore, we affirm the trial court's judgment.

I. CASE HISTORY

[¶3] Viewing the record in the light most favorable to the non-prevailing parties, see Beal v. Allstate Ins. Co., 2010 ME 20, ¶ 11, 989 A.2d 733, the summary judgment record contains the following facts, which are undisputed unless otherwise noted. Plaintiffs Paul and Holly Remmes and Robert H. and Lucy Begin are residents of Maine. The Mark Travel Corporation is a corporation with its principal place of business in Milwaukee, Wisconsin. It sells leisure tour and travel products to consumers either directly or through the consumers' travel agents. Mark Travel, at times, did business under the names " Funway Holidays Funjet Inc." and " Funjet Vacations," but is one entity.

[¶4] Beth Rogers was a travel agent who operated a travel agency in Saco called TravelWise.1 There is no evidence in the record that Rogers or TravelWise ever claimed to be an agent of Mark Travel or that any contract creating an agency relationship existed between Rogers and/or TravelWise and Mark Travel. Likewise, there is no evidence in the record that Mark Travel ever claimed that Rogers or TravelWise was its agent for any purpose.

[¶5] In August or September of 2011, the Remmeses contacted Rogers at TravelWise seeking an all-inclusive vacation for a party of nine. Rogers told the Remmeses about a resort in the Dominican Republic that could accommodate the party, which Rogers later advised could be booked only through a travel agent. Rogers advised the Remmeses that they could reduce their costs if they paid by check rather than credit card. The Remmeses then gave Rogers a check payable to TravelWise for $26,517, covering the full cost of airfare and accommodations at the resort for the group.

[¶6] The Remmeses invited the Begins to join them on the trip, and the Begins contacted Rogers and asked her to book them the same trip. Again, she recommended that they pay by check to save money, and the Begins gave her a check payable to TravelWise for $8,801.92, covering their airfare and resort accommodations. The trip was to begin the week of June 20, 2012.

[¶7] Rogers booked air travel and lodging at the resort for the plaintiffs through Mark Travel. Rogers paid to Mark Travel some of the funds the plaintiffs paid to her--about $10,000 of the Remmeses' payment and about $4,000 of

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the Begins' payment--to pay for the airfare. Rogers paid Mark Travel for the lodging by using the credit card information of other TravelWise clients, without those clients' knowledge or consent. The record does not reveal what happened to the rest of the money the plaintiffs gave Rogers. Believing that it had received proper payment from Rogers, Mark Travel sent " E-Travel" documents to Rogers, who in turn gave them to the plaintiffs.2

[¶8] In early June of 2012, Mark Travel learned of the credit card fraud on these and other vacations Rogers had booked. Mark Travel then reversed the credit card charges and canceled the plaintiffs' reservations at the resort, consistent with its policy for unpaid bookings. Mark Travel had not yet paid the resort, and it did not incur any fees, penalties, or costs in cancelling the reservation.

[¶9] On or about June 8, 2012, the plaintiffs, after hearing rumors about Rogers and TravelWise, contacted Mark Travel to check on their reservations. The plaintiffs were initially told that each of their reservations was " all set," but later that day they were told that there could be " a problem" with their reservations.3 On June 11, the week before their planned trip, an employee from Mark Travel told the plaintiffs that the lodging payments sent by TravelWise had been fraudulent, and that their resort reservations had been or would be cancelled for nonpayment.4

[¶10] Mark Travel agreed to assist the plaintiffs in rebooking their resort accommodations, but only if they paid for the lodging and signed a release. On June 14, Paul Remmes and Robert Begin each signed a " Release and Authorization" releasing and discharging claims against Mark Travel and authorizing Mark Travel to charge their credit cards for the outstanding amounts due for their resort accommodations: $16,926.15 for the Remmeses and $4,215.31 for the Begins.5

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Mark Travel was able to rebook the plaintiffs' lodging at the same rate as the original booking.

[¶11] The Remmeses and the Begins each filed a complaint against Mark Travel and Rogers in the Superior Court (York County) on January 30, 2013, and April 18, 2013, respectively. Each complaint contained three counts. Count I alleged a breach of contract by Mark Travel and Rogers, alleging that Rogers was acting as Mark Travel's agent when she collected payment for the travel accommodations and provided to the plaintiffs airline tickets and documents confirming their resort lodging, and that the plaintiffs had wrongfully been forced to pay twice for their lodging. Each complaint sought damages for the amounts the plaintiffs had paid directly to Mark Travel.

[¶12] Count II alleged " economic duress," asserting that Mark Travel was responsible for the actions of its alleged agent, Rogers, and that the releases had been signed under duress. Count II sought to void the releases.

[¶13] Count III set out a private claim pursuant to the Maine Unfair Trade Practices Act (UTPA), 5 M.R.S. § § 205-A to 214 (2014), alleging that Mark Travel violated the UTPA and that Mark Travel's conduct was " egregious and unconscionable and exceeds the bounds of human decency." Each complaint sought damages under Count III for the amount the plaintiffs paid directly to Mark Travel, plus attorney fees, costs, and punitive damages.

[¶14] Mark Travel answered each complaint and stated four affirmative...

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