author: ALOKAHUJA, Judge.

text:
    Candy ZIOLKOWSKI, Appellant-Respondent, v. HEARTLAND REGIONAL MEDICAL CENTER, Respondent-Appellant. Diana Munford and Medical Staffing Network, Inc., Respondent-Appellant.
    Nos. WD 70708, WD 70745, WD 70766.
    Missouri Court of Appeals, Western District.
    Aug. 10, 2010.

      Sophie Woodworth, Esq., Thomas F. Ralston, Esq., Anne Schiavone, Esq., and Richard H. Ralston, Esq., Kansas City, MO, for appellant.
    Mariam A. Decker, Esq., Bruce Farmer, Esq., Columbia, MO and Sean T. McGre-vey, Esq., Overland Park, KS, for respondent.
    Before: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOKAHUJA, JJ.
   ALOKAHUJA, Judge.

Candi Ziolkowski, the plaintiff below, appeals the judgment entered following a jury trial in favor of defendants Heartland Regional Medical Center, Medical Staffing Network, Inc. (“MSN”), and Nurse Diana Munford. Ziolkowski sued the defendants for allegedly violating § 191.656 when Munford, as an agent of Heartland and an employee of MSN, improperly disclosed Ziolkowski’s HIV-positive status to third parties. Ziolkowski argues that two of the trial court’s evidentiary rulings were erroneous and justify a new trial, alone or together. We affirm.

Factual Background

Ziolkowski is a twenty-three year old, HIV-infected female. On the afternoon of May 28, 2006, she severely injured her right arm when it went through a plate glass window. She sought medical treatment at Heartland, and underwent surgery to treat her injury. After some time in a recovery room, she was transferred in the early morning of May 29 to an inpatient room on the hospital floor.

Defendant Diana Munford, R.N., was Ziolkowski’s nurse after her arrival on the floor. Nurse Munford was not a Heartland employee, but instead worked at the hospital as an independent contractor through her employment with Intelistaf, now known as MSN.

Ziolkowski’s brother, Kyle Jones, and her boyfriend, Jamel Fleming, stayed with her in the hospital room that night. During the night, Ziolkowski’s aunt Diane Jones, who worked in custodial services at Heartland, also visited her.

At some point that night, Nurse Mun-ford and Ziolkowski discussed her HIV-positive status in her hospital room, although the substance of what Nurse Mun-ford said, the manner in which she spoke, and whether anyone witnessed or heard her comments, were disputed at trial. Ziolkowski also contended that Munford announced her HIV-positive status in a hallway while transporting Ziolkowski from a surgical recovery room to her hospital room. Both Munford and Ziolkowski agree that they also discussed Ziolkowski’s HIV-positive status in the bathroom of her room following their conversation in the hospital room, at which point Ziolkowski stated that at least one of her visitors did not know that she was HIV positive.

There is further disagreement as to what occurred after that conversation in the bathroom. Ziolkowski claims she was extremely upset following Nurse Mun-ford’s comments in front of her visitors, and she denied seeing Nurse Munford or any other health care provider for the rest of the night. Munford testified that after the conversation in the bathroom, she continued interacting with Ziolkowski for several hours, during which time Ziolkowski was not crying, hysterical, or angry, and that her nursing notes confirmed this.

Ziolkowski filed suit against the defendants, alleging that Nurse Munford improperly disclosed her HIV-positive status to her brother, Kyle Jones, and her aunt, Diane Jones. Ziolkowski’s single-count petition was based on § 191.656, which provides that “[a]ll information known to ... any person ... concerning an individual’s HIV infection status or the results of any individual’s HIV testing shall be strictly confidential and shall not be disclosed except” in identified circumstances. § 191.656.1(1). The statute creates a private civil right of action for persons aggrieved by a violation of this confidentiality obligation. § 191.656.6.

The case was tried to a jury. The jury returned a verdict which found in favor of Nurse Munford on Ziolkowski’s claim against her. Because of this finding, and given the structure of the verdict form, the jury did not answer whether Munford or MSN were liable for punitive damages, or whether Heartland was “responsible for the conduct of Diana Munford.” The circuit court entered judgment for all defendants in accordance with the jury’s verdict.

Analysis

On appeal, Ziolkowski alleges that the trial court erred in excluding the testimony of one of her witnesses, Kimberly Barron, and in permitting defense counsel to impeach Ziolkowski with an alleged inconsistent statement from the records of later medical treatment, which reported Ziol-kowski’s explanation of the cause of her May 28, 2006 injury. Ziolkowski also argues that the cumulative effect of the trial court’s erroneous evidentiary rulings justifies a new trial. In addition to defending the trial court’s evidentiary rulings, Heartland and Munford argue that the judgment can be affirmed on alternative grounds. Because we find that the evidentiary rulings Ziolkowski challenges cannot justify reversal, we affirm without addressing the merits of the defendants’ alternative arguments.

We review the trial court’s admission or exclusion of evidence under a deferential standard of review.

The trial court is accorded considerable discretion in ruling on the admissibility of evidence, particularly where a subjective determination of relevancy must be made. Unless that discretion is abused, the exclusion of evidence on relevancy grounds is not a basis for reversal. On appellate review, the issue is not whether the evidence was admissible, it is whether the trial court abused its discretion in excluding the evidence.

Rock v. McHenry, 115 S.W.3d 419, 420 (Mo.App. W.D.2003) (citations omitted).

When reviewing for an “abuse of discretion” we presume the trial court’s finding is correct, and reverse only when the ruling is “clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Upon finding an abuse of discretion, this court will reverse only if the prejudice resulting from the improper admission of evidence is outcome-determinative.

Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 872 (Mo.App. E.D.2009) (citations omitted).

I.

Ziolkowski first complains about the trial court’s exclusion of Kimberly Barron’s testimony. Barron, who is herself a nurse, became the Patient Advocate for Heartland on June 7, 2006, more than a week after Nurse Munford’s alleged disclosures. She met with Ziolkowski and her mother shortly thereafter to discuss Ziolkowski’s complaints concerning Nurse Munford’s actions. Barron was not present when the alleged disclosures occurred.

Ziolkowski made an extensive offer of proof at trial concerning Barron’s excluded testimony. As reflected in Barron’s testimonial offer of proof, she generally would have testified: (1) that prior to Nurse Munford’s alleged disclosures, she had witnessed other nurses at Heartland openly discussing confidential patient information, and had done so herself; (2) the hospital was non-responsive to Ziolkowski’s complaints, and suggested to Barron that she provide misleading information to Ziolkow-ski to placate her or delay her pursuit of her grievance; (3) that, impressed by the devastating effect on Ziolkowski of such inappropriate disclosures, Barron has changed her own nursing practices and become more sensitive to patient confidentiality; and (4) that Barron came to the conclusion that the Patient Advocate position had been established by Heartland merely as a “risk management” tool, and that Barron was disciplined for too aggressively pursuing resolution of patient complaints, including Ziolkowski’s.

Ziolkowski argues on appeal that Barron’s testimony was relevant both to the issues of the defendants’ liability, and also to punitive damages. We conclude, however, that Ziolkowski is procedurally barred from raising these arguments. As to the relevance of Barron’s testimony to liability issues, Ziolkowski failed to adequately argue this basis for admissibility in the trial court, and we accordingly will not consider it here. Because the jury never reached the issue of defendants’ liability for punitive damages, any relevance Barron’s testimony may have had to punitive damages issues cannot justify reversal.

A.

Ziolkowski argues that Barron’s testimony “clearly would have established it was more likely true than not true that a disclosure did in fact occur in violation of Missouri law.” In particular, Ziolkowski argues that the permissive attitude to the disclosure of confidential patient information which Barron observed at Heartland (although none apparently involving Nurse Munford) made it more likely that the disclosures Ziolkowski alleged actually occurred. According to Ziolkowski, this evidence would also have responded to the defendants’ claims at trial that nurses were trained and expected to respect patient confidentiality. Ziolkowski argues that Heartland’s purportedly misleading and evasive responses to the concerns Barron raised, which she labels a “cover-up,” supports an inference that Heartland was aware that Munford had acted improperly (analogous to the “consciousness of guilt” inference a jury may be entitled to draw in criminal cases from a defendant’s flight, attempt to conceal evidence, or untrue exculpatory statements).

The problem with these arguments is that Ziolkowski did not preserve them in the trial court. The issue of the admissibility of evidence concerning Heartland’s investigation of, and response to, Ziolkow-ski’s complaints was discussed immediately prior to the beginning of trial. At that time, Ziolkowski argued only that evidence of Heartland’s post-incident conduct would be relevant and admissible to her punitive damages claim. The court rejected Ziol-kowski’s argument that such punitive damages-related evidence was admissible in the first phase of the bifurcated trial. When Ziolkowski’s counsel asked the court for clarification whether it could nevertheless present evidence of the “things that Heartland did that corroborate ... that this disclosure took place,” the court responded that it would allow “[ajnything that goes — that’s relevant to Nurse Mun-ford’s conduct.”

During trial, when Ziolkowski sought to call Barron to the stand, the defendants objected. Ziolkowski’s counsel responded:

[Plaintiffs counsel]: She was the Patient Advocate. She is in defendant’s employ. She’s in defendant’s employ right now. She’s here under subpoena for us. She took a complaint about a week and a half after this whole incident which tends to prove or disprove that this whole thing happened. It is relevant to the disclosure that we’re saying she made, that Munford made. She took the complaint and had multiple discussions with the other nurses.

The court indicated its intent to sustain defendants’ objection, but asked for clarification of the basis of Ziolkowski’s claim that Barron’s testimony was admissible:

THE COURT: So I can make sure I understand what your offer is, you’re simply requesting to offer statements made by your own client—
[Plaintiffs counsel]: Yes.
THE COURT: — several weeks later, or a week or several days later, just indicating what her complaint is. Is that correct?
[Plaintiffs counsel]: And nurses commenting to her, e-mails and nurses [sic].
THE COURT: Wait a minute. What’s the relevance of nurses commenting to her?
[Plaintiffs counsel]: She might say that some of these nurses are saying, ‘Yes, I knew about the disclosure,” or ‘Yes, I was there. I heard this nurse saying — ”
THE COURT: Is that your offer of proof? Is that what the evidence is? [Plaintiffs counsel]: She’s their witness, Judge. She’s in their current employ.
THE COURT: She’s your witness and it’s your obligation to state the basis of admissibility of your witness’ testimony.
[Plaintiff’s counsel]: Okay.
THE COURT: This isn’t discovery.
[Plaintiffs counsel]: She is going to say there were people in management who were talking to her about this disclosure and indicated how to handle the disclosure, who made the disclosure, which nurse made this alleged disclosure. I mean—
THE COURT: All hearsay. Nobody that was there at the time.
[Plaintiffs counsel]: These are admissions by a party opponent. These are statements against interest. These also go to notice. These go to punitive damages. It shows that the company knew about—

Ziolkowski thereafter made an offer of proof in which Barron testified under oath at some length during the jury’s lunch break. During that offer of proof, Ziol-kowski’s counsel argued only that Barron’s testimony concerning Heartland’s investigation of Ziolkowski’s complaints (or lack thereof) was relevant to Heartland’s liability for punitive damages, and should be admissible in the first phase of trial. No mention was made of the potential relevance of this evidence to the underlying liability issues.

At oral argument in this Court, Ziolkow-ski made clear that she is not arguing that her own statements to Barron, recounting her version of the events of May 28-29, 2006, were admissible, abandoning one of the “liability-related” theories of admissibility she offered at trial. Moreover, during the offer of proof Barron did not relate that any nurse, or any management personnel, acknowledged to her that the disclosures had occurred, or related any other information as to what occurred on the night in question. Thus, the other liability-related admissibility theory Ziolkowski offered at trial — that Barron’s testimony would recount admissions by the defendants, or statements against their interest — was not borne out by the offer of proof. The remaining theories of admissibility now offered by Ziolkowski on appeal — that a lax environment concerning patient confidentiality existed at Heartland, making Ziolkowski’s allegations more plausible; and that Heartland’s purported “cover-up” indicated its consciousness of guilt — were never broached with the circuit court during trial.

Ziolkowski was the proponent of Kimberly Barron’s testimony. As the trial court accurately observed, it was Ziolkow-ski’s obligation to identify the basis on which she contended that Barron’s testimony should be admitted.

When an appellant challenges the exclusion of evidence, the appellant is limited to the reason he gave at the time he made the offer of evidence. It is the obligation of a party to bring to the attention of the trial court its position as to relevancy of evidence offered.... It cannot advance a theory of admissibility on appeal different from that advanced at trial. Rule 84.18(a) says, “[Allegations of error not presented to or expressly decided by the trial court shall not be considered in any civil appeal from a jury trial case.”

Johnson v. Allstate Ins. Co., 262 S.W.3d 655, 668 (Mo.App. W.D.2008) (quoting Marion v. Marcus, 199 S.W.3d 887, 892 (Mo.App. W.D.2006)) (other citations and internal quotation marks omitted). Because Ziolkowski did not argue to the trial court that Barron’s testimony was relevant for the liability-related reasons she now argues on appeal, we cannot rely on those theories to justify reversal.

B.

Ziolkowski also argues, as she did in the trial court, that Barron’s testimony was relevant to punitive damages issues, and that the defendants’ liability for punitive damages was an appropriate subject of evidence in the first phase of what was intended to be a bifurcated trial. Here, however, Ziolkowski faces a separate obstacle. The jury found in favor of Nurse Munford on Ziolkowski’s underlying improper-disclosure claim, and therefore never reached the issue of whether the defendants’ conduct justified an award of punitive damages. Even if we assume that Barron’s testimony was admissible and relevant to punitive damages, and that the trial court erred in excluding it in the first phase of trial, Ziolkowski cannot establish prejudice resulting from this error.

It is fundamental that a jury must award actual damages before it is authorized to award punitive damages. In the case at hand the jury returned a verdict in favor of [defendants]. Since the excluded evidence was admissible only on the issue of punitive damages, and the jury never awarded the prerequisite actual damages, it could not have considered punitive damages. When the jury’s verdict demonstrates that it never reached the issue which is claimed to be the source of prejudice then no prejudice has been demonstrated.

Linkogel v. Baker Protective Servs., Inc., 659 S.W.2d 300, 305 (Mo.App. E.D.1983) (citing, inter alia, Beesley v. Howe, 478 S.W.2d 649, 653 (Mo.1972)); see also Oldaker v. Peters, 817 S.W.2d 245, 254 (Mo. banc 1991); Williams v. McCoy, 854 S.W.2d 545, 558-59 (Mo.App. S.D.1993); Jordan v. Abernathy, 845 S.W.2d 86, 88 (Mo.App. E.D.1993).

“[I]n order to obtain a reversal based on the exclusion of evidence, an appellant must demonstrate the excluded evidence would have materially affected the merits of the cause of action.” Williams v. Trans States Airlines, Inc., 281 S.W.3d 854, 872 (Mo.App. E.D.2009). Ziolkowski cannot make the showing, necessary to establish reversible error based on a claim that evidence was erroneously excluded, where that evidence relates to an issue that the jury never decided.

Because Ziolkowski did not preserve her present claims that Barron’s testimony was relevant to defendants’ underlying liability, and because the relevance of Barron’s testimony to punitive damages cannot establish prejudicial, reversible error, we deny Ziolkowski’s first Point.

II.

In her second Point, Ziolkowski challenges the trial court’s admission of evidence concerning inconsistent statements she had made concerning the cause of the injury which led to her surgery and hospitalization on May 28, 2006.

On cross-examination, Ziolkowski testified, consistently with her deposition, that the injury which caused her hospitalization resulted from an accident, when she slipped on a toy her son had left on the floor, reached out to brace herself, and put her arm through a glass window. Ziol-kowski testified that her boyfriend Jamel Fleming was approximately ten to twelve feet behind her when she fell. Moreover, she specifically denied that anyone pushed her through the window, or that she fell because she was wrestling with anyone. Over objection, defense counsel was allowed to cross-examine Ziolkowski concerning statements attributed to her in a medical record from approximately two and one-half months later. That medical record — which was itself later admitted into evidence and read to the jury — states:

Date of service, 8/8/06. Boyfriend has put her arm through a glass window, which she states they were just goofing off; however, she severed the ulnar nerve and artery as well as some other muscular structures in the arm, leaving right hand with minimal function. The patient states this incident with the arm occurred approximately two months ago.

Ziolkowski denied making the statement.

Ziolkowski argues that the cause of her injury was not an issue in the case, and that the prior inconsistent statement used to impeach her prejudiced the jury against her and her boyfriend, who also testified at trial. In Mitchell v. Kardesch, 313 S.W.3d 667 (Mo. banc 2010), the Missouri Supreme Court recently restated and clarified Missouri law concerning impeachment of witnesses on cross-examination. The Court identified the four most commonly used impeachment techniques: (1) “admission of evidence showing the witness’s incapacity or problems in his or her ability to perceive or memory”; (2) “admission of evidence of prior convictions”; (3) “admission of prior inconsistent statements of the witness”; and (4) “admission of evidence of the witness’s character for truthfulness and veracity.” Id. at 675. The Court explained that cross-examination on each of these methods is generally permissible: “Cross-examination of a witness on the stand for the purpose of impeaching that witness through each of the methods just listed long has been permitted in Missouri, subject to the court’s discretion in limiting or, in rare instances, precluding such evidence entirely so as to avoid undue prejudice.” Id.

Specifically, the Court held that cross-examination exposing that a witness’ trial testimony is inconsistent with prior statements is generally allowed to the extent it affects the witness’ credibility.

Missouri ... permits cross-examination where the witness’s testimony at trial is inconsistent with a prior statement, but here the cases generally require the prior statement to be about a material issue.... But the cases broadly define materiality to include statements affecting credibility. For example, Kearbey v. Wichita Se. Kan., 240 S.W.3d 175, 187 (Mo.App.2007), held that admission of prior inconsistent statements about marijuana use made by defendant in response to various medical questionnaires was admissible, noting that “the jury could infer that a person who is not consistently truthful in statements made to other persons might also be untruthful in his testimony on the witness stand.”

Id. at 676. The Court also held that specific instances of untruthfulness could be explored on cross-examination under the fourth principal impeachment category: “admission of evidence of the witness’s character for truthfulness and veracity”:

When a person, regardless of whether a party, is being questioned on the witness stand, then long-standing Missouri law holds that the person may be asked about specific instances of his or her own conduct that speak to his or her own character for truth or veracity, even where the issue inquired about is not material to the substantive issues in the case.

Id. Based on these principles, Mitchell found that the trial court in that case had abused its discretion by refusing to permit the plaintiff in a medical negligence case to cross-examine the defendant physician about misstatements in interrogatory responses concerning the fact that his licenses to practice medicine in Missouri and New York had previously been suspended due to unrelated issues. Id. at 678-79.

The Kearbey case, cited with approval in Mitchell, is also highly instructive. In Kearbey, the jury determined that Plaintiff-driver Kearbey was 100% at fault in the motor vehicle collision at issue in the case. One of Kearbey’s points on appeal was that the trial court erred in allowing him to be cross-examined about the prior inconsistent statements, found in his medical records, concerning whether he had previously used marijuana. Kearbey argued, as does Ziolkowski here, that the subject-matter of his prior inconsistent statements was more prejudicial than probative and was irrelevant. Rejecting those arguments, this Court stated:

A witness may be compelled to answer any such question, however irrelevant it may be to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge.... [T]he admissibility of specific acts tending to impeach or disparage the testimony of a witness is largely within the discretion of the trial court. In the discretion of the trial court, a witness may, for the purpose of impeachment, be asked whether he has committed particular wrongful ... acts, subject to his right to refuse to answer incriminating questions, even though such facts or acts may be collateral to the principal controversy.

Kearbey, 240 S.W.3d at 186-87 (citations and internal quotation marks omitted). Although there was no allegation that marijuana use by Kearbey played a role in the motor vehicle collision, this Court held that whether he had lied about marijuana usage to medical providers was relevant to his credibility:

Clearly, the question of whether Kear-bey made inconsistent representations in doctor’s questionnaires is one that goes to his credibility as a witness.... [T]he jury could infer that a person who is not consistently truthful in statements made to other persons might also be untruthful in his testimony on the witness stand. Assuming that inconsistent statements were made by Kearbey regarding his past use of marijuana, the two statements together are evidence of a prior bad act that tends to show a lack of veracity. This is so because admitting that two statements of this nature exist is essentially admitting to deceit in the production of one statement or the other. Such an attack is relevant to witness credibility and is within the permissible scope of cross-examination. The fact that marijuana use was the underlying topic of disclosure in the questionnaires and such use itself was irrelevant to the issues at trial is immaterial.

Id. at 187.

The Mitchell and Kearbey cases dispose of Ziolkowski’s principal contentions in her second Point: that the evidence of her inconsistent statements involved “an entirely collateral, immaterial issue,” and that the trial court improperly found that her testimony on direct examination had “opened the door” to cross-examination on the cause of her injuries. As Mitchell and Kearbey make clear, because such inconsistencies raise legitimate questions as to a witness’ credibility, cross-examination by confronting a witness with prior inconsistent statements is permissible even though those prior statements concern what might otherwise be a collateral issue. By the same token, given that such cross-examination is permissible despite the irrelevance of the subject of the inconsistent statements, it is unnecessary that the opposing party have “opened the door” to the specific subject matter in direct examination. Whether the issue was broached on direct examination or not, “[a]s a general proposition, the credibility of witnesses is always a relevant issue in a lawsuit.” Mitchell, 313 S.W.3d at 675 (citation and internal quotation marks omitted)

Ziolkowski’s credibility was plainly a central issue at trial. The resolution of this lawsuit depended in large part on the jury’s assessment of Ziolkowski’s truthfulness in describing the substance of her conversations with Nurse Munford on the night of May 28-29, 2006, and on her description of the effect of Nurse Mun-ford’s disclosures on her, and on her relationships with family and Mends. The pri- or inconsistent statement here concerned the events of May 28 which led to the hospitalization during which the allegedly improper disclosures occurred. Moreover, Ziolkowski has not suggested that the inconsistency between her statements concerning the cause of her injuries could have been explored in any less prejudicial manner. Even if the subject matter of the inconsistent-statement impeachment would otherwise be properly characterized as collateral, the trial court acted within its discretion in permitting that examination.

In the argument under her second Point Relied On (but not in the Point itself), Ziolkowski also complains that there was no foundation for admission of the medical records which contained the purportedly inconsistent statements. At trial, and before this Court, Ziolkowski argues that the parties stipulated to the foundation for Heartland’s medical records only for the dates May 28-29, 2006, and that the stipulation did not extend to the August 8, 2006 record used for impeachment. Ziolkowski has not provided this Court, however, with any written stipulation or oral recitation of the parties’ stipulation in the record that would permit us to determine the scope of the stipulation. The trial court specifically recited, prior to trial, that “[t]he parties stipulated to the authenticity of medical records and reserved any other specific objection as to admissibility.” Later, when discussing the exhibit containing the quoted statement, the court again stated its belief that “foundation has already been stipulated to.” Under the abuse of discretion standard, we are to presume the correctness of the trial court’s rulings. We also recognize that such evidentiary stipulations are often expressed informally and off the record. Absent any basis in the record available to us on appeal to suggest that the trial court’s understanding of the scope of the parties’ stipulation was erroneous, we reject Ziol-kowski’s claim that foundation for the admission of the medical record used for impeachment was not established.

III.

Ziolkowski’s final Point on appeal argues that the trial court erred in denying her a new trial because the cumulative effect of the erroneous evidentiary rulings deprived her of a fair trial. As we have found above, however, Ziolkowski failed to preserve her current claim that Kimberly Barron’s testimony was relevant to underlying liability issues; the relevance of Barron’s testimony to punitive damage issue cannot establish prejudice; and the trial court did not err in permitting cross-examination of Ziolkowski concerning the cause of the injuries which led to her May 28, 2006 hospitalization. We cannot find cumulative error sufficient to justify reversal for a new trial in these circumstances. See Roberson v. Weston, 255 S.W.3d 15, 19 (Mo.App. S.D.2008) (refusing to find cumulative error where individual claimed errors were not “brought to the trial court’s attention by proper, timely objection during trial and, thus, were not individually preserved for appellate review”); Koontz v. Ferber, 870 S.W.2d 885, 894 (Mo.App. W.D.1993) (“[Rjelief will not be granted for cumulative error when there is no showing that prejudice resulted from any rulings of the trial court.”).

Conclusion

The judgment is affirmed.

All concur.

      . Statutory references are to the RSMo 2000, as updated through the 2009 Cumulative Supplement.

      . On July 22, 2010, Defendant-Respondent/Cross-Appellant MSN filed a Suggestion of Bankruptcy, indicating that it had filed a voluntary Chapter 11 petition in the Bankruptcy Court for the Southern District of Florida on July 2, 2010. As a result of that bankruptcy filing, further proceedings involving MSN have been stayed in this Court. This opinion does not directly address issues concerning Ziolkowski's claims against MSN, whether raised in the principal appeal (No. WD70708), or in the cross-appeal filed by Munford and MSN (No. WD70745).

      . To the extent Ziolkowski contends that the fact of her prompt complaints (as opposed to the specific content of those complaints) corroborate her claims, we note that it was already in evidence, separately from Barron's proffered testimony, that Ziolkowski made complaints to other nurses shortly after the alleged disclosures, and that her mother contacted the Patient Advocate’s office to register a complaint and make an appointment in the day or two following the incident.

      . Ziolkowski also suggests in her briefing that Barron's observation of Ziolkowski’s depressed and upset emotional state when they met more than a week after the incident was relevant. She never argued this to the trial court, however. In addition, to the extent Ziolkowski intends to argue that Barron’s observations would be relevant to the juiy's assessment of compensatory damages, that claim cannot establish prejudicial, reversible error for the reasons discussed infra § I.B., because the jury never reached the question on the verdict form asking it to assess Ziol-kowski’s compensatory damages.

      . This is the mirror image of the rule that, where an appellant challenges the admission of evidence, "[tjhe scope of the objection [made at trial] may not be broadened or altered on appeal. Parties are prevented from advocating an objection to evidence on appeal that is different from the one presented to the trial court.” Lester E. Cox Med. Ctrs. v. Richards, 252 S.W.3d 236, 239 (Mo.App. S.D.2008) (citations omitted); see also, e.g., Wheelhouse Marina Real Estate, L.L.C. v. Bommarito, 284 S.W.3d 761, 767 (Mo.App. S.D.2009).

      . Ironically, in responding to Heartland’s alternative arguments Ziolkowski herself argues that issues concerning punitive damages are academic in light of the jury’s verdict: "In the proceedings below, the jury did not return a punitive damage award, and the discussion of the legality of a separate damage award against Heartland, constitutional or otherwise, is simply hypothetical and would lead to an advisory opinion.’’

      . Separate from its discussion of the permissible scope of impeaching cross-examination, Mitchell also recognizes that trial courts retain considerable discretion concerning the admission of extrinsic evidence of prior inconsistent statements or instances of untruthfulness. Id. at 679-82. As we discuss infra note 8, however, Ziolkowski did not separately assert on appeal an objection to the admission of extrinsic evidence of her prior inconsistent statement.

      . To the extent Ziolkowski separately intended to argue that an inadequate foundation was laid for use of a prior inconsistent statement, we likewise reject that argument. Defense counsel asked Ziolkowski whether she had made the statement, and whether the statement was true, both of which Ziolkowski denied. Ziolkowski’s own objections limited the scope of defense counsel's questioning, and prevented defense counsel, for example, from having Ziolkowski read the statement, or from reading it to her. This obviously prevented defense counsel from asking Ziol-kowski whether the statement refreshed her recollection, and from offering her the opportunity to explain it.
      In a supplemental authority letter sent on June 24, 2010, Ziolkowski's counsel sought to rely on another aspect of the Mitchell decision: its discussion of the circumstances in which extrinsic evidence may be admitted to establish a prior inconsistent statement. However, other than arguing that no foundation was laid for the admission of the inconsistent statement, Ziolkowski's briefing did not argue that the trial court erred by admitting the August 8, 2006 medical record itself, and specifically did not argue that admission of the record was erroneous because it constituted extrinsic evidence of a prior inconsistent statement. Instead, Ziolkowski's argument was focused on her contention that the entire subject matter of this cross-examination was improper.

      . In addition to arguing cumulative error based on the errors challenged in her first two Points Relied On, Ziolkowski also attempts to support her cumulative error point by referring to alleged misstatements of the law by defense counsel in opening statement, and purportedly improper testimony elicited by defense counsel concerning Ziolkowski’s appearance on May 28-29, 2006, and her prior obesity. No contemporaneous objections were made at trial concerning these matters, however. Indeed, the purported impropriety of the questioning concerning Ziol-kowski's appearance and weight was not even referenced in her new trial motion.

      . As noted, we need not address the defendants' alternative arguments. Because she is not the prevailing party given our affirmance, we deny Ziolkowski’s motion for attorneys fees on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Westley STEELE, Sr., Appellant, v. CITY OF ST. LOUIS, and, Division of Employment Security, Respondents.
    No. ED 94094.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 10, 2010.
    Vasily A. Nosov, John J. Ammann, St. Louis, MO, for appellant.
    Richard Kismer, St. Louis, MO, for Respondent, City of St. Louis.
    Shelly A. Kintzel, Jefferson City, MO, for Respondent, Division of Employment Security.
    Before: ROY L. RICHTER, C.J., KENNETH M. ROMINES, J., and JAMES R. HARTENBACH, SP., J.
   ORDER

PER CURIAM.

Westley Steele, Sr. (Steele) appeals the Order of the Labor and Industrial Relations Commission. Steele was denied unemployment benefits by the Deputy of the Missouri Division of Employment Security. Steele appealed the decision to the Appeals Tribunal which denied his unemployment compensation benefits. Steele appealed the decision of the Appeals Tribunal to the Labor and Industrial Relations Commission which affirmed the decision of the Appeals Tribunal.

On appeal, Steele argues that the Labor and Industrial Relations Commission erred in denying unemployment compensation benefits to him. Steele claims that failing to speak directly to his manager when requesting two days of sick leave was not willful misconduct disqualifying him from unemployment compensation benefits.

We have reviewed the briefs and the Record on Appeal, and find no error of law in this case. Thus, a written opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b).

AFFIRMED.


text:
    James L. HOLT, Appellant, v. STATE of Missouri, Respondent.
    No. ED 93722.
    Missouri Court of Appeals, Eastern District, Division One.
    Aug. 10, 2010.
    Scott Thompson, St. Louis, MO, for appellant.
    Chris Koster, Atty. Gen., Dora A. Fichter, Jefferson City, MO, for respondent.
    Before: ROY L. RICHTER, C.J., KENNETH M. ROMINES, J., and JAMES R. HARTENBACH, SP., J.
   ORDER

PER CURIAM.

James Holt appeals the Judgment of the Circuit Court for the City of St. Louis, the Honorable Phillip D. Heagney presiding. Holt was convicted of assault in the second degree. Holt filed a Rule 29.15 motion for post-conviction relief, alleging ineffective assistance by his trial counsel. The motion was denied without an evidentiary hearing.

On appeal, Holt argues that the Circuit Court erred when it denied his Rule 29.15 motion. Holt claims his trial counsel was ineffective because counsel failed to prepare him for his testimony, merely telling Holt to “look the jury in the eye.”

We have reviewed the briefs and the record on appeal, and find no error of law in this case. Thus, a written opinion would have no precedential value. The judgment is affirmed pursuant to Rule 84.16(b).

AFFIRMED.


author: FRANK G. CLEMENT, JR., J.,

text:
    UNARCO MATERIAL HANDLING, INC. v. William LIBERATO et al.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Jan. 5, 2010 Session.
    March 2, 2010.
    Published pursuant to R. 11, Tennessee Court of Appeals.

      L. Wearen Hughes, Overton Thompson III and Joshua R. Denton, Nashville, Tennessee, for the appellant, Unarco Material Handling, Inc.
    Darrell G. Townsend and Neil M. Mcln-tire, Nashville, Tennessee, for the appel-lees, William Liberato, Kerry Steel, Inc., Kerry Nagle and Steven Z. Cohen.

      . The Court was asked to answer the certified question from the federal district court. Simpson, 232 S.W.3d at 23.

   OPINION

FRANK G. CLEMENT, JR., J.,

delivered the opinion of the Court,

in which HERSCHEL P. FRANKS, P.J., and ANDY D. BENNETT, J„ joined.

The issue on appeal is whether an attorney, while acting in the course of representation of his client when litigation was not pending, has immunity from a claim that he induced the former president of the plaintiff to breach a confidentiality agreement by disclosing confidential information in violation of the agreement. It is undisputed that the attorney negotiated and/or drafted an agreement whereby his client would indemnify the plaintiffs former president if information he provided in a sworn statement taken by the attorney constituted a breach of the confidentiality agreement. The trial court summarily dismissed the claim against the attorney upon the finding that the attorney was immune, even though litigation was not pending when the alleged inducement to breach the contract occurred, because the attorney was acting in his capacity as an attorney for his client. Although litigation was not pending when the attorney negotiated and/or drafted the indemnification agreement and when the attorney took the sworn statement, we find the attorney is immune under the litigation privilege because the attorney was acting in the capacity of counsel for his client, the attorney was acting in good faith for the benefit of his client and not acting for his own self-interest, the conduct was related to the subject matter of the contemplated litigation, and there was a real nexus between the attorney’s conduct and the contemplated litigation. We, therefore, affirm the summary dismissal of the claim against the attorney for inducement of breach of contract.

This civil action rises from the ashes of a defunct business relationship between two companies. The two companies are Kerry Steel, Inc., a Michigan corporation, that provides steel to its commercial customers, and Unarco Material Handling, Inc., in Springfield, Tennessee, which is in the business of the manufacture, sale, and distribution of various materials including material handling equipment, warehouse storage racks, pallet racks, retail store fixtures, and accessories.

Kerry Steel sold steel products to Unar-co for years; however, that relationship became strained due to a dispute concerning Unarco’s financial obligations to Kerry Steel. Thereafter, Kerry Steel filed suit in Michigan. The suit was dismissed when a settlement agreement was reached between the parties.

William Liberato was the president of Unarco during the litigation with Kerry Steel and the negotiations that resulted in the settlement with Kerry Steel. Liberato resigned from Unarco in 2005 following the settlement of the litigation with Kerry Steel. When Liberato’s employment with Unarco ended, Liberato entered into a Retirement Agreement that included far-reaching confidentiality provisions.

At some point after the settlement with Unarco, Kerry Nagle, President of Kerry Steel, became suspicious that Unarco had provided inaccurate information to induce Kerry Steel to enter into a voluntary settlement. Nagle discussed his belief with Steven Z. Cohen, the attorney for Kerry Steel, and they decided to make inquiries. Knowing that Liberato was no longer employed by Unarco, they asked Liberato to provide a sworn statement concerning the negotiations and settlement. Liberato, however, was subject to the confidentiality provisions of his retirement agreement with Unarco; therefore, Liberato and his attorney had discussions with Cohen and Nagle concerning the financial ramifications to Liberato should Unarco believe his statement constituted a breach of the confidentiality provisions of the Retirement Agreement. If it did, Liberato might forfeit the generous compensation he was to receive under the Retirement Agreement. Moreover, Liberato might be liable for Un-arco’s damages, if any. To resolve Libera-to’s concerns, and thereby induce him to give a sworn statement regarding Unarco, Cohen negotiated an indemnification agreement with Liberato, through Libera-to’s attorney, whereby Kerry Steel would indemnify and hold Liberato harmless from any damages that might result from his sworn statement.

Pursuant to the agreement, Kerry Steel, Inc. agreed to indemnify and make Libera-to whole in the event Unarco contended that Liberato’s sworn statement violated the confidentiality provisions of the Retirement Agreement. On January 10, 2006, after the indemnification agreement was signed, Liberato voluntarily gave a sworn statement, in the form of an oral deposition with a court reporter, in response to questions presented by Cohen and Nagle.

After learning that Liberato had provided information that Unarco believed constituted a breach of the Retirement Agreement, Unarco filed this action in the Chancery Court for Robertson County, Tennessee against four defendants, Liber-ato, Kerry Steel, Nagle, and Cohen. The claim against Liberato was for breach of the confidentiality provisions of the Retirement Agreement. The claims against Kerry Steel, Nagle, and Cohen were for inducing Liberato to breach his agreement with Unarco. The defendants filed answers denying liability to Unarco.

On February 29, 2008, Liberato filed a motion for summary judgment on the grounds that the Retirement Agreement was not breached. Kerry Steel, Nagle, and Cohen then filed motions for summary judgment on the grounds that if there was no breach of contract, then the claims against them should be dismissed. On July 7, 2008, Unarco filed a motion for partial summary judgment asserting that the undisputed facts established Liberato had breached the terms of the Retirement Agreement. Thereafter, Cohen filed a supplemental brief in support of his previous motion for summary judgment contending that even if his actions constituted an inducement of a breach of contract, he had immunity because he was acting at all times as the attorney for Kerry Steel. On October 27, 2008, Unarco filed a reply to Cohen’s brief arguing that under Tennessee law no privilege applied to the facts of the case.

On December 23, 2008, the trial court granted Unarco’s motion for partial summary judgment finding that Liberato had breached the confidentiality provisions of the Retirement Agreement. The trial court denied the motions of Kerry Steel and Nagle. As for Cohen, the trial court granted Cohen’s motion for summary judgment finding Cohen was immune from liability to third parties for actions arising out of his professional relationship as an attorney. On January 29, 2009, Cohen moved for entry of a final judgment pursuant to Tenn. R. Civ. P. 54.02, which was granted. This appeal followed.

Analysis

Unarco claims that Cohen induced Li-berato to breach the confidentiality provisions of his agreement with Unarco for which Cohen is individually liable to Unar-co. Cohen, however, contends he is immune from any claims by Unarco, based upon the litigation privilege, for he was acting in the capacity as an attorney. Thus, Cohen contends he is entitled to summary judgment as a matter of law.

To be entitled to summary judgment, Cohen, as the moving party, must affirmatively negate an essential element of Unar-co’s claim or show that Unarco, as the nonmoving party, cannot prove an essential element of its claim at trial. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn.2008). Cohen also bears the burden of demonstrating that no genuine disputes of material fact exist and that he is entitled to judgment as a matter of law. Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn.2002).

The material facts in this case are not in dispute for it is undisputed that Cohen knew Liberato had an agreement with Un-arco prohibiting him from disclosing Unar-co’s confidential information when Cohen negotiated the indemnification agreement and when Cohen questioned Liberato. It is also undisputed that, at all times material to this action, Cohen was functioning in the capacity as attorney for Kerry Steel, and that Kerry Steel was seriously considering a civil action against Unarco, though litigation was not pending when Cohen engaged in the activities at issue.

Whether Cohen’s actions are protected by the litigation privilege and he is entitled to immunity constitutes a question of law and a trial court’s determination of a question of law is not entitled to Tenn. R.App. P. 13(d)’s presumption of correctness on appeal. Accordingly, we will review this issue pursuant to the de novo standard of review and reach our own conclusion. Colonial Pipeline Co. v. Morgan, 263 S.W.3d 827, 836 (Tenn.2008); King v. Pope, 91 S.W.3d 314, 318 (Tenn.2002).

Cohen’s Role as Attorney for Kerry Steel Company, Inc.

While acting as the attorney for Kerry Steel Inc., Cohen performed three primary functions: (1) providing advice to his client, (2) negotiating and drafting the indemnity agreement, and (B) questioning Liberato during the taking of his sworn statement. Unarco does not contend that the advice Cohen gave his clients was actionable. Therefore, the issue is whether Cohen’s conduct, negotiating the indemnity agreement and questioning Liberato during the sworn statement taken on behalf of his client, is privileged conduct, which affords him immunity from liability to Unar-co.

The Litigation Privilege

The litigation privilege arises out of the common law. It was first recognized in England in 1591 in Buckley v. Wood, (1591) 76 Eng. Rep. 888 (K.B.). Most jurisdictions have now adopted the litigation privilege. Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 338 (D.C.Ct.App.2001). Tennessee has recognized the litigation privilege since 1856. See Simpson Strong-Tie Company, Inc. v. Stewart, 232 S.W.3d 18, 22 (Tenn.2007) (citing Lea v. White, 36 Tenn. (4 Sneed) 111 (1856)). When first recognized in Tennessee, the litigation privilege only pertained to matters that occurred in “the course of a judicial proceeding.” Lea, 36 Tenn. at 113-14 (finding the privilege was based upon the recognition that “ ‘proceedings connected with the judicature of the country are so important to the public good.’ ”) (quoting Cooke on Defamation, 49).

Courts have repeatedly embraced the privilege because “access to the judicial process, freedom to institute an action, or defend, or participate therein without fear of the burden of being sued for defamation is so vital and necessary to the integrity of our judicial system that it must be made paramount.” Simpson, 232 S.W.3d at 23 (quoting Jones v. Trice, 210 Tenn. 535, 360 S.W.2d 48, 51 (1962)) (holding that “defamatory statements by a judge, witness, counselor party made in the course of a judicial proceeding, if pertinent or relevant, are absolutely privileged, and this is true regardless of whether they are malicious, false, known to be false, or against a stranger to the proceeding”). Jones, 360 S.W.2d at 54. As a consequence, the battleground has shifted from deciding whether to adopt the litigation privilege to establishing the parameters of its application. Id. at 24. Our Supreme Court refers to this new focus as “defining [the] contours” of the litigation privilege. Id. (stating courts now focus “less on whether to adopt the privilege and more on defining its contours”). Such was the case in Simpson.

The defendant in Simpson was a law firm, which published two statements prior to the filing of an anticipated civil action against Simpson Strong-Tie Company, Inc., soliciting prospective clients for such an action. Simpson, 232 S.W.3d at 20. The essence of the published statement on the firm’s Internet website was that the firm was “investigating the accelerated corrosion due to defectively manufactured screws and fasteners caused by pressure treated wood” in contemplation of filing a class action, and the statement identified Simpson Strong-Tie as one of the manu-facturera of the screws and fasteners. Id. at 21. Believing the statement was defamatory, Simpson Strong-Tie filed a defamation action. Id. The defendant law firm responded to the complaint asserting it was immune from liability to its client’s anticipated adversary based upon the litigation privilege. Id. When the appeal reached the Tennessee Supreme Court, the only issue was whether the litigation privilege encompassed “an attorney’s solicitous statements made prior to the filing of a lawsuit.” Id. at 23.

At the beginning of its analysis of the issue, the Supreme Court commented it was significant that the litigation privilege was based upon the “public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.” Id. at 24 (quoting Restatement (Second) of Torts § 586 cmt. a. (1977)). The Court further noted that “access to the judicial process, freedom to institute an action, or defend, or participate therein without fear of the burden of being sued for defamation is so vital and necessary to the integrity of our judicial system that it must be made paramount.” Id. at 23 (quoting Jones, 360 S.W.2d at 51); see also Lambdin Funeral Serv. Inc. v. Griffith, 559 S.W.2d 791, 792 (Tenn.1978).

Having identified the public policy to be served by the privilege, the Court then turned its focus to determining whether the privilege encompassed statements— communications — made by an attorney prior to the commencement of an action to which the subject matter of statement pertained. Id. at 24. Following an analysis of the privilege as applied in Tennessee and other jurisdictions, the Court concluded that the litigation privileged applied if:

(1) the communication was made by an attorney acting in the capacity of counsel, (2) the communication was related to the subject matter of the proposed litigation, (3) the proposed proceeding must be under serious consideration by the attorney acting in good faith, and (4) the attorney must have a client or identifiable prospective client at the time the communication is published.

Id. The Court also stated there must be a “reasonable nexus between the publication in question and the litigation under consideration” for the privilege to apply. Id.

The ruling in Simpson makes it clear that the privilege has been expanded beyond the former boundary of “pending litigation.” Now, at least in the context of a defamation action, which pertains to communication as distinguished from conduct, the privilege encompasses the publication of a statement by an attorney that is related to the subject matter of proposed litigation, which is under serious consideration by the attorney acting in good faith, provided the attorney has a client or identifiable prospective client at the time the communication is published and there is a reasonable nexus between the publication in question and the litigation under consideration.

The matters at issue here, however, do not pertain to communications by an attorney, as is the case in a defamation action. The issue here is conduct, specifically the tort of inducing a breach of contract. No Tennessee court has ruled on this issue in the context of the litigation privilege, though courts in other jurisdictions have. Accordingly, we will look to other jurisdictions for guidance, just as the Supreme Court did in Sim/pson.

The Supreme Court of Hawaii examined the litigation privilege defense in the context of claims and facts that are substantially similar to ours in Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, LLP, 118 Hawai'i 251, 151 P.3d 732 (2007). In that matter, former adversaries of the clients of the Jones Day law firm sued Jones Day and its clients for, inter alia, intentional interference with contractual relations, and inducing breaches of fiduciary, contractual, and other duties. Kahala, 151 P.3d at 742-43. In its defense of that action, Jones Day claimed immunity under the litigation privilege, contending that an attorney could not be held liable to the client’s adversary on any theory other than malicious prosecution, fraud, or malice. Id. at 743. The plaintiffs replied insisting the litigation privilege was not available to Jones Day because it did not apply to intentional torts, which they asserted were “outside the scope of an attorney’s legitimate representation and involve conduct, not mere advice.” Id. at 747. The plaintiffs further contended that the immunity did not apply because the conduct alleged did not occur in litigation. Id. at 748.

Noting that no appellate court in Hawaii had addressed the privilege as it pertained to conduct in the context of intentional interference with contractual relations, the Court looked to the public policies behind the litigation privilege and found they included:

(1) promoting the candid, objective, and undistorted disclosure of evidence; (2) placing the burden of testing the evidence upon the litigants during trial; (3) avoiding the chilling effect resulting from the threat of subsequent litigation; (4) reinforcing the finality of judgments; (5) limiting collateral attacks on judgments; (6) promoting zealous advocacy; (7) discouraging abusive litigation practices; and (8) encouraging settlement.

Id. at 748-49 (quoting Matsuura v. E.I. du Pont de Nemours & Co., 102 Hawai'i 149, 73 P.3d 687, 693 (2003)). The Court then analyzed the privilege as applied in other jurisdictions, including West Virginia, Illinois, Minnesota, Missouri, New York, and Oregon. Id. at 749-52. One such case was Clark v. Druckman, 218 W.Va. 427, 624 S.E.2d 864, 870 (2005). In that matter the West Virginia Supreme Court applied the Matsuura principles to determine that there was “no reason to distinguish between communications made during the litigation process and conduct occurring during the litigation process.” Id. (quoting Clark, 218 W.Va. 427, 624 S.E.2d 864, 870 (2005) (emphasis in original)).

In its review of other jurisdictions the Kahala court found that courts in Illinois, Minnesota, Missouri, New York, and Oregon had addressed the “conduct” issue and held that “an attorney is afforded a conditional or qualified privilege when claims of [intentional interference with a contractual relationship] and [intentional interference with prospective economic advantage] are asserted against him by his client’s adversary.” Kahala, 151 P.3d at 750-52 (citing Maness v. Star-Kist Foods, Inc., 7 F.3d 704, 709 (8th Cir.1993); Schott v. Glover, 109 Ill.App.3d 230, 64 Ill.Dec. 824, 440 N.E.2d 376 (1982); Burger v. Brookhaven Medical Arts Bldg., 131 A.D.2d 622, 624, 516 N.Y.S.2d 705 (N.Y.App.Div.1987); Reynolds v. Schrock, 341 Or. 338, 142 P.3d 1062 (2006)). Kahala also noted that the qualified privilege could be removed in these jurisdictions if there was proof that the attorney was acting with actual malice, see Schott, 64 Ill.Dec. 824, 440 N.E.2d at 380, an intent to harm that was independent from the desire to protect the client, see Fraidin v. Weitzman, 93 Md.App. 168, 611 A.2d 1046, 1080 (Md.Ct.Spec.App.1992), with “bad faith, personal ill-will, malice, or a deliberate intent to harm the third party,” see Maness, 7 F.3d at 709, or that the attorney was acting outside the scope of the lawyer-client relationship, see Reynolds, 142 P.3d at 1069. Kahala, 151 P.3d at 750-52 (citing cases from various jurisdictions).

After finding the foregoing authorities persuasive and by applying the foregoing principles, the Supreme Court of Hawaii concluded that the litigation privilege applied to the claims asserted against Jones Day, and that the plaintiffs had failed to allege that Jones Day attorneys were acting outside the scope of their attorney-client relationship or were acting with a desire to harm that was outside of their desire to protect their clients. Id. at 752. Therefore, Jones Day had immunity. Id.

Another case that has many similarities to the case at bar is Macke Laundry Serv. Ltd. P’ship v. Jetz Serv. Co., 931 S.W.2d 166 (Mo.Ct.App.1996). In that matter, the Court of Appeals of Missouri addressed the issue of whether an attorney was immune from liability for civil conspiracy and tortious interference with contract rights. Id. at 171. Missouri law provides that an attorney is generally not liable for an injury to a non-client arising out of the representation of a client absent “exceptional circumstances.” Id. at 177 (citing Donahue v. Shughart, Thomson & Kilroy, P.C., 900 S.W.2d 624, 627 (Mo.1995)). Missouri’s exceptional circumstances rule is based upon the fact that “ ‘fraud, collusion, or a malicious or tortious act’ is conduct which is beyond the conditional or qualified privilege of an attorney.” Id. (citing Fraidin, 611 A.2d at 1080; Kennedy v. Kennedy, 819 S.W.2d 406, 410 (Mo.Ct.App.1991)). The exceptional circumstances rule provides “that an attorney may be liable to a third person for acts arising out of the attorney’s representation of a client, if the attorney is guilty of ‘fraud, collusion, or a malicious or tortious act.’” Id. (quoting Donahue, 900 S.W.2d at 627). The exceptional circumstances rule had previously been applied in a claim against an attorney for tortious interference with a business relationship and slander of title where “the attorney maliciously published false representations which the attorney knew or should have known were false.” Id. (citing Kennedy, 819 S.W.2d at 410). The Missouri court then ruled, “pursuant to existing Missouri precedent, and in conformity with the case law from other jurisdictions,” that:

[A]n attorney’s conduct may expose the attorney to liability for conspiring with a liant when the attorney acts outside the scope of the attorney-client relationship. This occurs when the attorney has an independent personal stake in achieving the object of the conspiracy. Even when an attorney is acting within the scope of representing the client, the attorney may be liable under the exceptional circumstances rule if the attorney is guilty of fraud, collusion, or a malicious or tortious act.

Id. at 178.

Having adopted the foregoing, the court in Macke found that the plaintiffs civil conspiracy claim against the attorney failed because there was no evidence that the attorney acted for his own personal gain. Id. at 178-79. The only remaining claim asserted against the attorney was tortious interference with a business relationship, which was recognized as an intentional tort, and the only basis for the attorney to be liable was pursuant to the exceptional circumstances rule, based upon whether the attorney personally had committed fraud, collusion, or a malicious or tortious act. Id. at 179-80. The issue was before the court on a motion for summary judgment, and the court found that the plaintiff had alleged all of the elements to demonstrate that a business relationship existed, that the attorney knew of the business relationship, and that the attorney had intentionally induced or caused a breach of that relationship causing damage to the plaintiff. Id. at 180. Therefore, the issue was whether the plaintiff had proffered evidence to meet its burden of proving the final element: lack of justification — “the absence of any legal right to take the actions which form the basis of the claim.” Id. at 181 (citing SSM Health Care, Inc. v. Deen, 890 S.W.2d 343, 346 (Mo.Ct.App.1994)). The court then looked to previous applications of the privilege and determined:

The rationale for a privilege to protect attorneys when representing clients has long been recognized by the Missouri Supreme Court, which acknowledged that “[i]f attorneys cannot act and advise freely and without constant fear of being harrassed by suits and actions at law, parties could not obtain their legal rights.”
It is only logical that the attorney should be privileged to advise and to act for a client, even though that advice, if wrong, may cause a client to tortiously interfere with another’s business relationship of expectancy. Otherwise, there is a “serious risk of interfering [with] an attorney’s ability to exercise independent judgment for the client with undivided loyalty.”

Id. at 181 (internal citations omitted). The court in Macke also emphasized that the Restatement (Second) of Torts §§ 770, 772 (1977) recognized analogous privileges in the area of tortious interference. Id. In Macke, the court ultimately concluded that a privilege for attorneys exists when the attorney:

[Ajcting within the scope of the attorney-client relationship, to advise and to act for a client even though that advice, if wrong, may cause a client to tortiously interfere with another’s business relationship or expectancy so long as the attorney does not employ wrongful means and acts with good faith to protect the interests of the client and not for the attorney’s self interest. “In the context of tortious interference, improper 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 common law. Nazeri, 860 S.W.2d at 317.
So long as [the attorney’s] conduct in representing [his client] brings him within the privilege, the exceptional circumstances rule will not apply to make him liable to a third party such as [plaintiff]. Therefore, in order to prove that [the attorney] is not privileged, [plaintiff] must prove that [the attorney] utilized threats, violence, trespass, defamation, misrepresentation of fact, restraint of trade, or any other wrongful act recognized by statute or common law; was not acting in good faith for the interest of his client; or was motivated by self interest.

Id. at 182 (internal citation omitted) (emphasis added). The court then found that the plaintiff failed to produce evidence that would demonstrate the use of improper means or self-interest, or evidence that the attorney was not acting in good faith to protect his client’s interest, and, therefore, the court held that the attorney’s actions fell within the privilege and the defendant attorney had immunity. Id.

Just as our Supreme Court in Simpson found decisions from other jurisdictions persuasive, we also find the decisions of the Hawaii Supreme Court in Kahala and the Missouri Court of Appeals in Macke persuasive, noting in pertinent part that each of them held that the privilege may apply to the conduct of an attorney prior to the commencement of litigation. As both courts held; however, the privilege, as it pertains to conduct prior to the commencement of litigation, is not, and should not be a blanket privilege.

When our Supreme Court in Simpson expanded the privilege to encompass defamatory communications made prior to the commencement of litigation, the court placed limits on the applicability of the privilege by the use of the words “if’ and “only,” as the following quotes reveal. Simpson, 232 S.W.3d at 24.

[T]he communication at issue is protected by the privilege if (1) the communication was made by an attorney acting in the capacity of counsel, (2) the communication was related to the subject matter of the proposed litigation, (3) the proposed proceeding must be under serious consideration by the attorney acting in good faith, and (4) the attorney must have a client or identifiable prospective client at the time the communication is published. The privilege will not apply unless each of these elements is satisfied.

Id. (emphasis added). The court then noted that the comments to section 586 of the Restatement provide that the privilege applies only when “made by an attorney while performing his function as such. Therefore it is available only when the defamatory matter has some reference to the subject matter of the proposed or pending litigation.” Id. (quoting Restatement (Second)of Torts § 586 cmt. c.) (emphasis added). The Court then concluded that:

[T]he privilege applies only when there is a reasonable nexus between the publication in question and the litigation under consideration. Further, the comments provide that “[a]s to communications preliminary to a proposed judicial proceeding the rule stated in this Section applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration.” [Restatement (Second)of Torts § 586 cmt. e.] Accordingly, the “bare possibility that the proceeding might be instituted is not to be used as a cloak to provide immunity for defamation when the possibility is not seriously considered.” [Restatement (Second) of Torts § 586 cmt. e.] These requirements accurately reflect the parameters of the privilege as we have adopted it.

Simpson, 232 S.W.3d at 24 (emphasis added).

We find it significant that the court stated at the end of the paragraph, “[t]hese requirements accurately reflect the parameters of the privilege ....” Id. (emphasis added). This is significant because the litigation privilege in Tennessee is an “absolute privilege,” which cannot be defeated, in contrast to a “conditional” or “qualified” privilege which can be defeated. See id. at 22. Our Supreme Court has repeatedly stated that the litigation privilege in Tennessee is an absolute privilege; nevertheless, the Court has also stated that the attorney’s conduct must come within strict parameters, the “contours” of the privilege, as the use of the qualifiers if and only in Simpson reveal, in order for the privilege to apply. Thus, attorneys in Tennessee are only entitled to immunity under the litigation privilege if the conduct at issue falls within certain parameters.

Following the precedent established by our Supreme Court in Simpson, and by integrating the persuasive reasoning stated by the Supreme Court of Hawaii in Kahala and the Court of Appeals of Missouri in Macke, we have concluded that the litigation privilege in Tennessee applies to an attorney’s conduct prior to the commencement of litigation if (1) the attorney was acting in the capacity of counsel for a client or identifiable prospective client when the conduct occurred, (2) the attorney was acting in good faith for the benefit of and on behalf of the client or prospective client, not for the attorney’s self interest, (3) the conduct was related to the subject matter of proposed litigation that was under serious consideration by the attorney, and (4) there was a real nexus between the attorney’s conduct and litigation under consideration. See Simpson, 232 S.W.3d at 24.

In the context of conduct of an attorney that is alleged to constitute tor-tious interference with contractual rights of a client’s adversary or potential adversary, the conduct shall not be privileged if the attorney employed wrongful means. See Macke, 931 S.W.2d at 181; see also Nazeri, 860 S.W.2d at 317. In this context, wrongful means includes, inter alia, fraud, trespass, threats, violence, or other criminal conduct. See Macke, 931 S.W.2d at 181; Nazeri, 860 S.W.2d at 317.

Summary Judgment

The trial court granted Cohen summary judgment upon the finding that Cohen was immune because he was acting in his capacity as attorney for a client even though litigation was not pending when Cohen negotiated and/or drafted the indemnification agreement and when he took the sworn statement.

The undisputed facts demonstrate that Cohen was acting in the capacity of counsel for his client, Kerry Steel Company, Inc., when he negotiated and/or drafted the indemnity agreement and questioned Liberato during the taking of his sworn statement. The facts also show that Cohen was acting in good faith to protect or further the interests of his client, and not for his own self-interest, that there was a real nexus between his conduct and litigation under consideration, and that Cohen did not employ wrongful means.

A party is entitled to summary judgment if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04; Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn.2003). Cohen has done just that. We, therefore, affirm the summary dismissal of the claim against Cohen.

Tennessee Rules of Professional Conduct

Although we have ruled in favor of attorney Cohen in the context of the litigation privilege as it pertains to claims brought by a client’s adversary, we believe we are professionally bound to encourage attorneys who read this opinion to consider a lawyer’s responsibilities in the context of the Tennessee Rules of Professional Conduct. Rule 4.2 of the Tennessee Rules of Professional Conduct states: “In communicating "with a current or former agent or employee of an organization, a lawyer shall not solicit or assist in the breach of any duty of confidentiality owed by the agent to the organization.” (emphasis added).

A violation of a Rule of Professional Conduct does not give rise to a cause of action, as is specifically stated within the rules; thus, if Cohen’s conduct constituted a violation, that conduct would not give rise to a cause of action in this case. However, an attorney is subject to sanctions for conduct that violates the Tennessee Rules of Professional Conduct. As our Supreme Court explained in Simpson:

[E]ven if the requirements of the [litigation] privilege are satisfied, an attorney who exceeds the bounds of permissible conduct may face collateral consequences. For example, an attorney who makes false and defamatory statements which result in a baseless lawsuit may face a malpractice action by the client or a malicious prosecution action by the party defamed or both. Finkelstein, 774 A.2d at 346. An attorney who institutes meritless litigation or files suit for an improper purpose may also face sanctions imposed by the courts under Rule 11 of the Tennessee Rules of Civil Procedure. In addition, an attorney may be disciplined by the Board of Professional Responsibility for violating ethical requirements which prohibit the filing of frivolous claims or soliciting employment by means of fraud or false or misleading statements. See Tenn. Sup.Ct. R. 8, RPC 3.1, 7.1, 7.3. These alternative remedies for attorney misconduct present “the risk of punishment for the errant lawyer ... real enough to require that lawyer to beware.” Finkelstein, 774 A.2d at 346. In light of these alternative remedies, coupled with the limitations we have placed on the privilege itself, we are satisfied that the privilege cannot be exploited as an opportunity to defame with impunity.

Simpson, 232 S.W.3d at 27.

Accordingly, it must be emphasized that an attorney’s immunity from civil liability does not preclude other consequences, such as sanctions from the Board of Professional Responsibility.

In Conclusion

The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal assessed against Unarco Material Handling, Inc.

      . The record does not identify who drafted the indemnity agreement; however, for purposes of the summary judgment motion, we assume Cohen also helped draft the indemnification agreement.

      . Prior to the questioning, the terms of the indemnity agreement were announced.

      . It was in Buckley v. Wood, (1591) 76 Eng. Rep. 888 (K.B.), that a plaintiff brought a defamation action after the defendant alleged in a document filed with a court that the plaintiff was "a maintainer of pirates and murderers.” See Simpson Strong-Tie, Inc. v. Stewart, 232 S.W.3d 18, 22 (Tenn.2007). The English court found that the publication of that document was not actionable, holding that "for any matter contained in the bill that was examinable in the said Court, no action lies, although the matter is merely false, because it [the defamatory publication] was in [the] course of justice.” Id. (quoting Buckley, 76 Eng. Rep. at 889).

      .The statement appeared in a newspaper advertisement and the Internet website of the defendant law firm. Simpson, 232 S.W.3d at 21. The advertisement in The Tennessean stated:
      ATTENTION: WOOD DECK OWNERS
      If your deck was built after January 1, 2004 with galvanized screws manufactured by Phillips Fastener Products, Simpson Strong-Tie or Grip-Rite, you may have certain legal rights and be entitled to monetary compensation, and repair or replacement of your deck. Please call if you would like an attorney to investigate whether you have a potential claim. (The contact information in the advertisement is omitted).

        Id.

      . Section 586 of the Restatement states "[a]n attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” Restatement (Second) of Torts § 586.

      . The plaintiff in Clark asserted claims of negligence, intentional infliction of emotional distress, tortious interference with a business relationship, and malicious prosecution against the defendant-lawyers. Clark, 624 S.E.2d at 866.

      . Clark also explained that the litigation privilege did not apply in all circumstances, that “exceptions to an absolute litigation privilege arising from conduct occurring during the litigation process are reasonable accommodations which preserve an attorney's duty of zealous advocacy while providing a deterrent to intentional conduct which is unrelated to legitimate litigation tactics and which harms an opposing party.” Clark, 624 S.E.2d at 870. Therefore, in order for the conduct to fall within the scope of the privilege, the act must occur in the course of the attorney’s representation of an opposing party and be related to the civil action. Id. at 871.

      . The trial court had ruled that an attorney was immune from liability for civil conspiracy with the attorney's client unless the attorney could be held individually liable for the underlying tort, and unless the attorney was acting for the attorney's own personal benefit. Macke, 931 S.W.2d at 175. As for the issue of civil conspiracy, the appellate court examined the effect of the litigation immunity before addressing the issue of civil conspiracy because "the nature of the attorney-client relationship ... impacts [the attorney’s] liability to a nonclient for acts occurring during his representation of [his client].” Id. at 176. Following its analysis, the Missouri appellate court found that “an attorney may be liable even though the attorney is acting within the scope of the attorney-client relationship, ...” Id.

      . The court noted the “long history in Missouri” of holding an attorney liable to third parties for malicious prosecution and false imprisonment claims. Macke, 931 S.W.2d at 177.

      . In Macke, the court stated that the exceptional circumstances rule was derived from 6 C.J., Attorney and Client, § 114 (1916). Macke, 931 S.W.2d at 177.

      . The exceptional circumstances rule only encompassed intentional torts, and the tort of legal malpractice did not fall within the rule. Macke, 931 S.W.2d at 178 (citing Mark Twain Kansas City v. Jackson, 912 S.W.2d 536, 538 (Mo.Ct.App.1995); Rose v. Summers, Compton, Wells & Hamburg, 887 S.W.2d 683, 686 (Mo.Ct.App.1994)).

      .As the issue was before the court on a motion for summary judgment, to survive the plaintiff had to plead and produce evidence that "(1) [The plaintiff] had a valid business relationship or expectancy; (2) [the attorney] knew of the relationship or expectancy; (3) [the attorney] intentionally interfered in inducing or causing breach of the relationship or expectancy; (4) the absence of justification; and (5) resulting damages.” Macke, 931 S.W.2d at 180 (citing Nazeri v. Missouri Valley College, 860 S.W.2d 303, 316 (Mo.1993)).

      . The court went on to explain that the privilege is consistent with the Restatement view that:
      An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

        Simpson, 232 S.W.3d at 24 (quoting Restatement (Second) of Torts § 586 (1977)) (emphasis added).

      . The fact that limitations were placed on the privilege by our Supreme Court is also evident from the following statement in Simpson: "In light of these alternative remedies, coupled with the limitations we have placed on the privilege itself, we are satisfied that the privilege cannot be exploited as an opportunity to defame with impunity.” Simpson, 232 S.W.3d at 27 (emphasis added).

      .The Court further stated:
      The rule we have adopted today is also consistent with our prior cases that have embraced the privilege on the basis that "access to the judicial process, freedom to institute an action, or defend, or participate therein without fear of the burden of being sued for defamation is so vital and necessary to the integrity of our judicial system that it must be made paramount.” Jones,
        360 S.W.2d at 51. In our view, the rationale underlying the privilege-to encourage attorneys to speak freely and candidly, undeterred by the fear of an action for defamation-is just as compelling when the attorney is advising a prospective client of opportunities to pursue legal redress as it is when the attorney is conferring with an existing client. That the attorney is consulting with a prospective client prior to the filing of a case should not, by itself, defeat the privilege. Simpson, 232 S.W.3d at 24.

      . "A privilege is described as absolute when it is not defeated by the defendant's malice, ill-will, or improper purpose in publishing the defamatory communication.” Simpson, 232 S.W.3d at 22 (citing Dan B. Dobbs, The Law of Torts 1153 (2000)). "Thus, an absolute privilege is, in effect, a complete immunity.” Id. (citing Dobbs, The Law of Torts; Restatement (Second) of Torts [§] 243 (1977)) ("the privilege, or immunity, is absolute and the protection that it affords is complete”). Simpson further explained that a conditional privilege, also known as a qualified privilege, is not absolute for it "may be defeated if the defamatory publication was made with malice, ill-will, or for an improper purpose.” Id. (citing Pate v. Serv. Merch. Co., 959 S.W.2d 569, 576-77 (Tenn.Ct.App.1996); Dobbs, supra 1158).

      . These parameters are derived from Simpson, with modification as it pertains to conduct instead of communication. See Simpson, 232 S.W.3d at 24.

      . "Violation of a Rule should not give rise to a cause of action, nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulation conduct through disciplinary agencies. They are not designed to be a basis for civil liability.” Tenn. Sup.Ct. R. 8, RPC, Scope, para. 6; see also Akins v. Edmondson, 207 S.W.3d 300, 307-08 (Tenn.Ct.App.2006) (citing Wood v. Parker, 901 S.W.2d 374, 379 (Tenn.Ct.App.1995)) (holding "the Rules of Professional Responsibility do not establish a standard of care upon which a legal cause of action can be based”).


author: HERSCHEL PICKENS FRANKS, P.J., JOHN W. McCLARTY, J.,

text:
    Chris YOUSIF, d/b/a Quality Motors, v. Notrial CLARK and the Circuit Court of Knox County.
    Court of Appeals of Tennessee, Eastern Section, at Knoxville.
    Sept. 14, 2009 Session.
    Jan. 13, 2010.
    Permission to Appeal Denied by Supreme Court June 21, 2010.

      Michael L. Powell, Knoxville, Tennessee, for appellant.
    David H. Dupree, Knoxville, Tennessee, for appellee.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the Court,

in which D. MICHAEL SWINEY, J., joined, and JOHN W. McCLARTY, J., dissented and filed an opinion.

Petitioner filed for a writ of certiorari after his bank accounts were attached for a judgment which had been entered by the Sessions Court against him. The petition alleged that petitioner was unaware of the judgment against him and had not been served with service of process in the Sessions Court. The Trial Court granted the petition and considered a motion to dismiss by the respondent. The writ was dismissed and petitioner has appealed. On appeal we hold that the Trial Court erred in dismissing the petition and remand for further proceedings on the writ.

Appellant/petitioner, Chris Yousif d/b/a Quality Motors, petitioned the Circuit Court of Knox County, Tennessee for a writ of certiorari to the General Sessions Court for Knox County, The petition sets forth the following facts:

1. On March 2, 2006 a civil warrant, numbered 13055G, was filed in the General Sessions Court for Knox County by Notrial Clark against Quality Motors and Ali Kahlil in which Ms. Clark alleged: “I brought [sic] a car. He sold it to someone want [sic] give me another one. Told me I have to take a lost [sic].” A copy of the civil warrant was attached to the petition.
2. The civil warrant had a service of process return that stated “[s]erved on atty Michael Shipwash for Def.” In fact, Mr. Shipwash did not inform Mr. Yousif of the warrant, though he did inform Mr. Kahlil. The name of Chris Yousif does not appear on the warrant.
3. On June 14, 2006, an alias civil warrant, numbered 13055G, was filed in the general sessions court which added Select Auto as a defendant. The service of process return is difficult to read, but appears to stated that atty Ted Lowe was served but does not indicate who he represented. The name of Chris Yousif does not appear on the warrant.
4. Quality Motors and Select Auto were located adjacent to each other on Clinton Highway in Knox County. Mr. Kahlil, d/b/a Select Autos, sold the car at issue to Ms. Clark.
5. Mr. Yousif knew that a suit had been filed against Mr. Kahlil, but he did not know he had been named as a defendant also. Mr. Kahlil told Mr. Yousif that the matter would be taken care of and it would be dismissed. Based on Mr. Kahlil’s representations, Mr. Yousif did not attend a hearing of the matter on July 10, 2006.
6. On July 10, 2006, following the hearing, Mr. Kahlil told Mr. Yousif that the matter had been taken care of. To the contrary, a default judgment had been entered against Mr. Yousif and Mr. Kahlil had been dismissed.
7. Mr. Yousif became aware of the default judgment in August 2007 when the clerk of the general sessions court executed the judgment against his bank account in the sum of $3,500.00. The funds were deposited with the clerk of court.
8. Mr. Yousif filed a motion to quash the execution. The general sessions court informed him that it was without authority to alter or amend the judgment and the statutory ten days in which to file an appeal had expired.
9. Petitioner asked that a writ of cer-tiorari be issued out of the circuit court to the general sessions court, commanding that the judgment entered against Quality Motors and Mr. Yousif be set aside and that the funds held by the clerk of court by returned to Mr. Yousif.

The Circuit Court issued a writ of cer-tiorari to the General Sessions Court on November 29, 2007 and the record was forwarded to the Circuit Court from the Sessions Court. The record consists of the civil warrant no. 13055G; the alias civil warrant no. 13055G; a letter, dated May 2006, from attorney Michael S. Shipwash to the clferk of the General Sessions Court which stated that he had agreed to represent Mr. Kahlil in the lawsuit at issue but withdrew when he discovered a conflict; two orders, dated October 22, 2007 and November 14, 2007 regarding the retention of the funds garnished from Mr. Yous-if s account by the clerk of court and Mr. Yousif s motion to quash the July 10, 2006 judgment.

Ms. Clark filed an answer to the petition for a writ, admitting that she dealt with Mr. Kahlil when she purchased the car but she believed that he had sold the car to her on behalf of Mr. Yousif and Quality Motors. She attached a contract and a finance agreement in connection with the sale which were both on Quality Motors’ letterhead.

Ms. Clark then filed a motion to dismiss the petition for failure to state a claim upon which relief could be granted. The basis of the motion was that although Mr. Yousif claims that he had no knowledge that the suit was against him, he admitted in his petition that he knew of the suit and discussed it with Mr. Kahlil at least twice. Based on this admission of Mr. Yousif, Ms. Clark maintained that Yousifs assertion that he had no knowledge of the suit against him was “disingenuous”. Later, Ms. Clark filed a motion to dismiss for failure to join an indispensable party, i.e., Mr. Kahlil.

The matter was heard before the Trial Judge on July 25, 2008, and the Judge entered an order dismissing Mr. Yousif s petition. The Trial Court merely stated that it found respondent’s motion to dismiss well taken and that the motion to dismiss for failure to join a indispensable party was moot. Subsequently, petitioner filed a motion to alter or amend the order of dismissal and a motion to amend the petition. The amended petition contained a statement that Mr. Shipwash did not have authority to accept service for Mr. Yousif, and when the motions were heard, they were both denied.

Petitioner, on appeal, raises this issue:

Did the Circuit Court err when it dismissed the petition for certiorari?

Generally, evidence is not entertained by the Court when considering a Tenn. R. Civ. P. 12.02(6) motion to dismiss for failure to state a claim. See Tenn. R. Civ. P. 12.03. However, Tenn.Code Ann. § 27-8-116 provides the following exception to the rule: “On motion to quash or dismiss a writ of certiorari granted in lieu of an appeal, issue may be taken and proof heard upon the facts alleged in the petition as ground for not appealing, which issue shall thereupon be determined by the court.” The record does not provide any information regarding whether evidence was presented to the Circuit Court regarding why the writ was filed instead of an appeal or whether the Court considered the evidence contained in the record from the General Sessions Court. We will only consider the allegations set forth set forth in the petition for writ of certiorari when deciding whether the Trial Court was correct when it dismissed the petition.

The Tenn. R. Civ. P. 12.02(6) motion tests only the legal sufficiency of the complaint, not the strength of a plaintiffs proof. Such a motion admits the truth of all relevant and material averments contained in the complaint, but asserts that such facts do not constitute a cause of action as a matter of law. In ruling upon a motion to dismiss, courts should construe the complaint liberally in favor of the plaintiff, taking all allegations of fact as true. The motion to dismiss should be denied unless it appears that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. In considering an appeal of this nature, we take all allegations of fact in the plaintiffs complaint as true, and review the lower courts’ legal conclusions de novo with no presumption of correctness. Guth v. Suntrust Bank, Inc., No. E2006-00212-COA-R3-CV, 2007 WL 1135488 at *2 (Tenn.Ct.App. Apr.17, 2007)(citing Bell v. Icard, 986 S.W.2d 550, 554 (Tenn.1999))(citing Tenn. R.App. P. 13(d); Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn.1997); Pursell v. First American Nat’l Bank, 937 S.W.2d 838, 840 (Tenn.1996); Cook v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934, 938 (Tenn.1994)).

The writ of certiorari derives from Article 6, Section 10 of the Constitution of Tennessee, but the practice with respect to how and when it may be obtained is set forth in statutory provisions enacted by the General Assembly. Tragle v. Burdette, 222 Tenn. 531, 438 S.W.2d 736, 737 (1969). The remedy of certiorari is not available as of right, but is only to be granted under unusual or extraordinary circumstances. Clark v. Metropolitan Gov’t of Nashville, 827 S.W.2d 312, 316 (Tenn.App.1991). The writ may also not take the place of an appeal when an express provision for an appeal is available. Tragle at 737; Sullivan v. Cocke, 167 Tenn. 253, 68 S.W.2d 933 (1934); although, there are some circumstances such as fraud, contrivance by the opposing party or the court, or the willful or negligent act of the court clerk that will excuse the failure to pursue an available appeal and permit review by way of certiorari. See e.g. McMurry v. Milan, 32 Tenn. 176 (1852); Belcher v. Belcher, 18 Tenn. 121 (1836); Kearney v. Jackson, 9 Tenn. 294 (1830); General Motors Acceptance Corp. v. Dennis, 675 S.W.2d 489 (Tenn.App.1984). Neglect on the part of the petitioner is not a ground to grant the writs of certiorari. General Motors Acceptance Corp. v. Dennis, 675 S.W.2d 489, 491 (Tenn.App.l984)(citing Uselton v. Price, 41 Tenn.App. 134, 292 S.W.2d 788 (1956); Watson v. Wells, 20 Tenn.App. 611, 103 S.W.2d 30 (1937)).

Mr. Yousif did not appeal the General Sessions Court’s default judgment against him to the Circuit Court within ten days of entry of the judgment as provided by T.C.A. § 27-5-108(a)(l). The petition sets forth the reason he did not timely file an appeal, i.e., he was unaware that he had been sued or that a default judgment had been entered against him until more than one year after entry of the judgment. Mr. Yousif claims in his petition that he did not attend the Sessions Court hearing or otherwise defend himself in this matter because he did not know he had been sued. Although the service of process return on the civil warrant shows that an attorney named Michael Shipwash was served for the defendant, Mr. Yousif asserts that Mr. Shipwash never told him about the warrant. The petition shows that Mr. Yousif discussed the suit with Mr. Kahlil and he knew Mr. Kahlil was a defendant but he did not understand that his business, Quality Motors, was also a defendant. According to Yousif, Mr. Kahlil told him that the matter was would be taken care of and that the case would be dismissed. Yousif admitted that he knew of the hearing on July 10, 2006, but he did not attend because he was not aware he was a defendant. After the hearing, Kahlil told Mr. Yousif “everything had been taken care of’, but Mr. Yousif only became aware of the default judgment entered against him in August 2007 when the clerk of court garnished his bank account for the amount of the judgment.

Respondent, Ms. Clark, argued in her motion to dismiss that petitioner did not assert sufficient grounds to sustain a writ. She did not argue that Mr. Yousif had been served with process but, rather, that he was “disingenuous” when he asserted that he had no knowledge of the suit based on the facts he alleged in the petition. The Circuit Court merely stated that “this Court finds Respondent’s motion to dismiss to be well taken.” We can only conclude that the Circuit Court agreed with the respondent’s argument as set forth in the motion to dismiss.

However, the argument is fallacious for two reasons. First, Mr. Yousif never stated that he did not know of the suit, as respondent contends. He represented in his petition that although he was aware of the suit, he did not know he was named as a defendant. Second, and more importantly, even if Mr. Kahlil had told Mr. Yousif that they were both defendants, a fact which is not alleged in the petition, such knowledge would not serve as a substitute for service of process as required by statute.

The applicable statutes that set forth the service of process requirements for a suit filed in general sessions court are as follows:

TenmCode Ann § 16-15-901(a) Upon filing of civil warrants, writs and other papers the clerk of the general sessions court wherein such civil warrants, writs or other papers are filed, shall issue the required process, writs or other papers, and cause it or them, with necessary copies of the civil warrant, writ or papers, to be delivered for service to such person authorized to serve process as may be designated by the party filing such civil warrant, writ or other papers or such party’s attorney if represented by counsel. Such authorized person shall serve the civil warrant, writ or other papers, and the return endorsed thereon shall be proof of the time and manner of service. A civil warrant, writ or other papers may be issued for service in any county against any defendant, or additional defendants.
T.C.A. § 16-15-902(a) Any person serving the process from the general sessions court shall promptly and within the time during which the person is served must respond, make proof thereof to the court and shall identify the person served and shall describe the manner of service.

T.C.A. § 16-15-903 Service shall be made as follows:

(1) Upon an individual other than an unmarried infant incompetent person, by delivering a copy of the warrant, writ or other papers to the individual personally, or if the individual evades or attempted to evade service, by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, whose name shall appear on the proof of service, or by delivering the copies to an agent authorized by appointment or by law to receive service on behalf of the individual served.

Mr. Kahlil did not claim that Mr. Yousif was properly served, nor did the Circuit Court conclude that service of process was correctly accomplished. Respondent and the Court seem to have agreed, that Yous-if s knowledge of the existence of the suit ■and his knowledge of the hearing date was a proper substitute for service of process. Cases hold otherwise. This issue was addressed in Watson v. Garza, 316 S.W.3d 589, 591 (Tenn.Ct.App.2008). The issue on appeal in Watson involved a motion to dismiss for insufficient service of process. The summons issued for service on the defendant-appellee was served by the deputy sheriff on a co-defendant who later delivered the summons to defendant-appel-lee. The trial court granted the defendant-appellee’s motion to dismiss and the court of appeals affirmed. Watson at 592-93. The Court reasoned that because the trial court’s jurisdiction of the parties is acquired by service of process, proper service of process is an essential step in a proceeding. Watson at 592-93. The record must establish that the plaintiff complied with the requisite procedural rules, and the fact that the defendant had actual knowledge of attempted service does not render the service effectual if the plaintiff did not serve process in accordance with the rules. Watson at 592-98. Similarly, in In re Estate of Graham, No. 85-114-II, 1986 WL 3156 (TenmApp. Mar.12, 1986) the Court held that notice by service of process in some manner provided by law is essential to give the trial court personal jurisdiction over the parties, and without jurisdiction, judgment against a defendant who is not before the court is void and subject to attack. Graham at *2 (citing Overby v. Overby, 224 Tenn. 523, 525, 457 S.W.2d 851, 852 (1970); Boyd v. Baynham, 24 Tenn. (5 Humph.) 385, 386 (1844); Rooney v. Callins, 62 Tenn.App. 105, 124, 459 S.W.2d 430, 438 (1970); and Johnson v. McKinney, 32 Tenn.App. 484, 492, 222 S.W.2d 879, 883 (1949)).

Based on the foregoing case law, the Trial Court erred when it dismissed the petition for writ of certiorari.

Accordingly, we vacate the Order of Dismissal and remand to the Circuit Court for further proceedings consistent with this opinion. The cost of the appeal is assessed to Notrial Clark.

JOHN W. McCLARTY, J., dissented and filed an opinion.

JOHN W. McCLARTY, J.,

dissenting.

I respectfully dissent. Based upon the factual history present in this case, I would affirm the trial court’s dismissal of the writ.

      . It is undisputed that Quality Motors is a d/b/a for Chris Yousif.

      . It is undisputed that Select Auto is a d/b/a for Ali Kahlil.