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Hash Over | Restaurants | Dallas | Dallas Observer | The Leading 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. See Casso, 776 S.W.2d at 555. 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. It reportedly escalated from there. Broad. Civ. 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. Copyright 2023, Thomson Reuters. 2. Dale Wamstad, also known as "Del Frisco," is the sole founder of two iconic, nationally recognized steakhouses. (citing Trotter, 818 F.2d at 433; Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296-98 (D.C.Cir.1980)). The article recounted stories of Wamstad's physical and emotional abuse of family members and his numerous disputes with business partners. The Four Sisters were trying to stare down Dale. Appeal from the 68th District Court, Dallas County, Texas, Trial Court Cause No. She's a great lady 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. 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. It is not enough for the jury to disbelieve the libel defendant's testimony. at 558-59. In essence, he argues that falsity of the Statements is probative of actual malice. Rem. 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. 1985). Wamstad argues this deposition testimony controverts Williams' affidavit testimony that directly negates actual malice. Labour has taken 1.5million from a Just Stop Oil-backing green energy boss, it emerged yesterday. 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. Updated 1:52 PM Jun 9, 2020 CDT. 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 Dallas Times Herald published two pieces on the dispute, one entitled "Dueling Steak Knives." McLemore, 978 S.W.2d at 572-73. We conclude that evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. 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. 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 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. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. 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. 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. at 466. 166a(c). 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 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. Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. "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. 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. 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. See Huckabee, 19 S.W.3d at 428-29 (extensive legal review with editorial rewrites not evidence of actual malice). 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. 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. 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. Prop. A public-figure libel plaintiff must prove the defendant acted with actual malice in allegedly defaming him. and help keep the future of the Observer, Use of this website constitutes acceptance of our, Dallas Observer's The Morning After Brunch. TX Court of Appeals Opinions and Cases | FindLaw This case concerns a defamation suit brought by restaurateur Dale Wamstad after a detailed article about him appeared in the Dallas Observer. Independent evidence is required: Id. When It's Top-10-Steakhouse List, The Knives Are Out - The Seattle Times 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. at 573 (citations omitted). 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. This reliance is misplaced. 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). It reportedly escalated from there. at 423. 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. 30 Years of Dining in Dallas - D Magazine The marathon game had lasted 9 hours and 23 minutes. "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." Rem. The Dallas Times Herald published two pieces on the dispute, one entitled Dueling Steak Knives. The Dallas Morning News also covered the story, quoting Piper's and Wamstad's personal comments about each other.6, 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. The evidence includes an Associated Press article, from November 1994, that chronicled the long-standing personal rivalry between Fertel and Wamstad7 and also reported Fertel's allegation that Wamstad was behind the supposedly independent Top-Ten rating. 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. Prop. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 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. 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. (3)the alleged defamation must be germane to the plaintiff's participation in the controversy. In Wilson, the Fifth Circuit Court of Appeals reversed the district court's determination that the libel plaintiff adduced insufficient evidence of malice. We are not persuaded that Wilson should apply here. Rooster Town is the latest culinary project by restaurateur Dale Wamstad, owner of the adjacent Texas chophouse and Two For the Money BBQ. McLemore, 978 S.W.2d at 573. 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. Beef isn't the only entre sparking legal brawls. At that time, Wamstad . In the mid-1990s, the press began referring to Wamstad as "flamboyant" and "controversial." Id. ." 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). However, leave Dee Lincoln and Del Frisco's . He went on to add that Piper was a piece of snot floating in the ocean.. Code Ann. Cos., 684 F. Supp. 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. I probably deserve it. 496-705-1665. www.roostertownwafflery.com RELATED STORIES 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. It is not enough for the jury to disbelieve the libel defendant's testimony. 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. 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). Patrick Williams stated the following in his affidavit: He had editorial responsibility for Stuertz's article, and he found Stuertz a most accurate reporter. We are not persuaded that Wilson should apply here. (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974)). Fertel suggested, in a newsletter to her customers, that the Top-Ten List was a front for Del Frisco's. Court of Appeals of Texas, Fifth District, Dallas. 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 describes numerous disputes former business partners had with Wamstad, many of which resulted in lawsuits. Dallas' independent source of Within a few years, he went "bust" in the chicken business. Id. Wamstad had not reacted to the advertisement before. Wamstad argues that this expert testimony-that the Media Defendants failed to investigate adequately-evinces actual malice. Wamstad reportedly bristled at that characterization of the truth, claiming, Twenty-three million dollars is truth.. Accordingly, Wamstad has failed to controvert the Media Defendants' negation of actual malice. See Gertz, 418 U.S. at 346 ; Waldbaum, 627 F.2d at 1297 n. 27 ("controversy need not concern political matters"). 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." New Restaurant from Del Frisco's founder Dale Wamstad To Debut Next This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Dale Wamstad to open breakfast and lunch spot in Richardson - impact 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 articles quoted Piper as saying he got involved with Wamstad in 1985 when Dale's wife shot him and states that Piper showed the reporter the 1986 raging bull article from the Times-Picayune. 1966). Wamstad argues that because the Individual Defendants' credibility is at issue, summary judgment is inappropriate, relying on Casso. Dale Wamstad is Back in the Restaurant Business: Four Sisters Caf in 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"). The articles quoted Piper as saying he got involved with Wamstad in 1985 "when Dale's wife shot him" and states that Piper showed the reporter the 1986 "raging bull" article from the Times-Picayune. Huckabee, 19 S.W.3d at 427. Wamstad is a classic case of a shrewd business guy from out of town who got under the skin of corrupt local public servants. Wamstad also sued Rumore, Saba, and Sands (collectively, "Individual Defendants"). Stuertz states in his affidavit that he had arranged an interview with Wamstad, but Wamstad later canceled it on advice of his attorney. The second element requires that the plaintiff have more than a trivial or tangential role in the controversy. The family he abandoned in New Orleans has a bone to pick with that." Prac. On May 26, the Louisiana Supreme Court denied Wamstad's attempt to derail his ex-wife's damage suit seeking a portion of the $22.7 million doled out when Lone Star Steak & Saloon purchased Del Frisco's in late 1995. Texas courts have held that falsity alone is not probative of actual malice. Ecotricity founder Dale Vince, who is bankrolling the climate activist group, has also given . In essence, he argues that falsity of the Statements is probative of actual malice. 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. out of it. "I love luxury brands," she said Friday after. 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. 5251 Spring Valley Rd. denied) (defendant's testimony established plausible basis for professed belief in truth of publication, thus negating actual malice even if publication not substantially correct). North Dallas steakhouse gets locked out and relocates to Frisco We reject this argument, just as the court in Huckabee did. 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. 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." 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. Id. 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?" 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. Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. 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). Although actual malice focuses on the defendant's state of mind, a plaintiff can prove it through objective evidence about the publication's circumstances. The two were inevitably linked, particularly because reports by others contrasted significantly with the family-man persona Wamstad persistently projected in his advertising. The record contains numerous references to Wamstad throughout the 1990s, many appearing in the restaurant critic columns, which make frequent references to Wamstad personally. Id. 1996)). 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. 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. Although he only had a pair of 4's, he noticed Hilda the oldest sister blinking rapidly. 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. 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 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. 5. About TEXAS: Beef Fish Fowl at 558-59. 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. r. Civ. All rights reserved. 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. When Piper moved his restaurant, Wamstad reopened a Del Frisco's in the original location. Wamstad reproduced the list in his advertising, particularly in airline magazines, reportedly with great success. .". The project's first phase is 88% leased and costs $12 million. 1979). 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. Code Ann. 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. 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." Tex. McLemore, 978 S.W.2d at 572-73. 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. Id. 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. 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. Dale Wamstad News (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 evidence is merely cumulative of Wamstad's testimony asserting Rumore's allegations are false. As noted, falsity alone does not raise a fact question on actual malice. 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. 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. And when he wished to, he participated in the debate by using his media access to propound his point of view. He went on to add that Piper was "a piece of snot floating in the ocean.". 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. 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.