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. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. When Ms. Rumore discovered the sale and compared the $45,000.00 she received for her half interest in the community, which included the Del Frisco's Steakhouse businesses, with the $22.7 million dollar sale price, allegedly received by Mr. Wamstad from Lone Star, she filed suit alleging fraud. Thereafter, Wamstad married again, and began operating Del Frisco's restaurants in Dallas. 1980)). The purpose of the actual-malice standard is "protecting innocent but erroneous speech on public issues, while deterring calculated falsehoods." This reliance is misplaced. 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. 7. 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. 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. 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. 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. Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. 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. 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. Each Defendant filed a traditional motion for summary judgment under rule 166a(c) of the Texas Rules of Civil Procedure.4 Tex.R. Make your practice more effective and efficient with Casetexts legal research suite. out of it. 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. 1989). . The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. Appellants argue that Wamstad is a public figure, and thus he has the burden to show that each Defendant-Appellant published the Statements attributable to him or her with actual malice. (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). 972-490-9000. . The record contains numerous advertisements containing pictures of Wamstad's new family and children; many advertisements contain his signature slogan We're open six evenings. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. New Restaurant from Del Frisco's founder Dale Wamstad To Debut Next 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." Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. 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 . (quoting Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir.1996)). Wamstad's role was both central and germane to the controversy about his contentious relationships. Tex. Stay up-to-date with how the law affects your life. "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.'" All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. 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. The email address cannot be subscribed. RUMORE v. WAMSTAD | 751 So.2d 452 (2000) - Leagle FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. On the other hand, if the non-movant must, in all likelihood, come forth with independent evidence to prevail, then summary judgment may well be proper in the absence of such controverting proof. Hash Over | Restaurants | Dallas | Dallas Observer | The Leading 2003). 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. 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." One for Us | News | Dallas - Dallas Observer The Article is largely a recounting of various interactions with Wamstad as told by his ex-wife, his first-born son Roy, and some of Wamstad's former business associates. Id. The fact that Wamstad denied the abuse and disagreed that his former wife acted in self-defense in shooting him was not evidence that the Observer believed her claims were false and published. Civ. 5251 Spring Valley Rd. 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. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. 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. See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). Beef isn't the only entre sparking legal brawls. Id., (citing Trotter v. Jack Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir. Id. Dale is related to Dale Tervooren and Dane Thomas Wamstad as well as 3 additional people. (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,". Prac. Wamstad said the article, which detailed his relationships with his ex-wife, their son, and some of Wamstad's business associates, harmed his reputation. Fertel's lawyer asserted he got Wamstad to admit to his connection with, and payments to, the publicist who created the list. "I love luxury brands," she said Friday after. 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. Wamstad reportedly "bristled" at that characterization of the "truth," claiming, "Twenty-three million dollars is truth. Mgmt. Alan S. Loewinsohn, Loewinshn Flegle, L.L.P., Dallas, for 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 argues this deposition testimony controverts Williams' affidavit testimony that directly negates actual malice. Code Ann. 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. 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. 8. Limited-purpose public figures are only public figures for a limited range of issues surrounding a particular public controversy. The judge ruled that she had acted in self-defense. 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. 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. That the Media Defendants published her Statements anyway, his argument goes, is evidence of actual malice. 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. 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. This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex.1984) (reckless conduct not measured by whether reasonably prudent person would have investigated before publishing; must show defendant entertained serious doubts as to truth of publication, citing St. Amant, 390 U.S. at 731, 733, 88 S.Ct. Id. 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. Turner, 38 S.W.3d at 120. 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 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. 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. 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. 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. McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). 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 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. To determine whether a controversy existed, and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question. Id. In Wilson, the Fifth Circuit Court of Appeals reversed the district court's determination that the libel plaintiff adduced "insufficient evidence of malice." We reject this argument, just as the court in Huckabee did. Wamstad responded that Piper was treacherous and mean-spirited for raising the shooting, adding that the shooting was all behind him, that he had remarried and had a wife and two beautiful kids. The case is expected to go to trial this summer. at 455 (ongoing alleged "bait and switch" sales practices); and McLemore, 978 S.W.2d at 569 (why government raid failed). Independent evidence is required: Id. The standards for reviewing summary judgment under rule 166a(c) are well established. III Forks was created in 1998 by restaurateur Dale Wamstad, who'd just left Del Frisco's Double Eagle Steak House. Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, Media Defendants). 1969) (proof of utter failure to investigate amounted to no evidence of actual malice). Now he knows enough about those events to damage just about any top official's reputation. 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. Wamstad opened III Forks in August 1998 and sold it in July 2000. Contact us. Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. 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. Family man | News | Dallas | Dallas Observer | The Leading Independent This reliance is misplaced. 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 sued Fertel for defamation, and Fertel countersued for false advertising and unfair competition. P. 166a(c). Nixon v. Mr. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980)). McLemore, 978 S.W.2d at 573. Indulging all inferences in Wamstad's favor, nonetheless, the Statements in the Article were not inherently improbable or based on obviously dubious information. Join the Observer community and help support Huckabee v. Time Warner Enter. denied) (defendant's testimony established plausible basis for professed belief in truth of publication, thus negating actual malice even if publication not substantially correct). "To determine whether a controversy existed, and, if so, to define its contours, the judge must examine whether persons actually were discussing some specific question." 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. McLemore, 978 S.W.2d at 572-73. Nixon v. Mr. The lawsuit was eventually settled. 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 record contains numerous references to Wamstad throughout the 1990s, many appearing in the restaurant critic columns, which make frequent references to Wamstad personally. 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. Accordingly, this is not a case where a defamation plaintiff was thrust into the public eye and involuntarily remained there. He went on to add that Piper was "a piece of snot floating in the ocean.". 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. Furthermore, that Rumore confessed to confusion about past events, and that Stuertz thought her remarrying Wamstad was not logical, are not probative of whether Stuertz believed the Statements, as they appeared in the Article, were false. 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. A lower court agreed with Wamstad, but Rumore won on appeal. 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. Prac. 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). 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. We certainly agree that the public debate in this case does not involve matters of great moment in current public life. The record contains numerous advertisements containing pictures of Wamstad's new family and children; many advertisements contain his signature slogan "We're open six evenings. Just My 2 Cents Worth: More to the Dale Wamstad Story - Blogger Learn more about FindLaws newsletters, including our terms of use and privacy policy. Dale spent 20 years in the insurance business and in 1977 formed an investment group that funded a Popeye's Famous Fried Chicken franchise. Id. 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. 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. Business. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. 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. 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. San Antonio Exp. 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). 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. Id. 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. Wamstad is a classic case of a shrewd business guy from out of town who got under the skin of corrupt local public servants. 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. (Courtesy Adobe Stock) Rooster Town Cafe should open by Labor Day at 3613 Shire Blvd., Ste . 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. 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. Civ. 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." Turner, 38 S.W.3d at 120. 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. 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.'" 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. Waldbaum, 627 F.2d at 1297. Get the latest updates in news, food, music and culture, and receive special offers direct to your inbox. Roy Wamstad describes specific incidents in which he asserts his father physically and emotionally abused him. See Bentley, 94 S.W.3d at 596. They have also lived in Richardson, TX and Dallas, TX. In essence, he argues that falsity of the Statements is probative of actual malice. Prop. from 10 a.m.-2 p.m. 972-664-9975 (Texas restaurant) RELATED STORIES 496-705-1665. www.roostertownwafflery.com RELATED STORIES Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. The supreme court has adopted the Fifth Circuit's three-part test for a limited-purpose public figure: Id. 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. 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. 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 . The Dallas North Beefway - D Magazine The two were inevitably linked, particularly because reports by others contrasted significantly with the family-man persona Wamstad persistently projected in his advertising. 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. I probably deserve it. All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. Wamstad argues that because the Individual Defendants' credibility is at issue, summary judgment is inappropriate, relying on Casso.
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