Florida Virtual School v. Courtney Calfee

• Court: District Court of Appeal of Florida
• Decided: November 26, 2025
• Docket: 6D2023-4090
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2023-4090 Lower Tribunal No. 2022-CA-004973-O _____________________________

FLORIDA VIRTUAL SCHOOL,

Appellant, v.

COURTNEY CALFEE,

Appellee. _____________________________

Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Orange County. Margaret H. Schreiber, Judge.

November 26, 2025

BROWNLEE, J.

Florida Virtual School (“FVS”) appeals the trial court’s nonfinal order denying

its motion to dismiss the amended complaint filed by its former employee, Courtney

Calfee. FVS argues sovereign immunity barred all three counts of Calfee’s complaint.

We reach the merits of FVS’s third argument only and agree the school is entitled to

relief on that issue. As to the other two issues raised, we affirm on procedural grounds.

Our affirmance on these issues, therefore, is without prejudice to FVS pursuing its

sovereign immunity defense below. Background

We begin by noting that, because this case turns on the parties’ exact arguments

and the specific reasons for the trial court’s ruling, we deem it appropriate to include an

explanation of the facts and procedural history, which may otherwise seem

unnecessarily detailed. The following factual allegations were taken from Calfee’s

amended complaint, which we must accept as true. 1

Calfee was an FVS employee from 2006 to 2021. During her employment, the

school became embroiled in litigation against a competitor, which eventually led to the

issuance of subpoenas for personal cell phone records and other data from FVS

employees, including Calfee. During this time, FVS sought to image the contents of

their employees’ personal cell phones. Calfee expressed concern about the imaging to

her supervisor, who informed her that she and her team could “simply refuse” to provide

their phones and they would not be terminated as a result. On the day of the imaging,

all fourteen employees on her team, including Calfee, refused to turn over their phones.

Calfee continuously refused to turn over her phone throughout August 2021, and FVS

terminated her on September 1, 2021, citing insubordination.

1 See Rojas v. Univ. of Fla. Bd. of Trs., 419 So. 3d 593, 604 (Fla. 2025) (“[G]iven the procedural posture of the case, ‘we must accept as true’ the factual allegations of Rojas’s complaint and from those allegations ‘we must draw all reasonable inferences in favor of’ Rojas.” (quoting W.R. Townsend Contracting, Inc. v. Jensen Civ. Constr., Inc., 728 So. 2d 297, 300 (Fla. 1st DCA 1999)). 2 Calfee then sued FVS for breach of contract, breach of implied covenant of good

faith and fair dealing, and promissory estoppel. Calfee attached her most recent

employment contract to her amended complaint. The contract contained the following

pertinent provisions:

4. Rule[s] and Regulations. The Employee shall be bound to comply with all applicable Florida laws and [FVS] policies, rules, regulations, and directives.

5. Employment at Will. The Employee may be dismissed at any time for any lawful reason.

In her breach of contract claim, Calfee alleged that under her employment

contract FVS could not terminate her for an unlawful reason. She pled that she has a

right to privacy “enshrined in the Florida Constitution,” in article I, section 23, and that

she was terminated for “purported[] . . . insubordination” for refusing to turn over her

personal phone for imaging without privacy assurances. Aside from the terms of her

written contract, Calfee also relied on her supervisor’s oral promise that she would not

be fired for refusing to turn over her phone.

In her second claim, Calfee asserted that the implied covenant of good faith and

fair dealing required FVS “to act in good faith and to deal with Calfee fairly in deciding

whether to terminate her employment.” She alleged, in part, that FVS’s actions in failing

to offer privacy safeguards, and firing her despite its promises, frustrated the purpose

of the employment contract and “contravened [her] reasonable contractual

expectations.” Lastly, in her promissory estoppel claim, Calfee alleged she relied to her

3 detriment on FVS’s promise that she would not be terminated for refusing to allow

imaging of her phone.

FVS moved to dismiss based on sovereign immunity. At the hearing on its

motion, FVS argued Calfee’s breach of contract claim was based on an oral promise—

not on her employment contract—and that, in any event, as an at-will employee, Calfee

could be terminated for any lawful reason, and she failed to cite a law that FVS violated

by firing her. FVS further argued that, because Calfee’s breach of contract claim failed,

her breach of implied covenant claim necessarily failed as well. Finally, FVS argued

Calfee’s claims for breach of contract and promissory estoppel were mutually exclusive,

that it did not waive sovereign immunity for purposes of promissory estoppel, and that

Calfee could not circumvent the express terms of the contract by asserting a promissory

estoppel claim.

Calfee countered that FVS waived its immunity when it entered an express

written contract with her. She also argued FVS was wrong in claiming she had not

identified an unlawful reason for her termination and pointed to the right of privacy

asserted in her amended complaint:

[W]e have alleged in the complaint, contrary to [FVS’s] argument here today, that Ms. Calfee was terminated in violation of Article 1, Section 23 of the Florida Constitution for standing up for her right to privacy. Those allegations are contained in the general allegations in our complaint and are incorporated into this particular count.

4 FVS disagreed. While it acknowledged Calfee mentioned privacy in the amended

complaint, it argued “this [was] not a claim arising under the Florida Constitution for

any invasion of privacy. This is a breach of contract claim.” FVS then reiterated its

argument that Calfee’s breach of contract claim failed because she relied exclusively on

an oral promise to support that count. But the trial court disagreed with how FVS framed

the claim:

[Calfee] is arguing and has alleged that the amended complaint sets forth a cause of action for breach of contract in that the breach of contract cause of action arose when the plaintiff was fi[r]ed for a reason that essentially was not lawful. And that unlawful reason was the refusal to allow her phone to be searched, which would’ve been a violation of her right to privacy. I think that’s [Calfee’s counsel’s] argument. So the unlawful reason is you can’t fire somebody for not turning over their phone for inspection. And evidence of that unlawful reason is the communication. Under that analysis, wouldn’t this truly be a breach of contract action to which sovereign immunity would not apply?

In responding, FVS would not concede the point. FVS maintained it was still

unclear what the alleged unlawful reason for the firing was and returned its focus to the

statements of Calfee’s supervisor. FVS urged the court that the supervisor’s alleged

statement was outside the terms of the contract, that the contract required Calfee to

comply with school directives, and that one of those directives was to turn over her cell

phone.

The trial court then asked Calfee to identify the unlawful purpose alleged in the

amended complaint. Calfee responded that it was “[t]wofold”—the violation of article

5 1, section 23 of the Florida Constitution, based on FVS demanding Calfee’s personal

cell phone without any privacy guarantees, and second, “grafted on that,” Calfee’s own

supervisor told her she would not be terminated for her refusal to turn over her phone.

The trial court then denied FVS’s motion to dismiss but expressly permitted the school

to raise sovereign immunity as an affirmative defense. FVS now appeals that ruling.2

Analysis

We review issues of sovereign immunity de novo. See Rojas, 419 So. 3d at 604.

at S195 (citing Plancher v. UCF Athletics Ass’n, 175 So. 3d 724, 725 n.3 (Fla. 2015)).

“The doctrine of sovereign immunity . . . provides that a sovereign cannot be sued

without its own permission [and] has been a fundamental tenet of Anglo–American

jurisprudence for centuries[.]” Am. Home Assur. Co. v. Nat’l R.R. Passenger Corp., 908

So. 2d 459, 471 (Fla. 2005). Based on the principle that “the King can do no wrong,”

“[t]he doctrine was a part of the English common law when the State of Florida was

founded,” and the Legislature has adopted and codified it. Id. (citing § 2.01, Fla. Stat.

(2004)).

“In Florida, sovereign immunity is the rule, rather than the exception,” Pan-Am

Tobacco Corp. v. Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984) (citing Art. X, § 13, Fla.

2 Because the trial court’s order denied a motion that asserted entitlement to sovereign immunity, we have jurisdiction. See Art. V, § 4(b)(1), Fla. Const.; Fla. R. App. P. 9.030(b)(1)(B), 9.130(a)(3)(F)(iii); Sch. Bd. of Polk Cnty. v. Keys Claims Consultants, LLC, 50 Fla. L. Weekly D903, D903 (Fla. 6th DCA Apr. 17, 2025). 6 Const.), and it “derives entirely from the separation of powers,” Fla. Highway Patrol v.

Jackson, 288 So. 3d 1179, 1185 (Fla. 2020) (quoting Wallace v. Dean, 3 So. 3d 1035,

1045 (Fla. 2009)). Because of the separation of powers principles that animate the

doctrine, and because it provides both immunity from suit and immunity from liability,

the Florida Supreme Court instructs that “entitlement to sovereign immunity should be

established as early in the litigation as possible.” Jackson, 288 So. 3d at 1185.

Our state constitution, however, also provides that the Legislature can abrogate

the state’s sovereign immunity. Am. Home Assur. Co., 908 So. 2d at 471 (citing Art. X,

§ 13, Fla. Const. (“Provision may be made by general law for bringing suit against the

state as to all liabilities now existing or hereafter originating.”)). And the Legislature

has done so for certain tort claims. See § 768.28, Fla. Stat. (2022). Florida also

recognizes the judicially created “implied waiver” of sovereign immunity “where the

state has entered into a contract fairly authorized by the powers granted by general law.”

Pan-Am, 471 So. 2d at 5 (citing Art. X, § 13, Fla. Const.). This implied waiver doctrine

applies only to express, written contracts. Id. at 6.

FVS, which was “established for the development and delivery of online and

distance learning education,” is governed by its board of trustees—a “public agency

entitled to sovereign immunity pursuant to [section] 768.28[.]” § 1002.37(1)(a), (2),

Fla. Stat. (2022). Moreover, through its board of trustees, FVS has statutory authority

7 to enter into employment contracts, as it did with Calfee. § 1002.37(2)(f)4., (2)(l), Fla.

Stat. (2022).

On appeal, FVS relies on sovereign immunity to argue the trial court erred in

denying its motion to dismiss Calfee’s amended complaint. It first attacks the trial

court’s refusal to dismiss the breach of contract claim and argues Calfee was an at-will

employee who could be terminated for any lawful reason. And—consistent with its

argument below—FVS describes the breach of contract claim as being based

exclusively on the allegation that Calfee was terminated unlawfully after her supervisor

stated she would not be. FVS argues this allegation cannot provide the basis for a breach

of contract claim because Calfee’s termination could only be unlawful “if it violates a

federal or state statute.” But regardless of whether FVS is correct about that, the

problem for the school is that it does not address Calfee’s separate claim that FVS

unlawfully terminated her for refusing to allow the imaging of her phone without

privacy assurances.

As the appellant, FVS has the burden to demonstrate error on appeal. See

Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“In

appellate proceedings the decision of a trial court has the presumption of correctness

and the burden is on the appellant to demonstrate error.”). FVS cannot satisfy this

burden where it fails to address an independent ground for Calfee’s breach of contract

claim on which the trial court relied in denying the motion to dismiss. See Davis v. State,

8 153 So. 3d 399, 401 (Fla. 1st DCA 2014) (“An appellant who presents no argument as

to why a trial court’s ruling is incorrect on an issue has abandoned the issue—essentially

conceded that denial was correct.”). At the hearing on FVS’s motion to dismiss, the trial

court acknowledged Calfee’s claim regarding her privacy interests, asked FVS and

Calfee separately to address the claim—and even asked Calfee to identify where she

pled this claim in the amended complaint—and stated clearly that her supervisor’s

statements were only one reason Calfee pled her termination was unlawful. The trial

court then denied the motion.

Having abandoned any argument in response to Calfee’s claim that FVS breached

the employment agreement by terminating her, in violation of article 1, section 23 of

the Florida Constitution, FVS has not demonstrated the trial court erred in failing to

dismiss the breach of contract claim. Accordingly, we must affirm the trial court’s

denial of the motion to dismiss the breach of contract claim, without reaching its merits.

In finding FVS failed to challenge the trial court’s rationale, we recognize its

initial brief states that “Florida provides no cause of action for the common law tort of

wrongful termination ‘even where termination is founded on an employee’s exercise of

constitutional rights.’” 3 But FVS makes that isolated statement only when addressing

3 FVS also did not preserve this issue for our review. See Bryant v. State, 901 So. 2d 810, 822 (Fla. 2005) (“In order to preserve an issue for appeal, the issue ‘must be presented to the lower court and the specific legal argument or grounds to be argued on appeal must be part of that presentation.’” (quoting Archer v. State, 613 So. 2d 446, 448 9 Calfee’s claim about her supervisor’s alleged oral promise. It never ties that statement

to Calfee’s claim about the exercise of her right to privacy under the Florida

Constitution, nor does FVS’s brief include anything else that could reasonably be

considered an argument related to that claim. FVS simply does not address it at all. And

we cannot make the argument for FVS. See City of Miami v. Steckloff, 111 So. 2d 446,

447 (Fla. 1959) (“It is an established rule that points covered by a decree of the trial

court will not be considered by an appellate court unless they are properly raised and

discussed in the briefs.”); United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J.,

concurring) (citation omitted) (“The rule that points not argued will not be considered

is more than just a prudential rule of convenience; its observance, at least in the vast

majority of cases, distinguishes our adversary system of justice from the inquisitorial

one.”); see also Williams v. State, 50 Fla. L. Weekly D1636, D1638 (Fla. 5th DCA July

25, 2025) (“The passive design of the judicial power, as reflected in our constitution,

requires a steadfast application of the [party presentation] principle.”).

FVS’s next argument fails for the same reason. In arguing the trial court erred in

failing to dismiss Calfee’s breach of implied covenant of good faith and fair dealing

claim, FVS states: “Count Two, just like Count One, ultimately relies upon an alleged

oral promise.” But again, Calfee only relied on her supervisor’s alleged oral promise in

(Fla. 1993))). FVS never made this argument to the trial court. Instead, FVS consistently focused its argument on Calfee’s allegations about her supervisor’s statements. 10 part, and FVS does not address Calfee’s remaining claim—relied upon by the trial

court—that she was unlawfully terminated for exercising her constitutional right to

privacy. Because FVS has once again waived any challenge to that claim, it is not

entitled to relief on its second issue either. Like the breach of contract claim, we take

no position on the merits of this issue.

FVS’s third argument, however, does not suffer from the same procedural defect.

Calfee admitted that her promissory estoppel claim was based only on the allegation

that her supervisor told her that she and her co-workers would not be terminated for

refusing to turn over their cell phones and that she was ultimately terminated for

refusing to do just that. FVS relies on County of Brevard v. Miorelli Engineering, Inc.,

703 So. 2d 1049 (Fla. 1997), and argues that sovereign immunity barred this claim

because Calfee’s supervisor’s statements contradict the express terms of her written

contract with FVS.4

In Miorelli, the Florida Supreme Court addressed the applicability of waiver and

estoppel in sovereign immunity cases and found those doctrines cannot be used to defeat

the express terms of a contract. 703 So. 2d at 1051. The court explained:

Otherwise, the requirement of Pan[-]Am that there first be an express written contract before there can be a waiver of sovereign immunity would be an empty one. An unscrupulous or careless government employee could alter or waive the terms of the written agreement, thereby leaving the sovereign with potentially unlimited liability.

4 Because we agree with FVS on this point, we need not also address whether sovereign immunity otherwise barred Calfee’s promissory estoppel claim. 11 Id. The Florida Supreme Court recently reaffirmed Miorelli’s holding and clarified:

[T]he preclusion of implied obligations in conflict with express contractual provisions extends to obligations that would arise from application of the doctrines of waiver and estoppel. In sum, Miorelli recognizes a line between impermissible implied obligations that contradict, supplant, or override express contractual provisions and permissible implied obligations that do not have such a directly antagonistic relationship with the text of a contract.

Rojas, 419 So. 3d at 604.

Calfee’s promissory estoppel claim is directly antagonistic to the text of her

employment contract. That contract provides both that Calfee “shall be bound to comply

with all applicable Florida laws and [FVS] policies, rules, regulations, and directives”

and that Calfee “may be dismissed at any time for any lawful reason.” Despite those

terms, Calfee pled in her promissory estoppel claim that she could not be terminated for

failing to follow FVS’s directive to turn over her phone because her supervisor told her

that she would not be. Those allegations directly contradict the term of the contract

providing that Calfee is bound to comply with all FVS directives. In fact, if Calfee’s

promissory estoppel claim were to survive based on these allegations alone, then, just

as Miorelli cautioned, an FVS employee would have altered or waived the express terms

of the employment contract, “thereby leaving the sovereign with potentially unlimited

liability.” 703 So. 2d at 1051.

Because Calfee’s promissory estoppel claim conflicts with the express terms of

her employment contract, the trial court erred in failing to dismiss that claim based on

12 FVS’s sovereign immunity defense. Accordingly, we reverse the order denying the

motion to dismiss, in part, and remand for further proceedings consistent with this

opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

TRAVER, C.J. and MIZE, J., concur.

Margaret E. Kozan and M. Catherine Losey, of Losey, PLLC, and David J. D’Agata and Luis R. Guzman, of FLVS Office of General Counsel, Orlando, for Appellant.

Carlos F. Gonzalez, of Carlos F. Gonzalez, P.A., South Miami, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF TIMELY FILED