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. 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. 1979). III Forks was created in 1998 by restaurateur Dale Wamstad, who'd just left Del Frisco's Double Eagle Steak House. Adding more fuel to the feud was Wamstad's then-wife, Lena, who shot Wamstad three times - and missed with two other shots - in their New Orleans restaurant in 1985. 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. Wamstad's big beef If you think III Forks owner Dale Wamstad--and his 257-year-old alter ego, Capt. And when he wished to, he participated in the debate by using his media access to propound his point of view. It is not enough for the jury to disbelieve the libel defendant's testimony. 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. San Antonio Exp. We reject this argument, just as the court in Huckabee did. 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. The Court summarized as follows: The defendant's state of mind can-indeed, must usually-be proved by circumstantial evidence. 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. Independent evidence is required: Id. 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. (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 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. Wamstad sued Fertel for defamation, and Fertel countersued for false advertising and unfair competition. Using his charm, wit and steak house, he wined and dined the right people into complicit submission. Co., 690 S.W.2d 546, 548 (Tex.1985). Hash Over | Restaurants | Dallas | Dallas Observer | The Leading 6. This reliance is misplaced. 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. See also Brueggemeyer v. Am. 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. He challenged nearly all of the statements in the Article as defamatory, as well as other statements the Individual Defendants allegedly made to Stuertz that did not appear in the Article (collectively, Statements). 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. In essence, he argues that falsity of the Statements is probative of actual malice. Closed Already: The Lost Lady American Cantina - The Stranger 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: The press reported on a number of Wamstad's business disputes, particularly those with a personal edge to them. It is not enough for the jury to disbelieve the libel defendant's testimony. 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. at 466. 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. 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 disagree. McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). local news and culture. I probably deserve it. 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. 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. 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. 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. 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.". Co. L.P., 19 S.W.3d 413, 420 (Tex.2000). The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. 973 F.2d 1263, 1270-71 (5th Cir. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. 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. See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). As noted, falsity alone does not raise a fact question on actual malice. 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. at 573-74 (quoting New York Times, 376 U.S. at 279-80). In sum, we conclude that Wamstad has failed to raise a fact question on actual malice. A public-figure libel plaintiff must prove the defendant acted with actual malice in allegedly defaming him. Each Defendant filed a traditional motion for summary judgment under rule 166a(c) of the Texas Rules of Civil Procedure.4 Tex.R. & Rem.Code Ann. One for Us | News | Dallas - Dallas Observer 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). She also describes her subsequent divorce from Wamstad in 1987 and her post-divorce suit against Wamstad in 1995, alleging that he defrauded her with respect to her earlier community-property settlement. 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). 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." We certainly agree that the public debate in this case does not involve matters of great moment in current public life. According to the suit, Upright and Svalesen entered into an agreement in June 1996 whereby Upright would toss in $37,000 in exchange for 768 shares of Pescado stock, while Svalesen would contribute $11,000 in exchange for 230 shares. Id. . Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. 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. 1323); El Paso Times, Inc. v. Trexler, 447 S.W.2d 403, 405-06 (Tex.1969) (proof of utter failure to investigate amounted to no 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). 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. 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. 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. 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. We disagree that no "public" controversy existed. We disagree. 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. 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. 51.014(6) (Vernon Supp.2003). and help keep the future of the Observer, Use of this website constitutes acceptance of our, Dallas Observer's The Morning After Brunch. Id. Co-Founder Dee Lincoln Resigns From Nationally Renowned Del Frisco's Mgmt. 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. Id., (citing Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir.1987)). 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. The lawsuit was eventually settled. 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. See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). Id. The case is expected to go to trial in January. "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." Accordingly, Wamstad has failed to controvert the Media Defendants' negation of 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." 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. Wamstad opened III Forks in August 1998 and sold it in July 2000. 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. 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. I spend Sundays with my family." 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. North Dallas steakhouse gets locked out and relocates to Frisco Dracos, 92 S.W.2d at 255. 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. Id., quoted approvingly in McLemore, 978 S.W.2d at 572. Doubleday Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex. 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. 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.