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. 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. Wamstad is a classic case of a shrewd business guy from out of town who got under the skin of corrupt local public servants. 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.9 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. In an extensive affidavit, Stuertz stated the following, among other things: In researching for the Article, he interviewed at least nineteen people, reviewed numerous court documents (listing fifty-seven documents), court transcripts, and numerous newspaper articles concerning Wamstad (listing forty-eight newspaper articles). The 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. 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. Mgmt. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 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. 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.". (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.). Civ. 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. She created the high-end wine, martini and champagne lounge with the Cowboys, Legends Hospitality Management and her brother, Ricky Comardelle. Co., 690 S.W.2d 546, 548 (Tex. See Howell v. Hecht, 821 S.W.2d 627, 630 (Tex.App.-Dallas 1991, writ denied) (concluding similar language negated actual malice). Whether Wamstad's investment pays off remains . 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. Several inquiries are relevant in examining the libel plaintiff's role in the controversy: "(1) whether the plaintiff sought publicity surrounding the controversy, (2) whether the plaintiff had access to the media, and (3) whether the plaintiff voluntarily engaged in activities that necessarily involved the risk of increased exposure and injury to reputation." That the Media Defendants published her Statements anyway, his argument goes, is evidence of actual malice. 166a(c). 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. Beef isn't the only entre sparking legal brawls. 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 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. 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 marathon game had lasted 9 hours and 23 minutes. We disagree that no "public" controversy existed. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. Ecotricity founder Dale Vince, who is bankrolling the climate activist group, has also given . 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. 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. Wamstad said the article, which detailed his relationships with his ex-wife, their son, and some of Wamstad's business associates, harmed his reputation. 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. 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). 1323); El Paso Times, Inc. v. Trexler, 447 S.W.2d 403, 405-06 (Tex.1969) (proof of utter failure to investigate amounted to no evidence of actual malice). WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex.1998). We disagree. Mgmt. See Gertz, 418 U.S. at 346, 94 S.Ct. 710). Wamstad argues that this expert testimony-that the Media Defendants failed to investigate adequately-evinces actual malice. Make your practice more effective and efficient with Casetexts legal research suite. Wamstad relies on Leyendecker Assocs. Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 273 (3d Cir. 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. 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. 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. Tex. r. Civ. 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. See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. The actor . 1966). Trial in that case was pending at the time the Article was published. Id., quoted approvingly in McLemore, 978 S.W.2d at 572. McLemore, 978 S.W.2d at 572-73. 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. 00-02758-C, Gary Hall, J. J. Michael Tibbals, Joseph A. Barbknecht, J. Brantley Saunders, The Barbknecht Firm, P.C., David G. Allen, Stacy Conder, L.L.P., Charles L. Babock, Jim (James) McCown, Jackson Walker, LLP, Dallas, for appellants. 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. Wamstad argues that this expert testimony-that the Media Defendants failed to investigate adequately-evinces actual malice. The Court summarized as follows: The defendant's state of mind can-indeed, must usually-be proved by circumstantial evidence. 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. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. The Dallas Morning News also covered the story, quoting Piper's and Wamstad's personal comments about each other. Finally, Wamstad argues he raises a fact question on actual malice based on deposition testimony of Williams and Lyons. It will be open Wed.-Sat. They have also lived in Richardson, TX and Dallas, TX. An understandable misinterpretation of ambiguous facts does not show actual malice, but inherently improbable assertions and statements made on information that is obviously dubious may show actual malice. Wamstad reportedly "bristled" at that characterization of the "truth," claiming, "Twenty-three million dollars is truth. This reliance is misplaced. The Article also describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. at 423. A public-figure libel plaintiff must prove the defendant acted with actual malice in allegedly defaming him. 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. Id. Huckabee, 19 S.W.3d at 424. Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989). Wamstad argues that because the Individual Defendants' credibility is at issue, summary judgment is inappropriate, relying on Casso. 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. Co., 690 S.W.2d 546, 548 (Tex.1985). Co. L.P., 19 S.W.3d 413, 420 (Tex. Public figures have "assumed the risk of potentially unfair criticism by entering into the public arena and engaging the public's attention." The evidence includes an Associated Press article, from November 1994, that chronicled the long-standing personal rivalry between Fertel and Wamstad and also reported Fertel's allegation that Wamstad was behind the supposedly independent Top-Ten rating. 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. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. 8. The lawsuit was eventually settled. Our review of the record shows that after Williams was deposed, he testified by affidavit, stating that he went over at least two drafts of the Article with Stuertz, who answered all of his questions, and that the Article went through the standard, detailed process for editing and revision. 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. 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. 1996)). Veteran restaurateur Dale Wamstadt plans to open Four Sisters Cafe on April 18.It's his first big new restaurant in years. Prop. 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 article recounted stories of Wamstad's physical and emotional abuse of family members and his numerous disputes with business partners. 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). 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. . In essence, he argues that falsity of the Statements is probative of actual malice. He discussed the extensive interviews, media reports, court documents and transcripts Stuertz used and the level of corroboration among the sources. Id. 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 Four Sisters were trying to stare down Dale. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. 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. She claimed a history. The judge ruled that she had acted in self-defense. Court of Appeals of Texas, Fifth District, Dallas. In Wilson, the Fifth Circuit Court of Appeals reversed the district court's determination that the libel plaintiff adduced "insufficient evidence of malice." 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." The record contains numerous references to Wamstad throughout the 1990s, many appearing in the restaurant critic columns, which make frequent references to Wamstad personally. Again, the press covered the personal aspects of the rivalry between the parties, reporting that both sides claimed total victory. "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." Concerning the first element, a general concern or interest does not constitute a "controversy." We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. 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 . Details on the shooting from the Dallas Observer: The purse on the sofa held the .25-caliber semiautomatic pistol her husband had given her two years earlier to protect herself when she closed the. 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. Rumore filed suit following the sale, claiming she was duped out of her share of the proceeds generated by the restaurant they founded and then developed in New Orleans in the early 1980s. Three employees of the Observer-reporter Mark Stuertz, managing editor Patrick Williams, and editor Julie Lyons-each submitted an affidavit denying actual malice. 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. Wamstad's role was both central and germane to the controversy about his contentious relationships. Co. L.P., 19 S.W.3d 413, 420 (Tex.2000). ." Dale is related to Dale Tervooren and Dane Thomas Wamstad as well as 3 additional people. Rem. The family he abandoned in New Orleans has a bone to pick 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. 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. 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. Rumore filed the suit shortly after Wamstad sold his interest in Del Frisco's restaurants for nearly $23 million. 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. The second element requires that the plaintiff have more than a trivial or tangential role in the controversy. 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. 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. 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. I probably deserve it. (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,". Id. 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. Once the defendant has produced evidence negating actual malice as a matter of law, the burden shifts to the plaintiff to present controverting proof raising a genuine issue of material fact. 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. 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.
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