The Casso court went on to explain that the plaintiff must offer, at trial, clear and convincing affirmative proof of actual malice. This reliance is misplaced. Id. 1987)). 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.. Dale Wamstad sells - Richardson Chamber of Commerce | Facebook In 1980, with a newfound drive and outlook on life, he founded Del Frisco's Double Eagle Steakhouse and sold it in 1995 for . He went on to add that Piper was a piece of snot floating in the ocean.. See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). The lawsuit was eventually settled. 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. 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. Former Fish chef Chris Svalesen countersued his ex-Fish Partner Steven Upright last month in the latest installment of their ongoing ownership battle in the successful downtown seafood restaurant. The case is expected to go to trial this summer. Indulging all inferences in Wamstad's favor, nonetheless, the Statements in the Article were not inherently improbable or based on obviously dubious information. 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. The Four Sisters were trying to stare down Dale. McLemore, 978 S.W.2d at 572-73. 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. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. Tex.R.Civ.P. 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. 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. 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. On May 26, the Louisiana Supreme Court denied Wamstad's attempt to derail his ex-wife's damage suit seeking a portion of the $22.7 million doled out when Lone Star Steak & Saloon purchased Del Frisco's in late 1995. 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. Id. 4. 973 F.2d 1263, 1270-71 (5th Cir. 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. 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. 6. She alleged Wamstad had defrauded her with respect to her earlier property settlement, in 1992, for $45,000. Co. L.P., 19 S.W.3d 413, 420 (Tex.2000). The Dallas North Beefway - D Magazine 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. Veteran restaurateur Dale Wamstadt plans to open Four Sisters Cafe on April 18.It's his first big new restaurant in years. Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. 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. 51.014(6) (Vernon Supp. 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. Copyright 2023, Thomson Reuters. 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. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. 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. 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. Id. 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). 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. 1989). Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. Labour's 1.5m cash injection from Just Stop Oil supporter and eco The marathon game had lasted 9 hours and 23 minutes. Dale spent 20 years in the insurance business and in 1977 formed an investment group that funded a Popeye's Famous Fried Chicken franchise. (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. 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 failure to investigate has been held insufficient to establish actual malice. Dale Wamstad's new restaurant Two for the Money BBQ opens in Richardson 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). Texas courts have held that falsity alone is not probative of actual malice. As noted by D Magazine, it was unlike other high-end steakhouses in Dallas, . . 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. At that time, Wamstad . Wamstad sued Fertel for defamation, and Fertel countersued for false advertising and unfair competition. 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. It is not enough for the jury to disbelieve the libel defendant's testimony. Wamstad named as defendants parties associated with the media as well as individuals. DALLAS, April 16 /PRNewswire/ -- Dee Lincoln, known nationally as the "Queen of Steaks" for her role as one of the leading female businesswomen in the steakhouse industry, resigned from Del. This reliance is misplaced. 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 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. Bob Cooper--is a little off his T-bone, you may be right. One for Us | News | Dallas - Dallas Observer 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. ", In 1998, the Dallas press covered the run-up to, and opening of, Wamstad's III Forks restaurant. Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. (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.). She created the high-end wine, martini and champagne lounge with the Cowboys, Legends Hospitality Management and her brother, Ricky Comardelle. "I love luxury brands," she said Friday after. Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. 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. New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir.1966). 5251 Spring Valley Rd. She's a great lady. Huckabee, 19 S.W.3d at 427. We conclude the Individual Defendants' affidavits negated actual malice. Broad. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. Finally, Wamstad argues he raises a fact question on actual malice based on deposition testimony of Williams and Lyons. All rights reserved. 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. Updated 1:52 PM Jun 9, 2020 CDT. Rooster Town is the latest culinary project by restaurateur Dale Wamstad, owner of the adjacent Texas chophouse and Two For the Money BBQ. Prac. Id. 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 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. 30 Years of Dining in Dallas - D Magazine Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. 1323); El Paso Times, Inc. v. Trexler, 447 S.W.2d 403, 405-06 (Tex.1969) (proof of utter failure to investigate amounted to no evidence of actual malice). 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. Code Ann. Business. Wamstad had not reacted to the advertisement before. at 466. Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, "Media Defendants"). The second element requires that the plaintiff have more than a trivial or tangential role in the controversy. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publ'ns., Inc., 627 F.2d 1287, 1296-98 (D.C. Cir. Del Frisco's co-founder exits company | Nation's Restaurant News Waldbaum, 627 F.2d at 1297. Civ. See Gertz, 418 U.S. at 346 ; Waldbaum, 627 F.2d at 1297 n. 27 ("controversy need not concern political matters"). 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. 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." Closed Already: The Lost Lady American Cantina - The Stranger 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. 2003). 1984). 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. 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. Wamstad argues this deposition testimony controverts Williams' affidavit testimony that directly negates actual malice. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). As noted, falsity alone does not raise a fact question on actual malice. See also Brueggemeyer v. Am. See Brueggemeyer, 684 F.Supp. 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. That is, he argues, the Article does not involve the types of controversies found in public-figure cases such as Trotter, 18 F.2d 434-35 (union official assassination and labor violence in foreign country); Brueggemeyer, 684 F. Supp. Prop. The standards for reviewing summary judgment under rule 166a(c) are well established. Dracos, 92 S.W.2d at 255. Now he knows enough about those events to damage just about any top official's reputation. 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. 1969) (proof of utter failure to investigate amounted to no evidence of actual malice). 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 feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. Id. The purpose of the actual-malice standard is protecting innocent but erroneous speech on public issues, while deterring calculated falsehoods. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000). Dale Wamstad - Address & Phone Number | Whitepages Wamstad asserts six categories of evidence that he contends controvert the Media Defendants' denial of actual malice: (1) the Media Defendants were on notice that Rumore's credibility was questioned by the divorce judge, who questioned her allegations of Wamstad's abuse and her claim that she shot Wamstad in self-defense; (2) in recounting her tale of life with Wamstad, Rumore stated "sometimes I'm not sure what is a dream and what is real," but nonetheless, Stuertz admitted Rumore was his main source for the article; (3) the Observer was aware before it published the Article that Wamstad had passed a polygraph examination that contradicted Rumore's allegations of abuse; (4) Stuertz admitted he questioned the logic of Rumore's remarrying Wamstad despite her allegations of previous abuse; (5) Wamstad's media expert testified that the Observer's investigation was grossly inadequate; and (6) on deposition, editor Lyons testified that managing editor Williams stated the Article was "libelous as hell, but it won't be when I'm through with it," and Williams testified he had no further personal involvement with the Article after that conversation. Wamstad relies on Leyendecker & Assocs. Dale Wamstad sells development just east of Richardson's CityLine. The Court summarized as follows: The defendant's state of mind can-indeed, must usually-be proved by circumstantial evidence. . McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). We disagree that no "public" controversy existed. 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. Id. In essence, he argues that falsity of the Statements is probative of actual malice. Family man | News | Dallas | Dallas Observer | The Leading Independent That the Media Defendants published her Statements anyway, his argument goes, is evidence of actual malice. Fertel's lawyer asserted he got Wamstad to admit to his connection with, and payments to, the publicist who created the list. Ecotricity founder Dale Vince, who is bankrolling the climate activist group, has also given . The Article also describes Wamstad's litigation with his long-time rival Ruth Fertel, of Ruth's Chris Steakhouse. Prop. 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. Finally, Wamstad argues he raises a fact question on actual malice based on deposition testimony of Williams and Lyons. Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. Dale Wamstad and his wife, Colleen Keating-Wamstad, have taught their children valuable life lessons. 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. at 455 (ongoing alleged "bait and switch" sales practices); and McLemore, 978 S.W.2d at 569 (why government raid failed). 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. 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).