(citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). In actual-malice cases, such affidavits must establish the defendant's belief in the challenged statements' truth and provide a plausible basis for this belief. Wamstad's reliance on Wilson v. UT Health Center is also misplaced. Id. "The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment." (quoting Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir.1996)). 5251 Spring Valley Rd. The email address cannot be subscribed. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. Rem. Code Ann. Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. Id. New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir.1966). 4. We conclude that Wamstad's summary judgment evidence, in essence, merely asserts falsity of the Individual Defendants' Statements but does not otherwise raise specific, affirmative proof to controvert the Individual Defendants' affidavits negating actual malice. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Six different former business associates, including Lou Saba and Jack Sands, recount their view of their business dealings with Wamstad and how they came to feel that Wamstad took advantage of them. Prac. Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. . The record evidence shows that around the time Rumore was tried for shooting Wamstad, in 1986, he began to receive considerable press attention concerning his domestic life. Through the 1990s, Wamstad advertised in both print media and radio, using an image of himself as a family-man and folksy steakhouse owner to promote his restaurants. Wamstad asserts Stuertz mentioned Rumore's pending lawsuit to him but did not tell him he planned to cover Wamstad's business dealings as well. Broad. We conclude that Wamstad is a limited public figure, that all Defendant-Appellants conclusively negated the element of "actual malice," which Wamstad did not successfully controvert, thus entitling them to summary judgment as a matter of law. DALLAS, April 16 /PRNewswire/ -- Dee Lincoln, known nationally as the "Queen of Steaks" for her role as one of the leading female businesswomen in the steakhouse industry, resigned from Del. He argues that the challenged Statements do not concern the previous controversy over the Top-Ten List and his previous marital difficulties and his participation in business-related litigation are personal disputes and do not constitute a public controversy. It is not enough for the jury to disbelieve the libel defendant's testimony. 1979). Dale Wamstad sells development just east of Richardson's CityLine. We conclude that Wamstad is a limited public figure, that all Defendant-Appellants conclusively negated the element of actual malice, which Wamstad did not successfully controvert, thus entitling them to summary judgment as a matter of law. The purpose of the actual-malice standard is protecting innocent but erroneous speech on public issues, while deterring calculated falsehoods. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000). 2997; Waldbaum, 627 F.2d at 1297 n. 27 (controversy need not concern political matters). Each Defendant filed a traditional motion for summary judgment under rule 166a(c) of the Texas Rules of Civil Procedure.4 Tex.R. In deciding whether a genuine issue of material fact exists, we take evidence favorable to the non-movant as true; we indulge every reasonable inference, and resolve any doubt, in favor of the non-movant. The family he abandoned in New Orleans has a bone to pick with that." Wamstad reportedly "bristled" at that characterization of the "truth," claiming, "Twenty-three million dollars is truth. The two were inevitably linked, particularly because reports by others contrasted significantly with the family-man persona Wamstad persistently projected in his advertising. Wamstad himself perpetuated the public nature of the debate over his contentious relationships through his personal self-promotion in his advertising and his other interactions with the press-with all their attendant ramifications for the opinion-forming, consuming public. 51.014(6). Wamstad's expert witness opined that the Observer's investigation was grossly inadequate given the source bias, lack of pre-dissemination opportunity to respond, [and] lack of deadline pressure. Wamstad argues that this expert testimony-that the Media Defendants failed to investigate adequately-evinces actual malice. Id. Chamberlain was reportedly perplexed: his advertisement had not mentioned Lincoln by name, and he had used the same advertising concept for nearly five years, which was a list that compared Chamberlain's four-star listing with the three-and-a-half stars enjoyed by Del Frisco's and others, with the recent inclusion of III Forks on the lower-rated list. Co., 690 S.W.2d 546, 548 (Tex.1985). Doubleday Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex. She claimed a history. Id. Wamstad's ex-wife, Lena Rumore, describes alleged incidents of Wamstad's physical abuse of her, her shooting of Wamstad in 1985, and the ensuing trial in which she was acquitted based on self-defense. Get the latest updates in news, food, music and culture, and receive special offers direct to your inbox. Julie Lyons stated the following in her affidavit: She was aware of the numerous sources for the Article, including court documents and sworn court testimony. We conclude that Wamstad's summary judgment evidence, in essence, merely asserts falsity of the Individual Defendants' Statements but does not otherwise raise specific, affirmative proof to controvert the Individual Defendants' affidavits negating actual malice. We disagree. 972-490-9000. Co. L.P., 19 S.W.3d 413, 420 (Tex.2000). Dee Lincoln took the reins from Dale Wamstad and kicked up the charm. . See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). Wamstad argues that because the Individual Defendants' credibility is at issue, summary judgment is inappropriate, relying on Casso. All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. News v. Dracos, 922 S.W.2d 242, 255 (Tex.App.-San Antonio 1996, no writ) (actual malice cannot be inferred from falsity of the challenged statement alone); Fort Worth Star-Telegram v. Street, 61 S.W.3d 704, 713-14 (Tex.App.-Fort Worth 2001, pet. Accordingly, we reverse and render judgment for all Appellants. Casso, 776 S.W.2d at 558. To establish "reckless disregard" in this context, a defamation plaintiff must prove that the publisher "`entertained serious doubts as to the truth of his publication.'" 9. Id. Affidavits from interested witnesses will negate actual malice as a matter of law only if they are clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Tex. Bentley v. Bunton, 94 S.W.3d 561, 590-96 (Tex.2002) (reviewing finding of actual malice for sufficiency, incorporating clear and convincing standard on review). In an extensive affidavit, Stuertz stated the following, among other things: In researching for the Article, he interviewed at least nineteen people, reviewed numerous court documents (listing fifty-seven documents), court transcripts, and numerous newspaper articles concerning Wamstad (listing forty-eight newspaper articles). Casso v. Brand, 776 S.W.2d 551, 558 (Tex. But in determining whether a public controversy exists, we look to whether the public actually is discussing a matter, not whether the content of the discussion is important to public life. The Article also describes Wamstad's litigation with his long-time rival Ruth Fertel, of Ruth's Chris Steakhouse. He went on to add that Piper was a piece of snot floating in the ocean.. 452, 458 (N.D.Tex.1988) (businessman, the subject of consumer complaints and suits, was public figure because by his conduct he voluntarily engaged in a course that was bound to invite attention and comment). All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. ", In 1998, the Dallas press covered the run-up to, and opening of, Wamstad's III Forks restaurant. The standards for reviewing summary judgment under rule 166a(c) are well established. On May 26, the Louisiana Supreme Court denied Wamstad's attempt to derail his ex-wife's damage suit seeking a portion of the $22.7 million doled out when Lone Star Steak & Saloon purchased Del Frisco's in late 1995. Wamstad named as defendants parties associated with the media as well as individuals. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. Several inquiries are relevant in examining the libel plaintiff's role in the controversy: "(1) whether the plaintiff sought publicity surrounding the controversy, (2) whether the plaintiff had access to the media, and (3) whether the plaintiff voluntarily engaged in activities that necessarily involved the risk of increased exposure and injury to reputation." That the Media Defendants published her Statements anyway, his argument goes, is evidence of actual malice. Anything else you'd like to say?C1: I love you, Mom and Dane.C2: I love you, Mommy and Dane.C1: I love you, Nanny.C2: I love you, Nanny.Dale: And to Colleen (music and lyrics) it's a sin, my darling, how I love you. In addition, a reporter may rely on statements by a single source, even though they reflect only one side of the story, without manifesting a reckless disregard for the truth. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). 1996)). We conclude that Williams' not recalling his next "personal involvement" with the Article does not contradict his later affidavit testimony that the Statements in the Article were not published with actual malice. Alan S. Loewinsohn, Loewinshn Flegle, L.L.P., Dallas, for appellee. Civ. A public-figure libel plaintiff must prove the defendant acted with actual malice in allegedly defaming him. Civ. By publishing your views you invite public criticism and rebuttal; you enter voluntarily into one of the submarkets of ideas and opinions and consent therefore to the rough competition in the marketplace. Id. While that may well raise a fact question whether Rumore did indeed act in self-defense, it is not probative of Rumore's subjective attitude toward the truth of the Statements she made. The judge ruled that she had acted in self-defense. San Antonio Exp. In 1980, with a newfound drive and outlook on life, he founded Del Frisco's Double Eagle Steakhouse and sold it in 1995 for . He had no knowledge indicating that the Article or statements therein were false at the time the Article was published nor did he entertain any doubts as to the truthfulness of any of the matters asserted in the Article. Actual malice is a term of art, focusing on the defamation defendant's attitude toward the truth of what it reported. McLemore, 978 S.W.2d at 573. The continuing press coverage over the years showed that the public was indeed interested in Wamstad's personal behavior in both the family and business context. See also Brueggemeyer v. Am. Leyendecker is inapposite; it involved a showing of common-law malice to support exemplary damages, not a showing of constitutional "actual malice" required of a public-figure plaintiff to establish defamation. The Article was precisely about that contradiction and thus a continuation of the public discussion of Wamstad's endeavors and disputes. See Casso, 776 S.W.2d at 558 (citing New York Times, defining actual malice in public-figure case as term of art, different from the common-law definition of malice). denied) (defendant's testimony established plausible basis for professed belief in truth of publication, thus negating actual malice even if publication not substantially correct). Subsequently, in 1995, the press reported that Wamstad dropped the libel suit to facilitate his $23 million sale of Del Frisco's to a national chain. General-purpose public figures are those individuals who have achieved such pervasive fame or notoriety that they become public figures for all purposes and in all contexts. In a public-figure defamation case, a libel defendant is entitled to summary judgment under rule 166a(c) by negating actual malice as a matter of law. Subsequently, in 1995, the press reported that Wamstad dropped the libel suit to facilitate his $23 million sale of Del Frisco's to a national chain. Please try again. 2. Wamstad's reliance on Wilson v. UT Health Center is also misplaced. at 1271. Labour has taken 1.5million from a Just Stop Oil-backing green energy boss, it emerged yesterday. News v. Dracos, 922 S.W.2d 242, 255 (Tex.App.-San Antonio 1996, no writ) (actual malice cannot be inferred from falsity of the challenged statement alone); Fort Worth Star-Telegram v. Street, 61 S.W.3d 704, 713-14 (Tex.App.-Fort Worth 2001, pet. We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. Wamstad argues that because the Individual Defendants' credibility is at issue, summary judgment is inappropriate, relying on Casso. Bob Cooper--is a little off his T-bone, you may be right. Leyendecker is inapposite; it involved a showing of common-law malice to support exemplary damages, not a showing of constitutional actual malice required of a public-figure plaintiff to establish defamation. Make a one-time donation today for as little as $1. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. at 558-59. Turner, 38 S.W.3d at 120. Indulging all inferences in Wamstad's favor, nonetheless, the Statements in the Article were not inherently improbable or based on obviously dubious information. The failure to investigate has been held insufficient to establish actual malice. Rumore and the Divorce Judge's Pronouncement, As to Rumore, Wamstad relies on additional evidence, including evidence of a polygraph he purportedly passed, refuting Rumore's allegations of abuse. Accordingly, the affidavits negate actual malice and thus shift the burden to Wamstad to produce controverting evidence that raises a genuine issue of material fact concerning actual malice. The Four Sisters were trying to stare down Dale. The second element requires that the plaintiff have more than a trivial or tangential role in the controversy. Wamstad's first four categories of evidence, in essence, assert that the Media Defendants were on notice that Rumore's statements were false because Wamstad disagreed with Rumore (he allegedly passed a polygraph test) and a divorce judge disagreed with Rumore's assertion that she acted in self-defense when she shot Wamstad in 1985. Wamstad countered that Rumore's claims were groundless because she signed a settlement agreement in 1992 that paid her $45,000. Lyons testified on deposition that Williams commented to her that the draft article was libelous as hell, but it won't be when I'm through with it. When asked shortly thereafter about the comment, she stated she thought the statement was partly in jest and partly reflected that he was still working on the story.. Most, if not all of the statements about Wamstad in the Article were corroborated, either by prior sworn court testimony or by other witnesses, and based on the similarity of assertions made by the sources, he did not doubt the credibility of any of his sources, including Rumore and Roy Wamstad. 73.001 (Vernon 1997).WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex., Full title:NEW TIMES, INC. D/B/A DALLAS OBSERVER; MARK STUERTZ; LENA RUMORE WADDELL, Court:Court of Appeals of Texas, Fifth District, Dallas, stating that a reporter may rely on statements by a single source even though they reflect only one side of the story without showing a reckless disregard for the truth. "Actual malice is a term of art, focusing on the defamation defendant's attitude toward the truth of what it reported." While that may well raise a fact question whether Rumore did indeed act in self-defense, it is not probative of Rumore's subjective attitude toward the truth of the Statements she made. ), In the mid-1990s, the press began referring to Wamstad as flamboyant and controversial. For example, in 1995, the Dallas Morning News described Wamstad as a colorful and controversial member of the Dallas restaurant scene since arriving from New Orleans in 1989. In 1996, the Dallas press noted that Wamstad was known for getting embroiled in legal battles with former business partners and rival steakhouse chains. And the evidence shows that Wamstad used his access to the media to comment on his rivals and his business disputes. During the Top-Ten List litigation, Wamstad referred in radio advertisements as having been accused by a New York public relations person (whom he had named as a defendant) as being "diabolically clever and successful.". It will be open Wed.-Sat. Wamstad sued Fertel for defamation, and Fertel countersued for false advertising and unfair competition. Civ. at 455 (ongoing alleged "bait and switch" sales practices); and McLemore, 978 S.W.2d at 569 (why government raid failed). The lawsuit was eventually settled. Even after Rumore was acquitted based on self-defense, the New Orleans press continued to cover the couple's subsequent suits against each other, including Wamstad's suit in 1997 against Rumore for damages from shooting him and Rumore's subsequent countersuit for $5 million. Huckabee v. Time Warner Enter. Svalesen claims in court records that he did honor his agreement and was properly issued the shares in lieu of cash through "my previously rendered services which were equal to or in excess of the monetary value assigned to the shares." Id. Wamstad asserts Stuertz mentioned Rumore's pending lawsuit to him but did not tell him he planned to cover Wamstad's business dealings as well. Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex.1984) (reckless conduct not measured by whether reasonably prudent person would have investigated before publishing; must show defendant entertained serious doubts as to truth of publication, citing St. Amant, 390 U.S. at 731, 733, 88 S.Ct. (Courtesy Adobe Stock) Rooster Town Cafe should open by Labor Day at 3613 Shire Blvd., Ste . Mgmt. 973 F.2d 1263, 1270-71 (5th Cir.1992). Dale Wamstad redefined the Dallas steakhouse in 1981 when he opened Del Frisco's on Lemmon Avenue. 6. at 573 (citations omitted). McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). Even if Williams was not joking when he stated the draft article was libelous as written, it is irrelevant whether Williams himself or someone else edited the Article before publication; Williams unequivocally testifies in his affidavit that the Article as published did not contain statements he believed were false or about which he entertained doubts. Accordingly, we reverse the trial court's order insofar as it denies their motions for summary judgment and render judgment in favor of all Appellants. In sum, the media coverage of Wamstad over the past 15-plus years has been substantial and considerably focused on Wamstad's personality, with Wamstad himself participating in the media discussion. That is, he argues, the Article does not involve the types of controversies found in public-figure cases such as Trotter, 818 F.2d at 434-35 (union official assassination and labor violence in foreign country); Brueggemeyer, 684 F.Supp. The record contains numerous advertisements containing pictures of Wamstad's new family and children; many advertisements contain his signature slogan "We're open six evenings. The evidence includes an Associated Press article, from November 1994, that chronicled the long-standing personal rivalry between Fertel and Wamstad and also reported Fertel's allegation that Wamstad was behind the supposedly independent Top-Ten rating. "I love luxury brands," she said Friday after. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. Restaurateur Dale Wamstad has sold the 83,000-square-foot retail and office development in Richardson to a local group formed by Huey Investments and Standridge Companies. We reject this argument, just as the court in Huckabee did. In sum, we conclude that Wamstad has failed to raise a fact question on actual malice. When Ms. Rumore discovered the sale and compared the $45,000.00 she received for her half interest in the community, which included the Del Frisco's Steakhouse businesses, with the $22.7 million dollar sale price, allegedly received by Mr. Wamstad from Lone Star, she filed suit alleging fraud. Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. The Article is largely a recounting of various interactions with Wamstad as told by his ex-wife, his first-born son Roy, and some of Wamstad's former business associates. Wamstad's ex-wife, Lena Rumore, describes alleged incidents of Wamstad's physical abuse of her, her shooting of Wamstad in 1985, and the ensuing trial in which she was acquitted based on self-defense. For example, in the fall of 1989, the Dallas press carried at least four articles discussing the business-turned-legal dispute between Wamstad and Mike Piper, his former attorney, after Piper acquired a Del Frisco's restaurant from Wamstad. Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. Philanthropy . After Wamstad recovered from his wounds, he came back to the restaurant, which his wife had been running in his absence, and threw everybody out, including Roy. Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. Cos., 684 F.Supp. The case is expected to go to trial this summer. The supreme court has adopted the Fifth Circuit's three-part test for a limited-purpose public figure: (1)the controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution; (2)the plaintiff must have more than a trivial or tangential role in the controversy; and. For example, at the time of the dispute with Piper, the Dallas press reported that Wamstad ran an advertisement stating, "I've done some stupid things in my life, but selling my steakhouse to my attorney has to top the list" and another one in which he accused Piper of running a "clone" restaurant. See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). (Dale Wamstad, the Texas restaurateur who was running the place, was the topic of a lengthy article in the Dallas Observerin 2000 that detailed his past lawsuits, "bitter business partners,". If he cannot secure it during the discovery process, he is unlikely to stumble on to it at trial. Contact us. To prevail on summary judgment, a defendant must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. (quoting Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. The article recounted stories of Wamstad's physical and emotional abuse of family members and his numerous disputes with business partners. The AP article quoted Fertel as telling Rumore after the shooting that if she fired that many shots at Wamstad and didn't get him, Fertel was going to have to give Rumore shooting lessons. (When asked to comment for the newspaper articles, Wamstad told one newspaper that the matter is over and refused to return calls to the other. Cos., 684 F. Supp. They have also lived in Richardson, TX and Dallas, TX. San Antonio Exp. Appellants argue that Wamstad is a public figure, and thus he has the burden to show that each Defendant-Appellant published the Statements attributable to him or her with actual malice. at 573 (citations omitted). Id. For controverting evidence, Wamstad relies principally on his affidavit and deposition testimony denying the truth of the Statements made by, or attributed to, the Individual Defendants. As used in the defamation context, actual malice is different from traditional common-law malice; it does not include ill will, spite or evil motive. The Dallas Times Herald published two pieces on the dispute, one entitled "Dueling Steak Knives." (3)the alleged defamation must be germane to the plaintiff's participation in the controversy. Dale spent 20 years in the insurance business and in 1977 formed an investment group that funded a Popeye's Famous Fried Chicken franchise. As noted by D Magazine, it was unlike other high-end steakhouses in Dallas, . The contours of the controversy requirement are at least partly defined by the notion that public-figure status attaches to those who "invite attention and comment" because they have thrust themselves to the forefront of a public controversy "to influence the resolution of the issue involved." Tex. She alleged Wamstad had defrauded her with respect to her earlier property settlement, in 1992, for $45,000. Nixon v. Mr. I spend Sundays with my family. After he sold his interest in Del Frisco's, Wamstad continued to use his family values to promote his new restaurant, III Forks, which he opened in 1998.5, The press reported on a number of Wamstad's business disputes, particularly those with a personal edge to them. Julie Lyons stated the following in her affidavit: She was aware of the numerous sources for the Article, including court documents and sworn court testimony. Huckabee, 19 S.W.3d at 424. He went on to add that Piper was "a piece of snot floating in the ocean.". Wamstad is upping his bet that The Shire, with a "town village" design, will fill a need for a mixed-use project in Richardson. We conclude that the affidavits contain ample evidence of a plausible basis for the Observer's employees to believe in the truth of the Statements as reported in the Article. Dale Wamstad, also known as "Del Frisco," is the sole founder of two iconic, nationally recognized steakhouses. Accordingly, this is not a case where a defamation plaintiff was thrust into the public eye and involuntarily remained there. "Limited-purpose" public figures are only public figures for a limited range of issues surrounding a particular public controversy. P. 166a(c); Casso, 776 S.W.2d at 558 ("could have been readily controverted" does not simply mean movant's proof could have been easily and conveniently rebutted). Tex. Wamstad's Dallas Del Frisco's restaurant regularly appeared near the top of the "Knife and Fork Club of America's" top-ten list of steakhouses in the country ("Top-Ten List"). Id., (citing Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir. Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, "Media Defendants"). Civ. Veteran restaurateur Dale Wamstadt plans to open Four Sisters Cafe on April 18.It's his first big new restaurant in years. Stay up-to-date with how the law affects your life. Now he knows enough about those events to damage just about any top official's reputation. Del Frisco's Double Eagle Steakhouse was founded in 1980 and III Forks in 1998.
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