And the evidence shows that Wamstad used his access to the media to comment on his rivals and his business disputes. Wamstad is upping his bet that The Shire, with a "town village" design, will fill a need for a mixed-use project in Richardson. As noted by D Magazine, it was unlike other high-end steakhouses in Dallas, . 2997. Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. The managing editor had stated to her that virtually all of the information, even that conveyed in interviews with Rumore and Roy Wamstad, was corroborated by other sources or documents. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. 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. 1987)). Id. Our review of the record shows that after Williams was deposed, he testified by affidavit, stating that he went over at least two drafts of the Article with Stuertz, who answered all of his questions, and that the Article went through the standard, detailed process for editing and revision. The case is expected to go to trial this summer. In the mid 70's after 20 years in the insurance business, Dale got into the food industry as an investor with Popeye's Famous Fried Chicken. The case is expected to go to trial in January. See Gertz, 418 U.S. at 346, 94 S.Ct. The articles quoted Piper as saying he got involved with Wamstad in 1985 when Dale's wife shot him and states that Piper showed the reporter the 1986 raging bull article from the Times-Picayune. 51.014(6). The articles quote Wamstad's advertisement, directed at Chamberlain: "If you, your investors and the food critics want to slam III Forks, I can live with that. Furthermore, that Rumore confessed to confusion about past events, and that Stuertz thought her remarrying Wamstad was not logical, are not probative of whether Stuertz believed the Statements, as they appeared in the Article, were false. Wamstad also sued Rumore, Saba, and Sands (collectively, Individual Defendants). McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). Wamstad had not reacted to the advertisement before. Although at trial the libel plaintiff must establish actual malice by clear and convincing evidence, at the summary judgment stage the court applies the traditional summary-judgment jurisprudence in testing whether the evidence raises a genuine issue of material fact. The Dallas Morning News also covered the story, quoting Piper's and Wamstad's personal comments about each other. McLemore, 978 S.W.2d at 573. See Tex. Accordingly, we reverse and render judgment for all Appellants. 972-490-9000. The record contains numerous references to Wamstad throughout the 1990s, many appearing in the restaurant critic columns, which make frequent references to Wamstad personally. 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. To determine whether a controversy existed, and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question. Id. Code Ann. She alleges Wamstad created a "web of lies" to conceal the true ownership and value of Del Frisco's assets following their 1987 divorce. New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir.1966). 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). Wamstad sued Fertel for defamation, and Fertel countersued for false advertising and unfair competition. 6. This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. The Casso court went on to explain that the plaintiff must offer, at trial, clear and convincing affirmative proof of actual malice. . Chamberlain expressed the view that Wamstad wanted to create some publicity for his new steakhouse and was doing it at the expense of Chamberlain's reputation. 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). Broad. Having negated an essential element of Wamstad's cause of action, Defendant-Appellants are entitled to summary judgment. Wamstad said the article, which detailed his relationships with his ex-wife, their son, and some of Wamstad's business associates, harmed his reputation. 1969) (proof of utter failure to investigate amounted to no evidence of actual malice). 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. Ms. She had no knowledge at any time that the Article or any statements in it were false and did not at any time entertain doubts as to the truth of the statements. The fact that Wamstad denied the abuse and disagreed that his former wife acted in self-defense in shooting him was not evidence that the Observer believed her claims were false and published. Through his promotion of his family-man image in his advertising over the years, Wamstad voluntarily sought public attention, at the very least for the purpose of influencing the consuming public. On July 16, 1986, Lena Rumore was found innocent. Wilson was not a public-figure case, that court applied federal procedural standards, and in a cryptic discussion it used the general term "malice," giving no indication it was applying the constitutional "actual malice" standard that we must apply here. It reportedly escalated from there. Apparently incensed at the steak-house . Actual malice is defined as the publication of a statement with knowledge that it was false or with reckless disregard of whether it was false or not. Id. Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. In its edition dated March 16-22, 2000, the Dallas Observer published an article ("the Article") about Dale Wamstad, entitled, "Family Man," with the caption on the cover stating, "Dallas Restaurateur Dale Wamstad portrays himself as humble entrepreneur and devoted father. See Brueggemeyer, 684 F.Supp. 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. 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. Texas courts have held that falsity alone is not probative of actual malice. 5. 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. Prac. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. Wamstad asserts he does not meet the public-figure test, because there is no public controversy. 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. Wamstad's big beef If you think III Forks owner Dale Wamstad--and his 257-year-old alter ego, Capt. So Wamstad took the beef to the state's highest court. Id. The Court summarized as follows: The defendant's state of mind can-indeed, must usually-be proved by circumstantial evidence. Id. Rem. 00-02758-C, Gary Hall, J. J. Michael Tibbals, Joseph A. Barbknecht, J. Brantley Saunders, The Barbknecht Firm, P.C., David G. Allen, Stacy Conder, L.L.P., Charles L. Babock, Jim (James) McCown, Jackson Walker, LLP, Dallas, for appellants. A public-figure libel plaintiff must prove the defendant acted with actual malice in allegedly defaming him. 9. P. 166a(c). 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. Wamstad named as defendants parties associated with the media as well as individuals. Each Individual Defendant submitted an affidavit testifying that his or her Statements were not made with actual malice, e.g., denying any subjective belief or knowledge that his or her Statements were false, and denying having any serious doubts as to their truth. Moreover, the judge's assessment is not probative of whether Rumore believed in the truth of the other Statements she made or whether she entertained doubts as to their truth. Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. We certainly agree that the public debate in this case does not involve matters of great moment in current public life. That Court noted the mere fact that a libel defendant knows that the libel plaintiff denies an allegation is not evidence that the defendant doubted the allegation. Wamstad is a classic case of a shrewd business guy from out of town who got under the skin of corrupt local public servants. Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, Media Defendants). Actual Malice and Burdens of Proof on Summary Judgment. Please try again. Id. 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. We disagree. Co., 690 S.W.2d 546, 548 (Tex. Sometime after the opening, the Dallas Business Journal and the Observer covered yet another of Wamstad's business disputes-again focusing on the personal aspects of the dispute-this time with rival steakhouse-owner Richard Chamberlain. Having invited public rebuttal concerning his persona, Wamstad took on the status of a limited public figure with respect to his behavior in business and family matters. One article in the New Orleans Times-Picayune, entitled Wounded husband called a raging bull, quoted testimony from the trial of at least three witnesses who described instances they witnessed of Wamstad's physical abuse of Rumore before the shooting. Id. Independent evidence is required: Id. Contact us. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. Id., quoted approvingly in McLemore, 978 S.W.2d at 572. Again, the press covered the personal aspects of the rivalry between the parties, reporting that both sides claimed total victory. from 10 a.m.-2 p.m. 972-664-9975 (Texas restaurant) RELATED STORIES McLemore, 978 S.W.2d at 572-73. 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. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. Casso, 776 S.W.2d at 558. A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is. Wamstad reportedly "bristled" at that characterization of the "truth," claiming, "Twenty-three million dollars is truth. 1984). 7. 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. Gertz, 418 U.S. at 345, 94 S.Ct. It is not probative of the Media Defendants' conscious awareness of falsity or whether they subjectively entertained serious doubt as to the truth or falsity of the Statements as reported in the Article. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. Wamstad argues that this expert testimony-that the Media Defendants failed to investigate adequately-evinces actual malice. "I love luxury brands," she said Friday after. (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. ), 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. A few months after Svalesen resigned from the restaurant in June 1999, Upright slapped him with a lawsuit demanding the return of his shares in the restaurant's parent company, Pescado Inc., because he failed to purchase them with cash. See Bentley, 94 S.W.3d at 596. Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. Each Defendant filed a traditional motion for summary judgment under rule 166a(c) of the Texas Rules of Civil Procedure.4 Tex.R. Thereafter, Wamstad married again, and began operating Del Frisco's restaurants in Dallas. The article also stated that son Roy Wamstad recounted at least eleven separate instances in which he asserted Wamstad physically abused him and his mother. Now he knows enough about those events to damage just about any top official's reputation. 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. McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283, 84 S.Ct. 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.. We are not persuaded that Wilson should apply here. 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." The record contains numerous references to Wamstad throughout the 1990s, many appearing in the restaurant critic columns, which make frequent references to Wamstad personally. Dale Wamstad redefined the Dallas steakhouse in 1981 when he opened Del Frisco's on Lemmon Avenue. Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. Wamstad asserts six categories of evidence that he contends controvert the Media Defendants' denial of actual malice: (1) the Media Defendants were on notice that Rumore's credibility was questioned by the divorce judge, who questioned her allegations of Wamstad's abuse and her claim that she shot Wamstad in self-defense; (2) in recounting her tale of life with Wamstad, Rumore stated sometimes I'm not sure what is a dream and what is real, but nonetheless, Stuertz admitted Rumore was his main source for the article; (3) the Observer was aware before it published the Article that Wamstad had passed a polygraph examination that contradicted Rumore's allegations of abuse; (4) Stuertz admitted he questioned the logic of Rumore's remarrying Wamstad despite her allegations of previous abuse; (5) Wamstad's media expert testified that the Observer's investigation was grossly inadequate; and (6) on deposition, editor Lyons testified that managing editor Williams stated the Article was libelous as hell, but it won't be when I'm through with it, and Williams testified he had no further personal involvement with the Article after that conversation. (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). Huckabee v. Time Warner Enter. On the other hand, if the non-movant must, in all likelihood, come forth with independent evidence to prevail, then summary judgment may well be proper in the absence of such controverting proof. See Casso, 776 S.W.2d at 555. We disagree that no "public" controversy existed. Make your practice more effective and efficient with Casetexts legal research suite. Stay up-to-date with how the law affects your life. Court of Appeals of Texas, Fifth District, Dallas. He recently purchased an adjacent 10 acres, where he's already planning a 144,000 square foot second phase. 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. 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. "Actual malice is defined as the publication of a statement `with knowledge that it was false or with reckless disregard of whether it was false or not.'" Thus, that Wamstad and the divorce judge disagreed with Rumore's allegations is not evidence that the Media Defendants subjectively believed that Rumore's Statements, as they appeared in the Article, were false or that they entertained serious doubts about their truth. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. The record includes the following radio advertisement for III Forks, featuring his children from his current marriage, with Wamstad making reference to his wife Colleen:Dale: Hey kids. Prac. 683 S.W.2d 369, 374-75 (Tex.1984). 1979). See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). Bentley v. Bunton, 94 S.W.3d 571, 590-96 (Tex. That the Media Defendants published her Statements anyway, his argument goes, is evidence of actual malice. 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). at 558-59. See Bentley, 94 S.W.3d at 596. 1998). We conclude the Individual Defendants' affidavits negated actual malice. He stated that he had no knowledge that the Article or any statements in it were false at the time the Article was published, and at no time did he entertain any doubts as to the truth of the statements made in the Article. Williams responded, "Beyond that point, I can't specifically recall anything." We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. . Dark and sexy, this is the perfect place to pop the question over a porterhouse. That the Media Defendants published her Statements anyway, his argument goes, is evidence of actual malice. Wamstad, who founded the Del Frisco's Double Eagle Steakhouse concept in New Orleans in the late 80s then teamed with Dee Lincoln to expand the concept in Dallas, says the new restaurant will be a mix of "true American" cuisines, which . 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. 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. 973 F.2d 1263, 1270-71 (5th Cir.1992). Trial in that case was pending at the time the Article was published. Id. Civ. Nixon, 690 S.W.2d at 548-49. Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. at 423. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. Public figures have assumed the risk of potentially unfair criticism by entering into the public arena and engaging the public's attention. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir.1980) (intensive advertising and continuing access to media made libel plaintiff a limited public figure). We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. Rem. See Brueggemeyer, 684 F. Supp. 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 record contains numerous advertisements containing pictures of Wamstad's new family and children; many advertisements contain his signature slogan "We're open six evenings. 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. The second best result is Dale Tervooren age 30s in McKinney, TX in the Eldorado neighborhood. 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). Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. 1989). She created the high-end wine, martini and champagne lounge with the Cowboys, Legends Hospitality Management and her brother, Ricky Comardelle. Again, the press covered the personal aspects of the rivalry between the parties, reporting that both sides claimed total victory.8, In 1998, the Dallas press covered the run-up to, and opening of, Wamstad's III Forks restaurant. "`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.'" Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. 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. 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. 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. Become a member to support the independent voice of Dallas 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. McLemore, 978 S.W.2d at 572-73. 1966). Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. 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." We reject this argument, just as the court in Huckabee did. 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.
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