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. 1966). Apparently incensed at the steak-house . Civ. "`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.'" 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. Id. And the evidence shows that Wamstad used his access to the media to comment on his rivals and his business disputes. 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. The supreme court has adopted the Fifth Circuit's three-part test for a limited-purpose public figure: Id. In the mid-1990s, the press began referring to Wamstad as "flamboyant" and "controversial." 6. Accordingly, this is not a case where a defamation plaintiff was thrust into the public eye and involuntarily remained there. Id., (citing Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir. The second element requires that the plaintiff have more than a trivial or tangential role in the controversy. We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 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. See Casso, 776 S.W.2d at 555. 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. 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. Rem. It reportedly escalated from there. Dale Wamstad redefined the Dallas steakhouse in 1981 when he opened Del Frisco's on Lemmon Avenue. Dee Lincoln took the reins from Dale Wamstad and kicked up the charm. Wamstad said the article, which detailed his relationships with his ex-wife, their son, and some of Wamstad's business associates, harmed his reputation. The second element requires that the plaintiff have more than a trivial or tangential role in the controversy. Mgmt. 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). Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir. Wamstad named as defendants parties associated with the media as well as individuals. 5. Civ. Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, Media Defendants). 1998). The restaurant is the latest culinary project by restaurateur Dale Wamstad. See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of 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). Id., (citing Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir.1987)). The Article was precisely about that contradiction and thus a continuation of the public discussion of Wamstad's endeavors and disputes. 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. Having negated an essential element of Wamstad's cause of action, Defendant-Appellants are entitled to summary judgment. Wamstad argues that at most only personal disputes are involved, that there is no public controversy in the sense that the public is affected by these disputes in any real way. . Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 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. Wamstad argues that this expert testimony-that the Media Defendants failed to investigate adequately-evinces actual malice. When Piper moved his restaurant, Wamstad reopened a Del Frisco's in the original location. A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is. 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. 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. 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. We conclude that Wamstad is a limited public figure, that all Defendant-Appellants conclusively negated the element of "actual malice," which Wamstad did not successfully controvert, thus entitling them to summary judgment as a matter of law. He went on to add that Piper was a piece of snot floating in the ocean.. The record evidence shows that around the time Rumore was tried for shooting Wamstad, in 1986, he began to receive considerable press attention concerning his domestic life. Labour has taken 1.5million from a Just Stop Oil-backing green energy boss, it emerged yesterday. 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. Wamstad named as defendants parties associated with the media as well as individuals. 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. 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. The marathon game had lasted 9 hours and 23 minutes. San Antonio Exp. Id. 1989). 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. 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." Wamstad is upping his bet that The Shire, with a "town village" design, will fill a need for a mixed-use project in Richardson. 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. 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. It is not enough for the jury to disbelieve the libel defendant's testimony. The lawsuit was eventually settled. and help keep the future of the Observer, Use of this website constitutes acceptance of our, Dallas Observer's The Morning After Brunch. Philanthropy . Roy Wamstad describes specific incidents in which he asserts his father physically and emotionally abused him. Finally, Wamstad argues he raises a fact question on actual malice based on deposition testimony of Williams and Lyons. 1980) (intensive advertising and continuing access to media made libel plaintiff a limited public figure). "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." San Antonio Exp. Dale Wamstad sells development just east of Richardson's CityLine. Prop. Williams testified on deposition that he spoke with Lyons, and they talked about what the Observer's lawyer and Williams had previously discussed. Nixon v. Mr. NEW TIMES, INC. d/b/a Dallas Observer; Mark Stuertz; Lena Rumore Waddell, Lou Saba; and Jack Sands, Appellants, v. Dale F. WAMSTAD, Appellee. She created the high-end wine, martini and champagne lounge with the Cowboys, Legends Hospitality Management and her brother, Ricky Comardelle. Id. 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. 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 . Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. While that may well raise a fact question whether Rumore did indeed act in self-defense, it is not probative of Rumore's subjective attitude toward the truth of the Statements she made. Id. Thereafter, Wamstad married again, and began operating Del Frisco's restaurants in Dallas. Alan S. Loewinsohn, Loewinshn Flegle, L.L.P., Dallas, for appellee. Id. Concerning the first element, a general concern or interest does not constitute a "controversy." 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. McLemore, 978 S.W.2d at 572-73. 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. 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. Prop. In Wilson, the Fifth Circuit Court of Appeals reversed the district court's determination that the libel plaintiff adduced "insufficient evidence of malice." Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. And when he wished to, he participated in the debate by using his media access to propound his point of view. Waldbaum, 627 F.2d at 1297. 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. Wamstad's role was both central and germane to the controversy about his contentious relationships. 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. We conclude that Wamstad is a limited public figure, that all Defendant-Appellants conclusively negated the element of actual malice, which Wamstad did not successfully controvert, thus entitling them to summary judgment as a matter of law. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. It reportedly escalated from there. Actual malice is a term of art, focusing on the defamation defendant's attitude toward the truth of what it reported. McLemore, 978 S.W.2d at 573. Details on the shooting from the Dallas Observer: The purse on the sofa held the .25-caliber semiautomatic pistol her husband had given her two years earlier to protect herself when she closed the. 1996)). 1980)). 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. 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. The second best result is Dale Tervooren age 30s in McKinney, TX in the Eldorado neighborhood. 51.014(6) (Vernon Supp.2003). 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. Again, the press covered the personal aspects of the rivalry between the parties, reporting that both sides claimed total victory. 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. See Brueggemeyer, 684 F.Supp. 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. at 455 (ongoing alleged "bait and switch" sales practices); and McLemore, 978 S.W.2d at 569 (why government raid failed). 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. 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. Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. at 466. Id. Public figures have assumed the risk of potentially unfair criticism by entering into the public arena and engaging the public's attention. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir.1980) (intensive advertising and continuing access to media made libel plaintiff a limited public figure). local news and culture. The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment. (When asked to comment for the newspaper articles, Wamstad told one newspaper that the matter is over and refused to return calls to the other. 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. Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. Id. 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. Wamstad asserts he does not meet the public-figure test, because there is no "public controversy." 452, 458 (N.D.Tex. Wamstad opened III Forks in August 1998 and sold it in July 2000. We certainly agree that the public debate in this case does not involve matters of great moment in current public life. Rumore filed suit following the sale, claiming she was duped out of her share of the proceeds generated by the restaurant they founded and then developed in New Orleans in the early 1980s. 1323, 20 L.Ed.2d 262 (1968)). Grease will kill you.Dale: That's right, Shelby Rose And Dale and Shelby Rose, thanks for helping me out today. Wamstad's big beef If you think III Forks owner Dale Wamstad--and his 257-year-old alter ego, Capt. This reliance is misplaced. Wamstad is a classic case of a shrewd business guy from out of town who got under the skin of corrupt local public servants. from 10 a.m.-2 p.m. 972-664-9975 (Texas restaurant) RELATED STORIES See Gertz, 418 U.S. at 346, 94 S.Ct. 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. 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 feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. 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. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. (When asked to comment for the newspaper articles, Wamstad told one newspaper that "the matter is over" and refused to return calls to the other.). 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. 1969) (proof of utter failure to investigate amounted to no evidence of actual malice). We certainly agree that the public debate in this case does not involve matters of great moment in current public life. "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. It will be open Wed.-Sat. Wamstad sued Fertel for defamation, and Fertel countersued for false advertising and unfair competition. 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. 1985). Within a few years, he went "bust" in the chicken business. 2997. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. Wamstad's reliance on Wilson v. UT Health Center is also misplaced. Having invited public rebuttal concerning his persona, Wamstad took on the status of a limited public figure with respect to his behavior in business and family matters. "Limited-purpose" public figures are only public figures for a limited range of issues surrounding a particular public controversy. Now he knows enough about those events to damage just about any top official's reputation. Each Defendant filed a traditional motion for summary judgment under rule 166a(c) of the Texas Rules of Civil Procedure. 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. Rem. 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. 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. III Forks was created in 1998 by restaurateur Dale Wamstad, who'd just left Del Frisco's Double Eagle Steak House. at 455 (ongoing alleged bait and switch sales practices); and McLemore, 978 S.W.2d at 569 (why government raid failed). 1979). 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. That the Media Defendants published her Statements anyway, his argument goes, is evidence of actual malice. 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. 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.. 683 S.W.2d 369, 374-75 (Tex. Before Justices MOSELEY, O'NEILL, and LAGARDE. at 573 (citations omitted). 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. 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. . The lawsuit was eventually settled. Turner, 38 S.W.3d at 120. Civ. 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 contains numerous references to Wamstad throughout the 1990s, many appearing in the restaurant critic columns, which make frequent references to Wamstad personally. 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. 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. 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. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). She alleged Wamstad had defrauded her with respect to her earlier property settlement, in 1992, for $45,000. 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"). 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. Make your practice more effective and efficient with Casetexts legal research suite. McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283, 84 S.Ct. 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 . The AP article was picked up by numerous Texas newspapers, as well as newspapers in Charleston, Fort Lauderdale, Chicago, Baton Rouge, and Phoenix. 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. Dracos, 922 S.W.2d at 255. Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. The judge ruled that she had acted in self-defense. McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). She claimed a history. Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. I spend Sundays with my family." The Rooster Town Cafe will serve breakfast and lunch seven days a week. Huckabee, 19 S.W.3d at 427. The email address cannot be subscribed. 7. Prac. The Dallas Times Herald published two pieces on the dispute, one entitled "Dueling Steak Knives." Whether a party is a public figure is a question of constitutional law for courts to decide. Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. 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 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. Huckabee, 19 S.W.3d at 427. 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. See Bentley, 94 S.W.3d at 596. Again, the press covered the personal aspects of the rivalry between the parties, reporting that both sides claimed total victory.8, In 1998, the Dallas press covered the run-up to, and opening of, Wamstad's III Forks restaurant. 973 F.2d 1263, 1270-71 (5th Cir.1992). Id. As to Rumore, Wamstad relies on additional evidence, including evidence of a polygraph he purportedly passed, refuting Rumore's allegations of abuse. 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 failure to investigate has been held insufficient to establish actual malice. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980)). 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. 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. Court of Appeals of Texas, Fifth District, Dallas. 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. viviana lletget covid,
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