Huckabee, 19 S.W.3d at 427. The Court summarized as follows: The defendant's state of mind can-indeed, must usually-be proved by circumstantial evidence. Public figures have "assumed the risk of potentially unfair criticism by entering into the public arena and engaging the public's attention." Huckabee, 19 S.W.3d at 424. 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. 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. Dale Wamstad and his wife, Colleen Keating-Wamstad, have taught their children valuable life lessons. RUMORE v. WAMSTAD | 751 So.2d 452 (2000) - Leagle The Four Sisters were trying to stare down Dale. Beef isn't the only entre sparking legal brawls. 2997, 41 L.Ed.2d 789 (1974)). Wamstad asserts he does not meet the public-figure test, because there is no "public controversy." 2. 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. 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. The record contains numerous references to Wamstad throughout the 1990s, many appearing in the restaurant critic columns, which make frequent references to Wamstad personally. 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. Make a one-time donation today for as little as $1. 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. Wamstad also sued Rumore, Saba, and Sands (collectively, Individual Defendants). (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.). Wamstad argues that because the Individual Defendants' credibility is at issue, summary judgment is inappropriate, relying on Casso. The email address cannot be subscribed. See Brueggemeyer, 684 F.Supp. 710). . Roy Wamstad describes specific incidents in which he asserts his father physically and emotionally abused him. 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. I probably deserve it However, leave Dee Lincoln and Del Frisco's.. out of it. Accordingly, we reverse and render judgment for all Appellants. Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. 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. 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. Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. Id. Rem. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. Texas courts have held that falsity alone is not probative of 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. Prac. 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. 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. Code Ann. 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. Wamstad named as defendants parties associated with the media as well as individuals. (quoting Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 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." at 558-59. 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. Id., quoted approvingly in McLemore, 978 S.W.2d at 572. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. The purpose of the actual-malice standard is "protecting innocent but erroneous speech on public issues, while deterring calculated falsehoods." 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. Del Frisco's co-founder exits company | Nation's Restaurant News WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). 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. ." Accordingly, we reverse and render judgment for all Appellants. Wamstad reportedly bristled at that characterization of the truth, claiming, Twenty-three million dollars is truth.. She alleges Wamstad created a "web of lies" to conceal the true ownership and value of Del Frisco's assets following their 1987 divorce. 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. Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. 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. 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. The marathon game had lasted 9 hours and 23 minutes. 5251 Spring Valley Rd. Cos., 684 F. Supp. It reportedly escalated from there. Dale Wamstad Biography The Article was precisely about that contradiction and thus a continuation of the public discussion of Wamstad's endeavors and disputes. Dale Wamstad News Id. And when he wished to, he participated in the debate by using his media access to propound his point of view. New Restaurant from Del Frisco's founder Dale Wamstad To Debut Next . 2002) (reviewing finding of actual malice for sufficiency, incorporating clear and convincing standard on review). 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. Prac. 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. 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. The Court summarized as follows: 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. 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. 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. It is not enough for the jury to disbelieve the libel defendant's testimony. 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. Dale Wamstad opens breakfast, lunch spot Rooster Town Wafflery in 1969) (proof of utter failure to investigate amounted to no evidence of actual malice). The record contains numerous references to Wamstad throughout the 1990s, many appearing in the restaurant critic columns, which make frequent references to Wamstad personally. The Casso court went on to explain that the plaintiff must offer, at trial, clear and convincing affirmative proof of actual malice. The Dallas Times Herald published two pieces on the dispute, one entitled "Dueling Steak Knives." 1998). It also includes favorable statements about Wamstad made by his current father-in-law. Concerning the first element, a general concern or interest does not constitute a controversy. Waldbaum, 627 F.2d at 1297. 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. 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. 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. Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. 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). 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). 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). Nixon v. Mr. 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. 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). Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. 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."

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