Public figures have "assumed the risk of potentially unfair criticism by entering into the public arena and engaging the public's attention." Concerning the first element, a general concern or interest does not constitute a controversy. Waldbaum, 627 F.2d at 1297. 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 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. 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. at 573-74 (quoting New York Times, 376 U.S. at 279-80, 84 S.Ct. NEW TIMES, INC. d/b/a Dallas Observer; Mark Stuertz; Lena Rumore Waddell, Lou Saba; and Jack Sands, Appellants, v. Dale F. WAMSTAD, Appellee. 2997. San Antonio Exp. Broad. 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. 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. 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. 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 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). Prop. 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. Id. Id. Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. 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). 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. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. at 423. Updated 1:52 PM Jun 9, 2020 CDT. 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). 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?" 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. Join the Observer community and help support A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is. 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.. 1989). Id. 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. 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. 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. Each Individual Defendant submitted an affidavit testifying that his or her Statements were not made with actual malice, e.g., denying any subjective belief or knowledge that his or her Statements were false, and denying having any serious doubts as to their truth. 51.014(6) (Vernon Supp. Make a one-time donation today for as little as $1. 51.014(6). ", In 1998, the Dallas press covered the run-up to, and opening of, Wamstad's III Forks restaurant. We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. 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. ), In the mid-1990s, the press began referring to Wamstad as flamboyant and controversial. 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 1996, the Dallas press noted that Wamstad was known for getting embroiled in legal battles with former business partners and rival steakhouse chains. And the evidence shows that Wamstad used his access to the media to comment on his rivals and his business disputes. 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. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). 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. 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. 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. Texas courts have held that falsity alone is not probative of actual malice. 2997; Waldbaum, 627 F.2d at 1297 n. 27 (controversy need not concern political matters). Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. Fertel's lawyer asserted he got Wamstad to admit to his connection with, and payments to, the publicist who created the list. 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. 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. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. (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 relies on Leyendecker & Assocs. Wamstad also sued Rumore, Saba, and Sands (collectively, "Individual Defendants"). Bob Sambol bought the place from Wamstad and turned it into Bob's Steak & Chophouse in 1994. P. 166a(c). Now he knows enough about those events to damage just about any top official's reputation. 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. Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. We reject this argument, just as the court in Huckabee did. I probably deserve it. Wamstad countered that Rumore's claims were groundless because she signed a settlement agreement in 1992 that paid her $45,000. Huckabee, 19 S.W.3d at 427. . 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. 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. Grease will kill you.Dale: That's right, Shelby Rose And Dale and Shelby Rose, thanks for helping me out today. Id. "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." 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. The project's first phase is 88% leased and costs $12 million. Mgmt. 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. Wamstad's role was both central and germane to the controversy about his contentious relationships. Dale spent 20 years in the insurance business and in 1977 formed an investment group that funded a Popeye's Famous Fried Chicken franchise. We conclude the Individual Defendants' affidavits negated actual malice. 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. Williams testified on deposition that he spoke with Lyons, and they talked about what the Observer's lawyer and Williams had previously discussed. Although he only had a pair of 4's, he noticed Hilda the oldest sister blinking rapidly. Id. r. Civ. Rem. 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. 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. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. Before Justices MOSELEY, O'NEILL, and LAGARDE. 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. "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. The guy is a warrior of. "When the ink was dry on the partition agreement, [Wamstad] began to unravel the web for his own purposes, so that he could reap all of the benefits from selling the very business Ms. Rumore and the community capital had helped to create," say court documents filed on behalf of Rumore. All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. As to Rumore, Wamstad relies on additional evidence, including evidence of a polygraph he purportedly passed, refuting Rumore's allegations of abuse. Business. 496-705-1665. www.roostertownwafflery.com RELATED STORIES And it's not a steakhouse. 1980)). Accordingly, we reverse and render judgment for all Appellants. Id. 452, 458 (N.D.Tex. Wamstad argues this deposition testimony controverts Williams' affidavit testimony that directly negates actual malice. Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. Chamberlain was reportedly perplexed: his advertisement had not mentioned Lincoln by name, and he had used the same advertising concept for nearly five years, which was a list that compared Chamberlain's four-star listing with the three-and-a-half stars enjoyed by Del Frisco's and others, with the recent inclusion of III Forks on the lower-rated list. Civ. Tex. See Brueggemeyer, 684 F. Supp. 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 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. Id., quoted approvingly in McLemore, 978 S.W.2d at 572. 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. We disagree that no public controversy existed. 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. 973 F.2d 1263, 1270-71 (5th Cir.1992). Indulging all inferences in Wamstad's favor, nonetheless, the Statements in the Article were not inherently improbable or based on obviously dubious information. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. Wamstad asserts he does not meet the public-figure test, because there is no "public controversy." This reliance is misplaced. 73.001 (Vernon 1997).WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex., Full title:NEW TIMES, INC. D/B/A DALLAS OBSERVER; MARK STUERTZ; LENA RUMORE WADDELL, Court:Court of Appeals of Texas, Fifth District, Dallas, stating that a reporter may rely on statements by a single source even though they reflect only one side of the story without showing a reckless disregard for the truth. Beef isn't the only entre sparking legal brawls. See Casso, 776 S.W.2d at 555. Id. We disagree. So Wamstad took the beef to the state's highest court. Cos., 684 F. Supp. 7. 2003). 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. 1969) (proof of utter failure to investigate amounted to no evidence of actual malice). 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 Court summarized as follows: The defendant's state of mind can-indeed, must usually-be proved by circumstantial evidence. Prac. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. Id. 2000). III Forks was created in 1998 by restaurateur Dale Wamstad, who'd just left Del Frisco's Double Eagle Steak House. 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. We disagree that no "public" controversy existed. Del Frisco's Double Eagle Steakhouse was founded in 1980 and III Forks in 1998. . 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. Emmerdale and The Hunt for Raoul Moat star Dale Meeks dies age 47: Ant McPartlin and Declan Donnelly lead the tributes for 'loved and respected' actor whose career began in Byker Grove. Contact us. 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. At that time, Wamstad . 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. 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. The family he abandoned in New Orleans has a bone to pick with that." The AP article was picked up by numerous Texas newspapers, as well as newspapers in Charleston, Fort Lauderdale, Chicago, Baton Rouge, and Phoenix. See also Brueggemeyer v. Am. That the Media Defendants published her Statements anyway, his argument goes, is evidence of actual malice. The article recounted stories of Wamstad's physical and emotional abuse of family members and his numerous disputes with business partners. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. 9. Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). 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." 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. Id. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. Casso, 776 S.W.2d at 558. Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. Rooster Town is the latest culinary project by restaurateur Dale Wamstad, owner of the adjacent Texas chophouse and Two For the Money BBQ. and help keep the future of the Observer, Use of this website constitutes acceptance of our, Dallas Observer's The Morning After Brunch. 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. 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. It will be open Wed.-Sat. 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.". 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. Wamstad said the article, which detailed his relationships with his ex-wife, their son, and some of Wamstad's business associates, harmed his reputation. 2002) (reviewing finding of actual malice for sufficiency, incorporating clear and convincing standard on review). 2000). In Wilson, the Fifth Circuit Court of Appeals reversed the district court's determination that the libel plaintiff adduced "insufficient evidence of malice." Appeal from the 68th District Court, Dallas County, Texas, Trial Court Cause No. 1966). Dale Wamstad sells development just east of Richardson's CityLine. Whether Wamstad's investment pays off remains . 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. 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. This reliance is misplaced. Id. The Casso court went on to explain that the plaintiff must offer, at trial, clear and convincing affirmative proof of actual malice. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. 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 . 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. 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). Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989). (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 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). 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. 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. Wamstad is upping his bet that The Shire, with a "town village" design, will fill a need for a mixed-use project in Richardson. rapper or accountant quiz,
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