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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. Wamstad relies on Leyendecker Assocs. 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. Cos., 684 F.Supp. 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.". Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. And when he wished to, he participated in the debate by using his media access to propound his point of view. 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. at 1271. 1984). Civ. We disagree that no public controversy existed. . 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. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. 1996)). It is not enough for the jury to disbelieve the libel defendant's testimony. The Casso court went on to explain that the plaintiff must offer, at trial, clear and convincing affirmative proof of actual malice. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 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"). "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." 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.'" local news and culture. For controverting evidence, Wamstad relies principally on his affidavit and deposition testimony denying the truth of the Statements made by, or attributed to, the Individual Defendants. (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,". 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. 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. 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). 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. 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. Dark and sexy, this is the perfect place to pop the question over a porterhouse. If he cannot secure it during the discovery process, he is unlikely to stumble on to it at trial. See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). (quoting Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. Tex. Wamstad countered that Rumore's claims were groundless because she signed a settlement agreement in 1992 that paid her $45,000. 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). Prop. 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. 2997. 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. Ms. & Rem.Code Ann. In 1980, with a newfound drive and outlook on life, he founded Del Frisco's Double Eagle Steakhouse and sold it in 1995 for . See also Brueggemeyer v. Am. Wamstad is upping his bet that The Shire, with a "town village" design, will fill a need for a mixed-use project in Richardson. See Tex. ", In 1998, the Dallas press covered the run-up to, and opening of, Wamstad's III Forks restaurant. 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. 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. independent local journalism in Dallas. 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. 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. Co., 690 S.W.2d 546, 548 (Tex.1985). 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. 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. Learn more about FindLaws newsletters, including our terms of use and privacy policy. He was advised not to discuss matters subject to attorney-client privilege, and then Wamstad's attorney asked, "What was the next personal involvement you had regarding anything with Dale Wamstad or a proposed article on Dale Wamstad?" Make your practice more effective and efficient with Casetexts legal research suite. We disagree. 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." In essence, he argues that falsity of the Statements is probative of actual malice. 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. Become a member to support the independent voice of Dallas 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. Code Ann. NEW TIMES, INC. d/b/a Dallas Observer; Mark Stuertz; Lena Rumore Waddell, Lou Saba; and Jack Sands, Appellants, v. Dale F. WAMSTAD, Appellee. See Casso, 776 S.W.2d at 555. Wamstad opened III Forks in August 1998 and sold it in July 2000. 1323, 20 L.Ed.2d 262 (1968)). 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. 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. 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. 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. Dale Wamstad sells development just east of Richardson's CityLine. We disagree. This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 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 family he abandoned in New Orleans has a bone to pick with that." 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. Gertz, 418 U.S. at 345. 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. Texas courts have held that falsity alone is not probative of actual malice. at 466. Having negated an essential element of Wamstad's cause of action, Defendant-Appellants are entitled to summary judgment. All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. 683 S.W.2d 369, 374-75 (Tex. Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. The Dallas Morning News also covered the story, quoting Piper's and Wamstad's personal comments about each other. Huckabee v. Time Warner Enter. Wamstad named as defendants parties associated with the media as well as individuals. Whether a party is a public figure is a question of constitutional law for courts to decide. "Limited-purpose" public figures are only public figures for a limited range of issues surrounding a particular public controversy. A public-figure libel plaintiff must prove the defendant acted with actual malice in allegedly defaming him. 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. The AP article was picked up by numerous Texas newspapers, as well as newspapers in Charleston, Fort Lauderdale, Chicago, Baton Rouge, and Phoenix. Copyright 2023, Thomson Reuters. 4. Wamstad argues that this expert testimony-that the Media Defendants failed to investigate adequately-evinces actual malice. 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. (3)the alleged defamation must be germane to the plaintiff's participation in the controversy. So Wamstad took the beef to the state's highest court. 9. See Brueggemeyer, 684 F.Supp. Wamstad named as defendants parties associated with the media as well as individuals. . San Antonio Exp. Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. 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. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. Court of Appeals of Texas, Fifth District, Dallas. 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. Dale Wamstad redefined the Dallas steakhouse in 1981 when he opened Del Frisco's on Lemmon Avenue. The Shire has new ownership. Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. "Actual malice is a term of art, focusing on the defamation defendant's attitude toward the truth of what it reported." 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. 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. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publ'ns., Inc., 627 F.2d 1287, 1296-98 (D.C. Cir. 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. The standards for reviewing summary judgment under rule 166a(c) are well established. 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. Once the defendant has produced evidence negating actual malice as a matter of law, the burden shifts to the plaintiff to present controverting proof raising a genuine issue of material fact. .". Wamstad's reliance on Wilson v. UT Health Center is also misplaced. from 10 a.m.-2 p.m. 972-664-9975 (Texas restaurant) RELATED STORIES 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. Ecotricity founder Dale Vince, who is bankrolling the climate activist group, has also given . Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. 1980)). 5251 Spring Valley Rd. Wamstad's reliance on Wilson v. UT Health Center is also misplaced. It reportedly escalated from there. 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. 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"). Wamstad's big beef If you think III Forks owner Dale Wamstad--and his 257-year-old alter ego, Capt. Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. 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. New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir.1966). ), In the mid-1990s, the press began referring to Wamstad as flamboyant and controversial. For example, in 1995, the Dallas Morning News described Wamstad as a colorful and controversial member of the Dallas restaurant scene since arriving from New Orleans in 1989. In 1996, the Dallas press noted that Wamstad was known for getting embroiled in legal battles with former business partners and rival steakhouse chains. And the evidence shows that Wamstad used his access to the media to comment on his rivals and his business disputes. 5. Appeal from the 68th District Court, Dallas County, Texas, Trial Court Cause No. at 558-59. The failure to investigate has been held insufficient to establish actual malice. 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). Beef isn't the only entre sparking legal brawls. McLemore, 978 S.W.2d at 572-73. Fertel's lawyer asserted he got Wamstad to admit to his connection with, and payments to, the publicist who created the list. Wamstad relies on Leyendecker & Assocs. 973 F.2d 1263, 1270-71 (5th Cir.1992). Please try again. 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. 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. 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. The Rooster Town Cafe will serve breakfast and lunch seven days a week. A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. 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. Imagining that something may be true is not the same as belief. McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). 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. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. Id. Broad. 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); El Paso Times, Inc. v. Trexler, 447 S.W.2d 403, 405-06 (Tex. It reportedly escalated from there. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. Labour has taken 1.5million from a Just Stop Oil-backing green energy boss, it emerged yesterday. 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. 51.014(6). The divorce judge held that Rumore did not act in self-defense when shooting Wamstad, basing his decision on "discrepancies in Mrs. Wamstad's testimony, her overall lack of credibility and the Court's actual inspection of the premises. 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. 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. at 573 (citations omitted). As noted by D Magazine, it was unlike other high-end steakhouses in Dallas, . 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. See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). 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. Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. 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. 496-705-1665. www.roostertownwafflery.com RELATED STORIES Id. Thereafter, Wamstad married again, and began operating Del Frisco's restaurants in Dallas. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980)). A lower court agreed with Wamstad, but Rumore won on appeal. 51.014(6) (Vernon Supp.2003). The article recounted stories of Wamstad's physical and emotional abuse of family members and his numerous disputes with business partners. Huckabee, 19 S.W.3d at 427. See Bentley, 94 S.W.3d at 596. The Article also describes Wamstad's litigation with his long-time rival Ruth Fertel, of Ruth's Chris Steakhouse. The actor . It will be open Wed.-Sat. Indulging all inferences in Wamstad's favor, nonetheless, the Statements in the Article were not inherently improbable or based on obviously dubious information. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. ." 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. I probably deserve it. Prop. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). 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. 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 case is expected to go to trial this summer. Mgmt. Id. See Gertz, 418 U.S. at 346 ; Waldbaum, 627 F.2d at 1297 n. 27 ("controversy need not concern political matters"). 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. Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, Media Defendants). As noted, falsity alone does not raise a fact question on actual malice. "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. Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. Bentley v. Bunton, 94 S.W.3d 571, 590-96 (Tex. Concerning the first element, a general concern or interest does not constitute a "controversy." Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. However, leave Dee Lincoln and Del Frisco's . 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.9 Chamberlain expressed the view that Wamstad wanted to create some publicity for his new steakhouse and was doing it at the expense of Chamberlain's reputation. 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. 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. Loads of folks around here admire Dale Wamstad's business sense. In sum, we conclude that Wamstad has failed to raise a fact question on actual malice. at 573 (citations omitted). Co. L.P., 19 S.W.3d 413, 420 (Tex.2000). Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. The Dallas Times Herald published two pieces on the dispute, one entitled "Dueling Steak Knives." Accordingly, this is not a case where a defamation plaintiff was thrust into the public eye and involuntarily remained there. At that time, Wamstad . 710, 11 L.Ed.2d 686 (1964)). I spend Sundays with my family." Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney.