Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. Id. 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. denied) (defendant's testimony established plausible basis for professed belief in truth of publication, thus negating actual malice even if publication not substantially correct). Turner, 38 S.W.3d at 120. 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. 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. Finally, Wamstad argues he raises a fact question on actual malice based on deposition testimony of Williams and Lyons. 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. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. As noted, falsity alone does not raise a fact question on actual malice. The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment. 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. Nixon, 690 S.W.2d at 548-49. Id. and help keep the future of the Observer, Use of this website constitutes acceptance of our, Dallas Observer's The Morning After Brunch. 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. 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. Del Frisco's Double Eagle Steakhouse was founded in 1980 and III Forks in 1998. 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). 452, 458 (N.D.Tex.1988) (businessman, the subject of consumer complaints and suits, was public figure because by his conduct he voluntarily engaged in a course that was bound to invite attention and comment). The case is expected to go to trial this summer. Get the latest updates in news, food, music and culture, and receive special offers direct to your inbox. Make a one-time donation today for as little as $1. Please try again. . The Article also describes Wamstad's litigation with his long-time rival Ruth Fertel, of Ruth's Chris Steakhouse. Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. McLemore, 978 S.W.2d at 573. Dracos, 922 S.W.2d at 255. The second best result is Dale Tervooren age 30s in McKinney, TX in the Eldorado neighborhood. She alleges Wamstad created a "web of lies" to conceal the true ownership and value of Del Frisco's assets following their 1987 divorce. 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. 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. Id. 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.. Dark and sexy, this is the perfect place to pop the question over a porterhouse. 5 Times The Dallas Stars Went for the Gut While Trolling Opponents, Spoon + Fork: A Standard Name for a Not-So-Standard Restaurant, Chai Wallah in Plano Serves 9 Different Types of Chai, Toast to Mom: Where to Celebrate Mothers Day in Style, Mister O1 Pizza Opening Second Location in Grapevine, In Which Some Visitors From Paris Take a Food Tour of North Texas. Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, Media Defendants). 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. 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. 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. The Dallas Morning News also covered the story, quoting Piper's and Wamstad's personal comments about each other. In 1986, she and partner Dale Wamstad moved Del Frisco's to Dallas where it later mushroomed with success when it was bought by Lone Star Steakhouse and Saloon in 1995. 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. 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. Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. McLemore, 978 S.W.2d at 572-73. Dale Wamstad Biography 710, 11 L.Ed.2d 686 (1964)). 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. 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.. The family he abandoned in New Orleans has a bone to pick with that." It will be open Wed.-Sat. I probably deserve it However, leave Dee Lincoln and Del Frisco's.. out of it. 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. Dale Wamstad redefined the Dallas steakhouse in 1981 when he opened Del Frisco's on Lemmon Avenue. Public figures have "assumed the risk of potentially unfair criticism by entering into the public arena and engaging the public's attention." When Piper moved his restaurant, Wamstad reopened a Del Frisco's in the original location. Indulging all inferences in Wamstad's favor, nonetheless, the Statements in the Article were not inherently improbable or based on obviously dubious information. Ms. Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. See Gertz, 418 U.S. at 346, 94 S.Ct. . 1979). A public-figure libel plaintiff must prove the defendant acted with actual malice in allegedly defaming him. He went on to add that Piper was a piece of snot floating in the ocean.. Labour has taken 1.5million from a Just Stop Oil-backing green energy boss, it emerged yesterday. at 573-74 (quoting New York Times, 376 U.S. at 279-80). New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir. Dale Wamstad and his wife, Colleen Keating-Wamstad, have taught their children valuable life lessons. Indulging all inferences in Wamstad's favor, nonetheless, the Statements in the Article were not inherently improbable or based on obviously dubious information. (quoting Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir.1996)). "`By publishing your views you invite public criticism and rebuttal; you enter voluntarily into one of the submarkets of ideas and opinions and consent therefore to the rough competition in the marketplace.'" 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. Wamstad argues that this expert testimony-that the Media Defendants failed to investigate adequately-evinces actual malice. 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. at 573 (citations omitted). 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. Wamstad's big beef If you think III Forks owner Dale Wamstad--and his 257-year-old alter ego, Capt. We certainly agree that the public debate in this case does not involve matters of great moment in current public life. 166a(c). independent local journalism in Dallas. 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. McLemore, 978 S.W.2d at 572-73. . The lawsuit was eventually settled. 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. 683 S.W.2d 369, 374-75 (Tex.1984). We are not persuaded that Wilson should apply here. 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. 973 F.2d 1263, 1270-71 (5th Cir.1992). 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. (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). Tex. She alleged Wamstad had defrauded her with respect to her earlier property settlement, in 1992, for $45,000. Tex. We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. (Courtesy Adobe Stock) Rooster Town Cafe should open by Labor Day at 3613 Shire Blvd., Ste . 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. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1998). 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. 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. In sum, we conclude that Wamstad has failed to raise a fact question on actual malice. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. Texas courts have held that falsity alone is not probative of actual malice. 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. Wamstad argues that because the Individual Defendants' credibility is at issue, summary judgment is inappropriate, relying on Casso. 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. Within a few years, he went "bust" in the chicken business. 4. Whether Wamstad's investment pays off remains . See Tex. 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. 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. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. 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. at 466. 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. This reliance is misplaced. Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. Wamstad's reliance on Wilson v. UT Health Center is also misplaced. Legal Principles Governing Defamation and Public-Figure Status. The project's first phase is 88% leased and costs $12 million. Whether a party is a public figure is a question of constitutional law for courts to decide. 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. Wamstad named as defendants parties associated with the media as well as individuals. Dale Wamstad sells - Richardson Chamber of Commerce | Facebook We reject this argument, just as the court in Huckabee did. stating that because the plaintiff and a judge disagreed with a source's characterization of a statement is not evidence that the media defendant reiterating the statement acted with actual malice, relying on the substantial media coverage of Wamstad and numerous articles written about him over the past 15-plus years, and "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" to conclude that a public controversy existed. 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 AP article was picked up by numerous Texas newspapers, as well as newspapers in Charleston, Fort Lauderdale, Chicago, Baton Rouge, and Phoenix. 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 family he abandoned in New Orleans has a bone to pick with that. 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. 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. I probably deserve it. 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. A few months after Svalesen resigned from the restaurant in June 1999, Upright slapped him with a lawsuit demanding the return of his shares in the restaurant's parent company, Pescado Inc., because he failed to purchase them with cash. Restaurateur Dale Wamstad has sold the 83,000-square-foot retail and office development in Richardson to a local group formed by Huey Investments and Standridge Companies. 3. 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. See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). at 573-74 (quoting New York Times, 376 U.S. at 279-80, 84 S.Ct. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. A public-figure libel plaintiff must prove the defendant acted with actual malice in allegedly defaming him. Wamstad's reliance on Wilson v. UT Health Center is also misplaced. Id. Roy Wamstad describes specific incidents in which he asserts his father physically and emotionally abused him. Thereafter, Wamstad married again, and began operating Del Frisco's restaurants in Dallas. 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 Texas Supreme Court has recently addressed the issue of what type of evidence is probative of actual malice in a case involving media defendants. 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. We disagree that no public controversy existed. 5. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. at 423. We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. 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. Emmerdale and The Hunt for Raoul Moat star Dale Meeks dies age 47: Ant McPartlin and Declan Donnelly lead the tributes for 'loved and respected' actor whose career began in Byker Grove. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. Co. L.P., 19 S.W.3d 413, 420 (Tex. See Gertz, 418 U.S. at 346 ; Waldbaum, 627 F.2d at 1297 n. 27 ("controversy need not concern political matters"). The Shire has new ownership. The AP article was picked up by numerous Texas newspapers, as well as newspapers in Charleston, Fort Lauderdale, Chicago, Baton Rouge, and Phoenix. Beef isn't the only entre sparking legal brawls. In essence, he argues that falsity of the Statements is probative of actual malice. In actual-malice cases, such affidavits must establish the defendant's belief in the challenged statements' truth and provide a plausible basis for this belief. We disagree that no "public" controversy existed. Del Frisco's co-founder exits company | Nation's Restaurant News 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. The Rooster Town Cafe will serve breakfast and lunch seven days a week. Each Defendant filed a traditional motion for summary judgment under rule 166a(c) of the Texas Rules of Civil Procedure.4 Tex.R. A lower court agreed with Wamstad, but Rumore won on 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. And it's not a steakhouse. Even after Rumore was acquitted based on self-defense, the New Orleans press continued to cover the couple's subsequent suits against each other, including Wamstad's suit in 1997 against Rumore for damages from shooting him and Rumore's subsequent countersuit for $5 million. 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. Loads of folks around here admire Dale Wamstad's business sense. Co. L.P., 19 S.W.3d 413, 420 (Tex.2000). 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. Civ. 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. As to Rumore, Wamstad relies on additional evidence, including evidence of a polygraph he purportedly passed, refuting Rumore's allegations of abuse. Imagining that something may be true is not the same as belief. Id., (citing Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir.1987)). 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. 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. He recently purchased an adjacent 10 acres, where he's already planning a 144,000 square foot second phase. 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. Id. 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 . Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. 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. Dale Wamstad sells development just east of Richardson's CityLine. 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). Dale Wamstad Philanthropy 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. "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.'" The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. Civ. Dale spent 20 years in the insurance business and in 1977 formed an investment group that funded a Popeye's Famous Fried Chicken franchise. All rights reserved. . The Dallas North Beefway - D Magazine See Brueggemeyer, 684 F. Supp. 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. It reportedly escalated from there. Wamstad reportedly "bristled" at that characterization of the "truth," claiming, "Twenty-three million dollars is truth. Huckabee, 19 S.W.3d at 427. 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. 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. Wamstad's Dallas Del Frisco's restaurant regularly appeared near the top of the Knife and Fork Club of America's top-ten list of steakhouses in the country (Top-Ten List).
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