In Wilson, the Fifth Circuit Court of Appeals reversed the district court's determination that the libel plaintiff adduced "insufficient evidence of malice." 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). 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.3 The Article also describes Wamstad's litigation with his long-time rival Ruth Fertel, of Ruth's Chris Steakhouse. at 558-59. Mgmt. at 1271. 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. Texas courts have held that falsity alone is not probative of actual malice. McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. Dracos, 92 S.W.2d at 255. Wamstad's role was both central and germane to the controversy about his contentious relationships. Contact us. Accordingly, we reverse and render judgment for all Appellants. Cos., 684 F. Supp. (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 also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. The actor . Join the Observer community and help support Finally, Wamstad argues he raises a fact question on actual malice based on deposition testimony of Williams and Lyons. Wamstad reportedly "bristled" at that characterization of the "truth," claiming, "Twenty-three million dollars is truth. Court of Appeals of Texas, Fifth District, Dallas. 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. 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). The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. (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. 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. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 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. Wamstad opened III Forks in August 1998 and sold it in July 2000. In 1980, with a newfound drive and outlook on life, he founded Del Frisco's Double Eagle Steakhouse and sold it in 1995 for . The second element requires that the plaintiff have more than a trivial or tangential role in the controversy. 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. And it's not a steakhouse. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). Julie Lyons stated the following in her affidavit: She was aware of the numerous sources for the Article, including court documents and sworn court testimony. Wamstad relies on Leyendecker & Assocs. Alan S. Loewinsohn, Loewinshn Flegle, L.L.P., Dallas, for appellee. Ms. 1992). . Please try again. NEW TIMES, INC. d/b/a Dallas Observer; Mark Stuertz; Lena Rumore Waddell, Lou Saba; and Jack Sands, Appellants, v. Dale F. WAMSTAD, Appellee. 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. 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. Wamstad argues this deposition testimony controverts Williams' affidavit testimony that directly negates actual malice. Indulging all inferences in Wamstad's favor, nonetheless, the Statements in the Article were not inherently improbable or based on obviously dubious information. 496-705-1665. www.roostertownwafflery.com RELATED STORIES All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. 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.. 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. Dale Wamstad, also known as "Del Frisco," is the sole founder of two iconic, nationally recognized steakhouses. Before Justices MOSELEY, O'NEILL, and LAGARDE. Dracos, 922 S.W.2d at 255. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. Concerning the first element, a general concern or interest does not constitute a controversy. Waldbaum, 627 F.2d at 1297. Public figures have "assumed the risk of potentially unfair criticism by entering into the public arena and engaging the public's attention." 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. "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. 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. San Antonio Exp. Id. 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. 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. Actual Malice and Burdens of Proof on Summary Judgment. Huckabee, 19 S.W.3d at 427. 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. That is, the judge's disagreement with Rumore's assertion of self-defense does not raise a fact question whether Rumore herself believed her Statement that she acted in self-defense was false. 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). Civ. Prop. "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.'" 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. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. 51.014(6). 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. Again, the press covered the personal aspects of the rivalry between the parties, reporting that both sides claimed total victory. The Texas Supreme Court has recently addressed the issue of what type of evidence is probative of actual malice in a case involving media defendants. 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. 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. McLemore, 978 S.W.2d at 572-73. 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. 51.014(6) (Vernon Supp.2003). at 423. She alleged Wamstad had defrauded her with respect to her earlier property settlement, in 1992, for $45,000. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. McLemore, 978 S.W.2d at 572-73. This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. Id. 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. 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. We disagree. We conclude the Individual Defendants' affidavits negated actual malice. 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 judge ruled that she had acted in self-defense. 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 opened III Forks in August 1998 and sold it in July 2000. 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. 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. 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. 7. Id. 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. 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. Copyright 2023, Thomson Reuters. 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. 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. She alleged Wamstad had defrauded her with respect to her earlier property settlement, in 1992, for $45,000. The email address cannot be subscribed. We disagree. 1323, 20 L.Ed.2d 262 (1968)). He was livid at his son for. They have also lived in Richardson, TX and Dallas, TX. Wamstad also sued Rumore, Saba, and Sands (collectively, "Individual Defendants"). 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. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. Fertel's lawyer asserted he got Wamstad to admit to his connection with, and payments to, the publicist who created the 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. The Four Sisters were trying to stare down Dale. Whether Wamstad's investment pays off remains . at 558-59. Id. 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. 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. 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. 1966). Updated 1:52 PM Jun 9, 2020 CDT. Id. 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."
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