author: VICTOR C. HOWARD, Presiding Judge.

text:
    STATE of Missouri ex rel. LACLEDE GAS COMPANY, Respondent, v. PUBLIC SERVICE COMMISSION of the State of Missouri, Appellant.
    No. WD 63563.
    Missouri Court of Appeals, Western District.
    March 1, 2005.

      Thomas R. Schwarz, Jr., Jefferson City, MO, for appellant.
    Michael Charles Pendergast and Lawrence Carl Friedman, St. Louis, MO, for respondent.

      Before HOWARD, P.J., ULRICH and BRECKENRIDGE, JJ.
   VICTOR C. HOWARD, Presiding Judge.

The Public Service Commission approved a tariff implementing a three-year incentive hedging program, under which Laclede Gas Company was permitted to purchase and sell natural gas call options on future natural gas deliveries to manage the risk of fluctuations in natural gas market prices and create cost savings. The program provided certain incentives to Laclede to achieve the price protection and cost reduction benefits to its customers.

At issue in this appeal is approximately $4.9 million that Laclede kept as its share of incentive proceeds realized from the program. In its Report and Order (“the Commission’s Order”), the Commission concluded that Laclede was required to flow back to its customers the $4.9 million.

Laclede petitioned for a writ of review in the Circuit Court of Cole County. The circuit court held that the Commission’s Order was both unlawful and unreasonable, so it vacated the Order and remanded the cause to the Commission. The Commission then filed its notice of appeal to this court.

For the reasons set forth below, we affirm the trial court’s judgment reversing the Commission’s Order and remand.

Facts

A. The Price Stabilization Program: Laclede is a public utility that distributes, transports, and sells natural gas to approximately 680,000 retail customers in eastern Missouri. In July of 1999, the Commission approved a tariff implementing a three-year incentive hedging program called the Price Stabilization Program (“PSP Tariff’ or “the Program”). Under the Program, Laclede was authorized to engage in the purchase and sale of natural gas call options as a means of hedging the price of its gas supply to provide its gas customers some protection against increased market gas prices. The PSP Tariff allowed Lac-lede to collect $4 million annually from its customers to fund the Program.

Additionally, .the PSP Tariff specified that a significant share of the gains realized by Laclede from call option trading would be passed through to Laclede’s customers in the form of lower prices. Lac-lede was entitled to retain a specified share of such gains as an incentive to achieve such benefits for its customers. The PSP Tariff had two separate incentive features: (1) The Overall Cost Reduction Incentive; and (2) The Price Reduction Incentive.

1. Overall Cost Reduction Incentive: This portion of the PSP Tariff authorized Laclede to retain a specified percentage of any gains (40% or 60% depending upon how much customer savings had been generated) realized from “intermediate” trading activities, in which the call options were sold prior to the last three business days of NYMEX trading.

2. Price Reduction Incentive: This portion of the PSP Tariff authorized Lac-lede to retain a specified portion of the proceeds realized when the call options were sold during the last three business days of NYMEX trading. If the hedged price exceeded a certain level, Laclede was required to give its customers credits. The Price Reduction Incentive also included an “opt-out” provision, under which Laclede would be permitted to opt-out of the Price Reduction Incentive if there were radical changes in the market price for natural gas during the first 90 days of any Program year. The Cost Reduction Incentive did not contain an opt-out provision.

B. Stipulation and Agreement: In March of 2000, the second year of the incentive program, the price of natural gas rose quickly and steeply to unprecedented levels. Accordingly, on June 1, 2000, Lac-lede exercised its right to opt out of the Price Reduction Incentive for the 2000-2001 heating season. Laclede also applied to the Commission for a number of temporary changes in the Program. For example, Laclede requested the elimination of the Program’s requirement that Laclede purchase options covering 70% of its winter supply, an increase in the amount Lac-lede could collect from its customers to fund the Program, and an expansion of the type of financial instruments Laclede could procure. The Staff of the Commission (“Staff’) recommended the Commission grant only part of the relief requested by Laclede. Public Counsel recommended that the Commission reject Laclede’s application and instead instruct the Company to comply with the terms of the Program.

Ultimately, on September 1, 2000, Staff, Public Counsel, and Laclede filed a “Unanimous Stipulation and Agreement.” The Stipulation and Agreement stated that the parties were only able to agree that Lac-lede’s request to eliminate the 70% coverage requirement should be granted. The Stipulation and Agreement provided in relevant part:

By permitting Laclede to obtain price protection for lesser volumes, such a revision will help to reduce the price at which such protection will be triggered for these volumes. Since the winter heating season is only slightly more than two months away, it is critical that such provisions be approved as soon as possible. Accordingly, the undersigned Parties recommend that the Commission issue its Order adopting these modifications at the earliest practical time.
... Since the Parties were unable to agree on [Laclede’s] other proposed revisions to the PSP, “all remaining provisions of the existing PSP currently in effect mil remain in full force and effect.”

(Emphasis added.)

On September 28, 2000, the Commission approved the Stipulation and Agreement. On October 5, 2000, Laclede filed a compliance tariff implementing the changes to the PSP Tariff as reflected in the Stipulation and Agreement. Staff subsequently reviewed and recommended the Commission’s approval of the compliance tariff. On October 12, 2000, the Commission approved the compliance tariff, which explicitly stated that Laclede’s purchase of call options under the PSP was:

subject to the incentive features described [in the PSP Tariff]. Except as modified by the terms of the September 1, 2000 Unanimous Stipulation and Agreement approved by the Commission [temporarily modifying the original 70% coverage requirement], and subject to [Laelede]’s notice of opting out of the price protection incentive features in year two....

During the 2000-2001 heating season, Laclede operated as provided in the compliance tariff. In addition to the approximately $4 million received from customer billings for Program funding, Laclede used approximately $5 million from its gains on trading to purchase more call options as authorized by the Overall Cost Reduction Incentive. Laclede’s total gains from options trading in the 2000-2001 year were approximately $33.5 million. After taking into account the $5 million in reinvested gains, the trading resulted in a net gain of $28.5 million, $11.5 million of which was realized from the sale of call options during the last three business days of NYMEX trading — the period of trading subject to the Price Protection Incentive. Because Laclede had exercised its right to opt out of the Price Protection Incentive, it immediately flowed through to its customers the entire $11.5 million in the form of reductions to the Company’s Purchased Gas Adjustment rates pursuant to expedited procedures requested by Lac-lede and approved by the Commission.

The remaining $17 million of proceeds was realized from Laclede’s sale of call options prior to the last three days of NYMEX trading (intermediate trades). These proceeds were subject to sharing between Laclede ($8.9 million) and its customers ($8.1 million) pursuant to the terms of the Overall Cost Reduction Incentive. Laclede immediately passed the $8.1 million through to its customers. Laclede also requested and obtained approval from the Commission to contribute $4 million of the Overall Cost Reduction Incentive to fund the Program’s third year. Laclede sought to retain the remaining $4.9 million in proceeds, which are at issue in this appeal.

C. The Commission’s Order: Pursuant to the provisions of the Program, the Commission annually reviewed Laclede’s recovery of-gas costs to determine whether such costs had been prudently incurred and/or otherwise accounted for in compliance with Laclede’s approved tariffs. Thus, the Commission initiated Case No. GR 2001-387 (“2001 case”) to review Lac-lede’s recovery of gas costs during the 2000-2001 Actual Cost Adjustment (“ACA”) period. This period ended September 30, 2001, so it included the second year of the Program.

On June 28, 2002, Staff filed its recommendation in the 2001 case, in which it proposed that Laclede be required to flow through to its customers the $4.9 million that Laclede had retained under the Overall Cost Reduction Incentive. Staff recognized that the Overall Cost Reduction Incentive remained in effect. Nevertheless, Staff claimed that a new methodology demonstrated that Laclede had not achieved any savings under the Program. Laclede opposed the adjustment on the grounds, among others, that this new methodology was unauthorized by, and flatly inconsistent with, the express language of the PSP Tariff.

In its April 29, 2003 Order, the Commission concluded as a matter of law that Laclede was “not entitled to retain approximately $4.9 million in proceeds from the sale of call options in the winter of 2000-2001, under the Overall Cost Reduction Incentive provisions of the Company’s Price Stabilization Program.”

The Commission interpreted the meaning of the Program and PSP Tariff that implemented it to determine the intent of Laclede in creating the Program and the Commission’s intent in approving the Program. In doing so, the Commission analyzed what it referred to as “two, closely interrelated incentive features that were designed to maximize the protection afforded to customers, while minimizing the cost of that protection.” The Commission held:

When both incentive clauses were working the program and tariff made sense. Both Laclede and its customers could benefit from the sale of call options. Both could receive a share of profits, but more importantly, Laclede’s customers received the benefit of having price protection against an unexpected increase in natural gas prices. Unfortunately, when natural gas prices skyrocketed beginning in May of 2000, Laclede was in a position where it had to withdraw from the Price Protection Incentive portion of the [PSP] Program. Consumers were left without the price protection to which they were entitled under the program.

The Commission openly acknowledged Laclede’s argument that the Overall Cost Reduction incentive remained in effect after it opted out of the Price Protection Incentive, and Staff did not dispute this argument. But, the Commission concluded:

... [W]ithout the price protection function of the Price Protection Incentive element of the program, the Overall Cost Reduction Incentive was merely a meaningless vestige. Intermediate trading of call options did not necessarily provide any price protection to Lac-lede’s customers. Laclede could sell its hedge positions at any time and collect and keep a portion of the proceeds. Meanwhile, the price of natural gas used by those customers could keep rising after Laclede had sold out of its hedge position, leaving the customers unprotected. For example, the selling price of natural gas may have been $1.00 above the strike price ten days before the expiration of the call option. If the call option is sold on that date, Laclede and its customers would get to share in a profit of $1.00. However, if by the expiration date of that call option the price of gas has risen to $3.00 above the strike price, can it still be said that Laclede’s customers have profited? Laclede has its share of the profit from the sale of the call option and it can pass the increased cost of natural gas on to its customers. The customers, however, have to pay for the gas out of them own pockets.
What is more, when Laclede withdrew from the Price Protection Incentive clause it no longer had any incentive to hold call options until near their expiration, and thereby provide some protection to its customers against rising gas costs. Instead, Laclede actually had a perverse incentive to sell its call options early, before the last three trading days, when it could still share in the proceeds of the sale.
The Commission can only conclude that neither the Commission, nor Lac-lede intended to create such an unlikely and unfair outcome when they created the [PSP] Program. There is no reason to believe that Laclede was in any way blameworthy because of its decision to withdraw from the Price Protection Incentive element of the program. Certainly, Laclede was not responsible for the spike in natural gas prices that shocked consumers in the winter of 2000-2001. However, there is no reason to believe that Laclede should be allowed to share in the illusory profits it made from trading in call options while the price that consumers had to pay for natural gas soared.
There was only one Price Stabilization Program. To permit the [PSP] Program and its enabling tariff to operate as proposed by Laclede would frustrate the intent of the Commission and Lac-lede in creating the program and approving the tariff. Therefore, the Commission concludes that as a matter of law, the Overall Cost Reduction Incentive element of the [PSP] Program ceased to function at the same time that Laclede exercised its right to withdraw from the Price Reduction Incentive element of the program. Therefore, Lac-lede is not entitled to claim a share of the proceeds from the sale of call options under the terms of that incentive element.

The Commission noted that its conclusion “must bump up against the Stipulation and Agreement.” It explicitly recognized that the Stipulation and Agreement provided, “ ‘[s]ince the parties were unable to agree on the Company’s other proposed revisions to the PSP, all remaining provisions of the existing PSP currently in effect will remain in full force and effect.’ ” But, the Commission concluded:

[This] language does not affirmatively state that any particular element of the Price Stabilization Program is in effect. It simply states that this Stipulation and Agreement does not change the effectiveness of any provision of the Program. Thus, if, as the Commission has found, the Overall Cost Reduction Incentive element became ineffective at the same time as did the Price Reduction Incentive element, then this Stipulation and Agreement does nothing to resuscitate that element.

The Commission’s focus, in its decision, on the lapse of the overall cost reduction incentive is in sharp contrast with the evidence presented at the hearing. Throughout the entire Commission proceeding, both Laclede and Staff maintained that the Overall Cost Reduction Incentive remained in effect during the 2000-2001 heating season. The testimony and briefing before the Commission focused on the disputed question of how savings under the Overall Cost Reduction Incentive were to be calculated and divided between Laclede and its customers. After the record was closed, Staff suggested, for the first time, in its April 10, 2003 Proposed Findings of Fact, that the Commission could find that the Overall Cost Reduction Incentive terminated when Laclede opted out of the Price Protection Incentive. Laclede sought permission to reopen the record to address this argument. The Commission denied Laclede’s request, stating it its Order:

The Commission is mindful of the fact that it is deciding this case on the basis of a theory that has not been argued by any party. Laclede, of course, argues that it should be allowed to retain its share of proceeds under the Overall Cost Reduction Incentive. Staff has consistently offered the theory that the Overall Cost Reduction Incentive remained in effect, but that savings under that incentive had to be calculated in a more restrictive manner. Laclede contends that by deciding this case on a different theory, the Commission has denied it an opportunity to present evidence to refute the allegations against it, thereby denying it its right to due process of law.
In other circumstances, Laclede might be correct. However, in this case the Commission is reaching its decision entirely upon the basis of its conclusions of law about the meaning of the words of a tariff and a stipulation and agreement. Those documents clearly are in the record of this case and both parties have presented extensive information about them. Laclede has presented evidence and argument about both documents, and no additional testimony could change the words of either the tariff or the Stipulation and Agreement. As a result, in this case, Laclede’s due process rights have not been compromised.

D. The Circuit Court’s Judgment: On June 18, 2003, Laclede filed its Petition for Writ of review in the Circuit Court of Cole County. After briefing, the circuit court heard oral argument on October 10, 2003. At the conclusion of the oral argument, the circuit court stayed the Commission’s order pending completion of proceedings on the Petition for Writ of review, including any appeals.

On November 5, 2003, the circuit court issued its Findings' of Fact, Conclusions of Law, Order and Judgment, vacating the Commission’s Order because its decision was unlawful, unreasonable, arbitrary and capricious, and an abuse of discretion. The court concluded that under the plain language of the PSP Tariff, Laclede was entitled to retain the $4.9 million.

This appeal follows.

Standard of Review

We review the Commission’s Order, not the circuit court’s judgment, to determine whether the Order was lawful and, if so, whether it was reasonable. § 386.510; State ex rel. AG Processing, Inc. v. Pub. Serv. Comm’n, 120 S.W.3d 732, 734 (Mo, banc 2003). As the adverse party, Laclede has the burden of proof “to show by clear and satisfactory evidence that the ... order of the commission complained of is unreasonable or unlawful as the case may be.” § 386.430; AG Processing, 120 S.W.3d at 734. If statutory authority for the Commission’s Order exists, then it is “lawful.” Id. If we determine the Commission’s Order is lawful, we must then consider whether it is reasonable, that is, whether the Order “was supported by substantial'and competent evidence on the whole record, whether the decision was arbitrary, capricious, or unreasonable, or whether the [Commission] abused its discretion.” State ex rel. Associated Natural Gas Co. v. Pub. Serv. Comm’n, 954 S.W.2d 520, 528 (Mo.App. W.D.1997).

Discussion

Although Laclede challenges the Commission’s Order as “unlawful” in its first point on appeal, neither party argues the Commission lacked statutory authority to act, which is the test for determining whether the Order is “lawful.” There is no dispute that pursuant to Chapters 386 and 393, the Commission has the authority to regulate Laclede, which is a public utility.

Confusion may arise as to reviewing for “lawfulness” because the Commission explicitly decided the issue based on its legal interpretation of the language of the PSP Tariff and the Stipulation and Agreement. Indeed, as pointed out by Laclede, in determining the lawfulness of the Commission’s Order, we will “correct erroneous interpretations of the law.” State ex rel Alma Tel. Co. v. Pub. Serv. Comm’n, 40 S.W.3d 381, 388 (Mo.App. W.D.2001). But at this stage of review, we would only review an erroneous interpretation of law governing the Commission’s statutory authority. The propriety of the Commission’s legal interpretation of the PSP Tariff and the Stipulation and Agreement pertains to the reasonableness of the Order, not its lawfulness. Because the Commission’s Order is lawful in that it was statutorily authorized, we next examine the Order’s reasonableness.

The issue in this case is whether the Overall Cost Reduction Incentive automatically terminated when Laclede exercised its right to opt-out of the Price Protection Incentive for the 2000-2001 heating season. The Commission concluded in its Order that despite the unambiguous language of the PSP Tariff and the Stipulation and Agreement, it would be so illogical for the Overall Cost Reduction Incentive to survive Laclede’s rightful decision to opt out of the Price Protection Incentive that, as a matter of law, a different result must have been intended. Our review of legal issues is de novo, with no deference to the Commission. State ex rel. AG Processing, Inc. v. Pub. Serv. Comm’n, 120 S.W.3d 732, 734 (Mo. banc 2003).

Once the Commission approved the PSP tariff, it became Missouri law. Allstates Transworld Vanlines, Inc. v. Southwestern Bell Tel. Co., 937 S.W.2d 314, 317 (Mo.App. E.D.1996). Thus, the PSP Tariff has “the same force and effect as a statute directly prescribed from the legislature,” so we interpret the tariff in the same manner we interpret a statute. Id. Accordingly, our role in interpreting the PSP Tariff is to “ascertain the intent of [Laclede and the Commission] from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning.” Wolff Shoe Co. v. Dir. of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988). We can look beyond the plain and ordinary language of the PSP Tariff “only when the meaning is ambiguous or [acceptance of the plain and ordinary language] would lead to an illogical result defeating the purpose of the [tariff].” State ex rel. Maryland Heights Fire Prot. Dist. v. Campbell, 736 S.W.2d 383, 387 (Mo. banc 1987). The Commission recognized this standard for interpreting the PSP Tariff and duly noted:

Of course, when dealing with a tariff, there is no legislative intent to be discerned. However, when interpreting the meaning of the Price Stabilization Program and the tariff that implemented it, it is necessary to discern the intent of Laclede in creating the program, as well as the intent of the Commission in approving the program.

The Commission openly agreed that the plain and ordinary language of the PSP Tariff and the Stipulation and Agreement confirmed that the Overall Cost Reduction Incentive survived Laclede’s opting out of the Price Protection Incentive. But a 3-2 majority of the Commission found that the parties did not “intend” the PSP Tariff and the Stipulation and Agreement to mean what the plain language said.

In arriving at this conclusion, the Commission set forth hypothetical calculations of how market fluctuations could have effected Laclede’s trading of call options at different times before querying, “can it still be said that Laclede’s customers have profited?” During proceedings before the Commission, Staff advanced similar hypothetical calculations in support of its argument that a new methodology demonstrated that Laclede had not achieved any savings under the Program. Laclede argued those calculations were improperly based on hindsight. The Commission addressed Laclede’s argument in its Order as follows:

Laclede suggested for Staff to sit back two years after the fact, examine the results and find occasions where Laclede could have made more money by trading earlier or later. But Laclede was trading without the benefit of hindsight, and it contended that it did the best job that it could. Laclede argued that it should be allowed to keep the share of savings to which it would be entitled under the Overall Cost Incentive.
After carefully considering the question, the Commission finds that Laclede is correct. Staffs hypothetical calculations of what might have been the result if Laclede had chosen to trade call options differently is entirely based on hindsight and is not to be found anywhere in the description of the Price Stabilization Program or the tariff designed to implement the program. Staff was not able to provide a reasonable calculation to determine how savings could have been calculated under the Overall Cost Reduction Incentive after the Price Reduction Incentive was no longer operable. This is not a criticism of Staff or its witness because there is probably no formula that could create such a calculation with any certainty.
The formula contained in Laclede’s tariff indicates that Laclede is entitled to keep the $⅛.9 million in proceeds under the Overall Cost Reduction Incentive. The question then becomes whether the Overall Cost Reduction Incentive of that tariff was still effective after Laclede opted out of the Price Reduction Incentive.

(Emphasis added.)

The Commission’s reasoning for concluding, as a matter of law, that contrary to the plain language of the PSP Tariff, the parties did not intend for the Overall Cost Reduction Incentive to remain effective, is similarly based entirely on hypothetical calculations. We reject the Commission’s hypothetical calculations for the same reasons that it rejected the Staffs hypothetical calculations.

The purpose of the Program was to stabilize natural gas prices. To achieve this purpose, the Program had two incentive components: (1) price protection, and (2) cost reduction. The plain and ordinary meaning of the tariff indicates that despite Laclede’s rightful decision to opt out of the price protection component in light of unprecedented increases in natural gas prices, the cost reduction component remained viable. The customers continued to benefit from the cost reduction component of the Program. This is confirmed by the explicit language in the Stipulation and Agreement that except for the elimination of the 70% coverage requirement and Lac-lede’s decision to opt out of the Price Protection incentive, “all remaining provisions of the existing PSP currently in effect will remain in full force and effect.” (Emphasis added.) The Commission’s attempts to harmonize this explicit language of the Stipulation and Agreement with its legal conclusion that the parties did not intend for the Overall Cost Reduction Incentive to persist are unpersuasive. The PSP Tariff is clear and unambiguous and cannot be given another meaning by the Commission’s hypothetical envisioning of an “illogical result.”

The Commission fails to cite any evidence in its Order or in its brief on appeal supporting a finding that there was an “unlikely and unfair outcome” or that the profits realized by Laclede were merely “illusory.” In fact, the actual evidence presented in the case supports the opposite conclusion, i.e. that Laclede did not take advantage of any “perverse incentive” to conduct only intermediate trading so it could share in the profits under the Overall Cost Reduction Incentive. Both Lac-lede and the Staff agreed that the Overall Cost Reduction Incentive remained after Laclede opted out of the Price Protection Incentive. During the 2000-2001 heating season at issue, Laclede realized total gains of approximately $33.5 million from options trading. $11,5 million of the gains was realized from the sale of call options during the last three business days of NY-MEX trading — the period of trading subject to the Price Protection Incentive. Because Laclede had opted out of the Price Protection Incentive, it immediately flowed through to its customers the entire $11.5 million. Laclede sought only to retain $4.9 million of the $17 million it realized from intermediate trading, which the Commission acknowledged it was entitled to under the plain language of the tariff.

Conclusion

Under the plain language of the PSP Tariff and the compliance tariff implementing the Stipulation and Agreement, the Overall Cost Reduction Incentive remained operable during the 2000-2001 heating season. Thus, Laclede was entitled to retain the $4.9 million of proceeds.

We affirm the circuit court’s judgment reversing the Commission’s Report and Order and remand to the circuit court with directions to remand this cause to the Commission for further proceedings consistent with this opinion.

ULRICH and BRECKENRIDGE, JJ., concur.

      . The Commission explicitly accepted Lac-lede’s Statement of Facts in its brief, so we borrow in large part from Laclede’s Statement of Facts without further attribution.

      . The Commission initially approved the Program in 1997, and then extended and substantially modified the Program in its Report and Order issued June 15, 1999. That modified Program is the subject of this appeal.

      . A call option is a financial instrument sold on the New York Mercantile Exchange (N.Y.MEX). In exchange for paying a specific amount, the call option entitles, but does not require, the buyer to receive a specific amount of natural gas in a future month at a predetermined "strike price.” As the Commission explains in its Order:
      The hedging function of call option trading works this way. The gas company pays a premium to purchase a call option at a specified strike price. If the price of natural gas goes up above the strike price, the company can sell the call option at a profit and use the proceeds to offset the increased cost of natural gas. For that quantity of gas, the customer effectively pays the strike price, even if the actual cost of natural gas is higher. If the price of natural gas stays below the strike price and the call option expires valueless, the customer is out the cost of the premium but has obtained the value of having the price protection in place in case it were needed. This situation is similar to the purchase of car insurance. If a car owner purchases insurance and does not have an accident, the owner is out the , cost of the premium. However, for the premium, the owner has received the intangible value associated with a reduction of risk.

      . At the parties’ request, the Commission consolidated the 2001 case with Case No. GR-2000-622, which the Commission had initiated for review of 1999-2000 ACA period. The Commission’s Order indicates that ”[u]lti-mately, Staff and Laclede agreed upon all issues relating to the 1999-2000 Actual Cost Adjustment and nothing regarding that [case was] presented to the Commission for resolution.” Thus, only the 2001 case is at issue in this appeal.

      . Statutory references are to the Revised Statutes of Missouri (2000).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Steven C. BOTTS, Appellant.
    No. WD 63220.
    Missouri Court of Appeals, Western District.
    March 1, 2005.
    Margaret M. Johnston, Public Defender Office, Columbia for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Karen L. Kramer, Office of Attorney General, Jefferson City, for Respondent.
    Before EDWIN H. SMITH, Chief Judge, RONALD R. HOLLIGER, Judge, and LISA WHITE HARDWICK, Judge.
   ORDER

Steven C. Botts appeals his conviction of the Class A felony of sale of a controlled substance near schools, Section 195.214, RSMo 2000. He contends that the trial court abused its discretion in overruling his objection to the State’s cross-examination of a defense witness concerning her involvement in the creation of a pornographic videotape at the behest of the undercover officer who testified in the case.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prec-edential or jurisprudential value. The parties, however, have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment of the trial court is affirmed in accordance with Rule 30.25(b)


text:
    Deadrick ROCKETT, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63935.
    Missouri Court of Appeals, Western District.
    March 1, 2005.
    Mark .Allen Grothoff and Irene C. Karns, State Public Defender Office, Columbia for Appellant.
    Jeremiah W. (Jay) .Nixon, Atty. Gen., Deborah Daniels and Bruce Hahn, Office of Attorney General, Jefferson City for Respondent.
    Before EDWIN H. SMITH, Chief Judge, RONALD r' HOLLIGER, Judge, and LISA WHITE HARDWICK, Judge.
   ORDER

Deadrick Rockett appeals the denial of his Rule 29.15 motion for post-conviction relief. Rockett’s motion was denied after evidentiary hearing.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. A written opinion reciting the detailed facts and restating the applicable principles of law would have no prec-edential or jurisprudential value. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order. Rule 84.16(b).


author: ROBERT G. ULRICH, P.J.

text:
    STATE of Missouri, Respondent, v. Robert J. DURANT, Appellant.
    No. WD 64030.
    Missouri Court of Appeals, Western District.
    March 1, 2005.

      Kent Denzel, Columbia, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, and Deborah Daniels, Jefferson City, for Respondent.
    Before ROBERT G. ULRICH, P.J., JAMES M. SMART, JR., and JOSEPH M. ELLIS, JJ.

      . All statutory references are to RSMo 2000 unless otherwise indicated.

   ROBERT G. ULRICH, P.J.

Robert Durant' appeals his conviction following jury trial for damaging the property of the Department of Corrections, section 217.385, and sentence as a prior and persistent offender to six years imprisonment. He claims that insufficient evidence was presented to support the conviction and that the trial court erred in admitting a Department of Corrections’ record showing prior convictions to impeach his credibility. The judgment of conviction is affirmed.

Facts

Robert Durant was an inmate in Crossroads Correctional Center on July 14, 2000. The Missouri Department of Corrections operates Crossroads. On that day, Corrections Officer Leslie DeLapp returned Mr. Durant to his cell after he became belligerent in a hearing with a caseworker. As Officer DeLapp was removing the restraints from Mr. Durant’s hands through the food port door in the cell door, Mr. Durant reached around and grabbed the officer’s hand in an effort to grab the keys. Officer DeLapp was able to free himself and close the food port door. Mr. Durant then grabbed a food tray that was in his cell and struck the window of the cell door three times. On the third strike, the window shattered.

Mr. Durant was charged as a prior and persistent offender with damaging the property of the Department of Corrections, section 217.385. At trial, Mr. Durant testified in his own defense claiming that he did not break the window and that the cell he was in did not have a broken window. On cross-examination, Mr. Durant admitted that he had a prior conviction for possession of cocaine, but he denied convictions for unlawful use of a weapon, first-degree robbery, and armed criminal action. In rebuttal, the State introduced, over Mr. Durant’s objection, a copy of Mr. Durant’s Department of Corrections’ “Face Sheet,” which listed his convictions for all of the crimes.

The jury found Mr. Durant guilty of the charged crime, and the trial court sentenced him to six years imprisonment to run consecutively to sentences he was already serving. This appeal by Mr. Durant followed.

Sufficiency of the Evidence

In his first point on appeal, Mr. Durant claims that the trial court erred in overruling his motion for judgment of acquittal at the close of the evidence and entering judgment on the verdict. He asserts that the evidence was insufficient to establish beyond a reasonable doubt that he knowingly broke the window.

Review of a challenge to the sufficiency of the evidence to support a criminal conviction is limited to determining whether sufficient evidence was presented from which a reasonable juror could find the defendant guilty beyond a reasonable doubt. State v. Chaney, 967 S.W.2d 47, 52 (Mo. banc 1998), cert. denied, 525 U.S. 1021, 119 S.Ct. 551, 142 L.Ed.2d 458 (1998). The evidence and all reasonable inferences drawn from the evidence are viewed in the light most favorable to the jury’s verdict, and any contrary evidence and inferences are disregarded. Id. Great deference is given to the trier of fact. Id.

A person is guilty of the class C felony damaging the property of the Department of Corrections if he knowingly damages property owned or operated by the department. § 217.385.2. A person acts knowingly with respect to a result of his conduct when “he is aware that his conduct is practically certain to cause that result.” § 562.016.3(2). Thus, in showing the requisite mental state here, the State must establish that Mr. Durant was aware that striking the cell window with his food tray was practically certain to cause the window to break. Intent may be established by circumstantial evidence or may be inferred from surrounding facts. State v. Theus, 967 S.W.2d 234, 239 (Mo.App. W.D.1998). Additionally, a defendant’s mental state may be reasonably inferred from the act itself. Id.

Mr. Durant contends that insufficient evidence was introduced that he was aware that striking his cell window with a food tray was practically certain to break it. A reasonable inference may be made that a glass window will break if it is repeatedly and forcefully struck with a hard object. Mr. Durant argues, however, that because of the location of the window, a prison cell, he could not have been aware that the window would break when struck with a food tray. Mr. Durant apparently implies that because the window was in a prison cell, it was shatterproof and, therefore, he could not have intended to break it when he struck it repeatedly with his food tray. Mr. Durant, however, introduced no evidence that the cell window glass was shatterproof or that he believed the glass was shatterproof or that it wouldn’t break. Such belief will not be inferred. Evidence was presented that Mr. Durant forcefully struck his cell window three times with a food tray. A reasonable inference from this action was that Mr. Durant intended to break the window. The evidence was sufficient to establish beyond a reasonable doubt that he knowingly broke the window. Point one is denied.

Admission of Evidence to Impeach Credibility

In his second point on appeal, Mr. Durant claims that the trial court abused its discretion in admitting a Department of Corrections’ record showing prior convictions to impeach his credibility. He argues that the exhibit was comprised of hearsay and that he was denied his right to confrontation. Mr. Durant also argues that the record was inadmissible because it did not constitute the best evidence of his convictions.

Prior to trial, the court conducted a hearing to determine whether Mr. Durant was a prior and persistent offender. The State introduced Exhibit 1, the “Face Sheet” from Mr. Durant’s Department of Corrections’ record, the third page of which showed that he had been convicted of possession of a controlled substance, unlawful use of a weapon, robbery in the first degree, and armed criminal action. Mr. Durant objected to the exhibit claiming that it violated due process, the best evidence rule, the statutory requirements to prove prior and persistent status, and his confrontation rights. The court admitted the exhibit over Mr. Durant’s objection and found him to be a prior and persistent offender.

At trial during cross-examination, Mr. Durant admitted that he had a prior conviction for possession of cocaine, but he denied convictions for unlawful use of a weapon, first-degree robbery, and armed criminal action. In rebuttal, the State introduced Mr. Durant’s Department of Corrections’ Face Sheet to impeach his denial of the convictions. Mr. Durant again objected. The court allowed the jury to review page three only, which showed Mr. Durant’s four convictions.

In his motion for new trial, Mr. Durant claimed error only in the introduction of the Face Sheet for the purpose of proving his status as a prior and persistent offender. He also included only his objections based on violation of due process and failure to comply with statutory requirement'. Mr. Durant did not raise a claim in his motion for new trial that the introduction of page three of the Face Sheet as rebuttal evidence to impeach his testimony was erroneous, nor did he claim that the evidence was hearsay or violated the best evidence rule. Mr. Durant, therefore, did not properly preserve this issue for appeal. Rule 29.11(d); State v. Crowe, 128 S.W.3d 596, 599 (Mo.App. W.D.2004). As a result, review is only for plain error under Rule 30.20, which provides, “[P]lain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom.” Crowe, 128 S.W.3d at 599-600.

Plain error review involves two analytical steps. Id. at 600. First, determination must be made of whether the claim of plain error, on its face, establishes substantial grounds for believing manifest injustice or a miscarriage of justice has occurred. Id. Plain error is “evident, obvious, and clear error.” Id. (quoting State v. Washington, 92 S.W.3d 205, 211 (Mo. App. W.D.2002)). If the error does not meet this standard, the court will decline to exercise its discretionary review under Rule 30.20. Id. If, however, the claim facially establishes substantial grounds for believing manifest injustice or a miscarriage of justice has occurred, the claim will be reviewed to decide whether manifest injustice actually occurred. Id.

“When a defendant testifies, he is subject to cross-examination and impeachment as is any other witness.” State v. Hoopingamer, 845 S.W.2d 89, 94 (Mo.App. E.D.1993). The prior convictions of the accused are admissible for impeachment purposes. § 491.050; Hoopingarner, 845 S.W.2d at 94. A prosecutor is permitted to question a defendant about a prior conviction when the defendant initially fails to disclose the prior conviction. Hoopingarner, 845 S.W.2d at 94. The State may prove a prior conviction either by the record or by cross-examination, the witness must answer any questions relevant to that inquiry, and the cross-examiner “shall not be concluded by his answer.” § 491.050; Hoopingarner, 845 S.W.2d at 94.

The introduction of page three of Mr. Durant’s Face Sheet for impeachment purposes was not, on its face, obvious and clear error. The prosecutor utilized the Face Sheet to prove Mr. Durant’s status as a prior and persistent offender before trial. The prosecutor then introduced the same evidence on rebuttal to impeach Mr. Durant’s testimony that he had only one prior conviction. On appeal, Mr. Durant does not contest the prosecutor’s use of the Face Sheet to prove his status as a prior and persistent offender, he only challenges its use for impeachment purposes. Where Mr. Durant does not dispute the introduction of the Face Sheet to prove prior convictions for purposes of prior and persistent status, his claim that the same evidence should not have been introduced for impeachment purposes does not establish substantial grounds for believing manifest injustice or a miscarriage of justice has occurred. Because obvious and clear error is not discerned in this case, Mr. Durant’s request to review this matter under Rule 30.20 is declined. The point is denied.

The judgment of conviction is affirmed.

SMART and ELLIS, JJ., concur.


author: PER CURIAM.

text:
    Earnest H. EACRET, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63952.
    Missouri Court of Appeals, Western District.
    March 1, 2005.
    Susan L. Hogan, Kansas City, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before: BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Earnest Eacret appeals the denial of his Rule 29.15 motion after an evidentiary hearing. Upon review of the record, we find no error and affirm the motion court’s judgment. A published opinion would have no precedential value, but we have provided the parties with a Memorandum explaining the reasons for our decision.

Affirmed. Rule 84.16(b).


text:
    James BROWN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63800.
    Missouri Court of Appeals, Western District.
    March 1, 2005.
    Craig A. Johnston Columbia, MO, for Appellant.
    Deborah Daniels, Jefferson City, MO, for Respondent.
    Before LOWENSTEIN, P.J., SMART, J. and EDWIN H. SMITH, C.J.
   ORDER

PER CURIAM.

Following his conviction by guilty plea to robbery in the second degree, Section 569.030, James Brown filed a pro se Rule 24.035 motion for post-conviction relief. The court denied the motion without an evidentiary hearing.

Brown appeals the denial of his Rule 24.035 motion for post-conviction relief, alleging that without an evidentiary hearing the court could not determine if appointed counsel complied with Rule 24.035(e) or had instead abandoned him. On this basis, Brown urges the court to reverse and remand for an evidentiary hearing, This court affirms the judgment. Rule 84.16(b).

      . All statutory references are to RSMo (2000) unless otherwise indicated.


author: JANICE M. HOLDER, J.,

text:
    STATE of Tennessee v. Charles SAWYER.
    Supreme Court of Tennessee, at Nashville.
    Oct. 6, 2004 Session.
    Feb. 25, 2005.

      Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Senior Counsel; Mike McCowen, District Attorney General; and Weakley E. Barnard, Assistant District Attorney General, for the appellant, State of Tennessee.
    F. Shayne Brasfield, Franklin, Tennessee, and Michael Eugene Gilmer, Columbia, Tennessee, for the appellee, Charles Sawyer.
   OPINION

JANICE M. HOLDER, J.,

delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and WILLIAM M. BARKER, JJ., and ALLEN W. WALLACE, Sp.J. joined.

The defendant, Charles Sawyer, was arrested by the police for aggravated sexual battery. Following his arrest, Sawyer made an oral statement to the police after an officer read to Sawyer an affidavit supporting the arrest warrant but before the officer advised Sawyer of his Fifth Amendment rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sawyer filed a motion to suppress his oral statement. Based upon the nature of the facts contained in the affidavit supporting the issuance of the arrest warrant and the circumstances surrounding his arrest and detention, we conclude the statement resulted from an unconstitutional custodial interrogation and therefore should be suppressed. Accordingly, we affirm the judgment of the Court of Criminal Appeals and remand the case to the trial court for further proceedings consistent with this opinion.

BACKGROUND

On October 25, 2001, Detective Kevin Clark and Chief Deputy Billy Lamb of the Marshall County Sheriffs Department obtained an' arrest warrant for the defendant, Charles Sawyer, for aggravated sexual battery. The two Marshall County officers and a Maury County officer traveled to Sawyer’s residence in Maury County, Tennessee. Detective Clark informed Sawyer of the charge and arrested him. Detective Clark told Sawyer that they “would go down to the jail, and [they] would discuss what was going on.”

Detective Clark and Chief Deputy Lamb handcuffed Sawyer, placed him in the back seat of a patrol car, and transported him to the Marshall County jail. Other than merely informing Sawyer of the charge, the officers did not discuss the charge with Sawyer, nor did they advise him of his Fifth Amendment rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Immediately upon arriving at the jail, Sawyer was escorted to Detective Clark’s office where Detective Clark intended to conduct an interview. The officers removed Sawyer’s handcuffs and seated him facing Detective Clark, who sat behind a desk. Detective Clark read the arrest warrant and the affidavit of complaint to Sawyer. The arrest warrant stated only that Sawyer was charged with aggravated sexual battery. The affidavit of complaint stated that “on or about July 27th 2001 Charles Sawyer did rub the leg and vaginal area of [the alleged victim], who is 12 years of age. This incident occurred at 1489 Bridle [L]ane in Chapel Hill. This did occur in Marshall County Tennessee.”

Detective Clark testified that after he read the affidavit but before he advised Sawyer of his rights, Sawyer stated, “I admit to rubbing her leg, but I didn’t do the other. And I admit to rubbing the other girl’s hair.” Sawyer made the statement approximately thirty minutes after his arrest. Detective Clark then advised Sawyer of his Fifth Amendment rights, and Sawyer requested counsel. Detective Clark escorted Sawyer to be booked.

Detective Clark testified that he read the warrant and affidavit to Sawyer pursuant to standard procedure “[t]o let [Sawyer] know exactly what the charges were and [the identity of] the victim.” The detective denied reading the affidavit of complaint for purposes of eliciting a statement from Sawyer. Sawyer testified he had been arrested approximately four years prior to the present case and was aware of his rights, including his right to remain silent.

The trial court granted Sawyer’s motion to suppress, finding that Sawyer’s statement resulted from an impermissible custodial interrogation. The trial court found that: 1) Sawyer made the statement while in custody at the jail thirty minutes following his arrest and that the statement was not a “spontaneous” response to his arrest; 2) Sawyer made the statement after being advised of the details of the allegations eontained in the affidavit, not after he was read the general charge; and 3) the officer’s actions in reading the affidavit were “the functional equivalent of interrogation” as “it would be reasonable to expect a response” under these circumstances even though the officers did not deliberately seek to elicit a response from Sawyer.

The State filed an interlocutory appeal to the Court of Criminal Appeals pursuant to Tennessee Rule of Appellate Procedure 9. The Court of Criminal Appeals granted the appeal and affirmed the trial court’s judgment suppressing the defendant’s statement. We granted review.

ANALYSIS

The findings of fact made by the trial court at a hearing on a motion to suppress are binding upon an appellate court unless the evidence contained in the record preponderates against those findings. State v. Saylor, 117 S.W.3d 239, 244 (Tenn.2003). As trier of fact, the trial court has the ability to assess the credibility of the witnesses, determine the weight and value to be afforded the evidence, and resolve any conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). As the prevailing party, the defendant is entitled to the strongest legitimate view of the evidence as well as to all reasonable inferences drawn from that evidence. State v. Damron, 151 S.W.3d 510, 515 (Tenn.2004); State v. Hicks, 55 S.W.3d 515, 521 (Tenn.2001). However, we review the trial court’s conclusions of law de novo. State v. Daniel, 12 S.W.3d 420, 423 (Tenn.2000).

The issues in this case concern the federal and state constitutional protections against compelled self-incrimination. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.2001). The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” See Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (concluding that the Self-Incrimination Clause is applicable to the states). Article I, section nine of the Tennessee Constitution provides that “in all criminal prosecutions, the accused ... shall not be compelled to give evidence against himself.” We have held that “the test of voluntariness for confessions under Article I, [section] 9 is broader and more protective of individual rights than the test of voluntariness under the Fifth Amendment.” Walton, 41 S.W.3d at 82 (citation omitted).

In Miranda, the United States Supreme Court held that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. These procedural safeguards require that.the police advise a defendant being questioned while in custody

that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Id. at 479, 86 S.Ct. 1602; see State v. Bush, 942 S.W.2d 489, 499 (Tenn.1997).

An officer must provide Miranda warnings to an accused when the accused is in custody and is subjected to interrogation or its functional equivalent. See Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In the present case, Sawyer was in custody when the officers placed him under formal arrest. See Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994); State v. Anderson, 937 S.W.2d 851, 855 (Tenn.1996). We must therefore determine whether the police officers subjected Sawyer to interrogation or its functional equivalent by reading the affidavit of complaint to him.

Interrogation “refers not only to express questioning, but also, to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 301, 100 S.Ct. 1682. Interrogation also includes any “practice that the police should know is likely to evoke an incriminating response from a suspect.” Id. The definition of interrogation focuses primarily upon the accused’s perception rather than on the police officer’s intent. Id. at 301, 100 S.Ct. 1682. However, the officer’s intent may be relevant to determine whether the officer should have known his or her words or actions were reasonably likely to invoke an incriminating response. Id. at 301 n. 7, 100 S.Ct. 1682.

Whether the reading of the affidavit of complaint to an accused is the functional equivalent of interrogation is an issue of first impression in this Court. Some jurisdictions have held that an officer’s statement advising an accused of the specific charges is not the'functional equivalent of interrogation. See e.g., Enoch v. Gramley, 70 F.3d 1490, 1499-1500 (7th Cir.1995) (officer advised the defendant that he was charged with murder and identified the victim); People v. Celestine, 9 Cal.App.4th 1370, 12 Cal.Rptr.2d 179, 181 (1992) (officer informed the defendant that he was under arrest for “possession of rock cocaine for sale”); United States v. Brown, 737 A.2d 1016, 1021 (D.C.1999) (officer told the defendant that he was charged with murder and identified the victim); People v. Parker, 344 Ill.App.3d 728, 279 Ill.Dec. 870, 801 N.E.2d 162, 167 (2003) (officer read arrest warrant to the defendant); Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857, 861 (1984) (officer advised the defendant of his rights and the charges); Gates v. Commonwealth, 30 Va.App. 352, 516 S.E.2d 731, 733 (1999) (officer read arrest warrant to the defendant). Had the officers in this case read only the warrant to the defendant, we would agree.

However, the facts and circumstances in this case go beyond merely reading the arrest warrant or otherwise informing the defendant of the charge. See Commonwealth v. Dejesus, 567 Pa. 415, 787 A.2d 394, 403 (2001) (holding that although informing a defendant of the basis of the charge and the statements of the witnesses was “informational,” the officer’s actions amounted to the functional equivalent of interrogation). While at Sawyer’s residence, Detective Clark informed Sawyer of the charge, arrested him, and stated they “would go down to the jail, and [they] would discuss what was going on.” The officers transported Sawyer from his residence directly to Detective Clark’s office inside the Marshall County Sheriffs Department. Sawyer was placed in a chair in front of a desk, and Detective Clark sat directly across from Sawyer. Approximately thirty minutes following the arrest, Detective Clark read Sawyer the arrest warrant charging him with aggravated sexual battery and the affidavit of complaint alleging that he had rubbed the leg and vaginal area of the twelve-year-old victim. Detective Clark had not advised Sawyer of his Miranda rights prior to reading the affidavit. Sawyer made the statement only after hearing the detailed allegations contained in the affidavit.

The detective’s actions placed Sawyer in an environment in which he could reasonably believe that he was to be interrogated. See Hill v. United States, 858 A.2d 435, 443-47 (D.C.2004) (informing a defendant who is handcuffed in an interview room that he is charged with second degree murder and that his accomplice has given a statement is the functional equivalent of interrogation). Moreover, although Sawyer had been arrested and advised of his rights on a prior occasion, the detective’s actions under the facts and circumstances of this case were “likely to evoke an incriminating response.” Innis, 446 U.S. at 301, 100 S.Ct. 1682; see also United States v. Wiseman, 158 F.Supp.2d 1242, 1252-53 (D.Kan.2001) (holding that the defendant’s statements resulted from custodial interrogation even though the defendant had been advised of his rights on prior occasions); Jones v. State, 119 S.W.3d 766, 774 n. 13 (Tex.Crim.App.2003). Sawyer could have reasonably believed that the detective had begun interrogating him and that the detective’s reading of the affidavit was a statement requiring a response. Although Detective Clark testified he did not read the affidavit for purposes of eliciting a statement from Sawyer, the detective stated he escorted Sawyer to his office, intending to conduct an interview. “The disclosure of incriminating evidence to a suspect ... does not necessarily constitute interrogation within the meaning of Innis.” State v. Marasehiello, 88 S.W.3d 586, 603 (Tenn.Crim.App.2000) (holding that the defendant voluntarily confessed to murder upon being advised of his Miranda rights on two occasions and observing officers as they investigated his case and gathered evidence). However, we conclude that under the facts and circumstances of the present case, the detective’s action in reading the affidavit to Sawyer was the functional equivalent of interrogation.

CONCLUSION

We hold that under the facts and circumstances of this case, Sawyer’s statement was made as the result of the detective’s reading of the arrest warrant and the affidavit to Sawyer, which was the functional equivalent of interrogation. Therefore, we conclude that Sawyer’s statement to the detective should be suppressed. Accordingly, we affirm the Court of Criminal Appeals’ judgment suppressing the statement and remand to the trial court for further proceedings consistent with this opinion.

Costs of appeal are taxed to the appellant, State of Tennessee.

      . Sawyer testified the officers read the warrant and affidavit to him a total of three . times: once while at Sawyer's residence, once while en route to the sheriff’s department, and once while inside the detective’s office. The trial court found that the officer read the warrant and affidavit to Sawyer on only one occasion, while inside the detective’s office.

      . At the suppression hearing, Sawyer denied making the statement. The trial court de-dined to determine whether Sawyer made the statement, conduding that the jury should dedde this issue if the statement is admissible at trial.


author: HERSCHEL PICKENS FRANKS, P.J., CHARLES D. SUSANO, JR.,

text:
    Mary FINCHUM, Individually and as Next of Kin to William Finchum, Deceased v. ACE, USA, individually and as successor to Cigna Insurance Company, et al.
    Court of Appeals of Tennessee, at Knoxville.
    May 10, 2004 Session.
    Aug. 23, 2004.
    Rehearing Denied Sept. 22, 2004.
    Permission to Appeal Denied by Supreme Court Jan. 24, 2005.

      Paul T. Gillenwater, Knoxville, Tennessee, for Appellant.
    Gerald V. Weigle, Jr., Cincinnati, Ohio for Appellee, Liberty Mutual Insurance Co.
    J. Thomas Jones, Knoxville, Tennessee, and James E. Rocap, III, Washington, DC, for Appellee, Travelers Casualty and Surety Co.
   OPINION

HERSCHEL PICKENS FRANKS, P.J.,

delivered the opinion of the court, in which D. MICHAEL SWINEY, J., joined. CHARLES D. SUSANO, JR., J.,

Dissented and filed an opinion.

The Trial Court dismissed the Complaint on a Motion filed pursuant to Tenn. R. Civ. P. 12.02(6). We vacate and remand because the Motion to Dismiss did not comply with the Rules of Civil Procedure.

In this contract action, the Trial Court, responding to a Motion to Dismiss pursuant to Tenn. R. Civ. P. 12.02(6), dismissed plaintiffs Complaint for failure to state a cause of action. Plaintiff has appealed.

Counsel argued the Motion to Dismiss on March 21, 2003, as well as several other motions not germane to this Appeal. The Trial Court granted defendants’ Motion to Dismiss and the Order subsequently entered on April 14, 2003 attached and incorporated by reference the transcript of the Court’s ruling at the hearing. It is clear from the transcript that the Court treated this as an action in contract and dismissed the claim for failure to state a cause of action.

We do not reach the merits of the appeal because we hold that the Motion to Dismiss is proeedurally deficient and does not comply with the Tennessee Rules of Civil Procedure. The Motion to Dismiss states:

Pursuant to Tennessee Rules of Civil Procedure 12.02(6), defendants hereby move to dismiss the claim raised by the plaintiffs Complaint. A Memorandum in support of this Motion is attached.

A motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Tenn. R. Civ. P. 12.02(6) is designed to test the legal sufficiency of the complaint, not the strength of the plaintiffs case. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.1999); Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn.1997).

As the functional equivalent of the old common law demurrer, Rule 12.02(6) motion to dismiss is subject to the same strict rules of construction. Gore v. Tenn. Dept. Of Correction, 132 S.W.3d 369, 373 (Tenn.Ct.App.2003). The common law demurrer could not “speak,” i.e., state or introduce a new fact to support it; but the rule 12.02(6) motion is not so limited. If it does “speak” it becomes converted into a Tenn. R. Civ. P. 56 motion for summary judgment by the express provisions of rule 12.02, and must be adjudicated pursuant to the standard for summary judgment under Rule 56. Id. at 374.

Defendants attached as an exhibit to their memorandum of authorities the Settlement Agreement in the original personal injury action executed by a representative of the Center for Claims Resolution and rely upon it extensively in their brief. Under the modern rules of civil procedure, the trial court retains the discretion to consider extrinsic evidence outside the pleadings, Hixson v. Stickley, 493 S.W.2d 471, 473 (Tenn.1973), but, if it does it “shall be treated as one for summary judgment and disposed of as provided in Rule 56.” Tenn. R. Civ. P. 12.02; Hunt v. Shaw, 946 S.W.2d 306, 307 (Tenn.Ct.App.1996). It is clear from the record that the Trial Court did not consider the settlement document attached to the motion to dismiss. Furthermore, it is clear that the Trial Court did not consider anything other than the face of the complaint, including the release attached to the complaint, in reaching its decision to grant the Motion to Dismiss.

A motion to dismiss must comply with Tenn. R. Civ. P. 7.02(1) and “state with particularity the grounds therefor.” Our Supreme Court has held that stating the. grounds for the motion in an accompanying memorandum of law does not fulfill this requirement, Willis v. Tennessee Dept. of Corr., 113 S.W.3d 706, 709 n. 2 (Tenn.2003); accord, Hicks v. Campbell, 2003 WL 22438441 (Tenn.Ct.App.2003); Ivy v. Tennessee Dept. of Corr., 2003 WL 22383613 (Tenn.Ct.App.2003).

The Supreme Court declared with unmistakable clarity the correct procedure to follow for Rule 12.02(6) motions. In Willis, the Attorney General filed a motion to dismiss for failure to state a claim, then filed a second motion attaching a memorandum of law, because the first motion was not accompanied by a memorandum. Before turning to constitutional issues, the Court commented upon this procedure:

The Attorney General’s motion simply asserted that the petition should be dismissed “[pjursuant to Tenn. R. Civ. P. 12.02(1) and (6).” This motion fails to meet the basic requireménts of Tennessee Rule of Civil Procedure 7.02(1) which requires that motions must ‘state with particularity the grounds therefor.’ For the purposes of a Tennessee Rule of Civil Procedure 12.02(6) motion, the moving party must state in its motion why the plaintiff has failed to state a claim for which relief can be granted. Including the grounds for a rule 12.02(6) motion in a separate memorandum of law does not comply with Rule 7.02(1).

Id. at 709 n. 2.

The Supreme Court in Willis sets forth the proper procedure for filing motions to dismiss and the correct composition of the record ultimately submitted to the appellate court for review.

Since the Motion to Dismiss did not comply with the Tennessee Rules of Civil Procedure, the Trial Court should not have considered the Motion. Accordingly, we vacate the Judgment of the Trial Court and remand for further proceedings.

The cost of the appeal is assessed to defendants.

CHARLES D. SUSANO, JR., J., Dissented and filed an opinion.

CHARLES D. SUSANO, JR.,

dissenting.

The majority opinion concludes that the defendants’ motion to dismiss is deficient. I agree. In Willis v. Tennessee Dep’t of Corr., 113 S.W.3d 706 (Tenn.2003), the Supreme Court opined that Tenn. R. Civ. P. 12.06(6), construed in light of Tenn. R. Civ. P. 7.02(1), requires that a motion filed pursuant to 12.06(6) must state “why the plaintiff has failed to state a claim for which relief can be granted.” Willis, 113 S.W.3d at 709 n. 2 (emphasis added). For example, in the instant case, the motion should have recited, on its face, that (1) the motion was filed pursuant to Tenn. R. Civ. P. 12.06(6), and (2) that the complaint fails to state a claim upon which relief can be granted “in that the claim is for breach of contract but fails to reflect a promise by any of the defendants,” or words to this effect. Having said all of this, I would hasten to add that I do not believe Willis requires that we vacate the trial court’s judgment in the case at bar.

At the outset, I note that the Willis court, while finding the 12.06(6) motion there to be deficient, still considered the motion on its merits. If the Supreme Court in Willis did not believe the deficiency in the State’s Tenn. R. Civ. P. 12.02 motion was serious enough to warrant a remand in that case, I do not understand why the majority believes a remand is appropriate in the instant case. There are, however, more compelling reasons why we should address the motion now before us.

In the case at bar, the plaintiff filed a reply to the defendants’ motion to dismiss. The reply was filed eight days prior to the date on which the trial court considered the defendants’ motion. In her reply, the plaintiff acknowledged that she understood the basis of the defendants’ motion. The reply provides, in part, as follows:

The Defendant insurance companies contend they are not legally liable to honor the terms of the Release because: 1. The Release does not create any obligations on behalf of the Releasees named therein. 2. These Defendant insurance companies were not parties to the [Center for Claims Resolution] or to any documents relating to the Release.

In the course of its memorandum opinion rendered from the bench, which opinion was subsequently incorporated by reference into the trial court’s judgment, the court agreed with the defendants’ position. That position, as previously noted, was well known to the plaintiff in advance of the court’s hearing on March 21, 2003. In its memorandum opinion, the trial court stated, in part, as follows:

The complaint is devoid of any allegation that otherwise suggests that the defendants made any promise whatsoever to the plaintiffs in this case.
But the Court must conclude that in contract cases, and this is a contract case, the thread that he must first have is a promise, because contracts are undertaking agreements. And the Court can find nothing in the complaint to suggest or aver that any defendant made any agreement with the plaintiff and can find nothing in the release that suggests that any insurer made any promise or undertaking to the plaintiff.

It is clear in the record before us that the plaintiff understood the basis of the defendants’ 12.02(6) motion. As previously noted, the plaintiffs response to the defendants’ motion makes this clear. Furthermore, the plaintiff did not seek a continuance of the trial court’s motion hearing because of any alleged surprise as to the basis of the defendants’ motion. There was no prejudice whatsoever to the plaintiff as a result of the defendants’ failure to spell out, with greater specificity, the basis of its motion.

There is a more fundamental reason why we should consider the merits of the defendants’ motion: the plaintiff does not raise the WiMis-deficiency as an issue on this appeal. Under Tenn. R.App. P. 13(b), “[r]eview generally will extend only to those issues presented for review.” While we have discretion to reach issues not raised, I do not believe the issue under discussion is of the type contemplated by 13(b). I also note that Tenn. R.App. P. 36(a) provides that we are not required to grant relief “to a party ... who failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error.” The plaintiff failed to take such action when she failed to raise this issue in the trial court or on appeal.

Because I believe the trial court was correct in determining that the plaintiffs complaint, as amplified by the release document attached to it, “fail[s] to state a claim upon which relief can be granted,” see Tenn. R. Civ. P. 12.02(6), I would affirm the trial court’s judgment granting the defendants’ Rule 12.02(6) motion.

Accordingly, I respectfully dissent.

      . Center for Claims Resolution is composed of a consortium of 16 member companies defending claims primarily asbestos manufacturers and distributors.

      . While this issue has not been raised on appeal, for the sake of procedural consistency Appellate Courts will sua sponte require proper procedures to be followed. See Culbreath v. First Tenn. Bank, 44 S.W.3d 518 at 528-29 (Tenn.2001).

        .Willis reversed the majority of the Court of Appeals,' Judge Koch dissenting. Judge Koch’s articulate Dissent stated: The Motion to Dismiss simply asserts that the petition should be dismissed pursuant to Tenn. R. Civ. P. 12.06(1) and (6). This Motion, like most of the motions filed by the Civil Rights and Claims Division in cases of this sort, fail to comply with the rudimentary requirements of motion practice under Tennessee Rules of Civil Procedure, in terms that even first year law students can understand. Tenn. R. Civ. P. 7.01 requires the motion must state, with particularity the grounds therefor, and for the purpose of Tenn. R. Civ. P. 12.06 this means that the moving party must state in its motion why the plaintiff has failed to state a claim for which relief can be granted. Willis v. Tenn. Dept. Of Corr., 2002 WL 1189730 at *16 (Tenn.Ct.App.2002).


author: Chief Justice JEFFERSON

text:
    GARLAND COMMUNITY HOSPITAL, Petitioner, v. Debi ROSE, Respondent.
    No. 02-0902.
    Supreme Court of Texas.
    Argued Nov. 5, 2003.
    Decided Nov. 5, 2004.
    Stephen L. Tatum, Cantey & Hanger, L.L.P., Fort Worth, for Christas St. Catherine Hospital.
    Thomas S. Leatherbury, Vinson & El-kins, L.L.P., Dallas, for St Luke’s Episcopal Health Sys.
    P. Michael Jung, Christine Roseveare, Strasburger & Price, L.L.P., Dallas, Joseph Marion Gregory, G. Michael Gruber, Julia F. Pendery, Yvette Jimenez Mabbun, Godwin Gruber, LLP, Dallas, for Garland Community Hospital.
    Jay C. English, Laurie Luxton, English & Associates, P.C., Dallas, for Debi Rose.
    Richard Warren Mithoff, Mithoff & Jacks, L.L.P., Houston, for Dolores Romero.
   Chief Justice JEFFERSON

delivered the opinion of the Court.

This action derives from Debi Rose’s (“Rose”) claim that Garland Community Hospital (“the Hospital”) negligently credentialed a doctor who performed cosmetic surgery on Rose. We must decide whether a negligent credentialing claim is a health care liability claim as defined in the Medical Liability and Insurance Improvement Act (“MLIIA”). Act of May 30, 1977, 65th Leg., R.S., ch. 817, §§ 1.01-12.01 1977 Tex. Gen. Laws 2039-2053 (former Tex. Rev.Civ. Stat. art. 4590i), repealed by Act of June 2, 2003, 78th Leg., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884. The trial court ruled that Rose’s claims were health care liability claims under the MLIIA, and it consequently severed and dismissed those claims against the Hospital after finding that Rose’s expert report did not satisfy the Act’s requirements. The court of appeals reversed and remanded, holding that Rose’s claims were not governed by the MLIIA. 87 S.W.3d 188,193. We hold that a claim for negligent credentialing is a health care liability claim under the MLI-IA. Accordingly, we reverse the court of appeals’ judgment and remand to the court of appeals to determine whether Rose’s expert report constituted a good faith effort to comply with the statute.

I

Background

In late 1998 and early 1999, Rose underwent various cosmetic surgeries performed by Dr. James Fowler (“Dr.Fowler”) at the Hospital. Rose sued Dr. Fowler alleging that she suffered scarring and other permanent injuries due to his negligence in performing the surgeries.

Rose later added the Hospital to the suit after learning that the Hospital had received other patient complaints about Dr. Fowler. In her amended petition, Rose contended that the Hospital was both vicariously liable for Dr. Fowler’s negligence and directly liable for its own negligence in credentialing Dr. Fowler to practice at the Hospital and permitting him to continue practicing after it learned of the other complaints. In support of her claims, Rose filed an expert report and supplemental expert report pursuant to section 13.01(d) of the MLIIA. See Tex.Rev.Civ. Stat. art. 4590i § 13.01(d).

The Hospital moved to dismiss Rose’s negligent credentialing claims, asserting that Rose’s expert reports were insufficient under the MLIIA as to those claims. The trial court granted the Hospital’s motion to dismiss the claims and severed Rose’s remaining claims into a separate action. Rose appealed, and the court of appeals reversed and remanded, holding that Rose’s negligent credentialing claims were not “health care liability claims” governed by the MLIIA and that Rose therefore was not required to file an expert report. 87 S.W.3d at 193. We granted the Hospital’s petition for review. 46 Tex. Sup.Ct. J. 1058 (Aug. 30, 2003).

II

The MLIIA

The MLIIA governs the adjudication of health care liability claims in Texas. The Legislature determined that an increase in the frequency and severity of health care liability claims had negatively affected the availability and affordability of health care in Texas. Tex.Rev.Civ. Stat. art. 4590i, § 1.02. Thus, the Legislature enacted the MLIIA to “reduce excessive frequency and severity of health care liability claims,” and “make affordable medical and health care more accessible and available to the citizens of Texas.” Id. § 1.02(b)(1), (5). In light of that purpose, the MLIIA places several restrictions on bringing health care liability claims, including the requirement that a claimant timely provide each defendant with an expert report in order to proceed with the claim. Id. § 13.01(d), (e)(3).

For the MLIIA and its restrictions to apply, a claim must be a “health care liability claim.” See generally Tex.Rev. Civ. Stat. art. 4590L A “health care liability claim,” as defined by article 4590i, is:

a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety which proximately results in injury to or death of the patient, whether the patient’s claim or cause of action sounds in tort or contract.

Tex.Rev.Civ. Stat. art. 4590i, § 1.03(a)(4).

Plaintiffs cannot use artful pleading to avoid the MLIIA’s requirements when the essence of the suit is a health care liability claim. MacGregor Med. Ass’n v. Campbell, 985 S.W.2d 38, 40 (Tex.1998). To determine whether a cause of action falls under the MLIIA’s definition of a “health care liability claim,” we examine the claim’s underlying nature. See Sorokolit v. Rhodes, 889 S.W.2d 239, 242 (Tex.1994). If the act or omission alleged in the complaint is an inseparable part of the rendition of health care services, then the claim is a health care liability claim. See Walden v. Jeffery, 907 S.W.2d 446, 448 (Tex.1995). One consideration in that determination may be whether proving the claim would require the specialized knowledge of a medical expert. See, e.g., Rogers v. Crossroads Nursing Serv., Inc., 13 S.W.3d 417, 419 (Tex.App.-Corpus Christi 1999, no pet.); but see Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex.1990) (expert testimony not needed to establish breach of medical duty where departure plainly within common knowledge of laymen).

Ill

Rose’s Claims

Rose’s claims fall under the MLIIA if the claims are “for treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety.” Tex.Rev.Civ. Stat. art. 4590i, § 1.03(a)(4) (defining “health care liability claim”). The court of appeals held that Rose’s negligent credentialing claims did not fall into any of these categories and thus were not governed by the MLIIA. 87 S.W.3d at 191-93. We disagree. Rose’s negligent credentialing claims are health care liability claims under the MLIIA because they involve claimed departures from accepted standards of health care.

The MLIIA defines “health care” as “any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient’s medical care, treatment, or confinement.” Tex.Rev.Civ. Stat. art. 4590i, § 1.03(a)(2). The court of appeals held that, because the Hospital’s act of credentialing Dr. Fowler occurred before Rose was a patient, the credentialing act was not “during the patient’s medical care, treatment, or confinement” and thus not covered under the MLIIA’s definition of “health care.” 87 S.W.3d at 192 (emphasis in original).

The court of appeals’ strict temporal distinction does not comport with the realities of the credentialing process. Physician credentialing is an ongoing and continuous process, not a series of discrete events. It includes not only a hospital’s initial decision to grant staff privileges, but also formal reevaluations, and continual monitoring and assessment of physician competence. Richard L. Griffith & Dewey W. Johnston, Texas Hospital Law: Administrative and Regulatory Law § 3.1.1 (3d ed.2003); see also Craig W. Dallon, Understanding Judicial Review of Hospitals’ Physician Credentialing and Peer Review Decisions, 73 Temp. L.Rev. 597, 611-12 (2000) (“The hospital and the medical staff have the responsibility to continuously review and monitor the professional performance of individual staff members and all medical services rendered at the hospital.”). A patient’s complaint about a credentialing decision is not directed solely to the hospital’s initial decision to credential a physician, but also to the hospital’s maintaining those privileges during the time of the patient’s treatment, for it is only during that time that the patient could have béen harmed by the negligent credentialing decision. Thus, a hospital’s credentialing activities occur both before and during the treatment of a patient.

Rose’s complaint is a case in point. She complains of acts and omissions that occurred, in significant part, during her treatment. Specifically, Rose alleges that the Hospital acted negligently and maliciously in allowing Dr. Fowler to perform Rose’s surgeries, in entrusting the operating room and other equipment to him, and in failing to suspend or affirmatively review his privileges. These decisions necessarily occurred during Rose’s treatment. It is not necessary, however, to dissect Rose’s claims into pre-treatment and post-treatment components. Regardless of when the acts occurred, the allegations all revolve around the same basic premise: that the Hospital put Rose at risk by allowing Dr. Fowler to treat her. It makes no sense to conclude that some credentialing claims are subject to the MLIIA and others are not, depending upon what point in time the credentialing decision occurred.

The essence of the court of appeals’ holding — that complaints involving a hospital’s pre-treatment acts or omissions are not subject to the MLIIA — would have broad ramifications. Many of the direct functions performed by a hospital, including appropriate credentialing of its staff, originate in conduct occurring before a particular patient arrives at the hospital. See, e.g., IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc., v. Mason, 143 S.W.3d 794, 797 (Tex.2004) (alleging hospital negligently failed to promulgate adequate policies and procedures and failed to adequately train physicians and nurses); Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.1998) (alleging hospital negligently failed to properly instruct medical personnel in diagnosis and treatment of spider bites and failed to maintain policies regarding review of diagnosis); Birchfield v. Texarkana Mem’l Hosp., 747 S.W.2d 361, 364-65 (Tex.1987) (alleging hospital negligently failed to acquire proper facilities to monitor blood gases of premature infants). Thus, applying a rigid temporal distinction would create a large loophole, rendering the MLIIA inapplicable to a substantial number of claims against health care providers. Such a result would undermine the MLI-IA’s express purpose of reducing the frequency and severity of health care liability claims. See Tex.Rev.Civ. Stat. art. 4590i, § 1.02(b)(1).

Furthermore, the Hospital’s credentialing activities are an inseparable part of the medical services Rose received. One of a hospital’s primary functions is to provide a place in which doctors dispense health care services. The quality of a health care provider’s medical staff is intimately connected with patient care. A hospital’s credentialing of doctors is necessary to that core function and is, therefore, an inseparable part of the health care rendered to patients. See, e.g., Bell v. Sharp Cabrillo Hosp., 212 Cal.App.3d 1034, 260 Cal.Rptr. 886, 896 (1989) (finding that hospital’s duty to credential physicians “is ‘inextricably interwoven’ with delivering competent quality medical care to hospital patients”); Winona Mem’l Hosp.; Ltd. P’ship v. Kuester, 737 N.E.2d 824, 828 (Ind.Ct.App.2000) (holding that claim for negligent credentialing of physician is “directly related to the provision of health care and is, therefore, not excluded from [Indiana’s medical malpractice act]”).

When a plaintiffs credentialing complaint centers on the quality of the doctor’s treatment, as it does here, the hospital’s alleged acts or omissions in credentialing are inextricably intertwined with the patient’s medical treatment and the hospital’s provision of health care. Although neither the Hospital as an entity nor the credentialing board actually performed the surgeries on Rose, a doctor lacking credentials could not have performed surgery in that hospital. Likewise, Rose’s negligent credentialing claim derives from Dr. Fowler’s alleged negligent treatment. Indeed, without negligent treatment, a negligent credentialing claim could not exist. See Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (“If the physician is not negligent, there is no negligent credentialing claim against the hospital.”). Thus, the Hospital’s acts or omissions in credentialing Dr. Fowler are an inseparable part. of the treatment provided to Rose.

Moreover, a negligent credentialing claim involves a specialized standard of care. See Mills v. Angel, 995 S.W.2d 262, 275 (Tex.App.-Texarkana 1999, no pet.) (“Expert testimony is required to establish liability in the area of credentialing, because the procedures ordinarily used by a hospital in evaluating applications for staff privileges are not within the realm of the ordinary experience of jurors.”) (emphasis in original); see also Lisa M. Nijm, Pitfalls of Peer Review, The Limited Protections of State and Federal Peer Review Law for Physicians, 24 J. Legal Med. 541, 543 (2003) [hereinafter Pitfalls of Peer Review] (noting that peer review committees consist of physicians who “possess the specialized knowledge necessary to make accurate medical judgments”). The health care industry has developed various guidelines to govern a hospital’s credentialing process. See Pitfalls of Peer Review, 24 J. Legal Med. at 544, (noting that the Joint Commission on Accreditation of Healthcare Organizations, state and federal legislation, and the American Medical Association have all created guidelines pertaining to physician credentialing). Thus, a negligent credentialing claim involves “accepted standards of ... health care.” See Tex. Rev.Civ. Stat. art. 4590i, § 1.03(a)(4).

We hold that negligent credentialing claims involve a claimed departure from an accepted standard of health care and are therefore “health care liability claims” governed by the MLIIA.

IV

Expert Reports

Under the MLIIA, if a defendant files a motion challenging the adequacy of a claimant’s expert report, the trial court must grant the motion if “it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report.” Tex.Rev.Civ. Stat. art. 4590i, § 13.01(Z).

Because the court of appeals decided that Rose’s claims were.not health care liability claims, it did not consider whether the expert reports constituted a good faith effort to comply with the statute. 87 S.W.3d at 193. Accordingly, we remand to that court to determine whether Rose’s expert reports constituted a good faith effort to comply with the statute.

V

Conclusion

We hold that a claim for negligent ere-dentialing is a claim against a health care provider for a departure from an accepted standard of health care, and as such it is a health care liability claim that carries all the statutory and common law burdens associated therewith. Accordingly, we reverse the court of appeals’ judgment and remand the case to that court for further proceedings. See Tex.R.App. P. 60.2(d).

      . This Court has never formally recognized the existence of a common-law cause of action for negligent credentialing, but we will assume for purposes of this case that such a claim exists. See generally St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 508 (Tex.1997) (discussing but not deciding whether we recognize a common-law cause of action for negligent credentialing); Act of June 1, 1987, 70th Leg., R.S., ch. 596, § 18, 1987 Tex. Gen. Laws 2325, 2335, repealed by Act of May 13, 1999, 76th Leg., R.S., ch. 388, § 6, 1999 Tex. Gen. Laws. 1431, 2439 (now codified at Tex. Occ.Code. § 160.010) (grant-mg immunity to persons who, without malice, participate in medical peer review activities).

      . While this case was on appeal, the Legislature enacted House Bill 4 ("H.B.4”) which repealed article 4590i and governs all health care liability claims filed on or after September 1, 2003. Act of June 2, 2003, 78th Leg., ch. 204, § 10.01, 2003 Tex. Gen. Laws 847, 884 (now codified at Tex. Civ. Prac. & Rem. Code §§ 74.001-.507). Because former article 4590i continues to govern this case we will cite to the article.

      . A hospital is a health care provider. Tex. Rev.Civ. Stat. art. 4590i, § 1.03(a)(3).

      . H.B. 4 amended the definition of “health care liability claim” as follows:
      "Health care liability claim” means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant’s claim or cause of action sounds in tort or contract.
      Tex. Civ. Prac. & Rem.Code § 74.001(a)(13) (emphasis added to show addition). "Professional or administrative services” is defined as "those duties or services that a physician or health care provider is required to provide as a condition of maintaining the physician’s or health care provider's license, accreditation status, or certification to participate in state or federal health care programs.” Id. § 74.001(a)(24). The parties disagree as to whether negligent credentialing claims would be covered under the amended statute. Because Rose’s claims were filed prior to September 1, 2003, however, the amended statute does not apply.

      . Rose's petition alleges that the Hospital acted with negligence, gross negligence, and malice in five respects: (1) allowing Dr. Fowler to perform and continue to perform surgery; (2)entrusting the operating room facilities and related equipment to Dr. Fowler; (3) recommending, granting, renewing, and continuing Dr. Fowler’s staff privileges; (4) failing to deny or suspend Dr. Fowler’s staff privileges; and (5) failing to perform a reasonable investigation into Dr. Fowler’s background and qualifications.

      . Under the court of appeals’ analysis, the MLIIA would theoretically apply only to those negligent credentialing claims in which a disCrete credentialing decision happened to occur while the complaining patient was hospitalized. Moreover, if there were multiple hospitalizations or periods of treatment about which the patient complained, only those during which a credentialing decision was made would be governed by the statute. We doubt that the Legislature intended such an arbitrary result. See Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.1996) (“Courts should not read a statute to create ... an absurd result.”).


text:
    ENTERPRISE LEASING COMPANY OF HOUSTON, Petitioner, v. Horacio BARRIOS, Respondent.
    No. 03-0787.
    Supreme Court of Texas.
    Nov. 12, 2004.

      Harry Paul Weitzel, Hutson Brit Smel-ley, J. Brett Busby, Mayer, Brown, Rowe & Maw LLP, Daniel Joseph Fay, Law Office of Daniel Joseph Fay, Houston, for petitioner.
    Don D. Becker, John Brice Carroll, Carroll & Becker, Houston, for respondent.
   PER CURIAM.

On April 23, 1998 Horacio Barrios rented a Ford Explorer from Enterprise Leasing Company of Houston. Enterprise alleges that at the end of the rental term, Barrios did not return the car because it was stolen. After Barrios refused to pay for the vehicle, Enterprise sued Barrios for breach of the rental agreement, claiming that the agreement required Barrios to reimburse Enterprise for the loss of the vehicle.

The trial court granted Enterprise’s motion for partial summary judgment on liability and, after conducting a hearing on damages, entered final judgment in favor of Enterprise. Barrios appealed, claiming that necessary proof of Enterprise’s claim, his answers to Enterprise’s requests for admissions, were not attached to Enterprise’s motion for partial summary judgment. Barrios also argued that his un-controverted summary judgment evidence established that “any loss was not due to any fault of [Barrios].” A divided court of appeals, sitting en banc, reversed the trial court’s judgment, holding that the rental agreement was ambiguous, and remanded the case to the trial court. 110 S.W.3d 185, 188-91. Enterprise petitioned this Court for review.

Enterprise’s motion for partial summary judgment primarily relied on one provision of the rental agreement to support its contention that the agreement obligated Barrios to pay for the stolen car. It provided, in part:

DAMAGE TO RENTED CAR: Renter is responsible for and agrees to pay to Owner the retail value of replacing and/or repairing all losses and damages to the rented car including “loss of use” during the period it is unavailable for rental use as measured by reasonable rental value of renting a replacement car, regardless of fault or negligence of the Renter or any person, and regardless if damages are a result of an act of God.

The court of appeals held that this provision was ambiguous as to whether Barrios was required to reimburse Enterprise for a rental car if it was stolen through no fault or negligence of his own. 110 S.W.3d at 191. The court of appeals emphasized that the key provision was titled “Damage to Rented Car” instead of “Loss of Rented Car” and reasoned that “[a] natural reading of the language of the provision is that the general terms ‘loss or damage’ are limited to loss or damage ‘to’ the car,” as opposed to the wholesale theft of the car. Id. at 190-91.

“Whether a contract is ambiguous is a question of law that must be decided by examining the contract as a whole in light of the circumstances present when the contract was entered.” Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). “If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). An ambiguity exists only if the contract language is susceptible to two or more reasonable interpretations. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003).

This rental agreement unambiguously requires renters to reimburse Enterprise if the rented car is stolen and not returned, regardless of fault. The court of appeals misconstrued the clear language of the agreement that requires renters to “replae[e] and/or repair[] all losses and damages to the rented car.” Instead, the court put undue weight on the title of the governing contract provision. Although we recognize that in certain cases, courts may consider the title of a contract provision or section to interpret a contract, “the greater weight must be given to the operative contractual clauses of the agreement.” Neece v. A.A.A. Realty Co., 159 Tex. 403, 322 S.W.2d 597, 600 (1959). This contract’s requirement that renters pay Enterprise “the retail value of replacing and/or repairing all losses and damages to the rented car” unambiguously requires renters to reimburse Enterprise for all losses to the rented car, including the loss of the entire car by theft. As one of the dissenting justices succinctly stated, “ ‘All losses’ means all losses.” 110 S.W.3d at 193 (Jennings, J., dissenting).

We now review the summary judgment de novo. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Enterprise’s motion for partial summary judgment was based in part on Barrios’s answers to Enterprise’s requests for admissions. The motion states that the answers are attached, but our review of the record indicates that the answers are not attached to the motion with the other summary judgment evidence referenced in the motion. However, the county clerk’s docket sheet reveals that Barrios filed his answers to Enterprise’s first and second requests for admissions with the trial court. Texas Rule of Procedure 166a does not require the answers to be attached to the motion for summary judgment to be considered. The answers must only be “on file at the time of the summary judgment hearing, or filed thereafter and before judgment with permission of the court.” Although Enterprise bears the burden to prove its summary judgment as a matter of law, on appeal Barrios bears the burden to bring forward the record of the summary judgment evidence to provide appellate courts with a basis to review his claim of harmful error. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex.1990); Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex.1982); cf. Tex.R.App. P. 34.5(a) (only the items listed in Rule 34.5(a) are included in the appellate record absent a request from one of the parties). If the pertinent summary judgment evidence considered by the trial court is not included in the appellate record, an appellate court must presume that the omitted evidence supports the trial court’s judgment. DeSantis, 793 S.W.2d at 689; see also Crown Life Ins. Co. v. Gonzalez, 820 S.W.2d 121, 122 (Tex.1991). Therefore, we presume that Barrios’s answers support the trial court’s partial summary judgment in favor of Enterprise.

For these reasons, we reverse the court of appeals’ judgment and render judgment in favor of Enterprise.