Id. 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. Svalesen claims in court records that he did honor his agreement and was properly issued the shares in lieu of cash through "my previously rendered services which were equal to or in excess of the monetary value assigned to the shares." See Tex. 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. at 423. McLemore, 978 S.W.2d at 572-73. Doubleday Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex. 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. Each Defendant filed a traditional motion for summary judgment under rule 166a(c) of the Texas Rules of Civil Procedure. Dale Wamstad, also known as "Del Frisco," is the sole founder of two iconic, nationally recognized steakhouses. Code Ann. 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?" 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. 683 S.W.2d 369, 374-75 (Tex.1984). 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 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. Rem. As noted, falsity alone does not raise a fact question on actual malice. Wamstad argues this deposition testimony controverts Williams' affidavit testimony that directly negates actual malice. The Article also describes Wamstad's litigation with his long-time rival Ruth Fertel, of Ruth's Chris Steakhouse. . 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. San Antonio Exp. See Gertz, 418 U.S. at 346 ; Waldbaum, 627 F.2d at 1297 n. 27 ("controversy need not concern political matters"). Id. As noted by D Magazine, it was unlike other high-end steakhouses in Dallas, . 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. Wamstad also sued Rumore, Saba, and Sands (collectively, Individual Defendants). Wamstad sued Fertel for defamation, and Fertel countersued for false advertising and unfair competition. (quoting St. Amant v. Thompson, 390 U.S. 727, 731 (1968)). 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). It also includes favorable statements about Wamstad made by his current father-in-law. 973 F.2d 1263, 1270-71 (5th Cir.1992). San Antonio Exp. The email address cannot be subscribed. In 1995, Wamstad's business and personal reputation gained national press attention when he sued Ruth Fertel for defamation over her suggestion that Wamstad was behind the "Top Ten List." We disagree that no public controversy existed. Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, "Media Defendants"). Stay up-to-date with how the law affects your life. . Moreover, the judge's assessment is not probative of whether Rumore believed in the truth of the other Statements she made or whether she entertained doubts as to their truth. This reliance is misplaced. 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." McLemore, 978 S.W.2d at 573 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964)). Id. 51.014(6). 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. 1996)). 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. Before Justices MOSELEY, O'NEILL, and LAGARDE. 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. Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. 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). The restaurant is the latest culinary project by restaurateur Dale Wamstad. Tex.R.Civ.P. Within a few years, he went "bust" in the chicken business. "Actual malice is a term of art, focusing on the defamation defendant's attitude toward the truth of what it reported." 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.". Dark and sexy, this is the perfect place to pop the question over a porterhouse. Dracos, 92 S.W.2d at 255. 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. Prop. 1966). Please try again. Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. 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. 2. Wamstad named as defendants parties associated with the media as well as individuals. Huckabee v. Time Warner Enter. 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 Article was precisely about that contradiction and thus a continuation of the public discussion of Wamstad's endeavors and disputes. Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. See Gertz, 418 U.S. at 346, 94 S.Ct. 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. 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. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. Prop. at 1271. Philanthropy . 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. Wamstad countered that Rumore's claims were groundless because she signed a settlement agreement in 1992 that paid her $45,000. In the mid-1990s, the press began referring to Wamstad as "flamboyant" and "controversial." Legal Principles Governing Defamation and Public-Figure Status. See Casso, 776 S.W.2d at 555. It reportedly escalated from there. Dale Wamstad and his wife, Colleen Keating-Wamstad, have taught their children valuable life lessons. Id. Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. 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. Id. 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. 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. Broad. 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. Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. Co., 690 S.W.2d 546, 548 (Tex. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. from 10 a.m.-2 p.m. 972-664-9975 (Texas restaurant) RELATED STORIES All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. Ms. 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. The judge ruled that she had acted in self-defense. The purpose of the actual-malice standard is "protecting innocent but erroneous speech on public issues, while deterring calculated falsehoods." Bob Sambol bought the place from Wamstad and turned it into Bob's Steak & Chophouse in 1994. Tex. The project's first phase is 88% leased and costs $12 million. She alleged Wamstad had defrauded her with respect to her earlier property settlement, in 1992, for $45,000. The second best result is Dale Tervooren age 30s in McKinney, TX in the Eldorado neighborhood. See Casso, 776 S.W.2d at 555. 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. 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. He went on to add that Piper was a piece of snot floating in the ocean.. 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. 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. Id. 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. Id. Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. 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. 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. Rumore and the Divorce Judge's Pronouncement, As to Rumore, Wamstad relies on additional evidence, including evidence of a polygraph he purportedly passed, refuting Rumore's allegations of abuse. 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. Id. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. 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. And when he wished to, he participated in the debate by using his media access to propound his point of view. 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. 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. 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. 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. The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment. We disagree. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publ'ns., Inc., 627 F.2d 1287, 1296-98 (D.C. Cir. 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. 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. Dale is related to Dale Tervooren and Dane Thomas Wamstad as well as 3 additional people. Although at trial the libel plaintiff must establish actual malice by clear and convincing evidence, at the summary judgment stage the court applies the traditional summary-judgment jurisprudence in testing whether the evidence raises a genuine issue of material fact. local news and culture. Id. She created the high-end wine, martini and champagne lounge with the Cowboys, Legends Hospitality Management and her brother, Ricky Comardelle. See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). Id. How are you doing?Child 1 (Dale, Jr.): Hi, daddy.Child 2 (Shelby Rose): Hi, daddy.C1: Daddy, why is III Forks called III Forks?Dale: Well, Dale, before Dallas was Dallas, it was a III Forks territory.C1: Daddy, why don't the steaks at III Forks sizzle?Dale: Well, honey, when butter starts to sizzle, it's turning to grease.C2: Oh, my gosh. All Defendants brought motions for summary judgment, which the trial court denied, and all Defendants brought this interlocutory appeal. at 466. Wamstad opened III Forks in August 1998 and sold it in July 2000. 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. 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. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. 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. 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. Trial in that case was pending at the time the Article was published. Waldbaum, 627 F.2d at 1297. Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. It is not enough for the jury to disbelieve the libel defendant's testimony. The Dallas Morning News also covered the story, quoting Piper's and Wamstad's personal comments about each other. Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. The family he abandoned in New Orleans has a bone to pick with that." The marathon game had lasted 9 hours and 23 minutes. Texas courts have held that falsity alone is not probative of actual malice. 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. 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. 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. 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. 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. 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). Ecotricity founder Dale Vince, who is bankrolling the climate activist group, has also given . Grease will kill you.Dale: That's right, Shelby Rose And Dale and Shelby Rose, thanks for helping me out today. Prac. The Shire has new ownership. Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. 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. 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. They have also lived in Richardson, TX and Dallas, TX. Prac. And the evidence shows that Wamstad used his access to the media to comment on his rivals and his business disputes. The failure to investigate has been held insufficient to establish actual malice. He was livid at his son for. 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. 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. Affidavits from interested witnesses will negate actual malice as a matter of law only if they are "clear, positive, and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Wamstad sued New Times, Inc. d/b/a Dallas Observer (the Observer) and Mark Stuertz, the reporter (collectively, Media Defendants). (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980)). 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). Again, the press covered the personal aspects of the rivalry between the parties, reporting that both sides claimed total victory. at 558-59. Roy Wamstad describes specific incidents in which he asserts his father physically and emotionally abused him. Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. Id. The supreme court has adopted the Fifth Circuit's three-part test for a limited-purpose public figure: (1)the controversy at issue must be public both in the sense that people are discussing it and people other than the immediate participants in the controversy are likely to feel the impact of its resolution; (2)the plaintiff must have more than a trivial or tangential role in the controversy; and. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success.
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