175 years later on November 8th, 2011 Tuesday night at 8:30 pm in a Texas Hold-em poker game, Dale Francis Wamstad went all in with The Four Sisters. Id. 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. We reject this argument, just as the court in Huckabee did. See Bentley, 94 S.W.3d at 596. Nixon v. Mr. The email address cannot be subscribed. 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); El Paso Times, Inc. v. Trexler, 447 S.W.2d 403, 405-06 (Tex. Roy Wamstad describes specific incidents in which he asserts his father physically and emotionally abused him. 2997. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. 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. Get the latest updates in news, food, music and culture, and receive special offers direct to your inbox. Id. 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. The Dallas Times Herald published two pieces on the dispute, one entitled "Dueling Steak Knives." In context, the import of the statement in Casso is that, as to actual malice, the issue of credibility does not preclude summary judgment: Casso, 776 S.W.2d at 558. . Wamstad named as defendants parties associated with the media as well as individuals. Although he only had a pair of 4's, he noticed Hilda the oldest sister blinking rapidly. Tex. 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. 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. 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. Id. Wamstad's reliance on Wilson v. UT Health Center is also misplaced. This reliance is misplaced. 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). "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. On July 16, 1986, Lena Rumore was found innocent. 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." 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. The two were inevitably linked, particularly because reports by others contrasted significantly with the family-man persona Wamstad persistently projected in his advertising. 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. 1969) (proof of utter failure to investigate amounted to no evidence of actual malice). 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. See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). .". Concerning the first element, a general concern or interest does not constitute a controversy. Waldbaum, 627 F.2d at 1297. Wamstad had not reacted to the advertisement before. Make your practice more effective and efficient with Casetexts legal research suite. 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. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. The purpose of the actual-malice standard is "protecting innocent but erroneous speech on public issues, while deterring calculated falsehoods." 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). Prop. Now he knows enough about those events to damage just about any top official's reputation. 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. 710, 11 L.Ed.2d 686 (1964)). See also Brueggemeyer v. Am. Id. Casso, 776 S.W.2d at 558. The lawsuit was eventually settled. Whether a party is a public figure is a question of constitutional law for courts to decide. He recently purchased an adjacent 10 acres, where he's already planning a 144,000 square foot second phase. Legal Principles Governing Defamation and Public-Figure Status. 710). Turner, 38 S.W.3d at 120. Dale is related to Dale Tervooren and Dane Thomas Wamstad as well as 3 additional people. 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.3 The Article also describes Wamstad's litigation with his long-time rival Ruth Fertel, of Ruth's Chris Steakhouse. Fertel's lawyer asserted he got Wamstad to admit to his connection with, and payments to, the publicist who created the list. Wamstad's reliance on Wilson v. UT Health Center is also misplaced. The Four Sisters were trying to stare down Dale. Limited-purpose public figures are only public figures for a limited range of issues surrounding a particular public controversy. Wamstad asserts he does not meet the public-figure test, because there is no "public controversy." Wamstad's role was both central and germane to the controversy about his contentious relationships. Actual Malice and Burdens of Proof on Summary Judgment. Select this result to view Dale Francis Wamstad's phone number, address, and more. New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir.1966). 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? Williams responded, Beyond that point, I can't specifically recall anything. Wamstad argues this deposition testimony controverts Williams' affidavit testimony that directly negates actual malice. In Wilson, the Fifth Circuit Court of Appeals reversed the district court's determination that the libel plaintiff adduced insufficient evidence of malice. We are not persuaded that Wilson should apply here. 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. Code Ann. Dale Wamstad and his wife, Colleen Keating-Wamstad, have taught their children valuable life lessons. 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. New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir. The supreme court has adopted the Fifth Circuit's three-part test for a limited-purpose public figure: Id. r. Civ. 1987)). 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. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 2000). 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. Id., (citing Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir. Accordingly, we reverse and render judgment for all Appellants. Finally, Wamstad argues he raises a fact question on actual malice based on deposition testimony of Williams and Lyons. Within a few years, he went "bust" in the chicken business. 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. 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. Id. It reportedly escalated from there. 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. A lack of care or an injurious motive in making a statement is not alone proof of actual malice, but care and motive are factors to be considered. We reject this argument, just as the court in Huckabee did. 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. Id. 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. Again, the press covered the personal aspects of the rivalry between the parties, reporting that both sides claimed total victory. Huckabee v. Time Warner Enter. NEW TIMES, INC. d/b/a Dallas Observer; Mark Stuertz; Lena Rumore Waddell, Lou Saba; and Jack Sands, Appellants, v. Dale F. WAMSTAD, Appellee. The restaurant is the latest culinary project by restaurateur Dale Wamstad. He was livid at his son for. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980)). Contact us. Prac. 1323, 20 L.Ed.2d 262 (1968)). This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. In 1995, Wamstad's business and personal reputation gained national press attention when he sued Ruth Fertel for defamation over her suggestion that Wamstad was behind the "Top Ten List." 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.'" At that time, Wamstad . 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. Id. at 558-59. We disagree that no "public" controversy existed. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 1989). . Dracos, 92 S.W.2d at 255. Lena Rumore, ex-wife of Dallas steakhouse mogul Dale Wamstad (III Forks, Del Frisco's), will get a shot at the skillful restaurateur's beefy wallet. Loads of folks around here admire Dale Wamstad's business sense. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. In essence, he argues that falsity of the Statements is probative of actual malice. See Casso, 776 S.W.2d at 555. 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. 51.014(6) (Vernon Supp. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. Co., 690 S.W.2d 546, 548 (Tex. 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. 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. 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. 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. 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?" See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. 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. 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. Rem. Id. We conclude the Individual Defendants' affidavits negated actual malice. Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. Dracos, 922 S.W.2d at 255. 166a(c). See Tex. Cos., 684 F.Supp. Wamstad had not reacted to the advertisement before. The record refers to Wamstad's involvement in at least ten restaurants since 1977 and contains court documents concerning legal disputes over at least four different restaurants, involving four different former associates. Bob Cooper--is a little off his T-bone, you may be right. It reportedly escalated from there. at 466. Grease will kill you.Dale: That's right, Shelby Rose And Dale and Shelby Rose, thanks for helping me out today. Dale spent 20 years in the insurance business and in 1977 formed an investment group that funded a Popeye's Famous Fried Chicken franchise. Wamstad reportedly bristled at that characterization of the truth, claiming, Twenty-three million dollars is truth.. 683 S.W.2d 369, 374-75 (Tex.1984). Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. Id. at 1271. 1984). The divorce judge held that Rumore did not act in self-defense when shooting Wamstad, basing his decision on "discrepancies in Mrs. Wamstad's testimony, her overall lack of credibility and the Court's actual inspection of the premises. 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. 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. Join the Observer community and help support Alan S. Loewinsohn, Loewinshn Flegle, L.L.P., Dallas, for appellee. The record contains numerous references to Wamstad throughout the 1990s, many appearing in the restaurant critic columns, which make frequent references to Wamstad personally. "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 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. McLemore, 978 S.W.2d at 572-73. 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.. In an advertisement in the Dallas Morning News, Wamstad reportedly "blasted" Chamberlain for picking on Dee Lincoln, Wamstad's former partner and current manager of a Del Frisco's restaurant. He went on to add that Piper was "a piece of snot floating in the ocean.". It is not enough for the jury to disbelieve the libel defendant's testimony. 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.". See Gertz, 418 U.S. at 346, 94 S.Ct. Indulging all inferences in Wamstad's favor, nonetheless, the Statements in the Article were not inherently improbable or based on obviously dubious information. In the mid-1990s, the press began referring to Wamstad as "flamboyant" and "controversial." Id. 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. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. 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. The Shire has new ownership. r. Civ. 452, 458 (N.D.Tex. 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. Id. 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. Id. The failure to investigate has been held insufficient to establish actual malice. 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. The family he abandoned in New Orleans has a bone to pick with that." Tex. denied) (defendant's testimony established plausible basis for professed belief in truth of publication, thus negating actual malice even if publication not substantially correct). The Dallas Times Herald published two pieces on the dispute, one entitled Dueling Steak Knives. The Dallas Morning News also covered the story, quoting Piper's and Wamstad's personal comments about each other.6, In 1995, Wamstad's business and personal reputation gained national press attention when he sued Ruth Fertel for defamation over her suggestion that Wamstad was behind the Top-Ten List. The evidence includes an Associated Press article, from November 1994, that chronicled the long-standing personal rivalry between Fertel and Wamstad7 and also reported Fertel's allegation that Wamstad was behind the supposedly independent Top-Ten rating. 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). (3)the alleged defamation must be germane to the plaintiff's participation in the controversy. 2997, 41 L.Ed.2d 789 (1974)).

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