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Turner, 38 S.W.3d at 120. 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. 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. In sum, we conclude that Wamstad has failed to raise a fact question on actual malice. Id. In a public-figure defamation case, a libel defendant is entitled to summary judgment under rule 166a(c) by negating actual malice as a matter of law. Ms. Civ. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publ'ns., Inc., 627 F.2d 1287, 1296-98 (D.C. Cir. 1988) (businessman, the subject of consumer complaints and suits, was public figure because by his conduct he "voluntarily engaged in a course that was bound to invite attention and comment"). Cos., 684 F.Supp. 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. (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. 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. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). 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. 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. It will be open Wed.-Sat. 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. Become a member to support the independent voice of Dallas The failure to investigate has been held insufficient to establish actual malice. 452, 458 (N.D.Tex.1988) (businessman, the subject of consumer complaints and suits, was public figure because by his conduct he voluntarily engaged in a course that was bound to invite attention and comment). She claimed a history. In Wilson, the Fifth Circuit Court of Appeals reversed the district court's determination that the libel plaintiff adduced "insufficient evidence of malice." Dale Wamstad redefined the Dallas steakhouse in 1981 when he opened Del Frisco's on Lemmon Avenue. 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. All Defendants sought summary judgment, which the trial court denied, and all Defendants appealed. 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. Rumore contends Del Frisco's sale to publicly traded Lone Star unleashed the public filing of records with the Securities and Exchange Commission, revealing the true value and ownership structure of the Del Frisco's steak empire. It is not enough for the jury to disbelieve the libel defendant's testimony. Wamstad also sued Rumore, Saba, and Sands (collectively, "Individual Defendants"). I probably deserve it. This reliance is misplaced. Bentley v. Bunton, 94 S.W.3d 571, 590-96 (Tex. The Dallas Times Herald published two pieces on the dispute, one entitled "Dueling Steak Knives." Wamstad also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. 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. Tex. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. Wamstad relies on Leyendecker & Assocs. 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. local news and culture. 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. 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. WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (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. One for Us | News | Dallas - Dallas Observer 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. Wamstad's role was both central and germane to the controversy about his contentious relationships. 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. 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. at 1271. Wamstad's big beef If you think III Forks owner Dale Wamstad--and his 257-year-old alter ego, Capt. (3)the alleged defamation must be germane to the plaintiff's participation in the controversy. 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. out of it. 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 email address cannot be subscribed. The divorce court thus disagreed with the trial court's determination, in the previous criminal trial, that Rumore acted in self-defense. 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. The Article was precisely about that contradiction and thus a continuation of the public discussion of Wamstad's endeavors and disputes. 1989). Dale Wamstad to open breakfast and lunch spot in Richardson - impact Id. 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 Casso court went on to explain that the plaintiff must offer, at trial, clear and convincing affirmative proof of actual malice. This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. Civ. 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). Cos., 684 F. Supp. The case is expected to go to trial this summer. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. Dallas restaurateur's libel case dismissed - The Reporters Committee at 573 (citations omitted). The second element requires that the plaintiff have more than a trivial or tangential role in the controversy. Wamstad asserts he does not meet the public-figure test, because there is no "public controversy." Legal Principles Governing Defamation and Public-Figure Status. 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. . Finally, Wamstad argues he raises a fact question on actual malice based on deposition testimony of Williams and Lyons. 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. 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. Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. About TEXAS: Beef Fish Fowl 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. Accordingly, we reverse the trial court's order insofar as it denies their motions for summary judgment and render judgment in favor of all Appellants. The feud reportedly began in 1981 when Wamstad claimed Fertel's son had slipped her recipes to him. 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. In 1996, the Dallas press noted that Wamstad was "known for getting embroiled in legal battles with former business partners and rival steakhouse chains." Co. L.P., 19 S.W.3d 413, 420 (Tex. 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. North Dallas steakhouse gets locked out and relocates to Frisco 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. Nixon v. Mr. Wamstad is upping his bet that The Shire, with a "town village" design, will fill a need for a mixed-use project in Richardson. New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir. San Antonio Exp. 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. 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. 1987)). Dale spent 20 years in the insurance business and in 1977 formed an investment group that funded a Popeye's Famous Fried Chicken franchise. Dale Wamstad sells development just east of Richardson's CityLine. 51.014(6) (Vernon Supp.2003). Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. Code Ann. Wamstad also sued Rumore, Saba, and Sands (collectively, Individual Defendants). In essence, he argues that falsity of the Statements is probative of actual malice. The Dallas Morning News also covered the story, quoting Piper's and Wamstad's personal comments about each other. The family he abandoned in New Orleans has a bone to pick with that." 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. 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"). Public figures have assumed the risk of potentially unfair criticism by entering into the public arena and engaging the public's attention. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir.1980) (intensive advertising and continuing access to media made libel plaintiff a limited public figure). Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. Co., 690 S.W.2d 546, 548 (Tex. 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. Doubleday Co., Inc. v. Rogers, 674 S.W.2d 751, 756 (Tex. She alleges Wamstad created a "web of lies" to conceal the true ownership and value of Del Frisco's assets following their 1987 divorce. Wamstad is a classic case of a shrewd business guy from out of town who got under the skin of corrupt local public servants. 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. 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. A failure to investigate fully is not evidence of actual malice; a purposeful avoidance of the truth is. 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. Tex. Concerning the first element, a general concern or interest does not constitute a controversy. Waldbaum, 627 F.2d at 1297. Wamstad named as defendants parties associated with the media as well as individuals. Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. Id. 1985). Id. Hash Over | Restaurants | Dallas | Dallas Observer | The Leading 51.014(6). Neither do the actions of the Media Defendants evince a purposeful avoidance of the truth. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir. As noted, falsity alone does not raise a fact question on actual malice. Wamstad reportedly "bristled" at that characterization of the "truth," claiming, "Twenty-three million dollars is truth. 1980)). ." 5. Apparently incensed at the steak-house . Williams responded, "Beyond that point, I can't specifically recall anything." Id. 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 also points to the divorce court's judgment granting Wamstad a separation from Rumore on the grounds of attempted murder. 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." He stated that he had no knowledge that the Article or any statements in it were false at the time the Article was published, and at no time did he entertain any doubts as to the truth of the statements made in the Article. 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. Thereafter, Wamstad married again, and began operating Del Frisco's restaurants in Dallas. Dallas' independent source of Now he knows enough about those events to damage just about any top official's reputation. 1984). She created the high-end wine, martini and champagne lounge with the Cowboys, Legends Hospitality Management and her brother, Ricky Comardelle. Del Frisco's Double Eagle Steakhouse was founded in 1980 and III Forks in 1998. .". Roy Wamstad describes specific incidents in which he asserts his father physically and emotionally abused him. Code Ann. and help keep the future of the Observer, Use of this website constitutes acceptance of our, Dallas Observer's The Morning After Brunch. Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. Dale Wamstad - Address & Phone Number | Whitepages See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. Thus, the issue of credibility does not preclude summary judgment on the issue of actual malice. Mgmt. Just My 2 Cents Worth: More to the Dale Wamstad Story - Blogger Texas Monthly and at least one trade magazine covered the suit with Fertel, as did ABC World News Tonight. Rem. 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." 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." Dalw Wamstad Business - dalefwamstad.com denied) (defendant's testimony established plausible basis for professed belief in truth of publication, thus negating actual malice even if publication not substantially correct). 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. 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. 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. He recently purchased an adjacent 10 acres, where he's already planning a 144,000 square foot second phase. And the evidence shows that Wamstad used his access to the media to comment on his rivals and his business disputes. He stated that the final result was truthful, accurate, and a fair representation of the reporter's research. 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. 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.