Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. Dale Wamstad News 1987)). 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. If he cannot secure it during the discovery process, he is unlikely to stumble on to it at trial. at 1271. Thereafter, Wamstad married again, and began operating Del Frisco's restaurants in Dallas. 166a(c). Dracos, 92 S.W.2d at 255. 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. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. Broad. 8. Id. 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. Meet the 'Queen of Steaks' who runs one of Frisco's highest grossing 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. 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. Co-Founder Dee Lincoln Resigns From Nationally Renowned Del Frisco's Court of Appeals of Texas, Fifth District, Dallas. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. III Forks was created in 1998 by restaurateur Dale Wamstad, who'd just left Del Frisco's Double Eagle Steak House. 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. 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. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. Dallas' independent source of & Rem.Code Ann. 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. .". Accordingly, we reverse and render judgment for all Appellants. Civ. Roy Wamstad describes specific incidents in which he asserts his father physically and emotionally abused him. Finally, Wamstad argues he raises a fact question on actual malice based on deposition testimony of Williams and Lyons. One for Us | News | Dallas - Dallas Observer 2. Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex.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, 88 S.Ct. The actor . 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. New Times v. Wamstad, 106 S.W.3d 916 | Casetext Search + Citator (Dale Wamstad, the Texas restaurateur who was running the place, was the topic of a lengthy article in the Dallas Observerin 2000 that detailed his past lawsuits, "bitter business partners,". They have also lived in Richardson, TX and Dallas, TX. local news and culture. 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." 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. Independent evidence is required: While it is conceivable that a defendant's trial testimony, under the rigors of cross-examination, could provide the requisite proof, it is more likely that plaintiff will have to secure that evidence elsewhere. 9. Prop. The failure to investigate has been held insufficient to establish actual malice. Fertel's lawyer asserted he got Wamstad to admit to his connection with, and payments to, the publicist who created the list. 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." Rumore contends Del Frisco's sale to publicly traded Lone Star unleashed the public filing of records with the Securities and Exchange Commission, revealing the true value and ownership structure of the Del Frisco's steak empire. 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. 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. Whether a party is a public figure is a question of constitutional law for courts to decide. 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. Id. Ms. Id. (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.). Civ. The standards for reviewing summary judgment under rule 166a(c) are well established. 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. Accordingly, this is not a case where a defamation plaintiff was thrust into the public eye and involuntarily remained there. Bentley v. Bunton, 94 S.W.3d 571, 590-96 (Tex. 73.001 (Vernon 1997).WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex., Full title:NEW TIMES, INC. D/B/A DALLAS OBSERVER; MARK STUERTZ; LENA RUMORE WADDELL, Court:Court of Appeals of Texas, Fifth District, Dallas, stating that a reporter may rely on statements by a single source even though they reflect only one side of the story without showing a reckless disregard for the truth. 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. New Restaurant from Del Frisco's founder Dale Wamstad To Debut Next (3)the alleged defamation must be germane to the plaintiff's participation in the controversy. Prac. The second element requires that the plaintiff have more than a trivial or tangential role in the controversy. Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. The Rooster Town Cafe will serve breakfast and lunch seven days a week. Co. L.P., 19 S.W.3d 413, 420 (Tex.2000). See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). 30 Years of Dining in Dallas - D Magazine To maintain a defamation cause of action, the plaintiff must prove that the defendant (1) published a statement (2) that was defamatory concerning the plaintiff (3) while acting with either actual malice, if the plaintiff was a public figure, or negligence, if the plaintiff was a private individual, regarding the truth of the statement. Id. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 710). 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. Dallas restaurateur's libel case dismissed - The Reporters Committee So Wamstad took the beef to the state's highest court. Nixon v. Mr. 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. 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. 2003). 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. Wamstad relies on Leyendecker & Assocs. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. Prac. 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. 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. Wamstad responded that Piper was treacherous and mean-spirited for raising the shooting, adding that the shooting was all behind him, that he had remarried and had a wife and two beautiful kids. Public figures have "assumed the risk of potentially unfair criticism by entering into the public arena and engaging the public's attention." 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. 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. 2000). 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. Now he knows enough about those events to damage just about any top official's reputation. 452, 458 (N.D.Tex. 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. Id., quoted approvingly in McLemore, 978 S.W.2d at 572. New in Restaurants: Dale Wamstad's Lost Lady Cantina 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. 51.014(6) (Vernon Supp.2003). 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. He stated that "the final result was truthful, accurate, and a fair representation of the reporter's research." 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. 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. Prop. 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. In 1980, with a newfound drive and outlook on life, he founded Del Frisco's Double Eagle Steakhouse and sold it in 1995 for . We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. It is not enough for the jury to disbelieve the libel defendant's testimony. 1985). I spend Sundays with my family." Dale Wamstad Philanthropy Actual Malice and Burdens of Proof on Summary Judgment. We disagree. 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. . (quoting Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 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. Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. 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.". Dale Wamstad redefined the Dallas steakhouse in 1981 when he opened Del Frisco's on Lemmon Avenue. 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. Become a member to support the independent voice of Dallas Accordingly, this is not a case where a defamation plaintiff was thrust into the public eye and involuntarily remained there. 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. Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. 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. Civ. 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. Id. at 573 (citations omitted). Wamstad's role was both central and germane to the controversy about his contentious relationships. Concerning the first element, a general concern or interest does not constitute a controversy. Waldbaum, 627 F.2d at 1297. Wamstad reportedly bristled at that characterization of the truth, claiming, Twenty-three million dollars is truth.. out of it. Updated 1:52 PM Jun 9, 2020 CDT. Dale Wamstad opens breakfast, lunch spot Rooster Town Wafflery in 51.014(6). Dalw Wamstad Business - dalefwamstad.com . Huckabee, 19 S.W.3d at 424. The case is expected to go to trial this summer. 2000). Wamstad also sued Rumore, Saba, and Sands (collectively, "Individual Defendants"). He went on to add that Piper was "a piece of snot floating in the ocean.". Having negated an essential element of Wamstad's cause of action, Defendant-Appellants are entitled to summary judgment. 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 466. 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. McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). Civ. 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 Article was precisely about that contradiction and thus a continuation of the public discussion of Wamstad's endeavors and disputes. 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. Rem. 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. 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. In Wilson, the Fifth Circuit Court of Appeals reversed the district court's determination that the libel plaintiff adduced "insufficient evidence of malice." Cos., 684 F. Supp. . 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. 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. An understandable misinterpretation of ambiguous facts does not show actual malice, but inherently improbable assertions and statements made on information that is obviously dubious may show actual malice. 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. Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. Cos., 684 F.Supp. 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. Dee Lincoln took the reins from Dale Wamstad and kicked up the charm. 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. Huckabee v. Time Warner Enter. Wamstad's big beef If you think III Forks owner Dale Wamstad--and his 257-year-old alter ego, Capt. (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. It also includes favorable statements about Wamstad made by his current father-in-law. This reliance is misplaced. 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. 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. 3. 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 . Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. 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. . Texas courts have held that falsity alone is not probative of actual malice. Dracos, 922 S.W.2d at 255. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. 7. Id. Id. This reliance is misplaced. 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. The email address cannot be subscribed. 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. 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. 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. Tex. And the evidence shows that Wamstad used his access to the media to comment on his rivals and his business disputes. Concerning the first element, a general concern or interest does not constitute a "controversy." 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. 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. As noted, falsity alone does not raise a fact question on actual malice. 1980)). Nixon, 690 S.W.2d at 548-49. 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. We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. Gertz, 418 U.S. at 345. independent local journalism in Dallas. The Shire has new ownership. Imagining that something may be true is not the same as belief. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. at 573-74 (quoting New York Times, 376 U.S. at 279-80). Using his charm, wit and steak house, he wined and dined the right people into complicit submission. We disagree that no "public" controversy existed. The second best result is Dale Tervooren age 30s in McKinney, TX in the Eldorado neighborhood. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. 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. 683 S.W.2d 369, 374-75 (Tex. The Court summarized as follows: The defendant's state of mind can-indeed, must usually-be proved by circumstantial evidence. The failure to investigate has been held insufficient to establish actual malice. 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. at 558-59. 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." Prac. 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. 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. 6. Rem. Wamstad asserts he does not meet the public-figure test, because there is no "public controversy." McLemore, 978 S.W.2d at 572-73. The lawsuit was eventually settled. 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. 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. (quoting Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir.1996)). (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. When It's Top-10-Steakhouse List, The Knives Are Out - The Seattle Times 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. 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). See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). The Casso court went on to explain that the plaintiff must offer, at trial, clear and convincing affirmative proof of actual malice. The judge ruled that she had acted in self-defense. Id. In sum, we conclude that Wamstad has failed to raise a fact question on actual malice. 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. 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. 2997. from 10 a.m.-2 p.m. 972-664-9975 (Texas restaurant) RELATED STORIES Alan S. Loewinsohn, Loewinshn Flegle, L.L.P., Dallas, for appellee. Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, "Media Defendants"). at 573 (citations omitted). 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. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. 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"). 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. . She claimed a history. 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). The Article is largely a recounting of various interactions with Wamstad as told by his ex-wife, his first-born son Roy, and some of Wamstad's former business associates. 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.
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