Wamstad argues this deposition testimony controverts Williams' affidavit testimony that directly negates actual malice. Id. 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. 8. Wamstad relies on Leyendecker Assocs. 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. We conclude the Individual Defendants' affidavits negated actual malice. 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. 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. 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. Updated 1:52 PM Jun 9, 2020 CDT. Court of Appeals of Texas, Fifth District, Dallas. Appeal from the 68th District Court, Dallas County, Texas, Trial Court Cause No. Dale Wamstad redefined the Dallas steakhouse in 1981 when he opened Del Frisco's on Lemmon Avenue. 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. Del Frisco's Double Eagle Steakhouse was founded in 1980 and III Forks in 1998. See Gertz, 418 U.S. at 346, 94 S.Ct. Broad. 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. It also includes favorable statements about Wamstad made by his current father-in-law. Id. Tex.R.Civ.P. 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. 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. The judge ruled that she had acted in self-defense. He had no knowledge that the Article or any statements in it were false and at no time did he entertain any doubts as to the truth of the statements in the Article. The case is expected to go to trial in January. Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. The Casso court went on to explain that the plaintiff must offer, at trial, clear and convincing affirmative proof of actual malice. 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. 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. 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. 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. 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. 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. 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. 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." 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. 2000). Civ. 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. "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." Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. Become a member to support the independent voice of Dallas Id. 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. We conclude that Wamstad's summary judgment evidence, in essence, merely asserts falsity of the Individual Defendants' Statements but does not otherwise raise specific, affirmative proof to controvert the Individual Defendants' affidavits negating actual malice. Each Defendant filed a traditional motion for summary judgment under rule 166a(c) of the Texas Rules of Civil Procedure.4 Tex.R. The article recounted stories of Wamstad's physical and emotional abuse of family members and his numerous disputes with business partners. 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. Huckabee v. Time Warner Enter. As noted, falsity alone does not raise a fact question on actual malice. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 2. Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. The standards for reviewing summary judgment under rule 166a(c) are well established. 1989). 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. 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. 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. Texas courts have held that falsity alone is not probative of actual malice. 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. Id. Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. 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. Wamstad argues that because the Individual Defendants' credibility is at issue, summary judgment is inappropriate, relying on Casso. 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. Our review of the record shows that after Williams was deposed, he testified by affidavit, stating that he went over at least two drafts of the Article with Stuertz, who answered all of his questions, and that the Article went through the standard, detailed process for editing and revision. 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 Tex. The Rooster Town Cafe will serve breakfast and lunch seven days a week. See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 1980)). 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." Wamstad argues that because the Individual Defendants' credibility is at issue, summary judgment is inappropriate, relying on Casso. 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. Finally, Wamstad argues he raises a fact question on actual malice based on deposition testimony of Williams and Lyons. 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. Using his charm, wit and steak house, he wined and dined the right people into complicit submission. 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. 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. A public-figure libel plaintiff must prove the defendant acted with actual malice in allegedly defaming him. 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. Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. Whether a party is a public figure is a question of constitutional law for courts to decide. 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. Imagining that something may be true is not the same as belief. (Courtesy Adobe Stock) Rooster Town Cafe should open by Labor Day at 3613 Shire Blvd., Ste . 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 Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. 1996)). Accordingly, this is not a case where a defamation plaintiff was thrust into the public eye and involuntarily remained there. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). When Piper moved his restaurant, Wamstad reopened a Del Frisco's in the original location. 452, 458 (N.D.Tex. Gertz, 418 U.S. at 345. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. 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. The second best result is Dale Tervooren age 30s in McKinney, TX in the Eldorado neighborhood. Id. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. Wamstad also sued Rumore, Saba, and Sands (collectively, Individual Defendants). Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. "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. 1984). .". 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. 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. Former Fish chef Chris Svalesen countersued his ex-Fish Partner Steven Upright last month in the latest installment of their ongoing ownership battle in the successful downtown seafood restaurant. r. Civ. at 573 (citations omitted). Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. This reliance is misplaced. Id. 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. Concerning the first element, a general concern or interest does not constitute a controversy. Waldbaum, 627 F.2d at 1297. 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). Alan S. Loewinsohn, Loewinshn Flegle, L.L.P., Dallas, for appellee. San Antonio Exp. 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. Huckabee, 19 S.W.3d at 424. Thereafter, Wamstad married again, and began operating Del Frisco's restaurants in Dallas. 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. Again, the press covered the personal aspects of the rivalry between the parties, reporting that both sides claimed total victory. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. . Having negated an essential element of Wamstad's cause of action, Defendant-Appellants are entitled to summary judgment. Accordingly, we reverse and render judgment for all Appellants. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. at 573-74 (quoting New York Times, 376 U.S. at 279-80). (quoting St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. Prac. See also Brueggemeyer v. Am. See Bentley, 94 S.W.3d at 596. Id. Williams responded, "Beyond that point, I can't specifically recall anything." 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. 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. The email address cannot be subscribed. Apparently incensed at the steak-house . For example, at the time of the dispute with Piper, the Dallas press reported that Wamstad ran an advertisement stating, I've done some stupid things in my life, but selling my steakhouse to my attorney has to top the list and another one in which he accused Piper of running a clone restaurant. 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. Huckabee, 19 S.W.3d at 424. I probably deserve it However, leave Dee Lincoln and Del Frisco's.. out of it. She claimed a history. 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. 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. See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). Code Ann. The actor . 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. However, leave Dee Lincoln and Del Frisco's . local news and culture. Accordingly, this is not a case where a defamation plaintiff was thrust into the public eye and involuntarily remained there. 1979). Wamstad's role was both central and germane to the controversy about his contentious relationships. Select this result to view Dale Francis Wamstad's phone number, address, and more. Nixon v. Mr. "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. The project's first phase is 88% leased and costs $12 million. Join the Observer community and help support Concerning the first element, a general concern or interest does not constitute a "controversy." He recently purchased an adjacent 10 acres, where he's already planning a 144,000 square foot second phase. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. See Casso, 776 S.W.2d at 555. Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, Media Defendants). 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. 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. This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. 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.". It is not enough for the jury to disbelieve the libel defendant's testimony. See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). Trial in that case was pending at the time the Article was published. Id., quoted approvingly in McLemore, 978 S.W.2d at 572. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. Mgmt. Bob Sambol bought the place from Wamstad and turned it into Bob's Steak & Chophouse in 1994. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. He was livid at his son for. Wamstad reportedly bristled at that characterization of the truth, claiming, Twenty-three million dollars is truth.. Dale Wamstad and his wife, Colleen Keating-Wamstad, have taught their children valuable life lessons. She's a great lady. Civ. Rumore and the Divorce Judge's Pronouncement, As to Rumore, Wamstad relies on additional evidence, including evidence of a polygraph he purportedly passed, refuting Rumore's allegations of abuse. If he cannot secure it during the discovery process, he is unlikely to stumble on to it at trial. In 1980, with a newfound drive and outlook on life, he founded Del Frisco's Double Eagle Steakhouse and sold it in 1995 for . The AP article was picked up by numerous Texas newspapers, as well as newspapers in Charleston, Fort Lauderdale, Chicago, Baton Rouge, and Phoenix. The lawsuit was eventually settled. . Wamstad said the article, which detailed his relationships with his ex-wife, their son, and some of Wamstad's business associates, harmed his reputation. We certainly agree that the public debate in this case does not involve matters of great moment in current public life. Rem. 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:Dale: Hey kids. Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. 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. I probably deserve it. Labour has taken 1.5million from a Just Stop Oil-backing green energy boss, it emerged yesterday. Dark and sexy, this is the perfect place to pop the question over a porterhouse. 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). . Casso, 776 S.W.2d at 558. The family he abandoned in New Orleans has a bone to pick with that." Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir. 6. She alleged Wamstad had defrauded her with respect to her earlier property settlement, in 1992, for $45,000. Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. McLemore, 978 S.W.2d at 573. Id. 973 F.2d 1263, 1270-71 (5th Cir. "Limited-purpose" public figures are only public figures for a limited range of issues surrounding a particular public controversy. Anything else you'd like to say?C1: I love you, Mom and Dane.C2: I love you, Mommy and Dane.C1: I love you, Nanny.C2: I love you, Nanny.Dale: And to Colleen (music and lyrics) it's a sin, my darling, how I love you. 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). 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. Civ. Id. Id. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). The Four Sisters were trying to stare down Dale. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. 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." 973 F.2d 1263, 1270-71 (5th Cir.1992). Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. Our review of the record shows that after Williams was deposed, he testified by affidavit, stating that he went over at least two drafts of the Article with Stuertz, who answered all of his questions, and that the Article went through the standard, detailed process for editing and revision. at 1271. The Casso court went on to explain that the plaintiff must offer, at trial, clear and convincing affirmative proof of actual malice. Nixon, 690 S.W.2d at 548-49. Wamstad opened III Forks in August 1998 and sold it in July 2000. It will be open Wed.-Sat. 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." 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).

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