Perez v. Aerospace Academy, Inc.

Decision Date25 July 1989
Docket NumberNo. 88-761,88-761
Citation546 So.2d 1139,14 Fla. L. Weekly 1750
Parties55 Ed. Law Rep. 335, 14 Fla. L. Weekly 1750 Ovidio PEREZ, Appellant, v. AEROSPACE ACADEMY, INC., d/b/a Miami Aerospace Academy, Appellee.
CourtFlorida District Court of Appeals

Max A. Goldfarb, Miami, for appellant.

No appearance, for appellee.


COPE, Judge.

After two months' attendance at a private academy, plaintiff's daughter was expelled for an infraction of the rules. Plaintiff conceded that the school acted properly in expelling his daughter, but brought an action for a partial refund of tuition, room and board charges. The school counterclaimed for the contract amount remaining unpaid. The trial court ruled for the school, and plaintiff appeals. 1

This appears to be a question of first impression in Florida. The majority of jurisdictions hold that, upon voluntary withdrawal or expulsion, the full amount of tuition, room and board remains due and payable. E.g., Brenner v. Little Red School House, Ltd., 302 N.C. 207, 274 S.E.2d 206, 210 (1981); Annot., Absence from or Inability to Attend School or College as Affecting Liability for or Right to Recover Payments for Tuition or Board, 20 A.L.R. 4th 303 (1983). Contra Mount Ida School for Girls, Inc. v. Rood, 253 Mich. 482, 235 N.W. 227 (1931). The majority rule rests upon the premise that a private educational institution must make budgetary commitments for a year at a time, and that the acceptance of a place by one student may prevent the school's enrolling another. See generally Annot., 20 A.L.R. 4th 303 § 2. The result is otherwise where the school itself has acted wrongfully e.g., Fairmont School, Inc. v. Bevis, 210 N.C. 50, 185 S.E. 463 (1936), or where the occurrence of a serious illness or disability has prevented the student from attending. E.g., Dubrow v. Briansky Saratoga Ballet Center, Inc., 68 Misc.2d 530, 327 N.Y.S.2d 501 (N.Y.Civ.Ct.1971); see generally Annot., 20 A.L.R.4th 303 §§ 3[b], 5. The latter circumstances are not present here.

We align ourselves with the majority rule, subject to two additional qualifications which may be applicable here. First, the school is under an obligation to act reasonably to mitigate damages. Fayman v. Trustees of Burlington College, 103 N.J.Super. 476, 247 A.2d 688, 690 (Ch.Div.1968). Thus, where the policy of the school is to admit transfer students during the school year, and the school admits a replacement student in place of the expelled student, then credit should be given to the extent of the mitigation. Id. We do not mean to suggest that a school would be obliged to actively recruit a replacement for the expelled student, but where the school actually fills the place of the absent student, the school's damages will be mitigated to the extent of the new student's payments. To conclude otherwise would create a dual recovery for the school and a penalty to the parent of the expelled student.

Second, in a boarding school setting, as is true here, the withdrawal of a student should reduce the school's expenditures on food, and possibly other out-of-pocket board charges. 2 If the amount of the school's out-of-pocket savings on board charges is readily ascertainable, then appellant would be entitled to a credit in that amount.

In the instant case the contract provided that the full charge for tuition, room and board would constitute liquidated damages in the event of breach. The trial court found that actual damages were not readily ascertainable and enforced the liquidated damages provision.

A liquidated damages provision will be sustained where damages are not readily ascertainable at the time the contract is entered into, provided that if circumstances existing at the time of breach "demonstrate that it would be unconscionable to allow the seller to retain the sum in question as liquidated damages, equity may relieve against the forfeiture." Berndt v. Bieberstein, 465 So.2d 1264, 1265 (Fla. 2d DCA 1985) (citing, inter alia, Hutchison v. Tompkins, 259 So.2d 129, 132 (Fla.1972)).

We are in accord with the trial judge's reasoning with respect to the room and tuition charges. The trial judge properly rejected plaintiff's theory that the contract price should be converted into a per diem rate and billed only for days actually attended. However, insofar as the liquidated damage clause fails to provide credit for sums received from a replacement student (if any), the clause operates as a penalty. As the trial court's findings do not address that issue, a remand is necessary.

The liquidated damages clause potentially also operates as a penalty, or unconscionably, to the extent that it fails to allow credit for out-of-pocket savings realized by the school on board charges, if those are readily ascertainable. While the trial court findings do address the tuition, room and board charges as a lump sum, there are no separate findings as to the board charges specifically. 3

We therefore reverse the judgment and remand for a determination whether appellant is owed any credit by reason of payments received from a replacement student, if any, or on account of savings attributable to readily ascertainable board charges, and thereafter to enter judgment based on the contract amount less credit, if any.


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5 cases
  • Barrie School v. Patch
    • United States
    • Court of Special Appeals of Maryland
    • October 5, 2007
    ...the breach, or has taken steps that mitigated the damages, that fact must be taken into account. See, e.g., Perez v. Aerospace Academy, Inc., 546 So.2d 1139, 1141 (Fla.App.1989) (stating that "where the school actually fills the place of the absent student, school's damages will be mitigate......
  • RKR Motors, Inc. v. Associated Uniform Rental & Linen Supply, Inc., Case No. 3D05-2130 (Fla. App. 10/25/2006), Case No. 3D05-2130.
    • United States
    • Florida District Court of Appeals
    • October 25, 2006
    ...2d 129, 132 (Fla. 1972); Coleman v. B.R. Chamberlain & Sons, Inc., 766 So. 2d 427, 429 (Fla. 5th DCA 2000); Perez v. Aerospace Acad., Inc., 546 So. 2d 1139, 1141 (Fla. 3d DCA 1989). The trial court found that Associated Uniform's damages were not ascertainable at the time the contracts were......
  • Rkr Motors v. Associated Uniform Rental
    • United States
    • Florida District Court of Appeals
    • November 12, 2008
    ...So.2d 129, 132 (Fla.1972); Coleman v. B.R. Chamberlain & Sons, Inc., 766 So.2d 427, 429 (Fla. 5th DCA 2000); Perez v. Aerospace Acad., Inc., 546 So.2d 1139, 1141 (Fla. 3d DCA 1989). The trial court found that Associated Uniform's damages were not ascertainable at the time the contracts were......
  • Bradley v. Health Coalition, Inc.
    • United States
    • Florida District Court of Appeals
    • February 5, 1997
    ...Bradley has reserved the right to attack the liquidated damages clause as one which imposes a penalty. See Perez v. Aerospace Academy, Inc., 546 So.2d 1139, 1141 (Fla. 3d DCA 1989).5 The employer has denied that any further commissions were owed to the employee.6 Generally, a party seeking ......
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