James v. Dodge City Community College

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NOT DESIGNATED FOR PUBLICATION

No. 120,111

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

BRIDGET JAMES,
Appellant/Cross-appellee,

v.

DODGE CITY COMMUNITY COLLEGE,
Appellee/Cross-appellant.


MEMORANDUM OPINION


Appeal from Ford District Court; SIDNEY R. THOMAS, judge. Opinion filed December 6, 2019.
Affirmed.

Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant/cross-appellee.

Allen G. Glendenning, of Watkins Calcara, Chtd., of Great Bend, for appellee/cross-appellant.

Before POWELL, P.J., HILL and WARNER, JJ.

PER CURIAM: Claiming a violation of the Kansas Consumer Protection Act,
Bridget James, a student at Dodge City Community College, sued the College. James
claimed the College charged her fees, tantamount to tuition, which the school then
misused to fund scholarships. The district court, upon the College's motion, dismissed her
claims and, in turn, denied the College's claim for attorney fees. James appeals the
dismissal of her case. The College cross-appeals, contending the court erred in not
awarding the College attorney fees. For the reasons given in the opinion, we affirm the
dismissal of James's suit and the denial of the College's claim for attorney fees.

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The parties focus on an amended petition.

In her amended petition filed in June 2018, James claimed the College had
violated the Kansas Consumer Protection Act. She alleged it misused public funds,
"disguised as incidental fees," which constituted deceptive acts and practices in violation
of K.S.A. 50-626. She also alleged this misuse of funds constituted unconscionable acts
and practices in violation of K.S.A. 50-627. She asked the court to award her a $10,000
penalty for each of the College's violations under the Act and for reimbursement of the
incidental fees she had paid to the College.

James had enrolled in the College's nursing program in the fall of 2016. She paid
the required tuition, as well as "incidental" fees and costs as required by the College to
participate in the program. Her claims are based on the payment of these incidental fees.
In her view, they were tuition. James claimed that the College, by using the money from
the incidental fees to fund scholarships, violated a statutory prohibition against using
public funds to fund certain scholarships. James also claimed she received no benefit
from a portion of the incidental fees she paid and that she was financially damaged by the
College's "misuse of tuition, disguised as incidental fees, as a condition of granting her
the privilege of attending [the College] and participating in its institutional program."

The College moved to dismiss her lawsuit. It admitted that James had paid her
tuition. It also admitted that James was charged fees, which James paid, and the College
used those fees to fund scholarships. The College cited various statutes, which it argued
distinguished tuition from fees. In the College's view, the law authorized the College
Board of Trustees to use the student fees for funding scholarships. The College submitted
to the court the statutory amendments from 2001 authorizing the practice of assessing
student fees for use in funding scholarships. The College also attached to its motion two
affidavits and other supporting documents to establish that it followed statutory
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requirements in establishing the rate of fees to be used for scholarships. The College also
requested attorney fees, costs, and sanctions against James.

The district court found there were no factual disputes. It held that the statutes
were not ambiguous and made a "real distinction between tuition and fees." The court
found that the College took the proper statutory steps to establish the fees for use in
funding scholarships, and so the line between the two charges "has not been blurred." The
court granted the College's motion to dismiss James' lawsuit, but denied its request for
attorney fees.

James appeals the dismissal of her lawsuit. The College cross-appeals the denial of
its request for attorney fees.

Whether a district court erred by granting a motion to dismiss for failure to state a
claim is a question of law subject to unlimited review. We, as an appellate court, will
view the well-pleaded facts in a light most favorable to the plaintiff and assume as true
those facts and any inferences reasonably drawn from them. If those facts and inferences
state any claim upon which relief can be granted, then dismissal is improper. K.S.A. 2018
Supp. 60-212. See Cohen v. Battaglia, 296 Kan. 542, 545-46, 293 P.3d 752 (2013).

James argues that the dismissal of her case was premature because additional
factual inquiry is needed to determine whether fees are distinct from tuition. She argues
that "these questions are probably better resolved at the summary judgment stage" to
allow the court to "examine the money trail as fleshed out through discovery."

We do not think so because there is no factual dispute between the parties. The
College admits it charged James for fees and that she paid the fees. And the College used
part of the money from the fees to fund scholarships. James claims the College violated
the law when it did so. The College argues to the contrary. Thus, the real dispute between
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these parties is a question of law. Is this practice legal? To answer that question, we must
turn to the applicable statutes.

In Kansas, community colleges, such as Dodge City Community College, are
governed by the laws in Chapter 71 of the statutes. K.S.A. 71-203 provides that the board
of trustees of a community college shall not allow the expenditure of any public funds for
scholarships for students who reside outside the community college district. And no
public funds can be used for athletic scholarships. Proceeds from admissions to activities
sponsored by the community college, as well as moneys from the private sector, shall not
be considered public funds. "Notwithstanding any provision of law to the contrary, a
community college may use student fees to grant student scholarships," if that use is
approved by the board and acknowledged by student government representatives.
(Emphasis added.)

Under K.S.A. 71-301, the board of trustees shall charge and collect tuition at rates
per credit hour established by the board. "In addition to tuition, the board of trustees may
charge to and collect from each student fees at rates which shall be established by the
board of trustees." (Emphasis added.)

In what seems to be a policy argument, James contends that "student fees" in the
community college setting should be considered in the same way that student fees are
defined under the State Board of Education Act, K.S.A. 72-243 et seq. James argues that
"fees" should only be assessed to community college students for the use, rental, or
purchase of specific items such as work books, musical instruments, or art supplies in the
same way public school pupils may be assessed fees in accordance with K.S.A. 72-3352
and K.S.A. 72-3353. She argues that because the College assessed fees on a per credit
hour basis and at a rate that exceeded the rate of tuition, the conclusion is "inescapable"
that it is a distinction without a difference to claim that fees and tuition are not the same
thing.
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We are not persuaded by James' argument. Community colleges are not the same
as public school districts. That is why different chapters of our statutes are devoted to
each. Public school districts are prohibited from charging tuition, but may assess fees or
supplemental charges, but community colleges—under the supervision of the state board
of regents—may charge tuition, fees, and other charges. See Kan. Const. art. 6, § 6(b);
K.S.A. 71-801(a).

We agree with the district court. The statute here—K.S.A. 71-203—is not
ambiguous. The statute permits the establishment and assessment of fees along with
tuition. That line was not blurred because the proper steps were followed to designate the
fees to use for scholarships. The court also found that student fees may be used for
athletic scholarships as they are one type of student scholarship.

The plain language of the statutes supports the district court's conclusions. The
board of trustees may charge student fees at a rate set by the board, along with tuition.
See K.S.A. 71-301. A community college may use student fees to fund student
scholarships, provided the college follows a two-step process:
• Fee use for scholarships is approved by the board of trustees; and
• using student fees for scholarships is acknowledged by student government
representatives.

That was done here. Thus, we affirm the dismissal of James' lawsuit.

We turn now to the College's request for attorney fees. When the trial court can
grant attorney fees, its decision whether to award fees is reviewed under the abuse of
discretion standard. Wiles v. American Family Life Assurance Co., 302 Kan. 66, 81, 350
P.3d 1071 (2015).

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The College does not claim the district court abused its discretion in failing to
award attorney fees here, nor does the College cite any statutory authority outside of
K.S.A. 2018 Supp. 60-211(b)—on pleading sanctions—in support of its argument for
attorney fees. In other words, the court did not see fit to sanction James for filing this
lawsuit.

After reviewing the record and noting that the fees the College assessed James
exceeded her tuition, we see no reason to find her claims to be baseless. We, like the
district court, will not impose a sanction and deny the College's request for attorney fees.

Affirmed.