Susan Snyder v. Florida Prepaid College Board , 269 So. 3d 586 ( 2019 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-4768
_____________________________
SUSAN SNYDER,
Appellant,
v.
FLORIDA PREPAID COLLEGE
BOARD,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
John C. Cooper, Judge.
March 13, 2019
M.K. THOMAS, J.
Susan Snyder appeals an order granting final summary
judgment in favor of the Florida Prepaid College Board (the
“Board”). She argues summary judgment is improper because the
terms of the contract obligated the Board to pay the value of the
Tuition Differential Fee (“TDF”), a fee implemented by the
Legislature after she purchased a Florida Prepaid Tuition Plan.
Alternatively, she argues the prepaid plan contract is ambiguous
and, therefore, precludes summary judgment. We disagree and
affirm.
I. Facts
The Legislature created the Florida Prepaid College Program
(“Florida Prepaid”) as a means for participants to lock-in and
prepay certain costs of a future postsecondary education. §
1009.98(1), Fla. Stat. (2018) (describing the current Stanley G.
Tate Florida Prepaid College Program). Florida Prepaid is
administered by the Board, which has statutorily defined rights
and duties. § 1009.971, Fla. Stat. (2018). The Legislature has
authorized the Board to offer various prepaid plan options, or
advance payment contracts, each of which includes statutorily
defined benefits. § 1009.98(2), Fla. Stat. (2018).
A. Snyder’s Tuition Plan
In 2004, Snyder purchased a prepaid plan from the Board and
designated her son as the beneficiary. During the 2003-2004 Open
Enrollment Period, the Board offered three different plan options.
Snyder selected and purchased the 4-Year University Tuition
Plan. 1 In the Tuition Plan, the Board was authorized to provide
“prepaid registration fees for a specified number of undergraduate
semester credit hours . . .” See § 1009.98(2)(b)1., Fla. Stat. (2003).
As part of the contract, Snyder accepted the Board’s Master
Covenant, which set forth the policies and terms of Florida
Prepaid. The governing document at the time of Snyder’s purchase
was entitled 2003-2004 Master Covenant (“03/04 MC”). Under the
provisions of the 03/04 MC, 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.” The 03/04 MC defined “registration fee” to
mean “the fee charged for tuition and includes the matriculation
fee, financial aid fee, building fee, and Capital Improvement Trust
1 Other plan options offered at the time were the “Local Fee
Plan,” which applied to the “activity and service, health, and
athletic fees,” and the “Dormitory Plan,” which applied to the fee
charged for residence. At present, the Board is authorized to offer
six different plan options. See § 1009.98(2), Fla. Stat. (2018).
2
Fund fee.” This definition was similar to that found in chapter
1009 at the time. See § 1009.97(3)(g), Fla. Stat. (2003) (defining
“registration fee” to mean “tuition fee, financial aid fee, building
fee, and Capital Improvement Trust Fund fee”). 2
Snyder’s prepaid plan contract equally applied whether her
son went to an in-state or an out-of-state institution, with some
exceptions not relevant here. The 03/04 MC provided, “The Board
will transfer an amount not to exceed the current rates at state
universities and community colleges in Florida” and at “an amount
not to exceed the redemption value of the advance payment
contract at a state postsecondary institution.” See § 1009.98(3),
Fla. Stat. The 03/04 MC also expressly detailed that the
beneficiary was responsible for any additional fees charged by
state universities and community colleges, “including but not
limited to application fees, laboratory fees, meal plan fees, and
security deposits.” The redemption value of the advance payment
contract for 4-Year University Tuition Plans, if the beneficiary
attended school out-of-state, “shall be the average amount of
tuition . . . charged by the state universities . . . at the time of
matriculation.” Fla. Admin. Code R. 19B-9.003 (2001).
B. The Tuition Differential Fee
In 2007, the Legislature authorized state universities to
impose a new fee – the TDF. See Ch. 2007-225 § 1, Laws of Fla.
The Legislature did not include the TDF in the definition of tuition
or registration fee, but created it as a separate, statutorily defined
fee. See §§ 1009.01(3), 1009.24(16), Fla. Stat. (2007). “Tuition
differential” is defined as “the supplemental fee charged to a
student for instruction provided by a public university in this state
pursuant to s. 1009.24(15).” § 1009.01(3), Fla. Stat. (2007). 3
However, the Legislature excluded pre-existing Florida Prepaid
2 The building fee was merged into the Capital Improvement
Trust Fund fee in 2012. Ch. 2012-134, § 22, Laws of Fla.
3 In 2009, section 1009.01(3), Florida Statutes, was amended
to define the TDF as, “the supplemental fee charged to a student
by a public university in this state pursuant to s. 1009.24(16).”
3
participants like Snyder from paying the TDF: “Beneficiaries
having prepaid tuition contracts pursuant to s. 1009.98(2)(b) which
were in effect on July 1, 2007, and which remain in effect, are
exempt from the payment of the tuition differential.” Ch. 2007-
225, § 2, Laws of Fla. (amending § 1009.24, Fla. Stat.); §
1009.24(16)(b)5., Fla. Stat. (2018).
In 2009, the TDF provision was further amended to allocate
seventy percent of its revenue to “undergraduate education” and
thirty percent to student financial aid. See Ch. 2009-98, § 3, Laws
of Fla. (amending § 1009.24, Fla. Stat.). Also, the Board authorized
the purchase of a separate plan to cover the TDF which may be
purchased in conjunction with a Tuition Plan. See §
1009.98(2)(b)4., Fla. Stat. (2018).
C. Enrollment in an Out-of-State Institution
Snyder’s son elected to attend a non-Florida state institution
– the Citadel in South Carolina. As per the terms of Snyder’s
prepaid plan contract, the Board paid the Citadel for 120 hours of
“registration fees” as that term was defined in the contract at a
rate of $116.00 per credit hour. Snyder, however, argued the
Board underpaid, as she interpreted the Board’s obligation in the
03/04 MC to require transfer of an amount per credit hour
determined at “the current rate” of in-state schools which she
asserts should include the value of the TDF. Snyder concedes the
Board was paying her son’s tuition at the statutorily defined rate.
The Board paid to the Citadel the exact amount it would have paid
to any Florida university if Snyder’s son was attending class in-
state. The difference between the amount the Board actually paid
and the amount Snyder claimed the Board owed (the amount of
the TDF), is approximately $10,000 over the course of four years. 4
4 Both the 03/04 MC and the 2016-2017 Master Contract
(“16/17 MC”) allow subscribers to use their plan benefits at eligible
institutions outside of Florida. No material differences exist
between the two versions of the master contracts with regard to
the use of Tuition Plan benefits at an eligible out-of-state
institution.
4
In 2015, Snyder sued the Board for declaratory and monetary
relief, arguing the Board was not paying as contemplated under
the 03/04 MC. She asserted claims for breach of contract,
declaratory relief, and breach of the covenant of good faith and fair
dealing. Notably, Snyder never sought as part of her relief a
rescission of the contract, nor did she seek a refund under the
terms of the contract. Instead, she sought only payment of an
additional benefit to her Tuition Plan – the value of the TDF. She
argued, under the 03/04 MC and Florida Prepaid promotional
materials, she understood the Board would pay out-of-state tuition
based on the “current rates” at Florida universities and colleges,
and because “current rates” necessarily must now include the
TDF, she was also entitled to payment of the TDF value.
The trial court ultimately rejected Snyder’s claims and
entered an order granting final summary judgment in the Board’s
favor. This is Snyder’s appeal.
II. Analysis
We review an order granting final summary judgment de
novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d
126, 130 (Fla. 2000). “Summary judgment is proper if there is no
genuine issue of material fact and if the moving party is entitled
to a judgment as a matter of law.” Id. The issue in this case turns
on the trial court’s interpretation of Snyder’s prepaid plan contract
as well as the statutes and regulations governing Florida Prepaid,
which we also review de novo. Tierra Holdings, Ltd. v. Mercantile
Bank, 78 So. 3d 558, 562 (Fla. 1st DCA 2011); Imagine Ins. Co. v.
State ex rel. Dep’t of Fin. Servs., 999 So. 2d 693, 696 (Fla. 1st DCA
2008).
In granting final summary judgment for the Board, the trial
court concluded the amended master contract in effect at the time
of final summary judgment proceedings, the 2016-2017 Master
Contract (“16/17 MC”), governed the parties’ relationship and, by
its unambiguous language, precluded Snyder’s entitlement to the
value of the TDF. In the alternative, it concluded under either the
03/04 MC or the 16/17 MC, Snyder’s Tuition Plan did not include
the value of the TDF. We agree with the trial court’s analysis.
5
A. The 16/17 Master Contract Governs the Parties’ Relationship
Snyder argues the trial court erred in holding the 16/17 MC
governed the parties’ relationship. She asserts this holding
erroneously condones the Board’s unrestricted right to serially and
materially amend the parties’ agreement, resulting in an
impairment of her rights. We disagree.
The Board manages Florida Prepaid on behalf of all
participants, not just Snyder. See § 1009.971, Fla. Stat. (2018).
The Board’s role is to administer Florida Prepaid as the program
is created and amended by the Legislature. See State, Bd. of Trs.
of the Internal Improvement Trust Fund v. Day Cruise Ass’n, Inc.,
794 So. 2d 696, 700-01 (Fla. 1st DCA 2001) (recognizing most
administrative agencies are creatures of statute and have only
those powers the statutes confer). The Board implements the
Legislature’s vision for Florida Prepaid through the
administrative rulemaking process. See §§ 120.52(8), 120.536,
1009.971(4)(aa) Fla. Stat. (2018). The preamble to the 03/04 MC
makes clear the larger scope of the Board’s responsibility:
The applicable provisions of part IV, Chapter 1009,
Florida Statutes, rules contained in Chapters 19B-4
through 19B-13 and Rule Chapter 19B-15, Florida
Administrative Code, and s. 529 of the Internal Revenue
Code, as amended from time to time, shall apply to the
contract and are incorporated by reference.
That is, the Florida Prepaid statutes must necessarily govern
and provide the contextual framework for all advance payment
contracts into which the Board, as the contracting authority for
Florida Prepaid, enters. The language of the 03/04 MC preamble
expressly placed Snyder on notice that her contract was subject to
the statutory and regulatory framework at the time and “as
amended from time to time.” See Century Vill., Inc. v. Wellington,
E,F,K,L,H,J,M,& G Condo. Ass’n., 361 So. 2d 128, 133 (Fla. 1978)
(upholding a contract provision that incorporated by reference
provisions of the Condominium Act, “as it may be amended from
time to time,” and finding this language was clear the parties
intended amendments would become a part of the controlling
document whenever they were enacted); Sans Souci v. Div. of Fla.
6
Land Sales & Condos., Dep’t of Bus. Regulation, 421 So. 2d 623,
629 (Fla. 1st DCA 1982) (discussing the “automatic amendment
theory” and explaining the legal effect of an amendment clause is
to apply all subsequent amendments of the specific law to the
declaration, as if expressed therein). Further, Snyder is presumed
to know that, upon contracting with the Board, her contract
incorporated the overall statutory and regulatory Florida Prepaid
framework as well. See Westside EKG Assocs. v. Found. Health,
932 So. 2d 214, 216 (Fla. 4th DCA 2005) (“It is an accepted
principle of law that when parties contract upon a matter which is
the subject of statutory regulation, the parties are presumed to
have entered into their agreement with reference to such statute,
which becomes a part of the contract, unless the contract discloses
a contrary intention.”).
Not only did the preamble put Snyder on notice her contract
was subject to amendments in the Florida Prepaid program as a
whole, the master contract is incorporated by reference into
Florida Administrative Code Rule 19B-4.001(2). As the need for a
new or amended master contract arises with legislative changes to
Florida Prepaid, the rule is amended to incorporate the latest
version of the master contract, which amendment must necessarily
apply to Snyder as per the terms of the 03/04 MC preamble. Any
prejudice flowing to Snyder by virtue of the amendments is
remedied by the fact that the Board’s administrative rulemaking
process provides notice and an opportunity for public comment.
See Diverse Elements, Inc. v. Ecommerce, Inc., 5 F. Supp. 3d 1378,
1382 (S.D. Fla. 2014) (recognizing that reserving the right to
unilaterally modify a contract must be subject to certain
restrictions such as reasonable notice so as to not render the
contract illusory). We find no merit in Snyder’s suggestion the
Board, as a state agency, has no capacity to amend the parties’
agreement. As the trial court recognized, we have approved an
agency’s use of administrative rules to govern the substance of
“continuing contracts.” See, e.g., United Faculty of Fla. v. Fla.
State Bd. of Educ., 157 So. 3d 514, 517-18 (Fla. 1st DCA 2015)
(upholding the State Board of Education’s ability to adopt rules
governing certain employment contracts for college instructional
personnel).
7
The trial court correctly determined that 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 rulemaking to keep up with legislative changes to
Florida Prepaid. We agree with the trial court that the preamble
language of the 03/04 MC appropriately incorporated the
administrative rules and statutes, as amended, into the parties’
contract and put Snyder on notice that she was agreeing to be
bound by the current version of the master contract. As such, the
trial court appropriately determined the plain language of the
03/04 MC mandates that the current, amended master contract
prevails.
B. The 16/17 Master Contract is Unambiguous
We must look to the plain language of the 16/17 MC to
determine whether Snyder is entitled to the value of the TDF as
part of her prepaid tuition plan. See Columbia Bank v. Columbia
Developers, LLC, 127 So. 3d 670, 673 (Fla. 1st DCA 2013) (“The
cardinal rule of contractual construction is that when the language
of the contract is clear and unambiguous, the contract must be
interpreted and enforced in accordance with its plain meaning.”).
When a contract is clear and unambiguous, the court’s role is to
enforce the contract as written, not to rewrite the contract to make
it more reasonable for one of the parties. Id. (citing Ferreira v.
Home Depot/Sedgwick CMS, 12 So. 3d 866, 868 (Fla. 1st DCA
2009)). Snyder concedes the 16/17 MC is clear and unambiguous.
Under the 16/17 MC, a Tuition Plan covers “registration fees”
for 120 semester credit hours, but expressly excludes the TDF,
which is covered under a separately purchased plan. The 16/17
MC defines “registration fee” with reference to the specific
statutorily defined components: the tuition fee authorized in
section 1009.24(4), the financial aid fee authorized in section
1009.24(7), and the Capital Improvement Trust Fund Fee
authorized in section 1009.24(7). The 16/17 MC provides the
Board will transfer to out-of-state institutions “an amount not to
exceed the current average rates payable under the Beneficiary’s
plan(s) to a State University or Florida College.” (Emphasis
added.) A pre-2007 purchaser of a Florida Prepaid Plan would
never have to pay the TDF because of the express Legislative
8
exemption. Pursuant to the plain language of the contract, the
value of the TDF is not transferable to an out-of-state institution
and Snyder’s prepaid plan does not include the value of the TDF.
In this regard, the trial court appropriately granted summary
judgment for the Board.
C. The 03/04 Master Covenant is Unambiguous
The trial court also upheld summary judgment on an
alternative basis: no matter which Master Contract controlled,
Snyder was not entitled to the value of the TDF under the prepaid
plan she purchased. Snyder maintains that the 03/04 MC controls
and not the 16/17 MC. Furthermore, she asserts that under the
03/04 MC, the term “current rates” is ambiguous. We cannot
agree. When read in context, it is clear that “current rates” are the
rates of fees covered by Florida Prepaid, here registration fees, not
the rates of other fees that the purchaser’s plan does not cover. The
use of the term “transfer” in section 5.06 of the 03/04 MC and in
section 1009.98(3) illustrates the amount payable to an out-of-
state institution is not a separate benefit, but is the same benefit
the beneficiary would have received at an in-state institution.
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.
Even if we agreed with Snyder that the 16/17 MC does not
control, in order to reverse summary judgment, we would have to
find some dispute of fact. Snyder has failed to identify facts in
dispute. Accordingly, we would have to accept Snyder’s
interpretation of the contract as reasonable. See Strama v. Union
Fid. Life Ins. Co., 793 So. 2d 1129, 1132 (Fla. 1st DCA 2001)
(recognizing where an ambiguous provision in a contract is
susceptible to more than one interpretation, there is an issue of
fact as to the parties’ intent that cannot properly be resolved by
summary judgment). The crux of Snyder’s argument is that the
TDF is tuition by another name and that it comprises a portion of
the “current rates” at Florida universities and community colleges,
so the only reasonable interpretation of the 03/04 MC is that she
9
is entitled to the value of the TDF. The trial court appropriately
found this interpretation unreasonable.
In the 03/04 MC, the Board pledged to transfer “an amount
not to exceed the current rates at state universities and community
colleges in Florida” to a beneficiary who elected to attend an out-
of-state institution. The corresponding provision in section
1009.98(2)(b) states the Board “shall provide prepaid registration
fees for a specified number of undergraduate semester credit hours
not to exceed the average number of hours required for the
conference of a baccalaureate degree.” § 1009.98(2)(b)1., Fla. Stat.
(2003). The 03/04 MC tracks the language of chapter 1009 when
it defines “Registration fee” as “the fee charged for tuition and
includes the matriculation fee, 5 financial aid fee, building fee, and
Capital Improvement Trust Fund Fee.” See § 1009.97(3)(g), Fla.
Stat. (2003). It is clear that at the time the parties entered into
contract, the Board was obligated to transfer more than just
“tuition” under a Tuition Plan, but the extra amount included only
those fees referenced in the definition of “registration fee.” The
03/04 MC made this clear by its provision indicating the
beneficiary was responsible for additional fees.
What undermines Snyder’s argument is the Legislature’s
decision to define the TDF separately from tuition or registration
fee. See §§ 1009.01(1), (3), Fla. Stat. (2007) (defining “tuition” and
“tuition differential” separately); § 1009.24, Fla. Stat. (2007)
(authorizing different rates for tuition and the TDF). With the
amendments in 2007, the Legislature included subsection
1009.98(2)(b)3., which authorized the Board to provide advance
payment contracts for the TDF authorized in section 1009.24(16)
“in conjunction with advance payment contracts for registration
fees.” § 1009.98(2)(b)3., Fla. Stat. (2007). The Legislature’s safe-
harbor for pre-2007 subscribers was designed to meet subscriber’s
immediate concerns, but was never intended to be an admission
that TDF was a tuition increase.
5 The term “matriculation fee” was not defined in the 03/04
MC, but the trial court received testimony that, at the time, it was
used interchangeably with “tuition.”
10
Although she never purchased a TDF Plan, and although her
son is statutorily exempt from ever paying the TDF, Snyder
demands the Board pay the TDF value because her son decided to
attend an out-of-state school. She asks this Court to award her son,
and all other beneficiaries who use their prepaid benefits outside
of Florida, an additional $45 per credit hour. This would represent
a 42% bonus for those who elected to attend out-of-state schools
over and above the tuition payable to in-state students.
Snyder has received exactly what she bargained for even
under the 03/04 MC - “an amount not to exceed the current rates
at state universities and community colleges in Florida.” While
the term “current rates” is not defined, it must be specific to the
current rates for her son. That is, whether Snyder’s son went in-
state or out-of-state, the Board would never disburse the TDF
because he was exempt. This comports with the Board’s authority
in section 1009.98(3), Florida Statutes (2018), to transfer “an
amount not to exceed the redemption value of the advance
payment contract at a state postsecondary institution.”
“Redemption value” must necessarily mean the value of what
Snyder actually purchased, not additional fees under other
prepaid plan options that she did not.
Snyder’s interpretation of the 03/04 MC cannot stand because
it would contravene the express language of the contract
prohibiting the Board from distributing an amount exceeding
“current rates” at in-state institutions. Her interpretation would
also produce an absurd result because it would result in a higher
disbursement of funds to out-of-state students than in-state
students. Such a reading cannot stand. See Companion Prop. &
Cas. Ins. Co. v. Category 5 Mgmt. Grp., LLC, 189 So. 3d 905, 908
(Fla. 1st DCA 2016) (“A court must construe a contract in a manner
that accords with reason and probability and avoids an absurd
construction.”).
Snyder argues that even if this Court does not accept her
interpretation of the contract, it should reverse summary
judgment upon the finding that the 03/04 MC is, at least,
ambiguous. No ambiguity can be found where Snyder’s reading
would produce an absurd result. See CitiMortgage, Inc. v. Turner,
172 So. 3d 502, 504 (Fla. 1st DCA 2015) (“A contract is ambiguous
11
when it is susceptible to more than one reasonable interpretation,
but where one interpretation of a contract would be absurd and
another would be consistent with reason and probability, the
contract should be interpreted in the rational manner.” (internal
quotation and citation omitted)); Nabbie v. Orlando Outlet Owner,
LLC, 237 So. 3d 463, 466-67 (Fla. 5th DCA 2018) (recognizing a
true ambiguity only exists when it is susceptible to more than one
reasonable interpretation).
D. No Unconstitutional Impairment of Contract
Snyder asserts the Board’s arguments here diminish her
contractual rights to the “value” of the plan. Specifically, that the
purpose of these plans is to cover the “actual cost” of college, and
that her Tuition Plan now provides substantially less “value”
because the Board does not transfer the TDF to out-of-state
institutions. Having found the language of the 16/17 MC to be
unambiguous, Snyder’s position becomes one for an illusory
contract. However, on appeal Snyder explicitly clarified that “the
Court should not support any construction of the parties’
agreement, or the powers of the Board or legislature, which would
render [Snyder’s] stated contractual rights illusory.” Snyder does
not seek rescission of the contract nor repayment of the original
cost of the Tuition Plan.
To impair a preexisting contract, a law must “have the effect
of rewriting antecedent contracts” in a manner that “chang[es] the
substantive rights of the parties to existing contracts.” Manning v.
Travelers Ins. Co., 250 So. 2d 872, 874 (Fla. 1971). Here, Snyder
fails to address the criteria that courts must weigh to assess
whether a contract has been unlawfully impaired. See Searcy,
Denney, Scarola, Barnhart & Shipley, Etc. v. State, 209 So. 3d
1181, 1192 (Fla. 2017) (explaining that an impairment-of-contract
claim requires a court to balance the nature and extent of the
impairment against the importance of the State’s objective and the
degree of intrusion into the bargain). She also fails to identify any
law that impairs any specific provision of the 16/17 MC. Her
argument is that the Board’s “construction” of the law impairs its
“essential commitment” to cover the cost of postsecondary
education. However, to establish this “essential commitment,”
Snyder points to minutes of meetings and a promotional flyer. This
12
is insufficient to state a colorable claim. See id. at 1190–91
(explaining that, “[t]o impair a preexisting contract, a law must
have the effect of rewriting antecedent contracts” (internal
quotation marks omitted)).
Courts are obligated to construe contracts in such a way as to
give reasonable meaning to all provisions of a contract, rather than
one which leaves part of the contract useless or inexplicable.
Aucilla Area Solid Waste Admin. v. Madison Cty., 890 So. 2d 415,
416 (Fla. 1st DCA 2004); Hardwick Properties, Inc. v. Newbern, 711
So. 2d 35, 40 (Fla. 1st DCA 1998) (citing Premier Ins. Co. v. Adams,
632 So. 2d 1054 (Fla. 5th DCA 1994)). Neither the 16/17 MC nor
Florida law has ever purported to cover in full the “actual cost” of
a postsecondary education, including each and every one of the
many fees the Legislature has authorized the universities to
charge. See § 1009.24(7)-(17), Fla. Stat. The explanation of
different fees, and authorization of various advance payment plans
and contracts that cover different costs, refutes Snyder’s claim that
the “intent” of university Tuition Plans is to cover all costs. “Value”
has as its foundation a reasonable basis of “cost.” Here, the TDF is
not part of the “actual cost” that Snyder’s son will ever pay. He is
exempt from the TDF and he will never be charged the TDF
whether he acquires his degree exclusively out-of-state or attends
school in Florida. As Snyder concedes, the 4-Year University
Tuition Plan she purchased is not an investment program. It is a
contract to fix or “lock-in” postsecondary institution rates at the
time of purchase. Snyder has received the value of the contract.
Conclusion
Based on the undisputed material facts, the trial court
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. Accordingly, we affirm the trial court’s order
granting final summary judgment in favor of the Board.
AFFIRMED.
JAY, J., concurs; WOLF, J., concurs in result only.
13
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
David J. Sales of David J. Sales, P.A., Sarasota; Daniel R. Hoffman
of David J. Sales, P.A., Sarasota; James W. Gustafson of Searcy,
Denney, Scarola, Barnhart & Shipley, P.A., Tallahassee; Edward
H. Zebersky and Jordan Shawn of Zebersky & Payne, LLP, Fort
Lauderdale, for Appellant.
Michael E. Riley, Jason L. Unger, Ashley Hoffman Lukis, and
Andy V. Bardos of GrayRobinson, P.A., Tallahassee; Jason A.
Zimmerman of GrayRobinson, P.A., Orlando, for Appellee.
14