Clayton v. Planet Travel Holdings, Inc.

• Decision Date: 09 May 2013
• Docket Number: No. 4–12–0717.,4–12–0717.
• Citation: 2013 IL App (4th) 120717,988 N.E.2d 1110,370 Ill.Dec. 754
• Parties: 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.
• Court: United States Appellate Court of Illinois

2013 IL App (4th) 120717
988 N.E.2d 1110
370 Ill.Dec. 754

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.

No. 4–12–0717.

Appellate Court of Illinois,
Fourth District.

May 9, 2013.

[988 N.E.2d 1111]

Michael J. Costello (argued), Costello Law Office, Springfield, for appellants.

Lisa Petrilli (argued), Sorling Northrup, Springfield, for appellees.

OPINION
Justice POPE delivered the judgment of the court, with opinion.

[370 Ill.Dec. 755]¶ 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.

[988 N.E.2d 1112]

[370 Ill.Dec. 756]¶ 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.

[988 N.E.2d 1113]

[370 Ill.Dec. 757]¶ 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.

¶ 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 refund reversed. A June 2008 VISA arbitration committee decision found the credit to plaintiffs' credit card was warranted because the cardholder was unwilling to accept the check offered by defendant due to the restrictive endorsement.

¶ 12 Planet Travel Holdings was eventually incorporated in Nevada in March 2009 (Fuener is listed as president, secretary, treasurer, and director) and registered to do business in Illinois in April 2009. However, prior to its March 2009 incorporation, Fuener operated Planet Travel Holdings from the same address he had operated at since 1999. Fuener also (1) continued to use and maintain the same checking accounts of Planet Travel Group; (2) filed [370 Ill.Dec. 758]

[988 N.E.2d 1114]

tax returns on behalf of Planet Travel Group and Planet Travel Holdings for 2007 and 2008; and (3) operated the travel agency generally known as Planet Travel without interruption.

¶ 13 In May 2008, plaintiffs filed their initial complaint. In October 2008, the case was transferred from small claims to the law division, presumably because the claim for attorney fees exceeded small claims limits. In December 2008, plaintiffs filed an amended complaint after which they tendered discovery and requests to admit to defendants. Defendants filed their responses late, on June 5, 2009, following the filing of plaintiffs' motion to deem facts admitted. Defendants failed to respond to a request for production of documents and failed to clear up deficiencies in their other discovery responses. Plaintiffs filed their first motion to compel in September 2009 and their second motion to compel in February 2010. Discovery continued through March 2011 with defendants requesting depositions as late as January 2011.

¶ 14 Plaintiffs set the case for trial in December 2010 but defendants continued the trial setting to conduct more discovery. Multiple motions to continue were filed by defendants in December 2010 and April 2011. On July 25, 2011, plaintiffs amended their complaint to add Planet Travel Holdings (the Nevada corporation) as a defendant. That same day, a bench trial was conducted at which time defendants admitted owing plaintiffs $5,994.32. The trial court allowed defendants' request to submit written closing arguments. On September 1, 2011, the court entered judgment against defendants,...