Stern v. Board of Regents

Dissenting Opinion by

WILNER, J.,

which BELL, C. J., joins.

With respect, I dissent. I understand full well the financial dilemma that faced the Board of Regents when it was informed of the impending $36 million budget reduction on December 23, 2002. By the time the Board of Regents and the nine colleges opted to resolve that dilemma by increasing tuition for the spring semester, however, the University, through its colleges, had entered into clear written contracts with the students setting forth the fees that were to be charged for the spring semester, and the University, in my *727view, is not permitted to deal with its financial problem by breaching those contracts.1

The core complaint of the students which to me, has merit is that, (1) through a combination of related documents, written contracts were entered into with the students, (2) the contracts were within the scope of Maryland Code, § 12-201 of the State Government Article, (3) the University has breached those contracts by raising the prices called for in the contracts, and (4) the University is precluded by § 12-201 from raising the defense of sovereign immunity to the students’ claims for breach of contract. The University is not permitted to breach its contracts, and it remains liable for having done so.2

The real issue is whether the University, through its colleges, entered into express written contracts with the students, executed by an official or employee of the University acting within the scope of the person’s authority. I believe that it did.

*728A written contract can arise from several writings; it does not need to be on one piece of paper that all parties sign. As we held in Rocks v. Brosius, 241 Md. 612, 687, 217 A.2d 531, 545 (1966):

“A contract need not be evidenced by a single instrument. Where several instruments are made a part of a single transaction they will all be read and construed together as evidencing the intention of the parties in regard to the single transaction. This is true even though the instruments were executed at different times and do not in terms0 refer to each other.”

Thus, if A, in writing, advertises its willingness to sell widgets for $10/widget, and B, in response, offers in writing to purchase 100 widgets at that price, and A responds, in writing, that B’s order for 100 widgets has been received and accepted, the parties have a written, enforceable, executory contract. A is required to deliver the widgets at the accepted price, and B is obligated to pay the $1,000. That is simple Hornbook contract law and is essentially what occurred here, although it was a service, rather than a product, that was offered and accepted at a set price.

I start with the fact that, after satisfying admission requirements, the plaintiffs were duly and formally admitted as students of the University and thus became eligible to register for courses offered by the University. The catalogs published by the University described the available courses with sufficient definiteness that both the University and the students knew what was being offered. The catalogs also informed the students of the tuition and other fees that would be charged. Those charges, the University concedes in its brief, were set by the Board of Regents. The catalogs constituted, in a contract sense, an invitation to the students to bid.

By formally registering for offered courses, in light of the quoted tuition and fees pertaining to such registration, the students did, indeed, bid. When their registrations were accepted by the University, in writing and on its official form, and bills were sent, in writing and on the University’s official *729form, showing the courses for which the students had registered and the amounts due by reason of that registration, written contracts arose. At that point, the students had a contractual right to attend those courses and, if completed successfully, to be given credit for them toward a degree. At that point, subject to its own policies regarding withdrawals, which formed part of the contract, the University had a contractual right to payment. A perfected and enforceable contract was then in place.

Brushing all this fundamental contract law aside, the Court denies relief essentially on four grounds: (1) the University reserved the right in its catalogs to change the quoted tuition and fees; (2) the contracts were implied, rather than express, ones and implied contracts are not within the ambit of § 12-201; (3) the contracts were not “executed” by an official or employee of the University, and (4) there are no funds to pay any refunds to the students. None of those grounds, in my view, has any merit.

It is true that, in its various catalogs, the University indicated that quoted tuition and fees were subject to change, although none of the catalogs suggested that changes could be made after registration was complete and bills had been sent and paid. At oral argument, the University noted that there was no time limit on when changes could be made and suggested that tuition could be increased even after the semester had started, and possibly after it ended. Under the University’s theory, the University could raise tuition for the spring semester retroactively, at the end of May, and presumably deny the students course credit if the increased amount was not paid. I doubt that the Court, upon clear reflection, would approve of that, yet it follows inexorably from the Court’s position that there is no enforceable contract.3 I *730would hold that the ability to increase tuition or fees ended when registration for the spring semester courses occurred and a bill for that semester was sent. That is when the contract was formed; that is when the ability to change its terms ended.

The Court does not explain, and I am at a loss to understand, why the contracts are implied, rather than express ones. In County Comm’rs of Caroline County v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 94, 747 A.2d 600, 606 (2000), we adopted the definition of “express contract” found in Black’s Law Dictionary 323 (6th ed.1990): “an actual agreement of the parties, the terms of which are openly uttered or declared at the time of making it, being stated in distinct and explicit language, either orally or in writing.” We accepted as well the statement from Klebe v. United States, 263 U.S. 188, 192, 44 S.Ct. 58, 59, 68 L.Ed. 244, 247 (1923) that “[a] contract implied in fact is one inferred from the circumstances or acts of the parties; but an express contract speaks for itself and leaves no place for implications.”

Under those definitions, I would hold the contracts here to be express ones. No term is missing or left to implication; no agreement is left to implication. Through the acceptance of the registrations and the sending of the bills, the University has expressly committed itself to accept the students into the courses for which they registered at the prices stated on the bills. Nothing is left to extrinsic proof. The documents themselves, on their face, evidence the contracts and contain all of the necessary terms. If the University were to sue a student for non-payment of the fees, all it would have to produce to establish an express contract would be the registration form and the bill, and possibly the catalog.

The Court holds that the contracts were not signed by anyone, and, for that reason, do not fall within the ambit of § 12-201. The statute does not require an actual signature by *731anyone, but only that the contract be “executed for the State” by an authorized official or employee. In Porter v. General Boiler Casing Co., 284 Md. 402, 410, 396 A.2d 1090, 1095 (1979), we held, explicitly, that “a signature is not required in order to bring a contract into existence, nor is a signature always necessary to the execution of a written contract. The purpose of a signature is to demonstrate ‘mutuality or assent’ which could as well be shown by the conduct of the parties.” (Emphasis added). Quoting 1 A. Corbin, Contracts § 31 at 114 (1963), we added that, at common law, the making of a valid contract did not require a writing at all, “and even if there is a writing, there need be no signatures unless the parties have made them necessary at the time they expressed their assent and as a condition modifying that assent.” Porter, supra, at 410-11, 396 A.2d at 1095.

I recognize that the waiver of the State’s sovereign immunity in breach of contract actions was a somewhat limited one, in that the Legislature attached a number of conditions to it, and that the Court should not extend that waiver beyond what was expressed by the Legislature. It is clear from the legislative history of § 12-201, however, that the waiver was intended to be remedial in nature (see Baltimore County v. RTKL Associates, 380 Md. 670, 846 A.2d 433) — to correct what the Legislature regarded as the injustice of allowing the State and its agencies, with impunity, to breach solemn contracts that they had made — so there needs to be some balance in interpretation. If the Legislature intended to restrict the waiver to contracts personally signed by someone in authority, it would have said so, but it did not say so. The University has never even suggested, much less argued, that any of the documents that, to me, form the contract, were not prepared and issued by officials or employees who were authorized to do so, and, in the absence of any evidence to that end, we may presume that they were so prepared and issued, especially as they are all on University forms, many containing the University or college seal.

Finally, as to the sovereign immunity issue, the University acknowledges, as it must, that the Legislature has authorized *732it to be sued, not that such express authorization is any longer necessary with respect to contracts falling within the ambit of § 12-201. Section 12-203 of the State Government Article requires the Governor to place sufficient funds in the State budget to discharge the University’s obligation. All of the necessary pieces, even under a University of Maryland v. Maas analysis, are thus in place. The Court briefly acknowledges the existence of § 12-203, but takes no account of it, noting only that no such provision appears in the Education Article of the Code. So what? No other statute is necessary.4

I would reverse the judgment of the Circuit Court and remand for further proceedings to formulate a judgment that would honor and enforce the contracts with the students.

Chief Judge Bell authorizes me to state that he joins in this dissent.

. It is not for this Court, or any court, to second-guess the Executive decisions made by the Board of Regents as to how best to meet the financial crisis it faced. It should be noted, however, that the prospect of significant reductions in the University's budget was known to the Board as early as October, 2002. The University concedes in its brief that "[t]he likelihood of budget cuts to the University System of Maryland ('USM') was discussed at meetings of the USM presidents and Board of Regents in October and early November, 2002” and that “[v]arious cost containment actions, such as an expanded hiring freeze, staff furloughs, lay-offs, tuition increases, and deferral or cancellation of various operating expenses, were mentioned during these discussions.” (Emphasis added). If the Board had even tentatively in mind exercising the authority reserved in its various catalogs to raise tuition for the spring semester, it could have alerted the students to that possibility long before January 8, 2003, and, if necessary, put a warning to that effect on the registration statements and bills. That would have avoided entirely any legitimate claim of breach of contract, as the students would have registered for the spring semester with that prospect in mind.

. Although the contracts may have been with the individual colleges, I shall, for convenience, regard them as being with the University and treat the University in all respects as the contracting party.

. Indeed, the Court's approach would allow even more egregious breaches. Suppose, instead of raising tuition after registration had been completed, the Board of Regents decided to deal with the financial crisis by shutting down Bowie State University or one of the Law Schools for the spring semester, but yet retain the tuition paid by the students for that semester. Would the Court hold that the students *730could not recover their tuition because of the University's sovereign immunity — that there was no enforceable contract? If not, how would the Court distinguish that circumstance from the one now before us?

. It is important to note that, when the complaint was filed, the predominant remedy sought was injunctive relief to preclude the University from charging the extra fees. Had that relief been granted, as it should have been, prior to the students being forced to pay the extra tuition, no monetary judgment, or, at worst, a limited one, would have been necessary and the issue of available appropriations to pay any judgment would probably not have arisen. In any event, as to those students who have since paid the extra tuition, § 12-203 requires the Governor to include in the budget bill money that is adequate to satisfy final judgments. See Maryland Constitution, Art. III, § 52(4) and (12). Even if that is done in succeeding years, as necessarily it must at this point, there will be funds available to discharge any judgments.