JOHN KIEFFER v. ATHEISTS OF FLORIDA, INC.
269 So. 3d 656
Fla. Dist. Ct. App.2019Background
- John Kieffer, former president of Atheists of Florida, sued AOF and director Edward Gollobith for defamation based on statements that Kieffer "misappropriated" AOF funds.
- Underlying dispute involved two donations totaling $5,045 that Kieffer deposited into a newly created AOF bank account and an approximately $18,000 check made out to attorney John McKnight that Kieffer allegedly authorized to be transferred.
- In an earlier partial summary-judgment order the trial court found genuine issues as to the $18,000 check but granted summary judgment for conversion and a FDUTPA violation as to the $5,045 donations (conversion does not require wrongful intent).
- Defendants moved for summary judgment on Kieffer’s defamation claim; the trial court granted it, concluding the statements were substantially true and invoking qualified privilege.
- The Second District reversed, holding defendants failed to meet the movant’s burden: conversion (a non-intent tort) does not necessarily equate to misappropriation (which implies wrongful intent), the communications were ambiguous and reasonably susceptible of defamatory meaning, and qualified privilege had not been argued by defendants below.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statements that Kieffer "misappropriated" AOF funds are substantially true | Kieffer: conversion finding as to $5,045 is not equivalent to misappropriation; statements are materially false | Defendants: prior rulings show Kieffer misappropriated funds; gist/sting of statements is true | Reversed: summary judgment improper — conversion without intent does not necessarily equal misappropriation; factual dispute exists |
| Whether ambiguity in the communications defeats summary judgment | Kieffer: statements are ambiguous and susceptible to defamatory meaning (implicating wrongful intent and larger sums) | Defendants: gist-focused truth suffices despite minor inaccuracies | Reversed: ambiguity requires factfinder; cannot resolve on summary judgment |
| Whether summary judgment was proper given unresolved facts about the $18,000 check | Kieffer: material factual disputes remain about authorization for the $18,000 transfer | Defendants: earlier rulings as to some funds support summary judgment on overall misappropriation claim | Reversed: factual disputes about the $18,000 check preclude summary judgment |
| Whether qualified privilege supports affirmance though not argued by defendants | Kieffer: privilege was not pleaded/argued; motive and excess of privilege are disputed issues | Defendants: court relied on qualified privilege in granting judgment | Reversed: court may not rely on an unpled affirmative defense on appeal; privilege unresolved and factual |
Key Cases Cited
- Dahly v. Dep't of Children & Family Servs., 876 So. 2d 1245 (Fla. 2d DCA 2004) (summary-judgment standard and de novo review)
- Jews For Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008) (elements of defamation and substantial-truth doctrine)
- Smith v. Cuban Am. Nat'l Found., 731 So. 2d 702 (Fla. 3d DCA 1999) (substantial truth—gist or sting controls)
- Pep Boys v. New World Commc'ns of Tampa, Inc., 711 So. 2d 1325 (Fla. 2d DCA 1998) (ambiguity and defamatory meaning are factual questions for a jury)
- Healy v. Suntrust Serv. Corp., 569 So. 2d 458 (Fla. 5th DCA 1990) (qualified privilege is an affirmative defense and vanishes if statements made with malice)
- Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (U.S. 1991) (falsity inquiry focuses on substantial truth, not minor inaccuracies)