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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). A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is. 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. at 558-59. Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. Williams testified on deposition that he spoke with Lyons, and they talked about what the Observer's lawyer and Williams had previously discussed. In sum, the media coverage of Wamstad over the past 15-plus years has been substantial and considerably focused on Wamstad's personality, with Wamstad himself participating in the media discussion. See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). We conclude the Individual Defendants' affidavits negated actual malice. Id. 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 Dallas Morning News also covered the story, quoting Piper's and Wamstad's personal comments about each other. Id. Huckabee v. Time Warner Enter. Code Ann. Id. McLemore, 978 S.W.2d at 573. 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. 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. 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." 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 reportedly "bristled" at that characterization of the "truth," claiming, "Twenty-three million dollars is truth. Beef isn't the only entre sparking legal brawls. 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. 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. Wamstad reportedly bristled at that characterization of the truth, claiming, Twenty-three million dollars is truth.. 1992). 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. McLemore, 978 S.W.2d at 572-73. The Casso court went on to explain that the plaintiff must offer, at trial, clear and convincing affirmative proof of actual malice. "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.'" Rem. 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. 51.014(6). 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 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. However, leave Dee Lincoln and Del Frisco's . (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,". See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). 2003). This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. 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. She alleged Wamstad had defrauded her with respect to her earlier property settlement, in 1992, for $45,000. Court of Appeals of Texas, Fifth District, Dallas. Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. Nixon, 690 S.W.2d at 548-49. The second element requires that the plaintiff have more than a trivial or tangential role in the controversy. 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. Code Ann. The article recounted stories of Wamstad's physical and emotional abuse of family members and his numerous disputes with business partners. Williams responded, "Beyond that point, I can't specifically recall anything." 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). Huckabee, 19 S.W.3d at 424. 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. 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." Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. 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 the mid-1990s, the press began referring to Wamstad as "flamboyant" and "controversial." We reject this argument, just as the court in Huckabee did. Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. Nixon v. Mr. 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. Wamstad asserts he does not meet the public-figure test, because there is no "public controversy." In Wilson, the Fifth Circuit Court of Appeals reversed the district court's determination that the libel plaintiff adduced "insufficient evidence of malice." He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. 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. 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. Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351, 94 S.Ct. 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. at 466. Dale is related to Dale Tervooren and Dane Thomas Wamstad as well as 3 additional people. 1979). 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.". Whether Wamstad's investment pays off remains . 973 F.2d 1263, 1270-71 (5th Cir. 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. 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. 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. 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. The two were inevitably linked, particularly because reports by others contrasted significantly with the family-man persona Wamstad persistently projected in his advertising. Id. Id. 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. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 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. 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. 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. . 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. Rem. The standards for reviewing summary judgment under rule 166a(c) are well established. 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). This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 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. 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. 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. Dale Wamstad and his wife, Colleen Keating-Wamstad, have taught their children valuable life lessons. And when he wished to, he participated in the debate by using his media access to propound his point of view. 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"). Bob Sambol bought the place from Wamstad and turned it into Bob's Steak & Chophouse in 1994. 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). 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. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). 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. 2997; Waldbaum, 627 F.2d at 1297 n. 27 (controversy need not concern political matters). It reportedly escalated from there. 1980) (intensive advertising and continuing access to media made libel plaintiff a limited public figure). Bentley v. Bunton, 94 S.W.3d 571, 590-96 (Tex. Make a one-time donation today for as little as $1. The restaurant is the latest culinary project by restaurateur Dale Wamstad. Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. Prop. Wamstad's reliance on Wilson v. UT Health Center is also misplaced. 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. Tex.R.Civ.P. P. 166a(c). In sum, we conclude that Wamstad has failed to raise a fact question on actual malice. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publ'ns., Inc., 627 F.2d 1287, 1296-98 (D.C. Cir. Dale Wamstad redefined the Dallas steakhouse in 1981 when he opened Del Frisco's on Lemmon Avenue. The actor . 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. at 1271. 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). at 423. Code Ann. at 573-74 (quoting New York Times, 376 U.S. at 279-80, 84 S.Ct. Huckabee v. Time Warner Enter. Dale Wamstad sells development just east of Richardson's CityLine. A public-figure libel plaintiff must prove the defendant acted with actual malice in allegedly defaming him. 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. 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"). Updated 1:52 PM Jun 9, 2020 CDT. 683 S.W.2d 369, 374-75 (Tex.1984). 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. The lawsuit was eventually settled. Whether a party is a public figure is a question of constitutional law for courts to decide. The record contains numerous references to Wamstad throughout the 1990s, many appearing in the restaurant critic columns, which make frequent references to Wamstad personally. The purpose of the actual-malice standard is "protecting innocent but erroneous speech on public issues, while deterring calculated falsehoods." 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. . Again, the press covered the personal aspects of the rivalry between the parties, reporting that both sides claimed total victory. 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. We disagree. Using his charm, wit and steak house, he wined and dined the right people into complicit submission. Id. Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. 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). Wamstad's reliance on Wilson v. UT Health Center is also misplaced. at 455 (ongoing alleged "bait and switch" sales practices); and McLemore, 978 S.W.2d at 569 (why government raid failed). 973 F.2d 1263, 1270-71 (5th Cir.1992). independent local journalism in Dallas. Turner, 38 S.W.3d at 120. Bob Cooper--is a little off his T-bone, you may be right. 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. Independent evidence is required: Id. This reliance is misplaced. The Article was precisely about that contradiction and thus a continuation of the public discussion of Wamstad's endeavors and disputes. We certainly agree that the public debate in this case does not involve matters of great moment in current public life. 166a(c). 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. 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. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir. Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. 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 also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. 7. . 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.'" Civ. 1987)). 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). In context, the import of the statement in Casso is that, as to actual malice, the issue of credibility does not preclude summary judgment: If the credibility of the affiant or deponent is likely to be a dispositive factor in the resolution of the case, then summary judgment is inappropriate. 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). 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. Having negated an essential element of Wamstad's cause of action, Defendant-Appellants are entitled to summary judgment. McLemore, 978 S.W.2d at 572-73. As used in the defamation context, actual malice is different from traditional common-law malice; it does not include ill will, spite or evil motive. Id., quoted approvingly in McLemore, 978 S.W.2d at 572. In addition, a reporter may rely on statements by a single source, even though they reflect only one side of the story, without manifesting a reckless disregard for the truth. Civ. As noted by D Magazine, it was unlike other high-end steakhouses in Dallas, . Mgmt. 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. 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. 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? Williams responded, Beyond that point, I can't specifically recall anything. Wamstad argues this deposition testimony controverts Williams' affidavit testimony that directly negates actual malice. 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. Affidavits from interested witnesses will negate actual malice as a matter of law only if they are clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. Tex. 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. She's a great lady. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. 2000). 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." Wamstad's role was both central and germane to the controversy about his contentious relationships. We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. 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. She created the high-end wine, martini and champagne lounge with the Cowboys, Legends Hospitality Management and her brother, Ricky Comardelle. 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. 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. She also describes her subsequent divorce from Wamstad in 1987 and her post-divorce suit against Wamstad in 1995, alleging that he defrauded her with respect to her earlier community-property settlement.2 Trial in that case was pending at the time the Article was published. It is not enough for the jury to disbelieve the libel defendant's testimony. The Dallas Times Herald published two pieces on the dispute, one entitled "Dueling Steak Knives." 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. It will be open Wed.-Sat. As noted, falsity alone does not raise a fact question on actual malice. Wamstad's big beef If you think III Forks owner Dale Wamstad--and his 257-year-old alter ego, Capt. Copyright 2023, Thomson Reuters. 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. Dale spent 20 years in the insurance business and in 1977 formed an investment group that funded a Popeye's Famous Fried Chicken franchise. 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. 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. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. One of the most important lessons that they, as parents, have instilled in their daughters, Dale and Shelby Rose, and son, Dane, is that true happiness and fulfillment in their lives comes from three places: the satisfaction of working hard and reaping the fruits of labor, the . Actual Malice and Burdens of Proof on Summary Judgment. See Bentley, 94 S.W.3d at 596. 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. 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. Prop. He stated that the final result was truthful, accurate, and a fair representation of the reporter's research. 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. 3. He went on to add that Piper was a piece of snot floating in the ocean.. Prac. 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. Wamstad sued Fertel for defamation, and Fertel countersued for false advertising and unfair competition. at 466. And the evidence shows that Wamstad used his access to the media to comment on his rivals and his business disputes. Wamstad is upping his bet that The Shire, with a "town village" design, will fill a need for a mixed-use project in Richardson. As noted, falsity alone does not raise a fact question on 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. Id. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 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. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. Select this result to view Dale Francis Wamstad's phone number, address, and more. The Four Sisters were trying to stare down Dale. Id. Adding more fuel to the feud was Wamstad's then-wife, Lena, who shot Wamstad three times - and missed with two other shots - in their New Orleans restaurant in 1985.