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"). 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. Wamstad argues that because the Individual Defendants' credibility is at issue, summary judgment is inappropriate, relying on Casso. He stated that "the final result was truthful, accurate, and a fair representation of the reporter's research." WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. 2997; Waldbaum, 627 F.2d at 1297 n. 27 (controversy need not concern political matters). 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 . Labour has taken 1.5million from a Just Stop Oil-backing green energy boss, it emerged yesterday. 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." Waldbaum, 627 F.2d at 1297. 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. The Texas Supreme Court has recently addressed the issue of what type of evidence is probative of actual malice in a case involving media defendants. Dee Lincoln took the reins from Dale Wamstad and kicked up the charm. Legal Principles Governing Defamation and Public-Figure Status. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. 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. She alleged Wamstad had defrauded her with respect to her earlier property settlement, in 1992, for $45,000. We reject this argument, just as the court in Huckabee did. v. Wechter for the proposition that, when the truth or falsity of a statement is within the particular purview of the defamation defendant, then falsity is probative of malice. Moreover, even assuming Wamstad's expert's testimony is admissible, the opinion on the Media Defendant's alleged failure to investigate speaks, rather, to an alleged disregard of a standard of objectivity. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980)). 1984). 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. 1969) (proof of utter failure to investigate amounted to no evidence of actual malice). Mgmt. 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. The failure to investigate has been held insufficient to establish actual malice. Huckabee, 19 S.W.3d at 427. She's a great lady 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. 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. McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). 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. 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. Indulging all inferences in Wamstad's favor, nonetheless, the Statements in the Article were not inherently improbable or based on obviously dubious information. Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. How are you doing?Child 1 (Dale, Jr.): Hi, daddy.Child 2 (Shelby Rose): Hi, daddy.C1: Daddy, why is III Forks called III Forks?Dale: Well, Dale, before Dallas was Dallas, it was a III Forks territory.C1: Daddy, why don't the steaks at III Forks sizzle?Dale: Well, honey, when butter starts to sizzle, it's turning to grease.C2: Oh, my gosh. Beef isn't the only entre sparking legal brawls. Certain Defendant-Appellants filed no-evidence motions for summary judgment under rule 166a(i), which we need not address because we dispose of all issues based on Defendants' traditional motions for summary judgment under rule 166a(c). 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." Broad. Id. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. The Court summarized as follows: The defendant's state of mind can-indeed, must usually-be proved by circumstantial evidence. Wamstad relies on Leyendecker Assocs. 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." TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. 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. See Casso, 776 S.W.2d at 555. Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. Roy Wamstad describes specific incidents in which he asserts his father physically and emotionally abused him. Fertel's lawyer asserted he got Wamstad to admit to his connection with, and payments to, the publicist who created the list. 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. Each Defendant filed a traditional motion for summary judgment under rule 166a(c) of the Texas Rules of Civil Procedure. 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. Fertel's lawyer asserted he got Wamstad to admit to his connection with, and payments to, the publicist who created the list. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. We reject this argument, just as the court in Huckabee did. Id. Wamstad argues that at most only personal disputes are involved, that there is no public controversy in the sense that the public is affected by these disputes in any real way. Appeal from the 68th District Court, Dallas County, Texas, Trial Court Cause No. As to Rumore, Wamstad relies on additional evidence, including evidence of a polygraph he purportedly passed, refuting Rumore's allegations of abuse. Concerning the first element, a general concern or interest does not constitute a controversy. Waldbaum, 627 F.2d at 1297. That is, the judge's disagreement with Rumore's assertion of self-defense does not raise a fact question whether Rumore herself believed her Statement that she acted in self-defense was false. All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. Bob Sambol bought the place from Wamstad and turned it into Bob's Steak & Chophouse in 1994. Civ. Nixon v. Mr. 710). Wamstad argues that this expert testimony-that the Media Defendants failed to investigate adequately-evinces actual malice. And it's not a steakhouse. 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.. At that time, Wamstad . Whether a party is a public figure is a question of constitutional law for courts to decide. See also Brueggemeyer v. Am. Apparently incensed at the steak-house . The two were inevitably linked, particularly because reports by others contrasted significantly with the family-man persona Wamstad persistently projected in his advertising. Huckabee v. Time Warner Enter. Once the defendant has produced evidence negating actual malice as a matter of law, the burden shifts to the plaintiff to present controverting proof raising a genuine issue of material fact. We conclude the Individual Defendants' affidavits negated actual malice. 973 F.2d 1263, 1270-71 (5th Cir. Rem. 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. "When the ink was dry on the partition agreement, [Wamstad] began to unravel the web for his own purposes, so that he could reap all of the benefits from selling the very business Ms. Rumore and the community capital had helped to create," say court documents filed on behalf of Rumore. Imagining that something may be true is not the same as belief. The Article was precisely about that contradiction and thus a continuation of the public discussion of Wamstad's endeavors and disputes. He was advised not to discuss matters subject to attorney-client privilege, and then Wamstad's attorney asked, "What was the next personal involvement you had regarding anything with Dale Wamstad or a proposed article on Dale Wamstad?" The Rooster Town Cafe will serve breakfast and lunch seven days a week. 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. 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. 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. Dark and sexy, this is the perfect place to pop the question over a porterhouse. Emmerdale and The Hunt for Raoul Moat star Dale Meeks dies age 47: Ant McPartlin and Declan Donnelly lead the tributes for 'loved and respected' actor whose career began in Byker Grove. It is not enough for the jury to disbelieve the libel defendant's testimony. 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"). v. Wechter for the proposition that, when the truth or falsity of a statement is within the particular purview of the defamation defendant, then falsity is probative of malice. "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." We certainly agree that the public debate in this case does not involve matters of great moment in current public life. 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. 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. at 423. She's a great lady. Wamstad opened III Forks in August 1998 and sold it in July 2000. Although as a whole the Article is unfavorable to Wamstad, it states that Wamstad "both in media interviews and under oath in court has steadfastly denied ever abusing any member of his family." 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. If he cannot secure it during the discovery process, he is unlikely to stumble on to it at trial. Please try again. Rem. 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.". Co. L.P., 19 S.W.3d 413, 420 (Tex. I probably deserve it. 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. r. Civ. 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. 2997. 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). Before Justices MOSELEY, O'NEILL, and LAGARDE. However, leave Dee Lincoln and Del Frisco's . 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. 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. Dale Wamstad and his wife, Colleen Keating-Wamstad, have taught their children valuable life lessons. 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. at 1271. Tex. 51.014(6) (Vernon Supp. 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. We disagree. Each Defendant filed a traditional motion for summary judgment under rule 166a(c) of the Texas Rules of Civil Procedure.4 Tex.R. The case is expected to go to trial in January. New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir. Wamstad also sued Rumore, Saba, and Sands (collectively, Individual Defendants). Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. 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. 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. 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. Accordingly, we reverse and render judgment for all Appellants. 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. 1323, 20 L.Ed.2d 262 (1968)). Grease will kill you.Dale: That's right, Shelby Rose And Dale and Shelby Rose, thanks for helping me out today. 8. 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.
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