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§24.6B Litigation Privilege

The Case:  Issa v. Benson, 420 S.W.3d 23 (Tenn. Ct. App. 2013).

The Basic Facts:  Plaintiff developer was seeking rezoning of certain real property and brought an action against a city councilman alleging defamation. Plaintiff alleged that defendant had accused him in two separate incidents of offering a bribe to defendant, once in response to plaintiff’s statement that if the rezoning failed he would bring suit against the city and city council and once to members of the city council prior to the vote on the rezoning request. The trial court granted defendant’s motion for judgment on the pleadings based on his assertion that the alleged statements were protected by the legislative privilege and litigation privilege, and the Court of Appeals affirmed. 

The Bottom Line:


“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 [210 Tenn. 535], 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 S.W.2d at 50 (citing Hayslip v. Wellford [195 Tenn. 621], 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.”  420 S.W.3d at 28.

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

“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.” Id. at 29.

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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