Bluhm v. Wyndham Vacation Ownership, Inc.

BRANDON BLUHM, Plaintiff, v. WYNDHAM VACATION OWNERSHIP, INC., WYNDHAM VACATION RESORTS, INC., EXTRA HOLIDAYS, LLC and FAIRSHARE VACATION OWNERS ASSOCIATION, Defendants.

No. 6:19-cv-2300-WWB-LRH

United States District Court, M.D. Florida, Orlando Division

January 6, 2022

ORDER

WENDY W. BERGER, UNITED STATES DISTRICT JUDGE.

THIS CAUSE is before the Court on Defendants and Counter-Plaintiffs' Motion for Summary Judgement (Doc 137), Plaintiff and Counter-Defendant's Response in Opposition (Doc. 150), and Defendants and Counter-Plaintiffs' Reply (Doc. 155). Also before the Court is Defendants and Counter-Plaintiffs' Motion for Oral Argument (Doc. 139).

I. BACKGROUND

Plaintiff and Counter-Defendant, Brandon Bluhm (“Plaintiff”), is suing Defendants and Counter-Plaintiffs, Wyndham Vacation Ownership, Inc. (“WVO”), Wyndham Vacation Resorts, Inc. (“WVR”) Fairshare Vacation Owners Association, Inc. (“Fairshare”), and Extra Holidays, LLC (“Extra Holidays”) (collectively, “Defendants”) for conflicts arising out of his ownership and use of numerous timeshare interests in properties developed and managed by WVO and WVR. Defendants are countersuing Plaintiff for alleged breaches of a settlement agreement between the parties and fraudulent inducement.

At his highest ownership, Plaintiff owned approximately seventy timeshare interests with Defendants worth roughly eighteen million points. (Doc. 137-89 at 76:11- 15, 300:23-301:5). With the exception of two timeshares, the remaining interests were purchased from third parties. (Id. at 76:11-19). The majority of those interests were part of Club Wyndham Plus, which is a points-based system for making reservations at Wyndham branded and affiliate resorts. (Doc. 137-93 at 26:25-27:3, 28:18-20, 29:13- 16).

Beginning sometime in 2012 or 2013, Plaintiff started renting his timeshare interests through the Extra Holidays program. (Doc. 137-89 at 87:1-10, 113:3-5). Prior to that, Plaintiff rented his interests to friends and family occasionally, but only sought to cover his expenses. (Id. at 83:18-84:5, 89:13-15, 114:2-6). He attempted to use eBay to rent his interests for a short amount of time, but he was not satisfied with the results. (Id. at 99:12-19, 115:10-116:19). After using the Extra Holidays program and finding success in covering his maintenance fees and turning a small profit, Plaintiff began purchasing additional interests in 2013. (Id. at 88:3-89:8). Plaintiff did so for the express purpose of making a profit on the rental of those interests and admitted that he purchased more timeshare interests than he could personally use for vacations. (Id. at 127:9-22; Doc. 150-1, ¶ 5). Plaintiff was able to make between six and fourteen dollars per thousand points that he placed in the Extra Holidays program and ultimately grossed “hundreds of thousands of dollars” from his rental activities. (Doc. 137-89 at 90:9-19; Doc. 150-1, ¶ 5).

In May 2017, Defendants launched a new website for reservations. (Doc. 137-90 at 39:16-20; Doc. 137-93 at 58:17-21). One of the functions of the new system was better enforcement of the rules for reservations and usage contained in the owner directory and club guidelines. (Doc. 137-90 at 40:5-23). Although Plaintiff had experienced intermittent issues with reservations prior to that, he began having constant issues after the new website was launched. (Doc. 137-89 at 101:3-102:5). As of May 22, 2017, Plaintiff's account was locked and he did not have access to the reservation system. (Id. at 168:17- 23, 170:1-3; Doc. 150-15 at 1; Doc. 161-1 at 2-3). Plaintiff was informed that over eight hundred owners were reporting issues with the new system. (Doc. 137-89 at 174:20- 175:1; Doc. 137-108 at 2; see also Doc. 137-93 at 59:17-23, 61:17-62:1). Plaintiff was still able to make reservations using the house account but rarely elected to do so while he was locked out of the website. (Doc. 137-89 at 282:18-21; Doc. 137-90 at 35:10-24). In early July 2017, Plaintiff began dealing directly with Andres Mosquera regarding the issues with his accounts. (Doc. 137-89 at 190:5-22; Doc. 150-17 at 1). Mosquera worked for the Wyndham Vacation Club, first as the director of on-site specialists and then as the director of business intelligence, process support, and operational process, excellence, and controls. (Doc. 137-90 at 11:20-23, 12:3-13:6). Mosquera became aware of Plaintiff when an employee in owner care alerted him that Plaintiff was interested in selling back some of his interests. (Id. at 20:16-21:3). While he was working with Plaintiff, Mosquera assisted Plaintiff in placing reservations into the Extra Holidays program for rent. (Doc. 137-89 at 191:17-192:23, 203:20-204:3). Plaintiff and Mosquera also discussed downsizing Plaintiff's account, including deeding a number of properties back to Defendants, which Plaintiff had previously discussed with other representatives in connection with payment issues. (Id. at 194:2-23, 195:10-196:4; Doc. 150-16 at 1-2). Plaintiff states that Mosquera told him that his account would not work because he had too many points and transactions associated with the account and that he would not be able to access the system unless he divested himself of a majority of his points. (Doc. 150-1, ¶¶ 11-13).

On August 31, 2017, as a result of his discussions with Mosquera, the parties entered into a Confidential Agreement and Release (“Settlement Agreement, ” Doc. 137-84). Therein, Defendants agreed to purchase a number of Plaintiff's timeshare interests, and in exchange, Plaintiff agreed “not to engage in any commercial conduct of any type as part of their use of the Retained Interests, ” including commercial rental of his remaining interests through any entity related to Defendants; not to acquire, directly or indirectly, new interests in Defendants' products from Defendants or third-parties; and not to “assist, advise, counsel or otherwise direct any other owner or person in control of any Timeshare Interest . . . in renting, selling, or otherwise disposing of such interests[.]” (Id. at 2-3). Additionally, Plaintiff agreed that with respect to his remaining timeshare interests, he would “abide by the Rules and Regulations of all Programs, including, but not limited to, published policies and procedures and website terms and conditions[.]” (Id. at 4). Plaintiff also agreed to “RELEASE, ACQUIT, DISCHARGE, AND . . . HOLD HARMLESS” Defendants “of and from any and all claims, demands, and causes of action owned or held by [Plaintiff] . . ., which arise from and/or result from or in any way relate to Timeshare Interests, including but not limited to any claims based on any alleged representation or promise made to [Plaintiff] by any current or former employee or agent of [Defendants], and any and all claims to date, whether or not those claims were specifically included in this Agreement.” (Id. at 4-5).

In connection with the buy back, Mosquera told Plaintiff how many points he could keep in this account-roughly five million-and, based on that number, Plaintiff gave Mosquera a list of the properties that he wanted to deed back.^[1] (Doc. 137-89 at 198:3- 199:8). The number set by Mosquera was intended to reflect the total points that Plaintiff would be able to use for personal use, which Plaintiff understood. (Id. at 199:18-200:2, 201:16-22, 202:2-6). Mosquera testified that he had discussed Plaintiff using no more than fifty percent of his points for rentals through the Extra Holidays program, although that specific provision was not included in the Settlement Agreement. (Doc. 137-90 at 67:3-4, 71:6-11, 77:18-20, 113:2-4; Doc. 150-28 at 2; Doc. 150-29 at 1). However, Plaintiff states that he was told that he would be permitted to continue to use the Extra Holidays program even after entering the Settlement Agreement. (Doc. 150-1, ¶ 13). Plaintiff's account was locked during his dealings with Mosquera so that Defendants could reconcile his account and confirm that he had the correct number of points pursuant to the terms of their agreement. (Doc. 137-90 at 26:2-20).

After signing the Settlement Agreement, Plaintiff sought clarification from Mosquera regarding statements he made prior to the execution of the Settlement Agreement. (Doc. 137-89 at 215:5-10). Mosquera responded that Plaintiff was not permitted to use his retained interests for commercial purposes, including renting them through the Extra Holidays program, with the exception of leftover points that Plaintiff did not personally use throughout the year, and that Plaintiff could not acquire new interests without first getting permission to waive the restriction from Defendants. (Id. at 215:11- 216:5). Plaintiff states that this is not an accurate reflection of Mosquera's statements prior to his execution of the Settlement Agreement. (Id. at 216:6-8). Specifically, Plaintiff claims that Mosquera told him that he would still be permitted to use the Extra Holidays program, just not at the same level as he was before entering the Settlement Agreement. (Id. at 217:23-218:2, 224:11-19). In fact, Plaintiff was aware that after signing the Settlement Agreement, his use of Extra Holidays was limited, at the very least, to offsetting his maintenance fees. (Id. at 244:1-9).

In 2018, Mosquera e-mailed Plaintiff to inform him that Defendants were aware of violations of the Settlement Agreement, including that Plaintiff had acquired new interests and that fifty percent of his 2018 reservations were rented through the Extra Holidays program, which Plaintiff admitted was probably true. (Id. at 234:11-21, 236:13-237:3; Doc. 137-103 at 2). Plaintiff admits that he continued to rent his interests after signing the Settlement Agreement. (Doc. 137-89 at 212:5-7, 219:8-10 227:22-228:9). He also acquired...