Florida Prepaid 'tuition differential fee' doesn't entitle out-of-state students to tuition 'windfall:' Appeals panel

By Florida Record | Mar 19, 2019

TALLAHASSEE -- Florida's Prepaid College program doesn't owe a woman thousands of dollars more toward her son's out-of-state college tuition under a so-called "tuition differential fee" provision, because to give her the money would create a "nonsensical" result that would "result in a windfall to students who leave Florida" to attend college, a state appeals panel has ruled.

On March 13, a three-judge panel of the Florida First District Court of Appeal affirmed the decision of Leon County Circuit Judge John C. Cooper, granting summary judgment to the Florida Prepaid College Board in a breach of contract suit filed by plaintiff Susan Snyder. 

Judge M. Kemmerly Thomas wrote the court's opinion, ruling Judge Cooper "correctly determined that Snyder failed to demonstrate that the board breached any provision of the tuition plan, that she suffered any damages as a result, that the board breached an implied covenant or that a present controversy existed regarding declaratory relief." First District judges Harvey L. Jay III and Judge James R. Wolf concurred in the decision.

Snyder had argued terms of the Florida Prepaid College contract obligated the board to pay the value of the TDF. 

The Florida Prepaid College Program was created by the state legislature as a way to lock in and prepay certain costs of a college education. The Florida Prepaid is administered by the board, which has statutorily defined rights and duties.

According to court documents, the legislature did not include the TDF in the definition of tuition or registration fee, but created it in 2007 as a separate fee, which colleges and universities can impose on students. However, the legislature excluded pre-existing Florida Prepaid participants, like Snyder, from paying the TDF. 

In 2009 the TDF provision was further amended to allocate 70 percent of its revenue to “undergraduate education” and 30 percent to student financial aid, court papers state. The legislature also allowed families to create an additional prepaid plan to cover the costs of the TDF.

Court records indicate Snyder purchased a prepaid plan in 2004 for her son. Snyder selected the four-year university tuition plan that authorized the board "to provide 'prepaid registration fees for a specified number of undergraduate semester credit hours'." Under that plan, Snyder would prepay “120 semester credit hours of tuition at a state university,” and the board would later pay her son’s chosen institution 120 credit hours of “registration fees.”

Her son, however, ultimately registered to attend college at The Citadel, in South Carolina.

Snyder argues the board owed $10,000 over the course of four years when it failed to cover the costs of her son's out-of-state registration fees based on the master contract, which she asserts should include the value of the TDF. 

However, the appeals court found that, "the trial court correctly determined Snyder’s contract with the board was not a static document and that the board was able to amend its overall contractual program by way of administrative rule making to keep up with legislative changes to Florida Prepaid." 

"No matter which Master Contract controlled, Snyder was not entitled to the value of the TDF under the prepaid plan she purchased," the appeals panel wrote.

"...Snyder’s interpretation is absurd as it would result in a windfall to students who leave Florida to acquire their education. Further, if a Tuition Plan was intended to cover the TDF, then the legislative decision to authorize the Board to offer TDF Plans would be nonsensical."

Representing Snyder are attorneys David J. Sales, of Sarasota; Daniel R. Hoffman, of Sarasota; James W. Gustafson, of Searcy, Denney, Scarola, Barnhart & Shipley PA, in Tallahassee; and Edward H. Zebersky and Jordan Shawn, of Zebersky & Payne LLP in Fort Lauderdale. 

Representing the Florida Prepaid College Board are attorneys Michael E. Riley, Jason L. Unger, Ashley Hoffman Lukis, and Andy V. Bardos of GrayRobinson P.A., in Tallahassee; and Jason A. Zimmerman, of GrayRobinson PA, in Orlando.

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