                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  April 17, 2013 Session

                       BASSAM ISSA v. JACK BENSON, SR.

                  Appeal from the Circuit Court for Hamilton County
                      No. 12C283      L. Marie Williams, Judge


                 No. E2012-01672-COA-R3-CV-FILED-JUNE 24, 2013


This appeal concerns alleged defamation and the applicability of both the legislative privilege
and the litigation privilege. Bassam Issa (“Issa”), a developer seeking rezoning of certain
real property, sued Chattanooga City Councilman Jack Benson, Sr. (“Benson”) in the Circuit
Court for Hamilton County (“the Trial Court”). Issa alleged that, in two separate incidents,
Benson had defamed him by accusing him of offering a bribe to influence Benson’s vote on
the rezoning matter. Benson filed a motion for judgment on the pleadings, arguing that his
statements were protected by the legislative privilege and the litigation privilege. The Trial
Court granted Benson’s motion. Issa appeals. We affirm the judgment of the Trial Court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
                                  Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,
J R., P.J., and T HOMAS R. F RIERSON, II, J., joined.

John R. Anderson and Joseph W. Dickson, Chattanooga, Tennessee, for the appellant,
Bassam Issa.

Travis R. McDonough, Zachary H. Greene, and, Jack Benson, Jr., Chattanooga, Tennessee,
for the appellee, Jack Benson, Sr.

Phillip A. Noblett and Patrick P.H. Bobo, Chattanooga, Tennessee, for Amicus Curiae, City
of Chattanooga, in support of appellee, Jack Benson, Sr.
                                         OPINION

                                        Background

              In September 2011, Issa, a commercial real estate developer and the sole
shareholder of the commercial development company, ANT Group, LLC , sought to develop
an IHOP restaurant in Chattanooga. In order to develop the restaurant, the relevant real
property needed to be rezoned. Issa had meetings with Benson concerning this matter.
Benson represented in the Chattanooga City Council the area in which the property is
located.

              In the course of their discussions, Issa informed Benson that, at the closing of
the sale of the property to IHOP, he would make a donation to charity. Benson was not
amenable to Issa’s rezoning request. At a meeting at Glen Gene Deli, Issa told Benson that
ANT would file a lawsuit against Chattanooga and the City Council should Benson try to
garner opposition to the rezoning. Benson, in turn, stated that, should the matter come to a
lawsuit, he would allege that Issa had attempted to bribe him to secure his support for the
rezoning. Benson later repeated this allegation of bribery to members of the Chattanooga
City Council prior to the City Council’s vote on Issa’s request to rezone the property. The
City Council ultimately denied the rezoning.

               In February 2012, Issa sued Benson for defamation. We reproduce the critical
allegations of Issa’s complaint:

       14. Also, Issa, along with his architect Pat Neuhoff (“Neuhoff”), met with
       Defendant Benson before September 15, 2011, to discuss the material
       blueprints of the IHOP, which included, among other things, installing
       significant landscaping as a buffer for the neighborhood and a restriction on
       the maximum square footage of the restaurant.
       15. During his conversation with Defendant Benson, and in the presence of
       Neuhoff, Issa stated that he intended to donate $25,000.00 to another charity
       identified as “Friends of East Brainerd” to go towards the building of a library
       or any other community project, at the closing sale of the Property to the
       IHOP.
       16. Defendant Benson stated that neither he nor the Chattanooga City Council
       had ever voted against the current zoning policy that was adopted in the
       Hamilton Place Community Land Use Plan in 2001 (the “2001 Plan”) and that
       he did not intend to vote against the 2001 Plan to permit ANT Group to
       develop the IHOP.



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17. At a subsequent meeting between Defendant Benson and Issa at Glen
Gene Deli in October, 2011, Issa presented eight cases revealing that the City
had deviated from the 2001 Plan by rezoning properties in contradiction to the
2001 Plan. Defendant Benson reacted very angrily, and vowed to make sure
that the Chattanooga-Hamilton County Regional Planning Agency (“Staff”),
the Chattanooga-Hamilton County Planning Commission (“Commission”), and
the City Council denied the rezoning request.
18. Issa advised Benson that if Benson intended to garner opposition from
other local officials, then ANT Group would be forced to file a lawsuit against
the City of Chattanooga and the City Council. Benson immediately asserted
within listening distance of other patrons at Glen Gene Deli that if Issa “goes
to court,” he (Benson) would accuse Issa of bribery in an attempt to obtain
support for the request to rezone.

                                      ***

24. On December 20, 2011, the City Council denied ANT Group’s request to
rezone the Property in a vote of 5-3, with the following individuals voting to
deny: Councilwoman Sally Robinson, Councilman Jack Benson, Councilman
Russell Gilbert, Councilman Manny Rico and Chairwoman Pam Ladd.
25. Subsequent to the City Council meeting on December 20, 2011, Issa was
informed, and thereon believes and alleges, that Benson, in an effort to obtain
the necessary denial votes from the Council, had slandered Issa by specifically
telling one or more members of the City Council that Issa attempted to bribe
Benson with $2,500.00 cash in return for Benson’s affirmative vote.
26. In addition to the members of the City Council, Issa is informed and
believes and thereon alleges that Benson’s statements were heard by several
other persons whose names are not presently known to him.
27. The oral statements spoken by Benson were understood by those who saw
and heard it to mean that Issa attempted to bribe an elected official in exchange
for an affirmative vote.
28. Furthermore, Benson’s slanderous statements are defamatory because the
intended representation carries a meaning that Issa’s conduct was criminal.
29. Benson’s statements were slanderous because they are predisposed to, and
indeed did, injure Issa in his profession, trade and business by imputing to him
a general disqualification in those respects that the occupation and duties as a
commercial developer require and something that has a natural tendency to
decrease the profits of Issa’s occupation.




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              Benson filed his answer in March 2012. In April 2012, Benson filed a motion
for judgment on the pleadings, arguing that his statements were protected by the legislative
privilege and the litigation privilege. The motion was heard before the Trial Court in June
2012. In July 2012, the Trial Court entered an order granting Benson’s motion. The Trial
Court stated in its order, in part:

               In summary, any of the statements Plaintiff alleges Defendant made to
       other City Council members were directly related to matters within the scope
       of the City Council’s authority, were made within the context of proposed
       litigation, and are protected by the legislative privilege, litigation privilege, or
       both. Similarly, any statements made by Defendant at Glen Gene Deli were
       in direct response to Plaintiff’s statement that he was going to file a lawsuit if
       the rezoning request was denied and are protected by the litigation privilege.
       Because the Court finds that each of the allegedly defamatory statements made
       by Defendant were protected by absolute privilege, it must grant Defendant’s
       motion.

Issa timely appealed to this Court.

                                          Discussion

              Though not stated exactly as such, Issa raises two issues on appeal: 1) whether
the Trial Court erred in holding that Benson’s statements to fellow council members
regarding Issa’s alleged effort to bribe him were protected by the legislative privilege; and,
2) whether the Trial Court erred in holding that Benson’s statements at Glen Gene Deli
regarding Issa’s alleged bribe were protected by the litigation privilege.

              This case was disposed of by judgment on the pleadings. Our Supreme Court
has discussed the standard of review for judgment on the pleadings:

              The legal sufficiency of a complaint can be tested by a Tennessee Rule
       of Civil Procedure 12.03 motion for judgment on the pleadings or a Tennessee
       Rule of Civil Procedure 12.02(6) motion for failure to state a claim upon
       which relief can be granted. The motions, being essentially the same, are
       reviewed under the same standards.

               In determining the sufficiency of a complaint, we must construe it in the
       plaintiff's favor, “by taking all factual allegations in the complaint as true and
       by giving the plaintiff the benefit of all the inferences that can be reasonably
       drawn from the pleaded facts.” Satterfield v. Breeding Insulation Co., 266

                                               -4-
        S.W.3d 347, 352 n. 1 (Tenn. 2008) (citing Lanier v. Rains, 229 S.W.3d 656,
        660 (Tenn.2007)). “A trial court should grant a motion to dismiss ‘only when
        it appears that the plaintiff can prove no set of facts in support of the claim that
        would entitle the plaintiff to relief.’ ” Webb v. Nashville Area Habitat for
        Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (quoting Crews v.
        Buckman Labs. Int'l, Inc., 78 S.W.3d 852, 857 (Tenn. 2002)). The
        determination of whether the facts, as set forth in the complaint, constitute a
        cause of action presents a question of law, and, accordingly, our review is de
        novo with no presumption of correctness.

Harman v. Univ. of Tenn., 353 S.W.3d 734, 736-37 (Tenn. 2011) (footnotes and some
citations omitted).

                We first address whether the Trial Court erred in holding that Benson’s
statements to fellow council members regarding Issa’s alleged effort to bribe him were
protected by the legislative privilege. Legislative privilege refers to the protection afforded
to members of legislative bodies for allegedly defamatory statements made in the course of
their legislative functions. A significant case regarding legislative privilege in Tennessee is
Cornett v. Fetzer, 604 S.W.2d 62 (Tenn. Ct. App. 1980). The Cornett court observed that
Article 1, Section 6, of the United States Constitution conferred the concept of absolute
privilege upon members of Congress regarding defamatory statements made while in their
legislative function, and that the Tennessee Constitution also embodied this concept of
absolute privilege.1 Id. at 63. In Cornett, an Elizabethton city council member made
allegedly defamatory remarks during a regularly scheduled city council meeting concerning
the workmanship of a contractor who did work on the roof of the Elizabethton high school.
Id. at 62.

              The Cornett court held that the absolute privilege extended to subordinate
legislative bodies like city councils and that the privilege applied to the council member in
these circumstances, stating:

               Such lesser legislative entities make important social and economic
        decisions that many times affect our lives to a greater degree than do decisions


        1
         Tenn. Const. Art. 2, § 13 provides: “Senators and Representatives shall, in all cases, except treason,
felony, or breach of the peace, be privileged from arrest during the session of the General Assembly, and in
going to and returning from the same; and for any speech or debate in either House, they shall not be
questioned in any other place.”



                                                     -5-
       made by our state legislators and congressmen. If the utterances of members
       of the legislative bodies such as city councils are not cloaked with an absolute
       privilege, an unwarranted consideration-personal monetary liability-will be
       interjected into a councilman's decision making process. This, we feel, would
       have the unavoidable effect of inhibiting the independent and forceful debate
       out of which decisions which best serve the interests of the populace are borne.

                                             ***

              The absolute privilege which we hold applicable in the case at bar does
       not give a member of a subordinate legislative body the right to use his or her
       position as a forum for private slanders against others. Since one reason
       behind granting a privilege such as we have granted today is to insure an
       uninhibited debate concerning matters before a legislative body, it follows that
       such a privilege is applicable only if the defamatory remarks are made relating
       to matters within the scope of that body's authority. In the case at bar,
       appellee's remarks were certainly within council's legitimate legislative sphere
       as they were made with reference to the proposed budget of the school board,
       a budget which had to be approved or disapproved by city council.

            It is not the purpose of this Court to license malicious defamers.
       However, we feel the policy choice we make today is the correct one.

Cornett, 604 S.W.2d at 63-64.

                The Supreme Court of New Hampshire has noted: “The trend of judicial
decisions and legal thought is to extend the absolute privilege to communications of members
of lesser legislative bodies.” Pierson v. Hubbard, 147 N.H. 760, 764, 802 A.2d 1162, 1166
(2002) (quoting Noble v. Ternyik, 273 Or. 39, 539 P.2d 658, 660 (1975)). The Supreme
Court of Arizona discussed the rationale for extending the privilege to subordinate
legislatures, stating: “The stated rationale supporting absolute immunity for council members
varies but frequently includes attracting qualified council members, council members' need
for candor, and the chilling effect accompanying a qualified privilege.” Sanchez v. Coxon,
175 Ariz. 93, 96, 854 P.2d 126, 129 (1993). We are persuaded that an absolute legislative
privilege applies to city council members, such as Benson, acting in their legislative
functions.

              Issa argues that Benson’s statements are not protected by the legislative
privilege because, in part, they were not made during a regularly-scheduled, open meeting
of the Chattanooga City Council. Issa points out that in Cornett, the allegedly defamatory

                                             -6-
remarks were made during a regularly-scheduled, open city council meeting. We, however,
do not believe this is a decisive distinction. Whether in this case, for example, there was a
violation of the Tennessee Open Meetings Act, codified at Tenn. Code Ann. § 8-44-101 et
seq., is not the relevant issue before us on appeal. We note that Cornett, decided in 1980,
made no distinction concerning the relevance of the open meetings law, which was passed
in 1974. This is not an open meetings case. Rather, our inquiry centers on the nature and
scope of the statements at issue vis-a-vis Benson’s legislative functions. Issa argues
essentially that Benson’s remarks were gratuitous, and beyond the scope of a legitimate
legislative function. Additionally, Issa argues that bribery is not, per se, part of the
legislative function in regards to rezoning issues.

                Issa’s arguments are unavailing. Issa takes what we believe to be an
unwarranted and extremely narrow view of what constitutes legislative function. The same
policy reasons as discussed in Cornett and the other cases discussed in this Opinion for
applying the legislative privilege to a legislative body such as the Chattanooga City Council
are just as applicable to Benson’s statements to his fellow council members as it would have
been if he had made the same statement to those same council members in a regular
scheduled open meeting of the Chattanooga City Council. While bribery of a public official
is, of course, illegal and thus never officially part of a city council’s legislative agenda, a city
council may well have a legitimate basis for knowing whether individuals seeking certain
actions from the council have attempted to secure support by illegal means. Whether an
individual attempts to bribe a council member in order to influence a vote surely is relevant
information for the council to consider in weighing that vote. While we take no position on
the truth of Benson’s allegations, we do hold that they are of a legislative character under the
allegations of Issa’s complaint. Having decided that, we do not probe into Benson’s
motivations. We hold that Benson’s allegations fell within the scope of his legislative
function and are protected by the legislative privilege. We affirm the Trial Court as to this
issue.

              We next address whether the Trial Court erred in holding that Benson’s
statements regarding Issa’s alleged bribe at Glen Gene Deli were protected by the litigation
privilege. We previously have discussed the litigation privilege:

       This state further recognizes that “statements made in the course of judicial
       proceedings which are relevant and pertinent to the issues are absolutely
       privileged and therefore cannot be used as a basis for a libel action for
       damages.” Jones v. Trice, 360 S.W.2d 48, 50 (Tenn. 1962); see also Myers v.
       Pickering Firm, Inc., 959 S.W.2d 152, 159 (Tenn. Ct. App. 1997). This is true
       even if the statements are “known to be false or even malicious.” Jones, 360



                                                -7-
       S.W.2d at 50 (citing Hayslip v. Wellford, 263 S.W.2d 136 (Tenn. 1953)). The
       policy underlying this rule is

              that access to the judicial process, freedom to institute an action,
              or defend, or participate therein without fear of the burden of
              being sued for defamation is so vital and necessary to the
              integrity of our judicial system that it must be made paramount
              to the right of an individual to a legal remedy where he [or she]
              has been wronged thereby.

       Jones, 360 S.W.2d at 51. Myers also expressly stands for the proposition that
       “communications preliminary to proposed or pending litigation” are absolutely
       privileged. Myers, 959 S.W. at 161 (quoting Restatement of Torts § 587).

Phillips v. Woods, No. E2007-00697-COA-R3-CV, 2008 WL 836161, at **7-8 (Tenn. Ct.
App. March 31, 2008), no appl. perm. appeal filed.

              To review the pertinent allegations in the complaint:

       18. Issa advised Benson that if Benson intended to garner opposition from
       other local officials, then ANT Group would be forced to file a lawsuit against
       the City of Chattanooga and the City Council. Benson immediately asserted
       within listening distance of other patrons at Glen Gene Deli that if Issa “goes
       to court,” he (Benson) would accuse Issa of bribery in an attempt to obtain
       support for the request to rezone.

Benson’s statement was in response to a warning that ANT Group, LLC, of which Issa was
sole shareholder, potentially would sue the City of Chattanooga and the City Council, of
which Benson was a member. “Issa advised Benson that if Benson intended to garner
opposition from other local officials, then ANT Group would be forced to file a lawsuit
against the City of Chattanooga and the City Council.” (Emphasis added). This allegation
was a clear warning by Issa to Benson that a lawsuit would be filed should Benson garner
opposition to the rezoning. Benson’s statement was a communication preliminary to
proposed litigation, and as such fell within the litigation privilege.

                Communicating while being a legislator does not by itself shield one from
defamation claims. However, certain communications made within legislative functions are
accorded absolute privilege. Similarly, certain communications made with respect to
litigation, including proposed litigation, also enjoy absolute privilege. These privileges exist
on the basis of strong public policy reasons. We take no position on the truth of Benson’s

                                              -8-
allegations, either those voiced at the deli or to the city council members. None of the
allegations in Issa’s complaint, if true, could sustain the cause of defamation because of the
applicable privileges. The judgment of the Trial Court is affirmed in its entirety.

                                        Conclusion

              The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
Appellant, Bassam Issa, and his surety, if any.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




                                             -9-
