author: EDWIN H. SMITH, Presiding Judge.

text:
    Douglas Alan STANGELAND, Respondent-Appellant, v. Tammy Lynn STANGELAND, Appellant-Respondent.
    Nos. WD 57163, WD 57195.
    Missouri Court of Appeals, Western District.
    Dec. 19, 2000.

      Christopher Hoberock, Nevada, MO, for Respondent-Appellant.
    David V. GoUignon, Ozark, for Appellant-Respondent.
    Belinda S. Elliston, Lamar, Guardian ad litem.
    Before EDWIN H. SMITH, P.J., and ULRICH and ELLIS, JJ.
   EDWIN H. SMITH, Presiding Judge.

Tammy Lynn Stangeland appeals the judgment of the Circuit Court of Vernon County dissolving her marriage to the respondent, Douglas Alan Stangeland, with respect to the court’s awards of maintenance and child custody.

The appellant raises two points on appeal. In Point I, she claims that the trial court erred in awarding her maintenance of only $100 per month because the amount of the award was not supported by substantial evidence, and in making such an award, the court misapplied the law. In Point II, she claims that the trial court erred in awarding sole legal and physical custody of the parties’ minor child to the respondent because the findings on which the court based its award were not supported by substantial evidence and were against the weight of the evidence, and in making its award, the trial court erroneously applied the law.

We affirm.

Facts

The parties were married on July 26, 1986. Less than two years later, the parties started a business that eventually became known as Stangeland Vending and Discount Cigarette Company. The parties had one child during their marriage, Derek Alan Stangeland, born October 21, 1993.

On March 25, 1998, the respondent filed his petition for dissolution of marriage alleging that the marriage was irretrievably broken. In his petition, the respondent requested the court to, inter alia, dissolve the marriage; award him custody of the minor child and child support; and divide the parties’ property. On April 3, 1998, the respondent filed and the court granted a motion for temporary custody of Derek and restrained the appellant from entering the parties’ marital home or business. On that same day, the appellant filed a petition for an order of protection against the respondent. On April 9, 1998, the appellant filed her answer to the respondent’s petition and her counter-petition for dissolution. The respondent filed his answer to the appellant’s counter-petition on April 27,1998.

On April 16, 1998, the court entered an order granting temporary joint legal and physical custody of Derek to the parties and establishing a schedule of physical custody. On May 22, 1998, the court appointed Carol Spillars as trustee to oversee and manage the financial affairs of the parties’ business. Thereafter, neither party was allowed access to the receipts, cash, or inventory of the business. On July 7, 1998, an application for appointment of a guardian ad litem for the minor child was filed. The court appointed a guardian ad litem on July 16,1998.

The parties’ case "went to trial on January 25,1999, and concluded on January 29, 1999. The trial court entered its judgment on February 10,1999, inter alia, dissolving the marriage; dividing the property, including awarding to the respondent both the business and the marital home, and ordering him to pay the debts thereon; awarding sole legal and physical custody of the minor child to the respondent, with supervised visitation to the appellant; and ordering the respondent to pay non-modifiable maintenance of $1,000 per month for 60 months. In addition, the respondent was ordered to pay the trustee fees of $25,000 within two years, his own attorney’s fees, $5,000 of the appellant’s attorney’s fees, and $2,500 of the guardian ad litem’s fees. The judgment was amended nunc pro tunc on March 4, 1999, changing the appellant’s visitation from supervised to unsupervised.

On March 11, 1999, the appellant filed her “Motion for New Trial, or, In the Alternative, to Vacate and Amend the Judgment and Decree of Dissolution.” The court heard the motion on April 12, 1999. On April 20, 1999, the trial court sustained the motion and amended its judgment, awarding the appellant modifiable maintenance of $100 per month for 60 months and ordering the respondent to pay the appellant $1,000 per month for 60 months to equalize the court’s property division.

On April 30, 1999, the appellant filed a premature notice of appeal. Likewise, on May 11, 1999, the respondent filed a premature notice of cross-appeal, which he later dismissed. After the trial court’s judgment was further amended nunc pro tunc on May 4, 1999, to correct a clerical error, the respondent filed a “Motion to Further Amend Judgment Entry” on May 6, 1999. In his motion, the respondent alleged that the trial court was required, but failed, to make findings in its judgment as to the child custody factors of § 452.375.2. The motion was heard on June 3, 1999, and on June 28, 1999, the trial court entered its third amended judgment, which included the required statutory findings as to its award of custody.

This appeal follows pursuant to Rule 81.05(b) governing a premature filing of an appeal.

I.

In Point I, the appellant claims that the trial court erred in awarding her maintenance of only $100 per month because the amount of the award was not supported by substantial evidence, and in making such an award, the court misapplied the law. Specifically, she contends that the amount of the trial court’s award was unreasonable and an abuse of discretion when the mandatory factors of § 452.335.2(1)-(10) are applied to the evidence in this ease. We disagree.

Provisions in a divorce decree will be affirmed unless there is no substantial evidence to support them, they are against the weight of the evidence, or the trial court erroneously declares or applies the law. Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo.App.1996) (citing Hoffmann v. Hoffmann, 676 S.W.2d 817, 818 (Mo. banc 1984); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). As to an award of maintenance, the trial court is granted broad discretion. Keller v. Keller, 18 S.W.3d 589, 593 (Mo.App.2000) (citing Allen v. Allen, 961 S.W.2d 891, 893 (Mo.App.1998)). If reasonable people can differ about the propriety of the action taken by the trial court, then it cannot be said that it abused its discretion. Richardson v. State Highway & Transp. Comm’n, 863 S.W.2d 876, 881 (Mo. banc 1993). An abuse of discretion as to an award of maintenance will only be found where the award is such that it shocks the appellate court’s sense of justice. Coble v. Coble, 931 S.W.2d 206, 210 (Mo.App.1996). In determining whether the trial court abused its discretion in awarding maintenance, we are to review the evidence “in a light favorable to the decree, disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion.” Keller, 18 S.W.3d at 593 (citations omitted).

Section 452.335 governs the award of maintenance and provides a two-step threshold test for determining the propriety of such an award. It reads, in pertinent part:

In a proceeding for nonretroactive invalidity, dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:
(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

§ 452.335.1. In our case, there is no dispute on appeal as to the appellant’s entitlement to maintenance under the statutory test of § 452.335.1. The dispute concerns only the amount of the award, $100 per month, which the appellant claims is unreasonable.

The threshold test of § 452.335.1 having been met for an award of maintenance to the appellant, the trial court, in determining the amount and duration of its award, was required to consider the nonexclusive list of factors set forth in § 452.335.2. Hosack v. Hosack, 973 S.W.2d 863, 872 (Mo.App.1998). As to those factors, § 452.335.2 provides:

The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.

“A trial court has broad discretion in applying factors on which the amount of maintenance is based.” Shook v. Shook, 997 S.W.2d 103, 106 (Mo.App.1999). “The court is not required to address each of these factors in determining the amount and duration of maintenance that [was] appropriate.” Hosack, 973 S.W.2d at 872 (citations omitted). Rather, it is required to consider and apply the factors so as to balance the reasonable needs of the spouse seeking maintenance against the ability of the other spouse to pay. Id. In doing so, the trial court is not required to announce for the record the significance of and the weight that it gave to each factor in determining its award of maintenance. Monsees v. Monsees, 908 S.W.2d 812, 818 (Mo.App.1995) (quoting McCallister v. McCallister, 809 S.W.2d 423, 429 (Mo.App.1991)).

The trial court did not make any findings for the record as to the appellant’s income and expenses that it found in determining the amount of its maintenance award to the appellant. Further, the record reflects that neither party made any request for findings of fact and conclusions of law pursuant to Rule 73.01(a). Hence, we must consider the fact issues presented as being found by the court in accordance with its award of maintenance. Id.

In claiming on appeal that the trial court abused its discretion in awarding her maintenance of only $100 per month, the appellant contends that the evidence, when viewed in a light most favorable to the court’s judgment and after considering the factors of § 452.335.2, supported a finding that her reasonable expenses exceeded her monthly income by at least $1,248 to $1,548, depending on the monthly income figure used for her, and that the respondent had the ability to pay an amount within that range. Her claim is without merit.

In support of her request for maintenance at trial, the appellant introduced her income and expense statement reflecting gross wages or salary of $3,000 and total expenses of $2,965. As to her expenses, she admits on appeal that the $417 listed as expenses for the minor child, of whom she did not receive custody, has to be deducted, reducing her claimed monthly expenses to $2,548. As to the $3,000 in wages and salary listed in the appellant’s statement, both the appellant and the respondent testified at trial that the inclusion of that amount was contingent on the appellant’s receiving the parties’ business in the court’s division of marital property, which did not occur. As such, the appellant contends that the only evidence of her monthly income, for the purpose of determining an award of maintenance to her, would have been her testimony that she was capable of netting $1,000 per month in income, and the respondent’s testimony imputing income to her of $7.50 an hour or $1,300 per month. She does not challenge on appeal the propriety of an imputation of income, but instead argues that even if the trial court did impute to her $1,300 per month in income, as argued for by the respondent, the greater weight of the evidence indicated that her reasonable expenses or needs still exceeded her income by at least $1,000, rendering the trial court’s maintenance award to her of $100 per month unreasonable.

In contending that the trial court did not abuse its discretion in awarding the appellant $100 a month in maintenance, the respondent argues that the evidence, when viewed in a light most favorable to the trial court’s judgment, reflects that the appellant overstated her reasonable expenses and understated her income. He further argues that in any event, the trial court could have reasonably found from the evidence that he did not have the ability to pay any more than $100 per month in maintenance.

As to overstating her expenses, the respondent points to evidence in the record indicating that the appellant’s claimed monthly expenses for electricity and telephone service, $450, were substantially inflated and unreasonable. The respondent also points to evidence that the $400 monthly expense listed by the appellant for payment of installment contracts, credit card debt, was short term in nature and as such, not properly included as a monthly expense for the purpose of determining an award of maintenance. As to understating her monthly income, the respondent argues that in addition to imputing income to the appellant of $1,300 per month, the trial court was free to consider as income the $1,000 monthly payments he was ordered to pay her to equalize the court’s property division. As to the $1,000 payment, we recognize, as the appellant asserts, that generally a spouse is not required to exhaust the property awarded to him or her in the dissolution to meet his or her reasonable needs. Witt v. Witt, 930 S.W.2d 500, 503 (Mo.App.1996).

With respect to his ability to pay maintenance, the respondent points to the record favorable to the trial court’s award indicating that he could reasonably anticipate $3,000 a month in income from the family business awarded to him, which had substantial debt. From this amount, the record further indicates that he was required to pay his monthly expenses and the child’s, which he listed in his income and expense statement at $3,300. In addition, as noted, supra, he was ordered to pay the appellant $1,000 per month to equalize the court’s property division. He was also required to pay the fees of the court-appointed trustee, the guardian ad litem, and the appellant’s attorneys, totaling $28,000. The respondent contends that, given his income and expenses, he did not have the ability to pay any more than the $100 ordered.

The appellant’s claim of error as to the trial court’s award of maintenance is based almost entirely on her belief that the court was required to accept her uncontroverted evidence offered in support of her assertions as to her monthly income and expenses, which reflected a greater need for maintenance than $100 per month. However, this ignores the fact that the trial court was free to believe or disbelieve all or any portion of her evidence. Crews v. Crews, 949 S.W.2d 659, 665 (Mo.App.1997). Further, her position ignores the fact that, if believed, the respondent’s evidence would have established that her expenses were inflated. More importantly, however, her position ignores the fact that, even if the trial court accepted her figures as to her income and expenses, there was ample evidence presented by the respondent from which the trial court could have found that he did not have the means to pay any more than $100 per month in maintenance. Thus, we find, when viewed in a light most favorable to the trial court’s judgment, that the record supports the court’s awarding maintenance to the appellant of $100 per month and thus, it did not abuse its discretion in awarding the same.

Point denied.

IL

In Point II, the appellant claims that the trial court erred in awarding sole legal and physical custody of the parties’ minor child to the respondent because the findings on which it based its award were not supported by substantial evidence and were against the weight of the evidence; and in making its award, the trial court erroneously applied the law. We disagree.

As noted, supra, provisions in a divorce decree will be affirmed unless there is no' substantial evidence to support them, they are against the weight of the evidence, or the trial court erroneously declares or applies the law. Woolridge, 915 S.W.2d at 375 (citations omitted). As to an award of child custody, the trial court has broad discretion, and its “decision will be affirmed unless the appellate court is firmly convinced that the welfare of the ehild[ ] requires a different disposition.” Hennessey v. Smith-Hennessey, 997 S.W.2d 538, 542 (Mo.App.1999) (citation omitted). “In reviewing an award of custody, we are to presume that all evidence was considered by the trial court.” Id. (citations omitted). Further, we review the evidence in the light most favorable to the trial court’s judgment. Bran-dow v. Brandow, 18 S.W.3d 584, 587 (Mo. App.2000) (citation omitted).

We would first note that, in contravention of Rule 84.04(d)(5), the appellant’s argument is devoid of any citations to authority other than those cited for our standard of review. Strictly speaking, non-compliance with the dictates of Rule 84.04 preserves nothing for appellate review. Coyne v. Coyne, 17 S.W.3d 904, 906 (Mo.App.2000). However, because “[a]ppellate courts are more tolerant regarding technical requirements [of Rule 84.04] when the questions presented relate to the welfare of children,” Rinehart v. Rinehart, 877 S.W.2d 205, 206 (Mo.App. 1994) (citation omitted), we will review the issues presented on their merits, provided “the argument is sufficient in conjunction with the points relied on to ascertain the issues being raised.” Landry v. Miller, 998 S.W.2d 837, 841 (Mo.App.1999), abrogated on other grounds by In re Mclntire, 33 S.W.3d 565, 567 (Mo.App. 2000). After a review of the appellant’s point relied on and argument, we find that we are able to discern her claim of error therefrom, and will review the same ex gratia. Mann v. City of Pacific, 860 S.W.2d 12,15 (Mo.App. 1993).

Section 452.375.2 requires the trial court to “determine custody in accordance with the best interests of the child.” In doing so, the court is to:

... consider all relevant factors including:
(1) The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;
(4) Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved. If the court finds that a pattern of domestic violence has occurred, and, if the court also finds that awarding custody to the abusive parent is in the best interest of the child, then the court shall enter written findings of fact and conclusions of law. Custody and visitation rights shall be ordered in a manner that best protects the child and the parent or other family or household member who is the victim of domestic violence from any further harm;
(7) The intention of either parent to relocate the principal residence of the child; and
(8) The wishes of a child as to the child’s custodian.

Id. Where, as here, the parties do not agree to a custodial arrangement, § 452.375.6 requires the trial court to:

[IJnclude a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child.

Accordingly, the trial court here made findings detailing the relevant factors it relied upon in making its award of custody to the respondent. It is these findings which the appellant asserts are not supported by substantial evidence and are against the weight of the evidence.

The appellant first attacks the trial court’s findings with respect to factors (1) and (4), primarily the latter. As to factor (1), the court found, in' pertinent part: “The parenting plan as presented by [the respondent] is ... in the best interest of the minor child, except for the fact that there is not sufficient evidence to support an order of supervised visits for [the appellant].” As to factor (4), the trial court found:

Both parents have indicated a willingness to allow the child frequent, continuing and meaningful contact with the other parent. [The respondent’s] proposed Parenting Plan does include more opportunity for contact. [Appellant’s] actions have indicated an unwillingness on her part to be flexible and willing to work through differences concerning visits and the child’s needs.

In attacking the trial court’s findings with respect to factors (1) and (4), the appellant contends that the record does not support the court’s finding that the respondent’s plan, excluding supervised visitation, was in the best interests of the child in that the plan ordered by the court as to the visitation allowed to the non-custodial parent was closer to hers, not the respondent’s, which would impliedly contradict its finding that his plan provided more opportunity for meaningful contact with the child. Further, as to providing meaningful contact, the appellant contends that the record does not support a finding that her actions indicated an unwillingness to work with the respondent to provide such contact with the child in that by rejecting the need for supervised visitation by the appellant, the court necessarily found that she would be cooperative in matters of visitation. Our review indicates that the trial court’s findings as to factors (1) and (4) are amply supported by the record.

The proposed parenting plan submitted by the respondent provided for visitation by the appellant as follows:

1. Weekend Visitation: Saturday and Sunday on alternate weekends.
2. Holidays: Alternate major holidays of Christmas Eve from noon until 9:00 p.m.; Christmas Day, Thanksgiving, Easter, Fourth of July, Labor Day and Memorial Day.
3. Birthdays: Alternate birthdays of the child;
4. Father’s Day and Mother’s Day: Father’s Day shall be with Father, Mother’s Day shall be with Mother; and
5. Summers: Two two-week periods during the summer school vacation which periods will be separated by a hiatus of at least two weeks.
f. All visitation shall be supervised by a supervisor of Father’s choice, and all expenses of the supervision shall be paid by Father. No visitation shall be an overnight visit. All visitation shall be for four (4) hours per visitation day to facilitate the supervision; time of day to be arranged by the parties.

The respondent’s plan provided for 85 days of visitation per year. In contrast, the parenting plan proposed by the appellant provided for only 42 days of visitation by the respondent as follows:

a. One weekend per month beginning at 6:00 P.M. on Friday until 8:00 P.M. on Sunday....
b. Two (2) weeks each summer to coincide with the child’s school summer vacation.
c. Holidays and Special Days as follows:
ii. [Appellant] shall have custody of the minor child on her birthday and on Mother’s Day each year from 9:00 A.M. to 9:00 P.M.;
in. [Respondent] shall have custody of the minor child on his birthday and on Father’s Day each year from 9:00 A.M. to 9:00 P.M.;
iv. [Respondent] shall have custody of the minor child each year on THANKSGIVING DAY from 4:00 P.M. until 8:00 P.M. and each year on CHRISTMAS DAY from 2:00 P.M. until 8:00 P.M.

A comparison of the plans would support the court’s finding that the respondent’s parenting plan was in the best interests of the child because it provided more opportunity for meaningful contact with the appellant.

As to the appellant’s contention that the plan adopted by the trial court was, in fact, closer to her proposed plan than the respondent’s, a comparison of the parties’ plans with the court’s indicates otherwise. The court’s plan provides:

a. Weekend Visitation: Alternate weekends from Friday at 6:00 pm to Sunday at 6:00 pm.
b. Holidays: Alternate major holidays of Christmas Eve from noon until 9:00 p.m.; Christmas Day, Thanksgiving, Easter, Fourth of July, Labor Day and Memorial Day.
c. Birthdays: Alternate birthdays of the child;
d. Father’s Day and Mother’s Day: Father’s Day shall be with Father, Mother’s Day shall be with Mother; and
e. Summers: Two two-week periods during the summer school vacation which periods will be separated by a hiatus of at least two weeks.

The court’s plan is almost identical to paragraphs 1-5 of the respondent’s in that it provides for 85 days of visitation a year. Simply because the trial court ultimately found that the provision in the respondent’s plan for supervised visitation by the appellant was unnecessary did not, as the appellant contends, reflect the fact that the court, despite its best interests finding, had actually rejected the respondent’s plan.

As to the trial court’s finding as to the appellant’s unwillingness to be flexible on matters of visitation to promote meaningful contact by the non-custodial parent with the minor child, we find ample support in the record for the same. The record reflects that the respondent’s parenting plan provided that both parents would share in making decisions concerning, but not limited to:

(1) Choice or change of school;
(2) College;
(3) Camp or other comparable summer activity;
(4) Special tutoring;
(5) Music, art, dance and other cultural lessons;
(6) Psychological or psychiatric treatment or counseling;
(7) Doctors and surgeons; and
(8) All other material decisions affecting the health, education and welfare of the child.

The appellant’s plan, on the other hand, provided that:

[she] shall make all final major decisions relating to the minor child’s growth, development, health, education and welfare; including, but not limited to the choice or change of religious upbringing; the choice or change of child care provider; the choice of school or college; a course of study; special tutoring; extent of travel away from home; the choice of camp or other comparable summer activity; the choice or change of health care providers; non-emergency medical or dental treatment; psychotherapy; psychological treatment, counseling or testing; part or full-time employment; purchase or operation of a motor vehicle; especially hazardous sports or activities; extra-curricular activities, including but not limited to, music, art, dance and other cultural lessons or activities and gymnastics or other athletic activities; contraception and sex education; and decisions relating to actual or potential litigation involving the minor child, directly or as a beneficiary (other than custody).

In this regard, the appellant affirmed in her testimony her belief that she should be able to make all final decisions for the minor child without consulting the respondent. She also testified that she would be unwilling to allow anyone but the respondent to pick up the child for visitation, except in cases of emergency. There was also evidence in the record regarding conflicts that had arisen between the parties concerning the terms of the temporary pretrial physical custody ordered by the court and the appellant’s unwillingness to make any concessions with respect thereto, which evidence the trial court was free to believe and consider in determining custody. Patton v. Patton, 973 S.W.2d 139, 147 (Mo.App.1998).

The appellant next challenges the trial court’s finding with respect to factor (3). As to this factor, the court found:

Derek appears to have a positive relationship with both parents. There was minimal evidence presented about his relationships with other persons who significantly affect his interest. [The appellant] has allowed the child to ride in a vehicle while her paramour, Charlie Crocker was driving, even though she knew he had lost his license due to recurring Driving While Intoxicated charges. Further [the appellant] has shown a lack of understanding about how her actions place the child at risk, specifically, the use of a gun, to threaten [the respondent], while the child was present.

The appellant contends that there was no evidence in the record from which the trial court could find that she knew that Crock-er’s driving privileges were suspended or revoked in that the respondent’s evidence in that regard was excluded by the court. However, the record would reflect that during cross-examination by the guardian ad litem, the appellant testified:

Q. Did I understand you correctly to say that you’re not aware that Charlie
E. Crocker has had his license suspended?
A. I don’t know the status of his personal business.
Q. Have you ever discussed with him whether he had a valid driver’s license?
A. No. Not until the day Doug had told the officers to pick him up.
Q. Okay. And was Charlie, in fact, picked up for driving while suspended?
A. Yes, he was.
Q. And was Derek with him on that occasion?
A. Derek and I both.
Q. Okay. And so when that occurred, where did you all go? The police stopped you on the road?
A. Yes.
Q. And did you go down to the police station then?
A. They took Charlie. And I took Derek to my grandmother’s with me.

The trial court could have reasonably inferred from the appellant’s testimony that she was aware that Crocker’s license had been suspended. However, there does not appear to be any evidence from which the trial court could have found that she was aware of the reason for his suspension. The significance of allowing the child to ride with an individual whose license has been suspended for an unknown reason is questionable. In any event, even if this finding were ignored, the record otherwise supports the trial court’s award of custody.

The appellant next challenges the trial court’s finding as to factor (5), wherein the court found:

The child has not yet started school and because of his young age has had minimal contact with the community such that his adjustment to such can be reviewed. Both parents do live within the same school district. [The respondent] has continued to reside in the marital home of the patries; by [appellant’s] choice. She moved out of the marital home and also did not request possession of the same in trial. Derek has lived in the marital home most of his life, the home is appropriate for the child. Although Derek has a room of his own with [the appellant], he sleeps in her bed between [the appellant] and her paramour.

The appellant argues that the court’s emphasis on the respondent’s remaining in the marital residence was not supported by the evidence because there was no testimony to show that her new residence was “inadequate or detrimental to the welfare of the child.” However, such a showing is not required in order for the trial court to attach significance to the appellant’s leaving the home upon separation in making a determination of custody as being in the best interests of the child. Where, as here, a child has lived in the family home for a significant period of time prior to dissolution, the award of the family home can be a relevant factor in determining custody. Horton v. Horton, 961 S.W.2d 67, 71 (Mo.App.1997). This is because the “family home is a familiar point of reference for a child going through an unfamiliar and disturbing period of transition.” Id. Thus, we cannot find that the court’s reliance, in part, on factor (5) in its award of custody was not supported by the evidence.

As to the appellant’s claim that the trial court’s attaching any significance to the child’s sleeping with Crocker and her in awarding custody to the respondent was not supported by the record in that there was no evidence to show that this arrangement was detrimental to the child, we disagree. “[M]orals are a relevant consideration in deciding whose custody will serve the best interests of a child.” R.J.A. v. G.M.A., 969 S.W.2d 241, 244 (Mo.App. 1998). In this respect, “[consideration must be given to what conduct a parent may inspire by example, or what conduct of a child a parent may foster by condonation.” Id. As such, consideration of a parent’s behavior is not strictly limited to behavior that has, in fact, adversely affected the child. Id. Obviously by bringing the child into the same bed to sleep where she was sleeping with a man out of wedlock, the appellant was not only condoning such immoral behavior, but was in effect promoting it. Thus, although there was no showing that the child was actually adversely affected by the sleeping arrangement in question, the trial court was free to attach some significance to the appellant’s actions in this regard in determining custody such that the record would support the trial court’s finding.

As to one of the trial court’s findings with respect to factor (6): “Derek has been exposed to at least verbal arguments between [the appellant] and her paramour. However, Derek has not been exposed to such behavior while with [the respondent],” the appellant contends that it was not supported by the record in that there was no evidentiary showing that this adversely affected the child. However, the statutory language concerning this factor indicates that domestic violence, even though not directed at the child, is always a concern when considering the best interests of the child as to an award of custody. § 452.375.2(6). Further, this same argument has previously been rejected by the appellate courts of this state, which have held that “a parent’s comportment and behavior during [a relationship] is some indication of the stability of the home environment [the parent] will provide.” In re Marriage of Walls, 743 S.W.2d 137, 140 (Mo.App.1988); see also In re Krauthoff, 191 Mo.App. 149, 177 S.W. 1112,1120 (Mo.App.1915); Interest of J.L.H., 647 S.W.2d 852, 859 (Mo.App.1983) (holding that no single consideration is more important than the home environment in which the child will live). Accordingly, the trial court here was free to consider how the appellant’s verbal arguments with Crocker may over a period of time adversely affect Derek as well as to consider what effect living in such a home environment would have on him. Walls, 743 S.W.2d at 140; R.J.A., 969 S.W.2d at 244.

Finally, the appellant attacks the trial court’s finding as to factor (8), in which the court found: “The child’s wishes as to his custodian have been considered.” In this regard, the appellant essentially argues that although the court’s finding may be correct, it is incomplete in that this factor actually supported an award of custody to her because the child expressed a desire to live with her. “While the wishes of the child regarding his custody are taken into consideration, they are not controlling, as such an important decision should not be allowed to turn upon the temporary whims or desires of a child.” In re Marriage of Haynes, 913 S.W.2d 73, 76 (Mo. App.1995) (citation omitted). “The weight to be given such preferences varies with the age of the child and the basis for that preference.” Gambino v. Gambino, 636 S.W.2d 81, 82 (Mo.App.1982) (citations omitted). Where, as here, the child is of tender years, five years of age at the time of the hearing, little weight should reasonably be given his preference in that it is doubtful that the child has a rational basis for a preference. Kordonowy v. Kordonowry, 887 S.W.2d 809, 811 (Mo.App.1994). Thus, the record as to factor (8) would not necessarily favor the appellant as she contends; and even if it did, it would be insignificant when viewed on balance with the other factors discussed that support the trial court’s award of custody to the respondent.

For the foregoing reasons, we find that the trial court’s findings as to the factors of § 452.375.2 were supported by the record and supported the trial court’s award of sole custody of the parties’ minor child to the respondent.

Point denied.

Conclusion

The judgment of the circuit court dissolving the marriage of the parties is affirmed in all respects.

ULRICH and ELLIS, JJ., concur.

      . All rule references are to the Missouri Rules of Civil Procedure (1999), unless otherwise indicated.

      . We note that, in the argument portion of her brief, the appellant also asserts that the award of maintenance was against the weight of the evidence; however, this contention was not encompassed within her point relied on. Appellate courts are obliged to decide only those issues raised in the points relied on. In re Marriage of Thomas, 21 S.W.3d 168, 173 n. 5 (Mo.App.2000). Issues to which an appellant alludes only in the argument portion of her brief are considered abandoned and not preserved for review. Id.

      . All statutory references are to RSMo 1994, unless otherwise indicated.

      . Although Woolridge cites to page 818 of Hoffmann, the material to be cited is found on page 822. Thus, the proper citation is Hoff-mann v. Hoffmann, 676 S.W.2d 817, 822 (Mo. banc 1984).

      . All statutory references to § 452.375 are to RSMo Supp.1998.

      . With respect to the remaining findings of the trial court as to factors (2), (6), and (7), the appellant argues that these are neutral such that they could not have been considered as supporting an award of custody to the respondent.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    THE VIKINGS, USA BOOTHEEL MO, a Missouri Not-for-Profit Corporation, Plaintiff-Appellant, v. MODERN DAY VETERANS, a Missouri Not-For-Profit Corporation, Defendant-Respondent.
    No. 23746.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 22, 2000.
    W. Edward Reeves, Ward & Reeves, Caruthesville, for Appellant.
    Keith D. Sorrell, Spain, Merrell and Miller, L.L.P., Poplar Bluff, for Respondent.
   GARRISON, Judge.

The Vikings, USA Bootheel MO, (‘Vikings”) appeals the denial of its request for an injunction against Modern Day Veterans (“MDV”). We affirm.

This dispute involves Vikings and MDV, two not-for-profit corporations conducting business as competitors in southeast Missouri. Both Vikings and MDV are organized similarly, in that they are national organizations that have entered into contractual affiliations with local social-service organizations. Both groups provide organizational and administrative assistance to their affiliates in return for an annual fee. This assistance includes advising affiliates with regard to incorporation and annual corporate filing requirements, liquor licen-sure, bingo licensure, and maintenance of tax-exempt status.

In 1998, Vikings filed a petition in the Butler County Circuit Court seeking an injunction against various actions undertaken by and representations made by MDV. Vikings alleged that MDV was improperly soliciting Vikings’ subordinates for MDV memberships in that MDV agents were making representations that were false and fraudulent and made for the purpose of inducing Vikings’ subordinates to. change their memberships. Specifically, the representations that MDV allegedly made were: (1) that if Vikings’ subordinates switched to MDV affiliations, they could continue to enjoy tax-exempt status, could continue to operate pursuant to pre-existing liquor and bingo licenses, or lose no time in applying for a bingo license; (2) that MDV has a group-exemption status pursuant to Section 501(e)(19) of the Internal Revenue Service Code and that status could be used by the subordinates switching to MDV; and (3) that MDV could provide the same services as Vikings at a lesser cost. In its petition for injunctive relief, Vikings requested that MDV “be ordered to cease interfering with [Vikings’] legitimate, on-going business relationships with local ‘Vikings U.S.A.’ social and service clubs organized and chartered through [Vikings].” MDV filed its answer denying the allegations made by Vikings.

Vikings and MDV ultimately resolved many of the Vikings’ claims by entering into a stipulation that MDV, in soliciting new clubs or businesses, would not make any reference to Vikings. That stipulation also contained both parties’ agreements as to the sole remaining issue to be tried: Whether MDV would be allowed to disseminate information to prospective or potential members of its organization that the organization may apply to the Secretary of State’s Office to change its name but preserve its original corporate charter. The stipulation also contained an admission of fact that MDV was actually informing prospective members that they could change their corporate name and preserve their original corporate charter.

On May 24, 2000, the trial court entered its judgment, which set forth MDV and Vikings’ previous stipulation, but denied injunctive relief as to the one issue submitted to the trial court for resolution by the parties. Vikings appeals.

Initially, we note that our review of this case is governed by the principles established in Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976). We must affirm the judgment of the trial court unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 32; Community Title Co. v. Roosevelt Fed. Sav. & Loan Ass’n, 670 S.W.2d 895, 899-900 (Mo.App. E.D.1984). Further, as a general proposition, injunc-tive relief is discretionary and does not issue as a matter of right. Community Title Co., 670 S.W.2d at 900. Injunctive relief is a harsh remedy to be used sparingly and only in clear cases. Id.

Vikings portrays MDV’s action as tortious interference with a business relationship. In order to state a claim on that theory, Vikings was required to show: (1) the existence of a contract or valid business expectancy; (2) MDV’s knowledge of the contract or relationship; (3) a breach of the contract induced by or caused by MDV’s intentional interference; (4) the absence of justification; and (5) damages resulting from MDV’s conduct. See Gott v. First Midwest Bank of Dexter, 963 S.W.2d 432, 438 (Mo.App. S.D.1998).

Vikings contends in its point on appeal that the “procedure urged upon the Vikings’. ‘subordinates’ by [MDV] is an inducement to take an action that is ultra vires, in violation of the ‘subordinates’ own organic documents and in breach of the ‘subordinates’ agreements with the Vikings.” Vikings argues that each of Vikings’ subordinates adopts a “Constitution & By-Laws” that provides, inter alia, that “[n]o Vikings USA Bootheel MO lodge or post may change their name or affiliation with the Secretary of States [sic] Office without the written permission of the Vikings USA Bootheel MO National Headquarters.” Vikings contends, therefore, that the representation made to Vikings’ subordinates by MDV that such subordinates may change affiliation from Vikings to MDV by simply filing articles of amendment with the Secretary of State’s Office was an affirmative misrepresentation and without justification and, thus, constituted tortious interference with Vikings’ business relationships.

“Without justification” has been defined, in the context of tortious interference with business relationships, as the absence of any legal right to take the actions that form the basis of the claim. Macke Laundry Serv. Ltd. P’ship v. Jetz Serv. Co., Inc., 931 S.W.2d 166, 181 (Mo. App. W.D.1996). Generally, conduct lacks justification when a defendant has employed “improper means” to further the defendant’s interests to the detriment of plaintiff. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 317 (Mo. banc 1993). “[I]mproper means” are those that are “independently wrongful, such as threats, violence, trespass, defamation, misrepresentation of fact, restraint of trade, or any other wrongful act recognized by statute or the common law.” Id. No liability arises from interfering with a contract or business expectancy, if the defendant had an unqualified legal right to do the action of which the petition complains. Macke, 931 S.W.2d at 181.

In this case, Vikings has failed to prove that the statements made by MDV to Vikings’ subordinates were without justification. Vikings introduced their own corporate documents, “Constitution & ByLaws,” and articles of incorporation into evidence for the trial court to consider. However, they did not introduce any of their subordinates’ corporate documents. Vikings contends that MDV encouraged Vikings’ subordinates to violate their own corporate documents, but failed to provide any evidence as to what those corporate documents were. The only evidence presented that included the restrictive clause on name changes was in the Vikings’ own articles of incorporation. Vikings, however, argues that an unsigned form document labeled “Vikings USA Bootheel MO Statement of Acknowledgement of Constitution & By-Laws” serves as proof that subordinates adopted such a restriction.

However, Vikings presented no evidence that any of their subordinates actually signed such a document, or that the document was more than a general agreement by the subordinates to abide by the “aims, purposes, and general activities” of Vikings as set forth in Vikings’ “Constitution & By-Laws.” Therefore, there is no proof that the restrictive clause concerning name changes was binding upon the subordinates.

Given that the restriction was not proven to be binding upon the subordinates, MDV’s statements to the subordinates concerning name changes were not misrepresentations of fact under the existing state of the record. Under Section 351.085, RSMo 1994, a corporation “may amend its articles of incorporation, from time to time, in any and as many respects as may be desired; provided, that its articles of incorporation as amended contain only such provisions as might be lawfully contained in original articles of incorporation.” Such permissible amendments include corporate name changes. Under the evidence here, MDV did not misrepresent this procedure to Vikings’ subordinates. This portion of Vikings’ point is therefore denied.

Vikings also contends that corporate name changes by the subordinates perpetuate a fraud on Missouri’s statutory scheme for awarding bingo licenses in that it allows businesses to evade statutes regarding limitations on the issuance of bingo licenses. Under Sections 313.010 and 313.020.1(3), RSMo Cum.Supp.1999, no organization can be granted a bingo license unless it has been in “continuing existence” for a period of at least five years prior to applying for the license. Vikings contends that a corporation that changes its name and affiliation cannot be said to have been in “continuing existence.” Vikings, however, cites no authority in support of this proposition, and its contention runs contrary to the provisions of Section 351.085, RSMo 1994, which allow for the same corporation to continue in existence with a name change. This portion of Vikings’ point must therefore also be denied.

The judgment of the trial court is affirmed.

PREWITT, J., and CROW, J., concur.

      . Vikings’ affiliates are referred to as "subordinates,” and MDV's affiliates are referred to as "clubs.” Both Vikings’ subordinates and MDV's clubs have corporate identities separate from that of their national organization.

        . Murphy interpreted Rule 73.01(c), which has since been amended with its prior provisions being essentially contained in the present Rule 84.13(d), Missouri Rules of Civil Procedure 2000.

      . The "Statement of Acknowledgement of Constitution & By Laws” reads: We, the Vikings USA Bootheel MO #_, subordinate of the Vikings USA Bootheel MO (parent organization), acknowledge and understand the aims, purposes, and general activities as set forth in the Constitution and By Laws presented therein.

      . The Vikings' "Constitution & By-Laws” provides:
      We, the [Vikings] commit and realize our responsibility to our nation as a whole, and associate ourselves for the following purposes:
      1.To promote fellowship among all minorities as well as majorities world-wide.
      2. To defend our Constitution of the United States.
      3. To actively contribute to the idea of peace and international sanctity now & forever, this by the grace of God.


author: BARKER, J.,

text:
    Jamesena WHITE, et al. v. REVCO DISCOUNT DRUG CENTERS, INC.
    Supreme Court of Tennessee, at Knoxville.
    Nov. 22, 2000.

      A. Philip Lomonaco, Knoxville, TN, for the appellants, Jamesena White, Michael L. Woodfin, James E. Woodfin, Jr., Cheryl W. Bobbit, Jacqueline D. Woodfin, Joyce C. Woodward, and Roderick Woodfin, as next of kin and heirs of James E. Woodfin, deceased.
    Ronald T. Hill, Knoxville, TN, for the appellee, Reveo Discount Drug Centers, Inc.
   OPINION

BARKER, J.,

delivered the opinion of the court,

in which ANDERSON, C.J., and BIRCH, and HOLDER, JJ., joined.

We granted permission to appeal in this case to address whether a private employer may be held liable for the negligent actions of an off-duty police officer who was hired by the employer for private security purposes. In the circuit court, the defendant employer moved to dismiss the plaintiffs’ wrongful death action for failure to state a claim, and the motion was granted by the trial judge. The Court of Appeals affirmed the dismissal, holding that the actions of the off-duty officer were taken in furtherance of his official duties as a peace officer, and therefore, the defendant employer could not be held liable for the officer’s negligent actions. After reviewing the complaint in this case, along with the applicable legal authority, we hold that the complaint does state a claim against the defendant employer for the negligence of the off-duty officer. The judgment of the Court of Appeals is reversed, and the case is remanded to the Knox County Circuit Court for further proceedings consistent with this opinion.

This case arises out of the dismissal of the plaintiffs’ wrongful death suit, which originated from the shooting death of James E. Woodfin by officers of the Knoxville Police Department. As alleged by the plaintiffs in their original and amended complaint, the events later giving rise to Woodfin’s alleged wrongful death first began when Woodfin entered a Reveo Discount Drug Store (Reveo) in Knoxville, Tennessee, on May 4, 1997. While inside Reveo, Woodfin caused a considerable disruption, and he was issued a misdemeanor citation for disorderly conduct by Revco’s security guard, Danny Boone. After issuing the citation, Boone, who was also an off-duty police officer with the Knoxville Police Department (KPD), warned Wood-fin never to return to Reveo.

One month later on June 4, 1997, the manager of Reveo approached Boone and informed him that Woodfin entered the store a few days earlier, contrary to Boone’s earlier warning. Boone, who was working that day as Revco’s security guard, then called the KPD “under the complete direction” of the Reveo Manager and inquired as to the status of the May 4 citation. Boone learned that Woodfin failed to report to the jail for “booking” on May 19 as ordered by the citation and that a bench warrant had been issued for Woodfin’s arrest. The complaint then alleges that after Boone told the Reveo manager about the bench warrant, the manager directed Boone to go to Woodfin’s apartment “to serve the bench warrant to prevent Woodfin from ever returning to Reveo and to punish Woodfin for disregarding Revco’s no trespass order.” Before going to Woodfin’s apartment, however, Boone contacted four or five uniformed KPD officers to accompany him from Rev-eo to Woodfin’s apartment.

Upon arriving at Woodfin’s apartment, Boone and the uniformed officers discovered that Woodfin had locked himself inside the apartment and that he would not allow anyone to enter. One of the officers then called a maintenance person for a key to the apartment. While waiting for the maintenance person to locate the key, Boone was contacted by the Reveo manager, who wanted Boone to return to the store to issue a citation to a shoplifter. Boone left the apartment, issued the citation to the shoplifter at Reveo, and then returned to Woodfin’s apartment.

After finally obtaining a key, Boone and the officers entered the apartment and discovered that Woodfin had locked himself in the bathroom. Woodfin warned the officers that he had a shotgun pointed at the bathroom door and that he would shoot anyone who entered. According to the complaint, one of the other officers then kicked open the bathroom door and fired his weapon, mortally wounding Woodfin in the stomach. The officers then left the apartment and, for the first time, called a police supervisor to tell him what had occurred.

The plaintiffs in this action then filed a wrongful death suit against Boone, Reveo, the Knoxville police officers involved, the City of Knoxville, and the Knoxville Community Development Corporation, which leased the apartment to Woodfin. The complaint alleged in relevant part that the officers were negligent in the use of deadly force against Woodfin, because such force was unreasonable and unnecessary to accomplish an arrest on a misdemeanor warrant. The complaint also alleged that the actions of the officers “escalated and aggravated the situation” and that through these actions, the officers became “the aggressors,” making any use of deadly force unreasonable.

In the original complaint, the plaintiffs alleged that Boone was acting “as an agent” for Reveo during the events giving rise to Woodfin’s death and that Reveo was therefore liable for Boone’s actions under the doctrine of respondeat superior. In their amended complaint, the plaintiffs further alleged that during all times relevant to the action, Boone was working as a private security guard for Reveo and that he was acting “under the direction, consent, control, and within the scope of his employment with Reveo.” More specifically, the amended complaint alleged that Reveo directed Boone to call the KPD to check on Woodfin and that Reveo directed and consented to Boone going to Woodfin’s house “to prevent Woodfin from ever returning to Reveo and to punish Woodfin for disregarding Revco’s no trespass order.” As proof of Revco’s control over Boone, the plaintiffs alleged that Reveo recalled Boone from Woodfin’s apartment to issue a citation to a shoplifter.

Reveo moved to dismiss the complaint against itself under Tennessee Rule of Civil Procedure 12.02(6), stating that the plaintiffs failed to allege sufficient facts setting forth a cause of action. The basis for Revco’s motion was that because “Boone, as a matter of law, was acting solely within the scope of his duty as a police officer” when the officers sought to arrest Woodfin in his apartment, Boone could not be Revco’s employee or agent. The trial court granted Revco’s motion to dismiss, and the plaintiffs appealed to the Court of Appeals.

The Court of Appeals affirmed the dismissal of the complaint by adopting a test that examines the nature of the activities undertaken by the police officer during the events giving rise to the cause of action. The intermediate court then found that Boone’s actions in this case reflected “a vindication of a public right,” thereby compelling the conclusion that Boone could only have been acting in his official capacity as a Knoxville police officer. Because Boone was not acting within the scope of his private employment with Reveo at the time of Woodfin’s death, the court declined to find that a cause of action had been stated against Reveo under the doctrine of respondeat superior. We respectfully disagree with the judgment of the Court of Appeals, and for the reasons given herein, we hold that the original and amended complaints in this case sufficiently set forth a cause of action upon which relief may be granted. Accordingly, we remand this case to the Knox County Circuit Court for further proceedings consistent with this opinion.

STANDARD OF APPELLATE REVIEW

A Rule 12.02(6) motion to dismiss admits the truth of all of the relevant and material averments contained in the complaint, but it asserts that the averments nevertheless fail to establish a cause of action. See, e.g., Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997). Therefore, when reviewing a dismissal of a complaint under Rule 12.02(6), this Court must take the factual allegations contained in the complaint as true and review the trial court's legal conclusions de novo without giving any presumption of correctness to those conclusions. See, e.g., Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999). Because a motion to dismiss a complaint under Tennessee Rule of Civil Procedure 12.02(6) challenges only the legal sufficiency of the complaint, courts should not dismiss a complaint for failure to state a claim based upon the perceived strength of a plaintiffs proof. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550, 554 (Tenn.1999). As Rule of Civil Procedure 8.01 only requires that a complaint set forth “a short and plain statement of the claim showing that the pleader is entitled to relief,” courts should liberally construe the complaint in favor of the plaintiff when considering a motion to dismiss for failure to state a claim. See, e.g., Pursell v. First Am. Nat. Bank, 937 S.W.2d 838, 840 (Tenn.1996). Although allegations of pure legal conclusions will not sustain a complaint, see Ruth v. Ruth, 213 Tenn. 82, 372 S.W.2d 285, 287 (1963), courts 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, see, e.g., Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994).

PRIVATE EMPLOYER LIABILITY FOR ACTIONS OF OFF-DUTY POLICE OFFICERS

The issue of whether private employers may be held vicariously liable for the torts committed by an off-duty police officer employed as a private security guard appears to be one of first impression in this state. In the typical case involving the doctrine of respondeat superior, an employer may be held liable for the torts committed by his or her employees while performing duties within the scope of employment. See, e.g., Howard v. Haven, 198 Tenn. 572, 582, 281 S.W.2d 480, 484-85 (1955); Tennessee Farmers Mut. v. American Mut., 840 S.W.2d 933, 937 (Tenn.Ct. App.1992). Although a private employer is certainly “not immune from liability for the negligent or wanton acts of an employee ... for the reason that the employee has official status as a police officer,” see Carmelo v. Miller, 569 S.W.2d 365, 367 (Mo.Ct.App.1978), we recognize that issues stemming from the private employment of off-duty officers do not fit precisely within the typical framework of respondeat superior. This incongruity arises largely because the special status of peace officers in this state permits an off-duty officer to act within the scope of his or her public employment, even while otherwise performing duties for the private employer.

Other jurisdictions that have examined this issue are divided as to whether, and under what circumstances, a private employer may be held liable for the actions of an off-duty officer employed as a security guard. Irrespective of the ultimate conclusion reached, though, most jurisdictions, if not all, resolve this type of issue by looking to the “nature” of the act committed by the off-duty officer. A majority of jurisdictions, including the Court of Appeals in this case, find that because the officer’s actions giving rise to the tort were taken in the officer’s official capacity, the private employer cannot be held vicariously liable. While various rationales are used to reach this conclusion, most jurisdictions reason that the officer’s actions were “official” because (1) police officers have an ever-present public duty to preserve the peace and enforce the law, or (2) the officer’s action was taken to vindicate a public right or to benefit the public in general. In addition to these considerations, some courts have even declined to impose vicarious liability on employers based, in part, on public policy grounds, holding that employment of police officers as security guards furthers deterrence of crimes.

While some jurisdictions impose liability on private employers for the actions of off-duty officers, these minority jurisdictions merely conclude that the officer was acting in a private capacity when the tort was committed. The rationales advanced to support this conclusion include (1) that the officer’s actions were within the scope of his or her private employment; and (2) that the officer’s actions were taken in return for private compensation, contrary to a statute prohibiting private compensation for public duties. Consequently, even though jurisdictions may disagree as to the proper resolution of any given case, virtually all jurisdictions ultimately follow a nature-of-the-act approach in determining private employer liability for the actions of an off-duty officer employed as a security guard.

1. Analysis Focusing Upon the Nature of the Officer’s Actions

Upon due consideration, we decline to strictly analyze this issue according to the nature of the officer’s actions, as this approach does not closely comport with existing Tennessee law. When analyzed in terms of current Tennessee law and practice, the nature-of-the-act analysis has three primary shortcomings. First, this type of analysis fails to take into account the fact that many of the actions taken by officers in Tennessee to “vindicate public rights” may also be lawfully taken by private citizens to serve other interests. For example, police officers in Tennessee do not possess the exclusive authority to make arrests, as private citizens possess this power in many of the same circumstances as officers on official duty. See Tenn.Code Ann. § 40-7-109 (1997) (listing grounds permitting arrest by private citizens). In addition, private citizens employed as security guards in Tennessee are authorized by statute to undertake many actions for private interests that also appear to be consistent with a general vindication of public rights. For example, private security guards in this state are authorized to protect persons and/or property from criminal activities, including, but not limited to:

(A) Prevention and/or detection of intrusion, unauthorized entry, larceny, vandalism, abuse, fire or trespass on private property;
(B) Prevention, observation or detection of any unauthorized activity on private property;
(C) Enforce rules, regulations or local or state laws on private property;
(D) Control, regulation or direction of the flow or movements of the public, whether by vehicle or otherwise on private property; or
(E) Street patrol service;

See Tenn.Code Ann. § 62-35-102(16) (1997) (emphasis added). As this statute makes clear, private security guards are authorized to enforce local and state laws and to protect persons and property against general criminal activities, irrespective of whether the guard is a private citizen or an off-duty officer. Because many of these statutorily authorized activities could legitimately be viewed either as serving the interests of the private employer or as vindicating public rights, analysis focusing on the “nature” of the act may not provide a meaningful basis upon which to impose vicarious liability on the private employer.

Second, just as the majority approach that looks to the official nature of the officer’s actions ignores that private citizens in Tennessee can perform many of the same actions as police officers, an approach that looks to the private nature of the officer’s actions ignores that police officers in Tennessee still possess the full panoply of “official” police power, even when they are off duty. Indeed, this benefit is one of the considerable advantages of employing off-duty officers as private security guards, and we are unwilling to restrict the powers of an off-duty officer solely to accommodate a test that examines the nature of the acts committed. For the same reasons that we reject a test denying vicarious liability when the off-duty officer performs “official actions,” we must necessarily reject a rule that holds private employers liable in situations solely because the acts committed by the off-duty officer were “private” in nature.

Third, while most states decline to impose vicarious liability on private employers because police officers have a continuous duty to keep the peace and enforce the law, we can find no corresponding statute or rule of law in this state that places a mandatory duty upon police officers to keep the peace when “off duty.” To the contrary, when officers are “off duty,” our statutes generally treat the officer as an ordinary private citizen and not as an agent or employee of the municipal police department under a general duty to keep the peace. See, e.g., Tenn.Code Ann. § 38-8-351 (1997) (allowing officers to participate in political activities when “off-duty and acting as a private citizen,” but not when the officer is “on duty or acting in such officer’s official capacity”); Tenn. Code Ann. § 38-8-303 (1997) (making distinction between “the performance of the officer’s official duties” and the officer’s “off-duty [private] employment” for purposes of disclosure in official investigations). Consequently, to the extent that a nature-of-the-act analysis focuses upon some continuous duty of police officers to keep the peace, that analysis is impractical in this state.

Of course, to say that officers do not continuously function in an official capacity is not to say that off-duty officers are prevented from assuming a duty to remedy a breach of the peace, or that officers are incapable of being summoned to official duty by the municipality. Cf. Knoxville City Code § 19-29. Nevertheless, it is clear that officers are not under a general duty to enforce the law while “off duty,” cf. Ezell v. Cockrell, 902 S.W.2d 394, 403 (Tenn.1995) (stating that an officer’s ability to arrest at any time does not give rise to a duty to do so, but “only delineate[s] the general authority and responsibility of police officers”), and a blanket rule declaring that police officers are under a never-ending duty to keep the peace is contrary to existing Tennessee law. We therefore decline to use this rationale in determining the scope of private employer liability.

For these reasons, we conclude that a test examining the nature of the officer’s actions to resolve the question of employer liability is probably unworkable within the current framework of Tennessee law. No doubt because of the practical difficulty in determining the proper nature of the actions committed by a security guard, this test has resulted in over-insulating private employers who would otherwise be subject to liability if the security guard were not also employed by a municipal police department. While a few states in minority jurisdictions have held employers hable under this approach, the vast majority of jurisdictions using this approach have held that private employers are not hable. We are unwilling to provide such practical immunity for private employers based only upon negligible distinctions concerning the “nature” of the officer’s conduct.

2. Public Policy Grounds for Denying or Imposing Private Employer Liability

Several jurisdictions have also used pubhc policy considerations to hold that private employers are not hable for the actions of off-duty officers employed as security guards. These jurisdictions generally reason that because deterrence of crime is furthered by employing pohee officers, private employers should be encouraged to hire such officers as security guards. See, e.g., Duncan, 294 S.E.2d at 366; Brown, 672 P.2d at 1269. In its most basic sense, therefore, these jurisdictions have decided to grant practical immunity to private employers in exchange for the perceived benefit derived from private employers hiring off-duty officers as security guards.

Although we agree that deterrence of crime may be rationally furthered by the hiring of off-duty officers, we also recognize that some level of deterrence is provided simply by hiring private security guards, irrespective of whether the guards are off-duty officers or private citizens.

Moreover, eliminating vicarious liability for private employers who hire off-duty police officers encourages such employers to shift their risk of liability to the municipality solely because their employees are also employees of the local police department. As jurisdictions following a nature-of-the-act approach recognize, at least implicitly, the private employer would have been vicariously hable for the torts of its security guard except for the fact that the security guard is also a municipal police officer. As such, allowing liability based only upon the official status of the employee undermines the modern rationale of vicarious liability, which according to Professor Keeton, is the result of “deliberate allocation of risk.” W. Page Keeton, et al., Prosser and Kee-ton on Torts § 69, at 500 (5th ed.1984). This allocation of risk is

placed on the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of employees, and sought to profit by it, it is just that [the employer], rather than the innocent injured plaintiff, should bear [the risk]; and [liability is placed on the employer] because [the employer] is better able to absorb [the risks], and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.

Id. § 69, at 500-01.

Under the majority rule, the private employer may take advantage of the benefits of hiring an off-duty officer without assuming any of the normal risks of liability associated with hiring non-officer employees. We simply do not believe that in many cases, the risk of loss is properly shifted from the private employer to the municipality or to an innocent plaintiff, and we therefore disagree with the public policy rationales advanced by many of our sister jurisdictions that have adopted the majority rule on this issue.

3. Advantages of Agency Law

After due consideration, we conclude that issues of employer liability for the acts of off-duty police officers are best resolved under traditional principles of Tennessee agency law. Use of agency principles in Tennessee to resolve this complex issue has several advantages. First, because traditional agency principles have been used in this state for two centuries, they possess the advantages of experience and straightforward application. In addition, these principles do not depend upon the splitting of legal hairs into meaningless distinctions, which is a hallmark of many of the other approaches.

Second, and most importantly, use of traditional agency law to resolve these types of issues corresponds most closely with prior case law from this Court. Although the issue of private employer liability for the acts of a municipal police officer employed in a private capacity is an issue of first impression in this state, this Court has previously addressed this same question in terms of private employer liability for the torts committed by a special police officer commissioned by a municipality for a particular assignment. In Terry v. Bur-ford, 131 Tenn. 451, 175 S.W. 538 (1915), this Court applied traditional agency principles to hold the private employer vicariously liable for the torts committed by the officer, notwithstanding the officer’s special commission from the municipality.

See also Union Ry. Co. v. Carter, 129 Tenn. 459,166 S.W. 592 (1914).

Although these cases do not directly control the decision in this case because of the important distinction between special officers and regular police officers— special officers usually only have the complete authority and powers of regular officers to the extent allowed by the special commission, cf. Tenn.Code Ann. § 8-8-212(b) (1997) — these cases are certainly persuasive authority for applying traditional agency principles to the issues involving regular officers as well. For these reasons, we conclude that issues concerning employer liability for torts committed by off-duty police officers employed as security guards are to be resolved according to traditional Tennessee agency principles.

GENERAL PRINCIPLES OF TENNESSEE LAW OF AGENCY

Having decided that this case should be resolved with reference to Tennessee agency law, it may be necessary to review the relevant principles of agency. In its broadest sense, the concept of agency “includes every relation in which one person acts for -or represents another.” Kemey v. Aetna Cas. & Sur. Co., 648 S.W.2d 247, 253 (Tenn.Ct.App.1982). An agency relationship does not require an explicit agreement, contract, or understanding between the parties, Wart'en v. Estate of Kirk, 954 S.W.2d 722, 725 (Tenn. 1997), and when “the facts establish the existence of an agency relationship, it will be found to exist whether the parties intended to create one or not.” Harben v. Hutton, 739 S.W.2d 602, 606 (Tenn.Ct.App. 1987); see also Smith v. Tennessee Coach Co., 183 Tenn. 676, 680-81,194 S.W.2d 867, 869 (1946). Whether an agency exists “is a question of fact under the circumstances of the particular case; and whether an agency has been created is to be determined by the relation of the parties as they in fact exist under their agreement or acts.” McCay v. Mitchell, 62 TenmApp. 424, 434, 463 S.W.2d 710, 715 (1970).

Important in the concept of agency, of course, is that a principal is generally “bound by its agent’s acts done in its behalf and within the actual or apparent scope of the agency.” V.L. Nicholson Co. v. Transcon Inv. & Financial Ltd., 595 S.W.2d 474, 483 (Tenn.1980). The focus of this inquiry, however, is placed upon the actions and consent of the principal, rather than upon the agent’s actions or the willingness of the agent to perform those actions. Haury & Smith Realty Co. v. Piccadilly Partners I, 802 S.W.2d 612, 615 (Tenn.Ct.App.1990). Although the principal’s right to control the actions of the agent is an important factor in finding the existence of an agency relationship, Jack Daniel Distillery, et al. v. Jackson, 740 S.W.2d' 413, 416 (Tenn.1987), the right of control is not necessarily as important as the principal’s exercise of actual control over the agent, see Parker v. Vanderbilt Univ., 767 S.W.2d 412, 416 (Tenn.Ct.App. 1988).

Indeed, a principal may be held liable for an agent’s tortious act, even if that act occurs outside of the scope of the agency, if the act was commanded or directed by the principal. See Kinnard v.. Rock City Const. Co., 39 TenmApp. 547, 551, 286 S.W.2d 352, 354 (1955). As the Kinnard Court stated the rule:

A master is hable for the tort of his servant where the tortious act is done in obedience to his express orders or directions, even though the service is not within the line of the servant’s usual duties, and provided the injury to the third person occurs as the natural, direct, and proximate result of the directed or authorized act.

Id. at 551-52, 286 S.W.2d at 354-55. The court also noted that the law did not strictly require that “the principal or master should expressly direct or have knowledge of the act done; it is enough that the servant or agent was acting in the business of his superior.” Id. at 551, 286 S.W.2d at 354 (citing Luttrell v. Hazen, 35 Tenn. (3 Sneed) 20, 25 (1855)).

It is also well settled that an agent may serve two masters simultaneously, so long as the objectives of one master are not contrary to the objectives of the other. See Monroe County Motor Co. v. Tennessee Odin Ins. Co., 33 Tenn. App. 223, 241, 231 S.W.2d 386, 394 (1950). As section 226 of the Restatement (Second) of Agency states the rule, “A person may be the servant of two masters, not joint employers, at one time as to one act, if the service does not involve abandonment of the service to the other.” In so doing, the person serving two masters “may cause both employers to be responsible for an act .... if the act is within the scope of employment for both.” Id. § 226 cmt. a.

To summarize these agency principles in terms of application to the issue in this case, we conclude that private employers may be held vicariously liable for the acts of an off-duty police officer employed as a private security guard under any of the following circumstances: (1) the action taken by the off-duty officer occurred within the scope of private employment; (2) the action taken by the off-duty officer occurred outside of the regular scope of employment, if the action giving rise to the tort was taken in obedience to orders or directions of the employer and the harm proximately resulted from the order or direction; or (3) the action was taken by the officer with the consent or ratification of the private employer and with an intent to benefit the private employer.

Consistent with agency law, the private employer of an off-duty officer cannot generally be held vicariously liable for actions taken by the off-duty officer outside of the officer’s regular scope of employment as a security guard. As such, when the officer is summoned to official duty by the municipality, or otherwise performs traditional police actions outside of the scope of his or her private employment, the private employer will not be generally liable. The private employer would be liable, however, for acts taken outside of the regular scope of private employment under the following two scenarios: (1) the employer ordered or directed the action; or (2) the employer gave consent to the action, which was taken by the officer with a primary intent to benefit the employer. As is the case with agency law in general, issues such as whether the officer acted within the scope of employment, or whether the officer acted at the direction or with the consent of his or her private employer, are questions of fact to be resolved by the jury.

We also recognize that under the dual master doctrine, the municipality may also be vicariously liable — along with the private employer — for the actions taken by one of its off-duty police officers. Under Tennessee agency law, liability may also be imputed to the municipality when all of the following four circumstances are present: (1) the action taken by the off-duty officer involves exercise of a traditional police power, such as the power to arrest, the power to issue citations, or the power to command aid; (2) the municipality had knowledge, either actual or constructive, of the action taken by the off-duty officer; (3) the action taken by the off-duty officer simultaneously serves the objectives of the private employer and the municipality; and (4) the objectives of the private employer and the municipality, which are both served by the officer’s action, are not inconsistent with each other.

DISMISSAL OF THE COMPLAINT PURSUANT TO RULE OF CIVIL PROCEDURE 12.02(6)

Because this case comes before us on a motion to dismiss for failure to state a claim, we confíne our inquiry solely to the allegations of the complaint to determine whether the plaintiffs have alleged a cause of action against Reveo upon which relief may be granted. After carefully examining the material allegations of the original and amended complaints, we conclude that the plaintiffs have in fact made sufficient allegations under all three agency theories, which, if proven, would give rise to vicarious liability on the part of Reveo.

First, we find that the plaintiffs have made sufficient allegations to assert a cause of action against Reveo based on a tort committed by Boone while acting within the course and scope of his employment with Reveo. The amended complaint alleges in several paragraphs that Boone’s actions were taken “within the scope of his employment with Reveo,” and that Boone was acting at all relevant times “under the direction, consent, and control” of Reveo. The amended complaint also alleges that Reveo employed Boone especially to take advantage of Boone’s ability to make arrests and issue citations. Finally, as evidence of Revco’s control over Boone during the relevant period of time, the complaint sets forth the fact that Boone was summoned back to Reveo to issue a citation to a shoplifter even while he was attempting to enforce the city’s bench warrant. Accordingly, when viewed in a light most favorable to the plaintiffs, we find that the plaintiffs have adequately stated a cause of action against Reveo based on the torts of its security guard committed within the scope of his private employment.

In response, Reveo asserts that because the original and amended complaints allege mere legal conclusions, the complaints cannot be sustained on a Rule 12.02(6) motion to dismiss. We disagree. A complaint “need not contain in minute detail the facts that give rise to the claim,” so long as the complaint does “contain allegations from which an inference may fairly be drawn that evidence on these material points will be introduced at trial” Donaldson v. Donaldson, 557 S.W.2d 60, 61 (Tenn.1977). In this case, Reveo may reasonably infer from the allegations contained in the complaints that the plaintiffs plan to introduce (1) evidence concerning the course and scope of Boone’s employment with Reveo, and (2) evidence that Boone’s actions giving rise to Woodfin’s wrongful death were within the course and scope of that employment with Reveo. As such, we decline to dismiss the complaint for any perceived deficiency in its factual allegations, and we conclude that the plaintiffs have stated a cause of action under this agency theory.

Second, we also conclude that the plaintiffs have made sufficient allegations to assert a cause of action based on a tort committed by Boone while in obedience to the orders or directions of Reveo. First, the' complaint alleges that following a conversation about Woodfin’s second appearance at Reveo a few days prior to June 4, the Reveo manager directed Boone to check with the KPD about Woodfin’s previous citation for disorderly conduct. The complaint further alleges that upon learning that a bench warrant had been issued for Woodfin’s arrest, the Reveo Manager directed Boone “to serve the bench warrant to prevent Woodfin from ever returning to Reveo and to punish Woodfin for disregarding Revco’s no trespass order.” If these facts are taken as true, an agency relationship is established, and Reveo would then be hable for the harm proximately resulting from Boone’s actions taken in obedience to its directions, irrespective of whether Boone’s actions were within the scope of his employment. Accordingly, we hold that the plaintiffs’ complaint has stated a cause of action against Reveo for Boone’s actions taken in obedience to directions issued by Reveo.

Finally, we conclude that the amended complaint alleges a cause of action based upon the actions taken by Boone with the actual knowledge and consent of Reveo and taken primarily for Rev-co’s benefit. For example, the original complaint alleges that Boone attempted to arrest Woodfin after Reveo “allowed” Boone to leave, which taken in a light most favorable to the plaintiffs, shows that Rev-eo had knowledge of Boone’s actions and consented to those actions. The amended complaint also alleges that the purpose of Boone’s actions was “to prevent Wood-fin from ever returning to Reveo and to punish Woodfin for disregarding Revco’s no trespass order.” This fact, taken in a light most favorable to the plaintiffs, shows that Boone’s primary intent in undertaking the attempted arrest of Woodfin was to benefit Reveo, his private employer. Consequently, because the complaint alleges that Reveo knew of, and consented to, actions taken by Boone with the primary intent to benefit Reveo, an agency relationship is established, and Reveo is vicariously hable for the harm proximately resulting from Boone’s actions. We hold, therefore, that the plaintiffs have alleged sufficient facts in support of a claim of vicarious liability based upon knowledge and consent of the principal to actions by an agent that were primarily intended to benefit the principal.

CONCLUSION

In summary, we conclude that issues concerning private employer liability for acts taken by an off-duty police officer employed as a private security guard are to be resolved according to Tennessee agency law. Accordingly, we hold that the complaint in this case alleges sufficient facts to state a cause of action against defendant Reveo based on three separate theories: (1) that Reveo is vicariously liable for the harm proximately resulting from the acts of its agent taken within the course and scope of the agent’s employment with Reveo; (2) that Reveo is vicariously liable for the harm proximately resulting from the acts of its agent taken in obedience to directions or orders issued by Reveo; and (3) that Reveo is vicariously liable for the harm proximately resulting from the actions of its agent that were taken with the primary intent to benefit Reveo and of which Reveo knew and gave consent. Any analysis of whether the plaintiffs have established a prima facie case of liability is premature at this time, and the facts, if any, supporting Revco’s liability for Boone’s actions have not been developed in this Rule 12.02(6) motion. We therefore reverse the judgment of the Court of Appeals and remand this case to the Knox County Circuit Court for further proceedings consistent with this opinion.

Costs of this appeal are taxed to the appellee, Reveo Discount Drug Centers, Inc., for which execution shall issue if necessary.

DROWOTA, J., not participating.

      . As no issues concerning the other defendants in this case are properly before this Court, we focus only upon the allegations of the complaint relating to defendant Boone and his employment and association with defendant Reveo.

      . Revco’s motion to dismiss was initially based upon the unamended complaint, which only alleged that Reveo "allowed Boone ... to go after Woodfin .... ” (emphasis added). The trial court allowed the plaintiffs to amend their complaint to allege Revco’s consent, direction, and control of Boone's actions giving rise to the wrongful death action. Even after considering the allegations contained in the plaintiffs’ amended complaint, however, the trial granted Revco’s motion to dismiss for failure to state a claim.

      . See, e.g., Lande v. Menage Ltd. Partnership, 702 A.2d 1259, 1261 (D.C.1997); Tapp v. State, 406 N.E.2d 296, 301 (Ind.Ct.App. 1980); Lovelace v. Anderson, 126 Md.App. 667, 730 A.2d 774, 781 (Md.Ct.Spec.App.1999); State v. Glover, 52 Ohio App.2d 35, 367 N.E.2d 1202, 1204 (1976).

      . See, e.g., Whitely v. Food Giant, Inc., 721 So.2d 207, 209 (Ala.Civ.App.1998); State v. Kurtz, 78 Ariz. 215, 278 P.2d 406, 408 (1954); State v. Wilen, 4 Neb.App. 132, 539 N.W.2d 650, 658 (1995); Glenmar Cinestate, Inc. v. Farrell, 223 Va. 728, 292 S.E.2d 366, 369-70 (1982).

      . See, e.g., Duncan v. State, 163 Ga.App. 148, 294 S.E.2d 365, 366 (1982); State v. Brown, 36 Wash.App. 166, 672 P.2d 1268, 1269-70 (1983).

      . See, e.g., McWain v. Greyhound, 357 So.2d 780, 781 (Fla.Dist.Ct.App.1978).

      . See, e.g., Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 156 Cal.Rptr. 198, 595 P.2d 975, 980 (1979), superseded by statute on other grounds as recognized by Melendez v. City of Los Angeles, 63 Cal.App.4th 1, 73 Cal.Rptr.2d 469, 472-73 (1998); Stewart v. State, 527 P.2d 22, 24 (Okla.Crim.App.1974).

      . For similar reasons, we are reluctant to ground liability for private employers solely on the fact of private payment as do some minority jurisdictions. See, e.g., Cervantez v. J.C. Penney Co., 24 Cal.3d 579, 156 Cal.Rptr. 198, 595 P.2d 975, 980 (1979), superseded by statute on other grounds as recognized by Melendez v. City of Los Angeles, 63 Cal.App.4th 1, 73 Cal.Rptr.2d 469, 472-73 (1998); Stewart v. State, 527 P.2d 22, 24 (Okla.Crim.App.1974). This approach ignores the reality that working for a private employer does not weaken an officer’s continuing authority and ability to act as a peace officer. Moreover, while the police officers in this case are not continuously on official duty, they are frequently subject to being summoned for official duty at any lime. See, e.g., Knoxville City Code § 19-29. As such, situations can arise where a police officer is summoned for official duty or otherwise acts in an official capacity as a peace officer, even though the officer is still technically on the payroll of the private employer. To hold that a private employer may be vicariously liable for the acts of a police officer simply because of an overlap of employment schedules does not comport with basic notions of fairness. Therefore, while this rationale may be attractive for some jurisdictions, we believe that this approach oversimplifies the practical realities of our state law-enforcement practices and could result in unjust determinations in some cases.

      . With the rale we announce today, we doubt that private employers will suddenly forgo hiring off-duty officers merely for fear of liability, because the advantages of hiring off-duty officers include their training in law-enforcement practices and their ability to perform some duties that ordinary citizens cannot. So long as employers continue to hire security guards, either private citizens or off-duty officers, we find that deterrence will be served irrespective of liability issues. Accordingly, we give little additional consideration to this issue in deciding whether private employers should be held liable for the actions of off-duty officers employed as security guards.

      . Moreover, the minority approach that looks to whether the act of the officer was committed within the scope of private employment is too restrictive in its approach to assigning liability. Agency theory, by way of contrast, recognizes that vicarious liability may properly arise under some situations even outside the scope of private employment. See Parker v. Warren County Util. Dist., 2 S.W.3d 170, 177 (Tenn. 1999) (recognizing that the phrase "scope of employment” does not serve "as the sole basis for imposing employer liability”).

      . We believe these cases to be persuasive because special officers and off-duty officers employed as private security guards share several important characteristics. To provide a brief example, both special police officers and off-duty officers are employed only for a special purpose, usually to provide security for a private entity. In addition, the private employer of a special police officer, like that of an off-duty officer serving as a private security guard, is responsible for compensating the officers and for maintaining employee insurance. Cf. Tenn.Code Ann. § 8-8-212.

      . We differ from many of the minority jurisdictions which find the actions of the officer to be "private” in nature, because we recognize that the private employer may be subject to vicarious liability even if the off-duty officer performs "official” acts within the regular scope of his or her employment as a security guard. As we stated previously, the nature-of-the-act analysis does not work well with existing Tennessee law, and private employers are not immune from liability for the acts committed by their employees merely because the employee also happens to be a municipal police officer. Employers who assume the benefits of employing off-duty officers must also assume the corresponding risk of harm for acts committed by such security guards within the scope of their employment.

      . Because the primary focus of agency law is upon the consent of the principal to have actions taken on his or her behalf by the agent, this last scenario envisions that a private employer may be liable for actions taken by the officer to benefit the employer and of which the employer had actual knowledge and gave consent. To that extent, therefore, it is irrelevant to the analysis of this factor whether the actions were taken by the officer in the regular scope of officer’s off-duty employment.

      . This requirement is necessary to establish the aspect of control necessary for the imposition of liability. Without any knowledge by the municipality of the actions taken by the off-duty officer, no opportunity or duty to control those actions can arise, and consequently, no liability can be fairly imputed to the municipality.

      .The plaintiffs point out that Reveo asserted actual control over Boone by ordering him to return to Reveo to issue a shoplifting citation. We agree that this fact goes to show that Boone was acting according to his directions or orders issued by the Reveo manager, and as such, we conclude that the complaint alleges sufficient facts to state a claim for relief under this theory.

      . The amended complaint also specifically alleges that the Reveo manager consented to Boone undertaking a mission to arrest Wood-fin with the primary intent to benefit Reveo.

      . As the issue is not properly before this Court on this appeal, we express no opinion as to whether the City of Knoxville is also vicariously liable under the dual master doctrine for Boone’s actions.