Bridgam v. Nadeau

• Court: Superior Court of Maine
• Decided: July 3, 2013
• Docket: CUMcv-13-29
• Status: Unpublished

Opinion

STATE OF MAINE SUPERJOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET CV -13-29 1

,)r' >~.~~ w)J -7 c ?J-201 ~ I PAMELA BRJDGAM Plaintiff

v. DECISION AND ORDER

ROBERT M.A. NADEAU, ESQ,

Defendant

'' '

'.,__ ··.: .. ' .v

Pamela Bridgham ("Bridgham"), prose, has filed a complaint against her former

attorney, Robert M.A. Nadeau, Esq. ("Nadeau"), alleging legal malpractice. Nadeau, pro

se as well, filed an answer to the complaint and asserted defenses of collateral estoppel,

res judicata, absence of ongoing duty, and failure of adequate consideration. Subsequent

to the answer Nadeau filed a motion for judgment on the pleading or in the alternative a

motion for more definite statement. Both motions are currently before this Court.

ORDER

I. Standard of Review

When a defendant moves for a judgment on the pleadings, his motion is the

equivalent of a motion to dismiss for failure to state a claim and tests the complaint's

sufficiency. Monopoly, Inc. v. Aldrich, 683 A. 2d 506 (Me. 1996). "Defendant's motion

for judgment on the pleadings is nothing more than a motion under M.R.Civ.P. 12(b)(6)

to dismiss the complaint for failure to state a claim upon which relief can be granted."

Cunningham v. Haza, 538 A.2d 265,267 (Me.1988)(citation omitted). Thus, a motion to dismiss pursuant to both M.R. Civ. P. 12(b)(6) and 12(c) "tests the legal sufficiency of

the complaint and, on such a challenge, 'the material allegations of the complaint must be

taken as admitted.' " Shaw v. S. Aroostook Comm. Sch. Dist., 683 A.2d 502, 503 (Me.

1996) (quoting McAfee v. Cole, 637 A.2d 463,465 (Me. 1994)); Camps

Newfound/Owatonna Corp. v. Town of Harrison, 1998 ME 20, ,-r 3, 705 A.2d 1109, 1111

(quoting Shaw, 683 A.2d at 503). When reviewing a motion to dismiss, this court

examines "the complaint in the light most favorable to the plaintiff to determine whether

it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to

relief pursuant to some legal theory." Shaw, 683 A.2d at 503. A dismissal under M.R.

Civ. P. 12(c) will not be granted "unless 'it appears to a certainty' that under no facts that

could be proved in support of the claim is the plaintiff entitled to relief." Monopoly, Inc. v.

Aldrich, 683 A. 2d. 506(quoting Cunningham v. Haza, 538 A.2d 265, 267 (Me.1988)).

II. Matters Outside the Pleadings

As an initial matter, Defendant's motion is styled as one for judgment on the

pleadings, but he makes clear that to the extent he raises issues outside the pleadings he

moves in the alternative for summary judgment. It is within the Court's discretion to treat

a motion for judgment on the pleadings as a motion for summary judgment if "matters

outside the pleadings are presented to and not excluded by the court." M.R. Civ. P. 12(c).

If this action is taken, the motion is then "disposed of as provided in Rule 56, and all

parties shall be given reasonable opportunity to present all material made pertinent to

such a motion by Rule 56." Id. Defendant filed no statement of material facts with his

brief as required by M.R. Civ. P. 56(h)(l). As a result, the Court cannot, based on the

materials filed with the present motion, treat Defendant's motion as one for summary

2 judgment. As a result, Defendant's motion shall be treated solely as one for judgment on

the pleadings and any matters outside the pleadings shall be excluded for purposes of this

motion.

III. Legal Malpractice

Modern notice pleading requires that a complaint provide fair notice of a claim

and a generalized statement of the facts may fulfill this function. E.N Nason, Inc. v.

Land-Ho Dev. Corp., 403 A.2d 1173, 1177 (Me. 1979). When a Maine Rule of Civil

Procedure is identical to its federal counterpart, a Maine court should value constructions

and comments on the federal rule as aids in construing the parallel Maine rule. Bean v.

Cummings, 2008 ME 18, ~ 11,939 A.2d 676. lnAshcroftv. Iqbal, 129 S.Ct. 1937 (2009),

which concerned the sufficiency of a complaint in the context of a federal 12(b)( 6)

challenge, the Supreme Court commented on the sufficiency requirements of notice

pleading. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The Court held that to survive a

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

state a claim for relief that is plausible on its face. Id. The Court explained that the tenant

that a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions and "threadbare recitals of the elements of a cause of

action supported by mere conclusory statements, do not suffice." Id. "Only a complaint

that states a plausible claim for relief survives a motion to dismiss." Id.

Applying the Ashcroft standards to the single count complaint that alleges legal

malpractice, Bridgham's complaint is insufficient. The complaint does little more than

make gauzy accusations and draw legal conclusions. Nowhere does the plaintiff allege

any facts that show how any of the defendant's actions were the proximate cause ofher

3 injury or loss. Additionally, the plaintiff has failed to show what if any injury she has

actually suffered by the defendant's withdrawal as Bridgham's counsel before any

complaint was ever filed. Bridgham alleges damages in the amount of $1,000,000

dollars, but fails to state a claim upon which that relief may be granted. See M.R. Civ. P

8(a).

"In legal malpractice cases, the plaintiff must show (1) a breach by the defendant

attorney of the duty owed to the plaintiff to conform to a certain standard of conduct; and

(2) that the breach of the duty proximately caused an injury or loss to the plaintiff."

Niehoffv. Shankman & Associates Legal Center, P.A., 2000 ME 214, ~ 7, 763 A.2d 121,

124. To satisfy the proximate cause element of legal malpractice, a plaintiff must show

that she "could have been successful in the initial suit [without her attorney's

negligence]." Jourdain v. Dineen, 527 A.2d 1304, 1306 (Me. 1987). "The plaintiff must

therefore submit proof of that claim to the jury as a 'trial within a trial' of the attorney

malpractice action." ld.

Because of the scarcity of relevant facts in plaintiffs complaint the Court cannot

find that it states a plausible claim for relief and dismisses the plaintiffs complaint for

failure to state a claim upon which relief can be granted. The complaint is dismissed for

insufficiency of the claim because "it appears to a certainty" that under no facts that

could be proved in support of the claim is the plaintiff entitled to relief. Monopoly, Inc. v.

Aldrich, 683 A. 2d. 506 (quoting Cunningham v. Haza, 538 A.2d 265,267 (Me.1988)).

Therefore, the entry is:

1. Defendant's Motion for judgment on the pleadings is GRANTED and Plaintiffs complaint is dismissed without prejudice.

4 2. Defendant's Motion for Summary Judgment is DENIED for the reasons previously stated.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to M.R. Civ. P. 79(a).

Dated: July 3, 2013

d ham-PXO Se d plaintiff-Pamela ~N~deau Esq-appeare ant-Robert De f end pro Se

5 STATE OF MAINE BUSINESS AND CONSUM~/ COURT

Cumberland, ss. AN\ lt -CUNl- 3/!3~DI'i

PAUL REMMES and HOLLY REMMES

Plaintiffs

v. Docket No. BCD-CV-13-29

MARK TRAVEL CORPORATION and BETH ROGERS a/k/a Beth Mcinnis d/b/a TravelWise

Defendants

ROBERT H. BEGIN and LUCY BEGIN

v. Docket No. BCD-CV-13-34

MARK TRAVEL CORPORATION and BETH ROGERS a/k/a Beth Mcinnis d/b/a Travelwise

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

Before the court in these consolidated cases are motions and cross-motions for summary

judgment filed by the Plaintiffs and Defendant Mark Travel Corporation. Oral argument on

the motions was held February 28, 2014.

Factual Background

The underlying material facts are largely undisputed. The following summary is based

on the parties' Statements of Material Facts and affidavits.

Plaintiffs Paul and Holly Remmes ["the Remmes"] are individual residents of Maine, as

are Plaintiffs Robert and Lucy Begin ["the Begins"]. Defendant Mark Travel Corporation ["Mark Travel"] is a corporation that functions as a tour operator selling leisure tour and

travel products to consumers, with its principal place ofbusiness in Milwaukee, Wisconsin.

Defendant Beth Rogers ["Rogers"] is a travel agent who operated an unincorporated travel

agency in Saco, Maine, under the name Trave1Wise. 1

The summary judgment record does not reveal any contract or any other ongoing

association or connection between Mark Travel and TravelWise. As a tour operator, Mark

Travel makes travel arrangements for consumers directly but also through travel agents such

as TravelWise.

Holly Remmes contacted TravelWise through Beth Rogers in August or September

2011 regarding an all-inclusive vacation, including accommodation in a suite large enough for a

party of nine, comprising Paul and Holly Remmes, their children and several friends. Ms.

Rogers responded with information about a facility called Hard Rock Resort & Casino in Punta

Cana, Dominican Republic, that has accommodations meeting the Plaintiffs' requirements.

Paul Remmes followed up with on-line research about the Hard Rock facility. The suite Ms.

Rogers had described could not be reserved on-line, and when he asked Ms. Rogers about

booking the suite, she told him the suite could only be booked through a travel agent.

The Remmes decided to book the trip through TravelWise. Ms. Rogers told them they

could save some money by giving her a check as opposed to using credit cards to pay, so they

decided to pay by check instead ofby credit card. On September 9, 2011, Paul Remmes gave

Ms. Rogers a check payable to Travel Wise for $26,517, covering the full cost of airfare and

accommodations at Hard Rock for himself and his wife, as well as their children and two

friends. The planned vacation was to begin the week of June 20, 2012.

1 Rogers and Trave!Wise have not appeared in these cases.

2 At some point, the Remmes invited their friends, the Begins, to join them on the trip.

The Begins contacted Ms. Rogers and asked her to book the same trip for them. Again, she

suggested they pay by check to save some money instead of paying by credit card. The Begins

gave her a check payable to TravelWise for $8,801.92, covering their air fare and hotel

accommodations.

Ms. Rogers booked air travel and lodging at the Hard Rock Resort & Casino for all of

the Plaintiffs and their traveling companions through Defendant Mark Travel. The record is

silent on who made the decision to book the Plaintiffs' travel through Mark Travel, but there is

no indication that any of the four Plaintiffs made the decision, so the court infers it was Ms.

Rogers's decision on behalf ofTravelWise. The record is also silent on why TravelWise

booked the Plaintiffs' travel through Mark Travel as opposed to through another tour operator,

or through a tour operator at all instead of directly with the hotel and airlines. Whatever the

reasons, they may not be material, and the court infers that one reason may have been that

Mark Travel through its affiliate Funjet Vacations was offering a vacation package that met the

Plain tiffs' requirements.

In any case, Ms. Rogers used some of the funds that the Plaintiffs had paid by check-

about $10,000 ofthe Remmes's payment and about $4,000 ofthe Begins' payment-to pay for

their air fare. However, she made payment through Mark Travel for the Plaintiffs' lodging at

Hard Rock Resort & Casino by charging credit cards of other Travel Wise clients, without

those clients' knowledge or consent. The record is silent as to what happened to the remaining

funds, totaling more than $20,000, that the Plaintiffs had paid to TravelWise by check.

Effective June 1, 2012, after the TravelWise clients whose credit cards had been

improperly charged contacted Mark Travel to dispute the improper charges, Mark Travel

placed Travel Wise on "stop sale" status, meaning that Mark Travel would not accept further

3 bookings from TravelWise. Mark Travel reversed what it determined to be fraudulent charges

and cancelled the Plaintiffs' reservations at the Hard Rock facility, consistent with Mark

Travel's policy when bookings are made but payment is not received. When it took these

actions, Mark Travel had not paid Hard Rock Resort & Casino and did not incur any monetary

fees, penalties or costs of any kind in cancelling the Plaintiffs' hotel reservations.

Meanwhile, in early June 2012, as a result of rumors about TravelWise circulating in

the Plaintiffs' community, the Plaintiffs attempted to ascertain the status oftheir reservations.

Initially, all four Plaintiffs were advised by representatives of Mark Travel and the Hard Rock

facility that their reservations were "all set," meaning confirmed and available to be used, but

on June 8 they learned that there could be "problems" with their reservations. On June 11,

2012, Plaintiffs learned from an employee of Mark Travel, Brenda Bullock, that the payments

sent by TravelWise for the Plaintiffs' accommodations had proved fraudulent and that the

Plaintiffs' reservations had been cancelled for non-payment.

Understandably shocked and dismayed, given that they were just a week away from

beginning a long-planned vacation, the Plaintiffs engaged in a number of conversations with

Mark Travel focused on rebooking their hotel accommodations. Mark Travel agreed to assist,

but only if the Plaintiffs made payment (again) for their hotel accommodations and also signed

a release. Reluctantly and feeling coerced, the Plaintiffs agreed to these terms. On June 14,

2012, Remmes and Robert Begin each signed the Release and Authorization that Mark Travel

had forward to them to sign as a condition ofMark Travel rebooking the Plaintiffs'

accommodations at the Hard Rock facility. 2 In addition to releasing and discharging claims

against Mark Travel and its affiliated persons and entities, each Release and Authorization

Q Only Robert Begin's and Paul Remmes's signatures appear on the releases. However, because the releases were given at the time Messrs. Begins and Remmes authorized the credit card payments to Mark Travel, the releases, if enforced, would in effect bar the claims of all four Plaintiffs to recover those payments.

4 authorized Mark Travel to charge the Plaintiffs' credit cards for the outstanding amounts due

for their Hard Rock accommodations--$4,215.31 in the case ofthe Begins and $16,926.15 in the

case of the Remmes.

Although the Hard Rock Resort & Casino's room rates had increased since the original,

now-cancelled booking, Mark Travel negotiated the rebooking of Plaintiffs' lodging at the

same rate the Plaintiffs were originally charged.

In each ofthese cases, the Plaintiffs have alleged breach of contract, economic duress

and violations ofthe Maine Unfair Trade Practices Act (UTPA), 5 M.R.S. §§ 205-A et seq.

Analysis

Standard cif Review

Pursuant to M.R. Civ. P. 56( c), a moving party is entitled to summary judgment "if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, ... show that there is no genuine issue as to any material fact set forth in those

statements and that [the] party is entitled to a judgment as a matter of law." See also Beal v.

Allstate Ins. Co., 2010 ME 20, ~11, 989 A.2d 733. At this stage, the facts in the summary

judgment record are reviewed "in the light most favorable to the nonmoving party." Lightfoot

v. Sch. Admin. Dist. No. 35, 2003 ME 24, ~ 6, 816 A.2d 63. However, a party wishing to avoid

summary judgment must present a prima facie case for each element of the claim or defense on

which it has the burden of persuasion. See Reliance Nat'l Indem. v. Knowles Indus. Svcs., 2005 ME

29, ~ 9, 868 A.2d 220. "A genuine issue of material fact exists when there is sufficient evidence

to require a fact-finder to choose between competing versions of the truth at trial." Inkel v.

Livingston, 2005 ME 42, ~ 4, 869 A.2d 745 (quoting Lever v. Acadia Hosp. Corp., 2004 ME 35, ~

2, 845 A.2d 1178).

5 "If material facts are disputed, the dispute must be resolved through fact-finding."

Curtis v. Porter, 2001 ME 158, ~7, 784 A.2d 18. "Neither party may rely on conclusory

allegations or unsubstantiated denials, but must identify specific facts derived from the

pleadings, depositions, answers to interrogatories, admissions and affidavits to demonstrate

either the existence or absence of an issue of fact." Kenny v. Dep't if Human Svcs., 1999 ME 158,

~s, 740 A.2d 560 (quoting Vinick v. Comm'r, 110 F.sd 168, 171 (1st Cir. 1997)).

This case presents cross-motions for summary judgment filed by all parties, indicating

that the parties agree that summary judgment is appropriate.

Plaintijfs' Breach if Contract Claim

Mark Travel acknowledges that it entered into two contracts with the Plaintiffs. The

first came into being when Mark Travel, under the name of its affiliate Funjet Vacations,

accepted their booking and issued the Plaintiffs travel documents for their vacation, including

lodging at Hard Rock Resort & Casino. The second came into being when Mark Travel

accepted credit card payments directly from Plaintiffs and rebooked their accommodations.

Functionally, what happened with the first contract is that Mark Travel rescinded the

lodging portion of the contract for failure of consideration after determining that payment for

Plaintiffs' lodging had been fraudulently charged to other people's credit cards. There is no

dispute that the failure of consideration was the result of the fraudulent actions of Travel Wise,

through its principal Beth Rogers. No doubt Ms. Rogers was acting as agent for someone in

handling the funds Plaintiffs entrusted to them; the real question is, who was the principal for

whom she was acting? If Ms. Rogers was acting as agent for Mark Travel in collecting and

applying Plaintiffs' payment for their lodging, then Mark Travel was not entitled to rescind the

lodging component of its initial contract with Plaintiffs and the loss due to Ms. Rogers'

misappropriation of Plaintiffs' funds falls on Mark Travel. On the other hand, if she was acting

6 as agent for the Plaintiffs, then Mark Travel was entitled to rescind and it is Plaintiffs who

must bear the loss.

The record in this case contains nothing to indicate any contractual or agency

relationship between Mark Travel and TravelWise, thereby distinguishing this case from other

reported cases in which the travel agent has been deemed to be the agent of an airline, tour

operator or other provider of travel services by virtue of an express agency contract. See State

ex rel. Elson v. Koehr, 856 S.W.2d 57, 61-62 (Mo. 1993) (en bane) (certificate of appointment

appointing independent travel agency to sell and promote travel on airline rendered travel

agency an agent for airline); Rappa v. American Airlines, Inc., 87 Misc.2d 759, 386 N.Y.S.2d 612,

613 (N.Y.City Civ.Ct.1976) (written sales agency agreement between travel agency and airline

supported finding that travel agency was agent of airline).

Likewise, the lack of any agency contract or similar relationship between Mark Travel

and TravelWise removes this case from the scope of section 3.14 (c) ofthe Third Restatement

of the Law of Agency, upon which Plaintiffs rely:

"... a travel intermediary who purchases a plane ticket for a prospective traveler acts as the prospective traveler's agent in buying the ticket. If an airline authorizes the intermediary to issue tickets on its behalf and to collect and hold customer payments, the intermediary acts as the airline's agent in so doing."

RESTATEMENT (THIRD) OF AGENCY §3 14(C) (2006).

Here, there is nothing in the record indicating Mark Travel authorized Travel Wise to

issue tickets or collect payments on its behalf. In fact, after Travel Wise purported to pay for

Plaintiffs' travel, it was Mark Travel that issued tickets and lodging vouchers to Plaintiffs.

TravelWise never issued tickets or vouchers to the Plaintiffs.

7 Likewise, there is nothing in the record indicating that Mark Travel held out

TravelWise as its agent for purposes of a claim of apparent authority. Instead, the record

indicates that TravelWise, acting through Ms. Rogers, was an independent travel agent.

One court, in addressing for whom a travel agent was acting, has noted that

independent travel agents are more accurately termed brokers rather than agents:

A broker is distinguished from an agent in that a broker sustains no fixed and permanent employment by, or relation to, any principal, but holds himself out for employment by the public generally, his employment in each instance being that of special agent for a single object, whereas an agent sustains a fixed and permanent relation to the principal he represents and owes a permanent and continued allegiance.

Simpson v. Compagnie Nationale Air France, 42 Ill.2d 496, 499, 248 N.E.2d 117, 119 (1969), quoting City cif'Chicago v. Barnett, 404 Ill. 136, 142, 88 N.E.2d 477, 481 (1949) (citation omitted).

The general rule, applicable to brokers in fields such as real estate and insurance, is that

the broker is the agent of the party that first employed the broker. 44 C.J.S. Insurance§ 262.

See Dodds v. Hanover Ins. Co., 880 S.W.2d 311, S 14 (Ark. 1994) ("a broker is primarily the agent

of the person who first employs him, and where he is employed to procure insurance, he is the

agent of the person for whom the insurance is procured"). This is why the existence or

absence of an independent agency contract or similar pre-existing relationship between the

alleged principal and the alleged agent is highly relevant. It answers the question of who first

employed the alleged agent.

The Illinois Supreme Court in Simpson, supra, relied on that principle in deciding that

the travel agent in that case was the agent of the customer, not the air carrier. 42 Ill.2d at 500,

248 N.E.2d at 120. Likewise, the New York courts have held that "where, as here, there is no

proof of an independent relationship between the retail travel agent and the wholesaler, the

travel agent should be considered the agent of the customer." Bucholtz v. Sirotkin Travel, Ltd.,

8 363 N.Y.S.2d 415, 416, (N.Y.S. App. 1974), citing Antar v. Trans World Airlines, Inc., 66 Misc.2d

93, 320 N.Y.S.2d 355, affd. 37 A.D.2d 921, 325 N.Y.S.2d 1019.

The court concludes that TravelWise, acting through Ms. Rogers, was acting as an

agent of the Plaintiffs, not as an agent of Defendant Mark Travel, in collecting, handling and

applying the funds paid to TravelWise by the Plaintiffs. Thus, TravelWise's and Ms. Rogers's

failure to remit funds for Plaintiffs' accommodations to Mark Travel cannot have been a breach

of contract by Mark Travel, and Mark Travel was entitled to rescind the lodging portion of its

contract with the Plaintiffs for nonpayment. Accordingly, Defendant Mark Travel is entitled

to summary judgment on Count I of the respective complaints herein.

The Plaintiffs argue that Mark Travel should have realized that the credit card charges

used to pay for the Plaintiffs' lodging at Hard Rock were questionable because the account

holder names for the cards used were not the names of the Plaintiffs. Mark Travel responds by

noting that the name of the payor differs from that of the traveler whenever anyone pays for

anyone else's travel, and a difference in names is not a red flag in and of itself However, even if

the Plaintiffs are right, that means only that Mark Travel should have rescinded the original

contract for nonpayment sooner than it did, not that it was not entitled to rescind. The only

consequence of an earlier rescission might have been that the Plaintiffs would have felt under

less pressure to pay a second time for their lodging and sign the releases Mark Travel insisted

on, but it is speculative to suggest that an earlier rescission would have made all the difference.

The Releases Given by Plaintiffs

The releases given by Plaintiffs when they paid a second time for their lodging furnish

an alternate basis for granting summary judgment to Mark Travel on Plaintiffs' breach of

contract claims. Plaintiffs appear to concede that, if the releases are enforceable, their claims

are barred. The enforceability of the releases is linked directly to the Plaintiffs' claim of

9 economic duress and their Unfair Trade Practices Act claim. As the following sections

indicate, the court's view is that Mark Travel is entitled to summary judgment both on the

duress claim and on the UTPA claim. Therefore, the releases are enforceable and operate as a

bar to Plaintiffs' claims.

Plaintiffs' Claim ofEconomic Duress

Plaintiffs' claim for economic duress asserts that they were, in effect, coerced by

Defendant Mark Travel into paying twice for their hotel accommodations, and coerced into

signing releases in the course ofmaking the second payment.

The status of economic duress as a cause of action in Maine remains in question in light

of the Law Court's most recent treatment of the doctrine, See City cifPortland v. Gemini Concerts,

Inc., 481 A.2d 180, 18.3 (Me.1984) ("Assuming, without deciding, that the doctrine is viable in

this State .... "). However, even assuming the doctrine is viable in Maine, the record does not

reveal any conduct by Defendant Mark Travel that a factfinder could find to constitute

economic duress.

First, Plaintiffs have not shown they had no alternative besides rebooking their hotel

accommodations through Mark Travel. Mark Travel asserts, without contradiction, that it did

not compel Plaintiffs to rebook their rooms through its services; rather, its position was that if

the Plaintiffs chose to rebook through Mark Travel, they would have to pay for the rooms,

given that no payment had been made to date, and would have to sign a release. Neither

requirement, in context, constituted economic duress or business compulsion, as the doctrine

sometimes is called. No threat was made and no pressure was applied-the considerable

pressure that Plaintiffs undoubtedly felt arose from the situation, not from anything Mark

Travel said or did.

10 The other reason why Plaintiffs' economic duress claim fails is that they have not shown

that Mark Travel was responsible for the diversion of the funds that the Plaintiffs had paid to

TravelWise. In Gemini Concerts, the Law Court observed:

Actions which are not wrongful cannot result in duress:

Whenever a p?rty to a contract seeks the best possible terms, there cart be no rescission merely upon the grounds of"driving a hard bargain." Merely taking advantage of another's financial difficulty is not duress. Rather, the person alleging financial difficulty must allege that it was contributed to or caused by the one accused of coercion.

481 A.2d 18.3, quotingS. Williston, A Treatise on the LawofContracts§ 1617 at 708 (sd ed. 1970) (footnote omitted). See also, Chesire Oil Co., Inc. v. Springfield Realty Corp, 118 N.H. 2.32, S85 A.2d 8.35 (1978) ("A contract signed because a party is bargaining under adverse conditions or in pressing want ofpecuniary means is not unenforceable on account of duress ifthe other party is not responsible for those circumstances and did not create those necessities").

Thus, even if, contrary to what is suggested by the record, the Plaintiffs were in the

position of being forced to rebook their rooms through Mark Travel, Mark Travel was within

its rights to insist on payment and the releases, because it was not at fault in causing the

Plaintiffs' loss of their original payment.

For these reasons, Defendant Mark Travel is entitled to summary judgment on the

Plaintiffs' economic duress claim.

Plaintijfs' Unfair Trade Practices Claim

Plaintiffs' complaints also assert a claim under the Maine Unfair Trade Practices Act

(UTPA), 5 M.R.S.A. § 21.3(1). For two reasons, the court renders summary judgment against

Plaintiffs and in favor of Defendant. First, the Plaintiffs, who have the burden on this claim,

have not made a prima facie showing that Defendant Mark Travel engaged in any unfair trade

practice or misleading conduct that caused a loss to the Plaintiffs. Second, the Plaintiffs have

not made any showing that they are entitled to restitution from Mark Travel. The consumer

cause of action created by the UTPA is limited to "restitution and ... such other equitable relief

11 ... as the court may deem to be necessary and proper." 5 M.R.S.A. § 213(1). "The consumer has

no private action under the UTPA, even if unfair trade practices have in fact been committed,

unless those practices have not only harmed the consumer but also benefited the dealer."

Drinkwater v. Patten Realty Corp. (1989) Me., 563 A.2d 772, 777 (Me. 1989), citing Bartner v.

Carter1 405 A.2d 194, 203-04 (Me.l979 ). Plaintiffs, who have the burden on this claim, have not

made a prima facie showing that Mark Travel received any benefit from them for which it

should be required to make restitution.

Punitive Damages

The court agrees with Mark Travel that punitive damages are unavailable because there

is no sufficient predicate, either in terms of compensatory damages or in terms of an intentional

tort, for such an award in this case. See Zemero Corp. v. Hal~ 2003 ME Ill, ~ 11, 83 I A.2d 413.

Conclusion

For the reasons stated above, Defendant Mark Travel is entitled to summary judgment

on all three counts of each of the complaints in these consolidated cases.

In Remmes v. The Mark Travel Corporation et als., Me. Bus. & Cons. Dkt. BCD-CV-13-29,

it is ORDERED AND ADJUDGED AS FOLLOWS:

I. Defendant The Mark Travel Corporation's Cross-Motion for Summary Judgment is

granted. Plaintiffs Paul and Holly Remmes's Motion for Summary Judgment is denied.

2. Defendant The Mark Travel Corporation is hereby granted judgment against Paul and

Holly Remmes on all counts of the complaint, and is awarded its costs as the prevailing

party.

In Begin v. The Mark Travel Corporation et als., Me. Bus. & Cons. Dkt. BCD-CV-13-34. it

is ORDERED AND ADJUDGED AS FOLLOWS:

12 1. Defendant The Mark Travel Corporation's Cross-Motion for Summary Judgment is

granted. Plaintiffs Robert and Lucy Begins' Motion for Summary Judgment is denied.

2. Defendant The Mark Travel Corporation is hereby granted judgment against Robert

and Lucy Begin on all counts of the complaint, and is awarded its costs as the prevailing

Because the Plaintiffs' claims against TravelWise and Beth Rogers remain pending in

each case, this Order does not constitute a final judgment. The Clerk will schedule a

conference of counsel for discussion of the remaining aspects of these cases.

Pursuant to M.R. Civ. P. 79(a), the Clerk is hereby directed to incorporate this Order by

reference in the docket. -~ Dated March 13, 2014 ;- A.M. Horton Justice, Business & Consumer Court

13 Paul Remmes, et al., v. Mark Travel Corp, and Beth Rogers afkfa Beth Mcinnis d/b/a Travelwise BCD-CV-13-29 consolidated with BCD-CV-34

Paul Remmes, et al. Petitioners I Plaintiffs

Counsel: James Audiffred, Esq. 374 Main Street P.O. Box 1005 Saco, ME 04072

Mark Travel Corp, and Beth Rogers afkfa Beth Mcinnis d/b/a Travel wise Respondents I Defendants

Counsel: Christine Kennedy- Jensen, Esq. 1 0 3 Exchange St P.O. Box 7108 Portland, ME 04112