author: FAIR, J., CARLTON, J.,

text:
    Hosan M. AZOMANI a/k/a Hosan Azomani a/k/a Hosan Menanya Azomani a/k/a Dr. Azomani a/k/a Hosan Azomani M.D. a/k/a Dr. Hosan M. Azomani, Appellant v. STATE of Mississippi, Appellee.
    No. 2015-KA-00050-COA.
    Court of Appeals of Mississippi.
    Aug. 9, 2016.

      Glenn S. Swartzfager, attorney for appellant.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
    Before IRVING, P.J., FAIR and WILSON, JJ.
   FAIR, J.,

for the Court:

¶ 1. A jury sitting before the Washington County Circuit Court found Dr. Hosan M. Azomani guilty of two counts of Medicaid fraud. Dr. Azomani appeals and claims: (1) he was not tried in the proper venue; (2) the statute of limitations had expired; (3) the jury was improperly instructed; (4) there was insufficient evidence to convict him; (5) he received ineffective assistance of counsel; and (6) the cumulative effect of the alleged errors mandates reversal of the circuit court’s judgment. Finding no error, we affirm.

FACTS

¶ 2. Dr. Azomani, a pediatrician and the medical director of the Children’s Medical Group of Greenville PLLC, was investigated by the Mississippi Medicaid Fraud Control Unit (MFCU). On October 19, 2010, he billed Mississippi Medicaid under “Current Procedural Terminology” (OPT) code 99215 for all fifty-six children he treated that day. And on January 3, 2011, he used the same code to bill Medicaid for the sixty-nine children he treated on that day. Using code 99215 for all children treated on those two days, he was reimbursed the highest possible amount for all office visits on those two days, for which he was paid a total of $14,715.66 by Medicaid. Experts who reviewed Dr. Azomani’s records for the MFCU unanimously concluded that none of the children Dr. Azomani treated during those two days should have been billed under code 99215.

¶ 3. Indicted on January 13, 2014, on 13 counts of Medicaid fraud, he was tried over six days beginning October 27, 2014. On November 1, 2014, the jury found him guilty of two counts of fraudulently misusing billing code 99215, an inappropriate code for the 125 children he treated on two days. It acquitted him on the other 11 counts. At trial, the State called numerous witnesses involved with the investigation and audit of Dr. Azomani’s files. Experts for the State and Dr. Azomani agreed that he improperly billed Medicaid under code 99215 for all of the patients he treated during the two days at issue. Dr. Azomani testified that he did not intend to bill Medicaid improperly. Instead, he relied on a previous partial review of his files, which had incorrectly suggested that he had been properly billing under code 99215. From the verdict finding Dr. Azo-mani guilty of two counts of Medicaid fraud, he appeals.

DISCUSSION

1. Venue

¶4. In June 2014, Dr. Azomani filed a “motion to dismiss due to incorrect venue.” Citing Mississippi Code Annotated section 43-13-223(1) (Rev.2015), he argued that the State could only prosecute him in the First Judicial District of Hinds County or the county where he lived. Since he was a resident of Madison County, Dr. Azomani claimed that venue was improper in Washington County and that the circuit court should dismiss the indictment.

¶ 5. At an August 6, 2014 pretrial hearing, Dr. Azomani’s lawyer said that he and his co-counsel had “been engaged in some ongoing discussions with Dr. Azomani” regarding the venue motion. Dr; Azomani’s lawyer requested permission “not to pursue that motion at the hearing.” The circuit judge asked whether Dr. Azomani would argue the venue motion at a later date. Dr. Azomani’s lawyer responded, “In all candidness ..., we don’t know we won’t. The only thing I can represent ... is that at this point this morning[,] we’re asking not to call it up.” Noting that there was a scheduling order, Dr. Azoma-ni’s lawyer went on to say that “we will have a final decision from [Dr. Azomani] before th[e] deadline expires as to whether ... we are going to call it up for a hearing or just withdraw the motion.” Although there were two subsequent pretrial hearings, the venue motion was never mentioned again.

¶ 6. While arguing his motion for a directed verdict, Dr. Azomani unsuccessfully claimed that the State had failed to present sufficient evidence that he submitted the claims from Washington County, so there was insufficient evidence of venue. But he never argued that venue was statutorily improper in Washington County because he was a resident of Madison County.

¶ 7. Dr. Azomani now seeks a ruling on his venue motion under section 43-13-223(1) for the first time in this appeal. Generally, “[t]he assertion on appeal of grounds for an objection which was not the assertion at trial is not an issue properly preserved on appeal,” and “[a] trial judge will not be found in error on a matter not presented to him for decision.” Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995). But “there are exceptions to a procedural bar for errors affecting certain constitutional rights.” Foster v. State, 148 So.3d 1012, 1016 (¶ 12) (Miss.2014). The Mississippi Supreme Court has held that “venue is a constitutional requirement” that may be raised for the first time on appeal. Nuckolls v. State, 179 So.3d 1046, 1050 (¶ 12) (Miss.2015). The supreme court has also held that “because venue is jurisdictional in criminal cases, the issue may be raised for the first time on appeal.” Rogers v. State, 95 So.3d 623, 630 (¶ 23) (Miss. 2012). However, the supreme court has restricted the principle to direct criminal appeals. Moreno v. State, 79 So.3d 508, 511 (¶ 11) (Miss.2012) (finding that this Court erred in considering a venue claim that was raised for the first time “on appeal from a trial court’s denial of post-conviction relief’).

¶ 8. Dr. Azomani’s current venue claim is not based on Article 3, Section 26, of the Mississippi Constitution, which provides' that a criminal defendant has a right to be tried “by an impartial jury of the county where the offense was committed.” In other words, Dr. Azomani does not claim venue was improper in Washington County because the offenses had not been committed there. Instead, he notes that he was a Madison County resident, and claims that venue was improper in Washington County based on section 43-13-223(1), which provides that “[a]n action brought in connection with any matter under this article may be filed' in the circuit court of the First Judicial District of Hinds County or in the circuit court of the county in which the defendant resides, and may be prosecuted to final judgment in satisfaction there.” Thus, Dr. Azomani seeks to assert a perceived statutory right for the first time on appeal, as opposed to a constitutional right.

¶ 9. The United States Court of Appeals for the Fifth Circuit has held that “[a] defendant indicted by an instrument [that] lacks sufficient allegations to establish venue waives any future challenge by failing to object before trial.” United States v. Carreon-Palacio, 267 F.3d 381, 392 (5th Cir.2001). As the Fifth Circuit noted, that position is an “appropriate balance between judicial economy and safeguarding a defendant’s right to be tried in a district with the requisite venue.” Id. In a subsequent appeal, the Fifth Circuit elaborated that allowing a defendant to raise an “obvious” venue defect for the first time on appeal

would create severe perverse incentives for criminal defendants in any case in which there are doubts over the legitimacy of venue. A defendant would be able to game the system and obtain a free second shot at an acquittal by waiting for his trial to conclude and then challenging venue in the event of a conviction. Even if ... he was well aware of the potential defect in venue, he would have every incentive to forego an improper venue claim until after the trial is over.

United States v. Delgado-Nunez, 295 F.3d 494, 497 (5th Cir.2002). As best we can tell, the Mississippi Supreme Court has not commented on the nuances, between obvious-venue defects and those that arise only after the presentation of evidence. Thus, it is unclear whether obvious venue defects may be waived when a defendant fails to raise them in a trial court. Dr, Azomani filed hip venue motion well before his trial. By all appearances, he simply chose not to go forward-with it. We, are inclined to agree with the Fifth Circuit’s logic regarding the waivability of obvious venue defects. And although the circumstances are different, the Mississippi Supreme Court has previously found that this Court went too far when applying the principle that venue is not waivable. See Moreno, 79 So.3d at 511 (¶ 11). Consequently, we find that Dr. Azomani waived this issue when he declined to go forward with his motion, and waited to raise it for the first time on appeal.

¶10. Procedural bar notwithstanding, Dr. Azomani’s claim lacks merit. As stated above, he relies on section 43-13-223(1) and argues that he could , only be prosecuted in Madison County or the First Judicial District of Hinds County. Like all questions of law, we review issues' of statutory construction de novo. Coleman v. State, 947 So.2d 878, 880 (¶ 9) (Miss.2006).

[An appellate c]ourt’s goal is to give effect to the intent Of the Legislature. To determine that intent, this Court looks first to the language of the statute, If the words of a statute, are clear and unambiguous, the Court applies the plain meaning of the statute and refrains from -using principles of statutory construction. Furthermore, words and ..phrases contained in a statute are to be given their common and ordinary meaning.

Leg. of State v. Shipman, 170 So.3d 1211, 1218 (¶ 23) (Miss.2015) (citations and quotation marks omitted). Additionally, an appellate court “may not enlarge or restrict a statute where the meaning of the statute is clear.” Gilmer v. State, 955 So.2d 829, 833 (¶ 9) (Miss.2007).

¶ 11. Dr. Azomani was prosecuted under the Medicaid Fraud Control Act (MFCA). See Miss.Code Ann. §§ 43-13-201 to -233 (Rev.2015). Along with potential criminal liability, the MFCA also' provides for the possibility of civil penalties. Miss.Code Ann. § 43-13-225(1) (Rev.2015). This is true even if the accused has not been prosecuted in a “criminal action.” Miss.Code Ann; § 43-13-225(2) (Rev.2015).

¶ 12. The question is whether thé Legislature intended for section 43-13-223(1) to apply to both civil and criminal proceedings. We cannot determine the answer based on the plain language of the statute, which broadly refers to “[a]n action brought in connection with any matter under this article.” However, the fact that it provides for jurisdiction in the county where the defendant resides suggests that it was intended to apply to civil actions. That correlates with the general concept that “[c]ivil actions ... shall be commenced in the county where the defendant resides, ... the county where a substantial alleged act or omission occurred[,] or where a substantial event that caused the injury occurred.” Miss.Code. Ann. § 11-11—3(1)(a)(i) (Rev.2004). And although section 43-13-223(1) states that an action “may be prosecuted to final judgment,” that does not necessarily mean that it was intended to apply to criminal proceedings. That exact phrase appears in other statutes that relate solely to civil proceedings.

¶ 13. Additionally, “[w]hen one construction of a statute would endanger its constitutionality, it will be construed in harmony with the .Constitution if, under the language of the statute, this may reasonably be done.” Bd. of Trs. of State Insts. of Higher Learning v. Ray, 809 So.2d 627, 636 (¶ 23) (Miss.2002). As mentioned above, a defendant has a constitutional right to be tried in-the county where the crime was committed. It would be contradictory to the Constitution to find that a defendant could be prosecuted in his resident county even if the crime had been committed in a different county. Accordingly, we find that section 43-13-223(1) applies only to civil actions under the MFCA. It follows that we find no merit to this issue.

2. Statute of Limitations

¶ 14. Next, Dr. 'Azomani argues that he was prosecuted beyond the statute of limitations. According to Dr. Azomani,-Medicaid fraud must be prosecuted within two years of the underlying acts. Dr. Azomani was indicted for offenses that occurred on October 19,2010, and January 3, 2011. He reasons that the State had until October 19, 2012, to prosecute him under Count I, and January 3, 2013, to prosecute him for Count II, so the January 13, 2014 indictment was beyond the statute of limitations. As in the previous issue, Dr. Azo-mani’s argument is a matter of statutory interpretation, so we review the issue de novo. Furthermore, “[t]he de novo standard also applies to the application of a statute of limitations, which is a question of law.” Burch v. Ill. Cent. R.R., 136 So.3d 1063, 1065 (¶ 3) (Miss.2014).

¶ 15. Mississippi Code Annotated section 99-1-5 (Rev.2015) addresses the appropriate limitations period to prosecute criminal offenses. Dr. Azomani is correct that section 99-1-5 does not specifically mention Medicaid fraud, the statute that prohibits it, or the statute that makes it a criminal offense. According to section 99-1-5, “[a] person shall not be prosecuted for any other offense not listed in this section unless the prosecution ... is commenced within two (2) years next after the commission thereof.”

¶ 16. But section 99-1-5 does state that “[t]he passage of time shall never bar prosecution against any person for the offense[ ] of ... obtaining money or property under false pretenses or by fraud.... ” In Hernandez v. State, 137 So.3d 889, 891 (¶ 9) (Miss.Ct.App.2013), this Court found no merit to a claim “that while ... rape is excluded from the two-year general statute of limitations, ... statutory rape is not.” “Although statutory rape is not expressly included in the statute, it is within the definition of rape for purposes of the exceptions to the general two-year statute of limitations.” Id. at 892 (¶ 12).

¶ 17. Similarly, Medicaid fraud is within the definition of “obtaining money or property under false pretenses or by fraud.” Miss.Code Ann. § 99-1-5. There is no statute of limitations applicable to either of those offenses. Id. Accordingly, Medicaid fraud is not subject to the general two-year statute of limitations, and we find no merit to this issue.

3. Jury Instructions

? 18. Dr. Azomani claims that two jury instructions materially varied from the charges in the indictment. Both charges accused Dr. Azomani of making “false, fictitious!!,] and fraudulent claims for Medicaid benefits.” (Emphasis added). But according to jury instructions S-ll and S-12, the jury was directed to find Dr. Azomani guilty if he presented “false, fictitious!],] or fraudulent claims for Medicaid benefits.... ” (Emphasis added).

¶ 19. Although Dr. Azomani objected to jury instructions S-ll and S-12 at trial, he only objected that the venue element was missing in each instruction. The State corrected the jury instructions, and the circuit court gave them as amended. Dr. Azomani never objected that jury instructions S-ll and S-12 included language that materially varied from the language in the indictment. Dr. Azomani is proeedurally barred from raising this issue for the first time on appeal, because he objected solely on other grounds at trial. See Walker v. State, 671 So.2d 581, 606 (Miss.1995) (“The assignment is procedurally barred since [the] only stated objection to [a jury instruction] was on other grounds than [those] now claimed on this appeal.”). Furthermore, the failure to object to a variance between an indictment and a jury instruction renders the issue proeedurally barred on appeal. Faulkner v. State, 109 So.3d 142, 146 (¶ 12) (Miss.Ct.App.2013).

¶ 20. Even if this issue was not proeedurally barred, the Mississippi Supreme Court has held:

A statute often makes punishable the doing of one thing, or another, sometimes thus specifying a considerable number of things. Then, by proper and ordinary construction, a person who in one transaction does all violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore the indictment on such a statute may allege, in a single count, that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction “and” where the statute has “or,” and ... it will be established at the trial by proof of any one of them.

Coleman v. State, 94 Miss. 860, 48 So. 181, 182 (1909). Fifty years later, the supreme court again held “that when two or more of the alternatives ... are alleged in the indictment in the conjunctive, the accused may be found guilty if the proof established all or either of the alternatives.” Lenoir v. State, 237 Miss. 620, 625, 115 So.2d 731, 733 (1959) (overruling cases holding “that when the indictment charges an accused with violating [a statute] by joining the alternatives with the conjunctive ‘and[,’] the State thereby assumes the burden of proving all of the alternatives as charged in the indictment”). Much more recently, the supreme court reiterated the “general rule that where a statute denounces as an offense two or more distinctive acts, things, or transactions enumerated therein in the disjunctive, the whole may be charged conjunctively and the defendant found guilty of either one.” Booker v. State, 64 So.3d 965, 971 (¶ 19) (Miss. 2011). Consequently, we would find no merit to this issue even if it were not procedurally barred.

4. Sufficiency of the Evidence

¶ 21. According to Dr. Azomani, there was insufficient evidence to convict him of either charge. “When reviewing the sufficiency of the evidence, [an appellate c]ourt ... asks ... whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Graham v. State, 185 So.3d 992, 998 (¶ 15) (Miss.2016). “If facts and inferences considered by the Court point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty, [an appellate c]ourt must reverse and render.” Id.

¶22. Dr. Azomani was convicted of Counts I and II. Count I alleged that Dr. Azomani

did willfully, unlawfully!,] and feloniously make, presentí,] and cause to be made and presented false, fictitious[,] and fraudulent claims for Medicaid benefits in the amount of $6,621.37, knowing the claim to be false[,] fictitious[,] and fraudulent, in that [he] represented that on or about October 19, 2010, he had provided pediatric medical care services to some fifty-six (56) Medicaid recipients!,] ... representing that he had worked approximately 37.66 hours during the 24 hour period, knowing at the time the claims were submitted that he had billed a higher level of service than that performed ....

According to Count II, Dr. Azomani

did willfully, unlawfully!,] and feloniously make, present[,] and cause to be made and presented false, fictitious!,] and fraudulent claims for Medicaid benefits in the amount of $8,094.39, knowing the claim to be false, fictitious!,] and fraudulent, in that [he] represented that on or about January 3, 2011, he had provided pediatric medical care services to some sixty-nine (69) Medicaid recipients!,] ... representing that he had worked approximately 46 hours during the 24 hour period, knowing at the time the claims were submitted that he had billed a higher level of service than that performed ....

Dr. Azomani argues that there was no evidence that he “willfully, unlawfully, and feloniously” filed fraudulent claims for Medicaid benefits.

¶23. First, Dr. Azomani claims that there was no evidence that he intended to file false or improper claims under code 99215, because he relied on the results of a 2007 partial audit of his files. Gail Townsend, a nurse administrator with the Mississippi Department of Medicaid, reported three coding errors, but none of them were related to improper services under 99215. In a response letter, Dr. Azomani stated that his uses of three improper codes were “honest mistakes.” According to Dr. Azomani, he relied on the 2007 audit and continued to code the same way.

¶ 24. But that audit was the first one that Townsend ever performed. She testified that she had not been trained in coding prior to the 2007 audit, and she “was sent to a coding class two years” later. Otis Washington Jr., the program integrity director with the Mississippi Department of Medicaid, testified that the 2007 audit was not a full audit, and “several mistakes were made.” Officer David Delgado, an investigator with the MFCU, characterized the 2007 audit as a “very limited document 'review.” And Sandra Newstein, an expert in CPT coding, described the 2007 audit as a nurse review. She further testified that Dr. Azomani had been coding 99215 claims wrong then, too.

¶25. During cross-examination, Washington admitted that Dr. Azomani had not been told that the 2007 audit was inaccurate, and he could have interpreted the 2007 audit as though he had been billing 99215 claims correctly. But on redirect, Washington testified that he would not agree that Dr. Azomani could keep billing improperly just because the 2007 audit had overlooked his previous incorrect coding. Washington also testified that Dr. Azomani was ultimately responsible for submitting properly coded bills to Medicaid. Townsend and Newstein both testified similarly. Viewed in the light most favorable to the State, the jury could have found that Dr. Azomani was ultimately responsible for billing under proper codes, regardless of the results of the 2007 partial review of his files.

¶26. Next, Dr. Azomani argues that the State failed to prove that he represented “that he had worked approximately 37.66 hours during” October 19, 2010, as charged in Count I. Relying on the unanimous testimony that the code 99215 may involve a forty-minute consultation, but it is not an absolute requirement, Dr. Azomani concludes that the State failed to prove every element charged in the indictment. He then raises a practically identical argument regarding Count II, and its charge that he represented that “he had worked approximately 46 hours” on January 3, 2011.

¶ 27. Dr. Azomani and the State stipulated “that both the State and defense experts in the areas of evaluation and management outpatient coding agree that all claims filed for [the two dates in the indictment] were not 99215 level services .... ” According to the American Medical Association’s “Evaluation and Management (E/M) Service Guidelines,” code 99215 “requires at least 2 of these 3 key components: [a] comprehensive history; [a] comprehensive examination; [or][m]edical decision making of high complexity.” In the context of code 99215, “[h]igh complexity means a number of possible diagnoses and management options; amount and complexity of medical records; [and] the risk of significant complications, morbidity, and mortality.” “Usually, the presenting problem(s) are of moderate to high severity.”

¶ 28. The State called Dr. Robert Ab-ney as an expert witness. Dr. Abney, a pediatrician, testified that he reviewed the medical records for the patients Dr. Azomani treated on October 19, 2010, and January 3, 2011. According to Dr. Abney, the children Dr. Azomani treated on those days were “only slightly ill to moderately ill,” and “[s]ome weren’t ill at all.” He added that a number of them visited Dr. Azomani for a flu shot or a checkup. Dr. Abney further testified:

Of the children that came in that had very minor illnesses, they consisted of— I’ll just go through a few—upper respiratory illness, eczema, allergic rhinitis, tinea, which is a mild skin abnormality, allergic rhinitis, viral syndrome, cough, viral syndrome again, seborrhea, allergic bronchitis.
There were a few sinusitises, some eczema, just headache, but there were several diagnoses made on a single child. None of which were complementary or none of which were complicating each other such that there was not ... a pneumonia with a—with an underlying asthmatic condition.
So the reason I’m going into that is that the—that the degree of illness that these children had was very mild. There were a couple of three or four, maybe, that had fever. There were a few—and there w[ere] several that antibiotics were prescribed as well as over-the-counter medicine for allergies, Zyrtec and so forth, which was all appropriate for the level of—for the degree of illness that was there.
But I’m just trying to summarize this as saying that the level of illness was never to the point that—where it would be alarming to the parent, I think. Certainly not alarming to the doctor.

Dr. Abney also noted that “[i]n all of the records, there were checkmarks on every organ system.” He explained that examination of every organ system was not medically necessary.

¶ 29. Dr. Abney also provided a hypothetical when code 99215 would be appropriate:

A four-year-old comes in your office [whoj’s suddenly wheezing at home. [He is] blue. [He has] retractions, and you look—you look. You’re looking around, you’re listening, and so forth. And you happen to look in the back of [his] mouth, and there is a—there is a marble down in there. And you reach back in there, arid you get that marble out. And [he is] fine. And you didn’t spend 40 minutes, but that’s probably— that could be a 99215,

Dr, Abney went on to testify that none of the records he reviewed “would ... qualify for a 99215,” whether by diagnosis or treatment. He further stated that, it would be possible to provide 99215 services to a high number of patients in a day only “if all of them ... had a marble in their throat that you got out real fast and you didn’t have any complications ... but that’s ... never going to be the case.” Dr. Azomani called Newstein as an expert witness in OPT coding. Newstein agreed that none of Dr. Azomani’s claims on the two days at issue should have been billed as 99215 codes.

¶ 30. Because it was not necessary for Dr. Azomani to make highly complex medical decisions when he treated any of the 125 'patients he saw on the two days at issue, he could have only believed that code 99215 was appropriate under the remaining two circumstances—a comprehensive history, and a comprehensive examination. Per the E/M Service Guidelines that would typically involve spending “40 minutes face-to-face with the patient and/or family.” Even- so, the E/M Service Guidelines provide that “the specific times expressed in the visit and descriptors are averages and, therefore, represent a range of times that may be higher or lower depending on actual clinical circumstances.” By introducing the E/M Service Guidelines, the State presented evidence that Dr. Azomani represented that he spent an average of forty minutes consulting with the family of each patient. Although that time could have been more or less than forty minutes, it was an accurate interpretation of the code 99215 requirements. Jurors are not required “to agree upon a single means of commission [of a crime], any more than the indictments were required to specify one alone.” Schad v. Arizona, 501 U.S. 624, 631, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991).

¶ 31. Dr. Azomani cites Henley v. State, 136 So.3d 413 (Miss.2014), in support of his position that there was no evidence of his intent to file false or fraudulent claims. In Henley, the Mississippi Supreme Court held that the State presented evidence that an accused possessed a number of tools, but there was insufficient evidence that he intended to use them to commit burglary. Id. at 418 (¶ 14). Because none of the tools had been adapted to be used for burglary, and there was no evidence that they had been or were about to be used to commit a burglary, the supreme court held that the jury could have only speculated regarding the accused’s intent. Id. Consequently, the supreme court found that the circuit court should have granted a request for a peremptory instruction. Id. Dr. Azomani argues that the same is true here, because there was no evidence of his intent, except for his own testimony.

¶32. This was undoubtedly a difficult case. But the jury could have found that there was no reasonable basis for Dr. Azo-mani to believe that he was filing proper claims under code 99215. The unanimous proof was that none of the claims at issue should have been under code 99215, because they did not involve highly complex medical decisions, and Dr. Azomani could not have possibly spent the requisite time consulting with parents of the children. “[A]ll the proof need not be direct[,] and the jury may draw any reasonable inferences from all the evidence in the case.” Williams v. State, 122 So.3d 105, 108 (¶ 17) (Miss.Ct.App.2013). “Circumstantial evidence may also be used to prove intent.” Id. The undisputed evidence was that Dr. Azomani consistently billed 99215 codes improperly, and such claims carried the highest level of reimbursement. Newstein agreed that Dr. Azomani never “shorted himself any money by” using the wrong code. “Credibility is a question of fact that must be decided by the jury.” Shinn v. State, 179 So.3d 1006, 1009 (¶ 8) (Miss. 2015). “[Decisions as to the weight and credibility of a witness’s statement are the proper province of the jury, not the judge.” Id. We are not called upon to substitute our view for the jury’s. Viewed in the light most favorable to the State, there was sufficient evidence for the jury to find Dr. Azomani guilty of both offenses.

5. Assistance of Counsel

¶ 33. Dr. Azomani claims he received ineffective assistance from his trial counsel. An appellate court “generally declines to address claims of ineffective assistance of counsel on direct appeal, unless the issues are based on facts fully apparent from the record.” Id. at 1009 (¶ 12). “This is because during direct appeals, the Court is limited to the trial court record in its review of the claim, and there may be instances in which insufficient evidence exists within the record to address the claim adequately.” Id.

¶ 34. According to Dr. Azomani, his trial counsel rendered ineffective assistance based on the failure “to submit the appropriate jury instructions that did not substantially vary from the indictment.” The record is insufficient to adequately address Dr. Azomani’s claim. His trial counsel could have had ample reasons for not objecting to the disjunctive jury instructions. For example, Dr. Azomani’s trial counsel could have concluded that the variance did not affect his defense strategy. See Graham, 185 So.3d at 1000 (¶ 23). Or Dr. Azomani’s trial counsel could have decided that an objection was unnecessary because a “false, fictional[,] or fraudulent” claim was not a material variance from a “false, fíctional[,j and fraudulent” claim. See Nix v. State, 8 So.3d 141, 145 (¶ 16) (Miss.2009) (“A jury instruction’s variance from the language of the indictment must be material to accurately categorize an instruction as error.”). “False” and “fictional” are essentially synonyms. And a false representation is a necessary component of fraud. State v. Bayer Corp., 32 So.3d 496, 501 (¶ 18) (Miss.2010). Or Dr. Azomani’s trial counsel could have been aware of the supreme court’s decision in Booker, 64 So.3d at 971 (¶ 19), or the similar decisions that preceded it. In any event, this opinion should not be construed as an adjudication that such lines of reasoning were adequate to overcome any claim that Dr. Azomani received ineffective assistance of counsel. We merely mention them to explain why the record is inadequate to review the issue on direct appeal. If he chooses to do so, Dr. Azomani may argue the issue in a motion for post-conviction relief.

6. Cumulative Error

¶ 35. Finally, Azomani claims that this Court must reverse his convictions based on the cumulative effect of the circuit court’s errors. Under the cumulative-error doctrine, “individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Harris v. State, 970 So.2d 151, 157 (¶ 24) (Miss.2007). But if there are no individual errors, there can be no cumulative error that warrants reversal. Id. Because we have found no individual errors, we find no merit to this issue.

¶ 36. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF TWO COUNTS OF MEDICAID FRAUD AND SENTENCE OF TWO CONCURRENT TERMS OF THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THREE YEARS SUSPENDED, AND THREE YEARS OF PROBATION, AND TO PAY $14,715.76 IN RESTITUTION AND $44,147,28 IN CIVIL PENALTIES, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY JAMES, J.

CARLTON, J.,

dissenting:

¶37. I respectfully dissent from the majority’s opinion. I submit that error occurred in the jury instructions, which resulted in unconstitutionally lowering the State’s burden of proof at trial. The jury instructions at issue, instructions 11 and 12, specifically relieved the State from proving the indicted charge of Medicaid fraud, which required proof that Dr. Azo-mani intentionally and fraudulently committed a coding error when billing Medicaid after treating his patients.

. ¶ 38. The indictment in counts I and II charged Dr. Azomani with submitting “false, fictitious!],] o,nd fraudulent claims for Medicaid benefits.” (Emphasis added). However, jury instructions 11 and 12 only required the State to prove Dr. Azomani presented “false, fictitious!],] or fraudulent claims for Medicaid benefits.” (Emphasis added). This language materially deviates from the elements charged in the indictment and thus relieved the State from proving the specific fraudulent intent by Dr. Azomani when submitting the' Medicaid claims. This error in the jury was substantively prejudicial, particularly in light of Dr. Azomani’s defense evidence that he possessed no fraudulent intent and that he relied on the results of a prior government Medicaid audit for his coding practices.

¶ 39, I submit that the error in the jury instructions herein prevented Dr, Azomani from receiving a fair trial and constitutes plain error. See Rodgers v. State, 166 So.3d 637, 644 (¶ 5) (Miss.Ct.App.2014). I would therefore reverse and remand for a new trial. See Harrell v. State, 134 So.3d 266, 276 (¶ 30) (Miss.2014) (“We hold that it is always and in every case reversible error for the courts of Mississippi to deny an accused the right to have a jury decide guilt as to each and every element;”).

JAMES, J, JOINS THIS OPINION.

      . It is possible that after Dr. Azomani and his attorneys conferred, they chose not to go forward with the motion because they thought that Washington County would be a more favorable venue than Madison County.

      . See Miss.Code Ann. § 27-17-499 (Rev.2013) (civil suits to collect privilege taxes); Miss. Code Ann. § 75-21-21 (Rev.2009) (civil proceedings involving "parties to any trust and combine”); Miss.Code Ann. § 81-12-53 (Rev. 2015) (civil proceedings involving a "converting [mutual] association”); Miss.Code Ann. § 81-14-1 ll(d)(iii) (Rev.2015) (civil proceedings involving "any merging savings bank”); Miss.Code Ann. § 91-7-273 (Rev.2013) (civil actions "against an executor or administrator at the time [an] estate is reported insolvent”).

      . Miss.Code Ann. § 43-13-213 (Rev.2015).

      . Miss.Code Ann. § 43-13-215 (Rev.2015).

      . Washington explained that a full audit would involve several other steps.

      . In Rodgers, 166 So.3d at 544 (¶ 15), this Court held:
      Under the plain-error standard of review, we consider: (l) whether there was an error; (2) that adversely affected a defendant’s substantive rights, causing a manifest miscarriage of justice. For the plain-error doctrine to apply, there must have been an error' that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity[,3 or public reputation of judicial proceedings.
      (Internal citations and quotation marks omitted).


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Ex parte W.L.K. (In re the Adoption Petition of T.C.M. and C.N.M.).
    2140874.
    Court of Civil Appeals of Alabama.
    Dec. 4, 2015.
    • Robert M. Echols, Jr., Birmingham; and Richard L. Wyatt, Homewood, for petitioner.

      Robert E. Lusk, Jr,, of Lusk Law Firm, LLC, Fairhope; Bryant A. Whitmire, Jr., Birmingham; Marcus A. Jones III, Birmingham; and G. Alicia Jett of Sanders & Williams, LLC, Birmingham, for respondents.
   On Application for Rehearing

THOMAS, Judge.

The opinion of September 25, 2015, is withdrawn, and the following is substituted therefor.

In Ex parte W.L.K., 175 So.3d 652 (Ala.Civ.App.2015), W.L.K. (“the father”) sought a 'writ of mandamus prohibiting the transfer of an adoption proceeding regarding M.M. (“the child”) instituted in the Jefferson Probate Court by T.C.M. and C.N.M. (“the prospective adoptive parents”) to the Jefferson Juvenile Court; requiring the probate court to dismiss the adoption proceeding, as mandated by Ala. Code 1975, § 26-10A-24(d); and requiring the probate court to vacate its interlocutory order awarding temporary custody of the child to the prospective adoptive parents. Our February 27, 2015, opinion on rehearing in Ex parte W.L.K. ordered the probate court to rescind its order transferring the adoption proceeding to the juvenile court and to enter an order complying with Ala.Code 1975, § 26-10A-24(d) and § 26-10A-24(h). Ex parte W.L.K., 175 So.3d at 659. The probate court has not complied with this court’s directives, and the father now seeks a writ of mandamus directing the probate court to enter a judgment dismissing the adoption proceeding. We grant the petition and issue the writ.

“A writ of mandamus is an extraordinary remedy, and it will be ‘issued only when there is: 1) a clear legal right in the petitioner to the order sought; 2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; 3) the lack of another adequate remedy; and 4) properly invoked jurisdiction of the court.’ Ex parte United Serv. Stations, Inc., 628 So.2d 501, 503 (Ala.1993). A writ of mandamus will issue only in situations where other relief is unavailable or is inadequate, and it cannot be used as a substitute for appeal. Ex parte Drill Parts & Serv. Co., 590 So.2d 252 (Ala.1991).”

Ex parte Empire Fire & Marine Ins. Co., 720 So.2d 893, 894 (Ala.1998). Our supreme court has explained that a petition for the writ of mandamus is the appropriate vehicle for seeking a trial court’s compliance with an appellate-court mandate or directive:

“On remand, trial courts are required to follow the mandates of this Court or of any other appellate court. Kinney v. White, 215 Ala. 247, 110 So. 394 (1926). The question of whether a trial court after remand has correctly interpreted and applied an appellate court’s decision is properly reviewable by a petition for a writ of mandamus. Ex parte Bradley, 540 So.2d 711, 712 (Ala.1989). If a trial court fails to comply with an appellate court’s mandate, mandamus will lie to compel compliance. Id.; Ex parte Alabama Power Co., 431 So.2d 151 (Ala. 1983).”

Ex parte United States Fid. & Guar. Co., 585 So.2d 922, 924 (Ala.1991).

We have explained that a trial court must comply with a directive issued by this court in an opinion granting a previous petition for the writ of mandamus. Ex parte Buckner, 73 So.3d 686, 691 (Ala.Civ.App.2010).

“In Ex parte Alabama Power Company, 431 So.2d 151, 155 (Ala.1983), the supreme court, quoting 5 Am.Jur.2d Appeal and Error § 991 (1962), stated:
“ ‘ “It is the duty of the trial court, on remand, to comply strictly with the mandate of the appellate court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered .... The appellate court’s decision is final as to all matters before it, becomes the law of the case, and must be executed according to the mandate, without granting a new trial or taking additional evidence.

Ex parte Buckner, 73 So.Sd at 691. If a directive or mandate is unclear, a trial court should consult the opinion of the appellate court. Walker v. Carolina Mills Lumber Co., 441 So.2d 980, 982 (Ala.Civ. App.1983) (citing Cherokee Nation v. Oklahoma, 461 F.2d 674 (10th Cir.1972)).

In Ex parte W.L.K., we noted that the probate court had decided the factual issues underlying the father’s adoption contest in his favor. Ex parte W.L.K., 175 So.3d at 655. Based on that determination and our construction of the Alabama Adoption Code, Ala.Code 1975, § 26-10A-1 et seq., we ordered the probate court to enter a judgment concluding the adoption proceeding in compliance with § 26-10A-24(d), which reads as follows:

“(d) After hearing evidence at a contested hearing, the court shall dismiss the adoption proceeding if the court finds:
“(1) That the adoption is not in the best interests of the adoptee.
“(2) That a petitioner is not capable of adopting the adoptee.
“(3) That a necessary consent cannot be obtained or is invalid.
“(4) That a necessary consent may be withdrawn. Otherwise the court shall deny the motion of the contesting party.”

(Emphasis added.)

The probate court’s interlocutory order placing custody of the child with the prospective adoptive parents was maintained pending the entry of the judgment in compliance with our opinion. See Ex parte W.L.K., 175 So.3d at 660. However, the probate court failed to comply with our directive to complete the ministerial task of entering a judgment dismissing the adoption proceeding as required by § 26-10A-24(d) because, based on the findings and conclusions set out in the probate court’s March 2014 order, the adoption contest had been decided in favor of the father. Id. We also instructed the probate court to comply with § 26-10A-24(h), which requires a probate court to order reimbursement of “all medical and living expenses incidental to the care and well-being of the minor child for the time the child resided with the petitioner or petitioners for adoption,” which the probate court has also failed to do.

To be certain, we did not clearly state at the conclusion of the opinion in Ex parte W.L.K. that the probate court was required to enter a judgment dismissing the adoption proceeding. However, a reading of our opinion, together with the special writings, would -have made clear that this court was unanimous in its belief that the probate court’s resolution of the adoption contest in favor of the father required the probate court to enter a judgment dismissing the adoption proceeding as mandated by § 26-10A-24(d). Although the order under review in Ex parte W.L.K. was interlocutory in the sense that the probate court had not yet entered the required order dismissing the adoption action, this court did not intend to imply that the probate court should-consider new evidence on the adoption contest, which it had already decided and which it had already declined to reconsider on motions of both parties. Furthermore, the probate court was not instructed to take further evidence or to consider the best interest of the child, which, based on the transcript of the July 15, 2015, hearing before the probate court provided to this court by the father, the probate court felt it was authorized to do. Although a probate court is to consider the best interest of the child in a contested hearing, see Ala.Code 1975, § 26-10A-24(a)(1), the resolution of the adoption contest in favór of the father terminated the adoption proceeding based on the lack of his required consent, see § 26-10A-24(d), and, thus, the probate court had no further need to consider the best interest of the child. Instead, its only option was to enter a judgment dismissing the adoption action.

The probate court’s resolution of the adoption contest in favor of the father requires it to enter a judgment dismissing the adoption proceeding. § 26-10A-24(d). That is, in light of the probate court’s order concluding that the father had not impliedly consented to the adoption of the child, the probate court had no alternative under § 26-10A-24(d) other than to enter an order dismissing the adoption action. Thus, the probate court is instructed to enter an order dismissing the adoption action; in that same judgment, the probate court must also order reimbursement to the prospective adoptive parents of the child’s living and medical expenses as required by § 26-10A-24(h).

APPLICATION OVERRULED; OPINION OF SEPTEMBER 25, 2015, WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED; WRIT ISSUED.

THOMPSON, P.J., and PITTMAN and DONALDSON, JJ„ concur'.'

MOORE, J., concurs in the result, without writing.

      . As we stated in Ex parte W.L.K., 175 So.3d at 655, the prohate court had denied the purported póstjudgmént motion filed by the prospective adoptive parents before the father’s first petition-for the writ of mandamus was filed. Although the motion was not, in actuality, a postjudgment motion because no final judgment had yet been entered, see Ex parte Troutman Sanders, LLP, 866 So,2d 547, 550 (Ala.2003), the probate court entered a written order in which it stated that it had considered'the evidence presented at trial and the arguments of counsel in denying the motion. Thus, the probate court indicated that it has already considered whether it should alter its judgment concluding that the father had not impliedly consented to the adoption of the child,

      . This conclusion is most clearly stated in Judge Moore’s opinion concurring in the result in Ex parte W.L.K., 175 So.3d at 660 (Moore, J., concurring, in the result) (stating that the probate court's "only remaining option was to dismiss the adoption proceeding’’).


author: BOLIN, Justice. BOLIN, Justice

text:
    EX PARTE T.C.M. and C.N.M. (In re: Ex parte W.L.K.)
    1150280
    Supreme Court of Alabama.
    Sept. 30, 2016

      Bryant Andrew Whitmire, Jr., Birmingham; and Robert E. Lusk, Jr., of Lusk Law Firm, LLC, Fairhope, for petitioners T.C.M. and C.N.M.
    Richard L. Wyatt, Homewood; and Robert Echols, Jr., for respondent W.L.K.
   BOLIN, Justice.

WRIT QUASHED. NO OPINION.

Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur.

Stuart and Bolin, JJ., concur specially.

BOLIN, Justice

(concurring specially).

Although I concur with this Court’s decision to quash the writ of certiorari previously issued in this case, I write specially concerning an area of adoption law that I believe was lost in the shuffle of the peculiar facts that followed the two mandamus petitions to the Alabama Court of Civil Appeals in Ex parte W.L.K., 175 So.3d 652 (Ala.Civ.App.2015)(“W.L.K., I”), and Ex parte W.L.K., 222 So.3d 357 (Ala.Civ.App.2015) (“W.L.K. II”).

Facts and Procedural History

In W.L.K. I, W.L.K. (“the father”) sought a writ of mandamus prohibiting the transfer to the Jefferson Juvenile Court of an adoption proceeding brought in the Jefferson Probate Court by T.C.M. and C.N.M. (“the prospective adoptive parents”) and requiring that the probate court dismiss the adoption proceeding pursuant § 26-10A-24(d), Ala. Code 1975, and vacate its interlocutory order awarding temporary custody of the child to the prospective adoptive parents, The Court of Civil Appeals in W.L.K. I ordered the probate court to rescind its order transferring the adoption proceeding from the probate court to the juvenile court and to enter an order complying with § 26-10A-24(d) and § 26-10A-24(h), Ala. Code 1975. The probate court failed to comply with the Court of Civil Appeals’ directives in W.L.K. I, and the father thereafter petitioned the Court of Civil Appeals for a writ of mandamus directing the probate court to enter a judgment dismissing the adoption proceeding. The Court of Civil Appeals granted the petition and instructed the probate court to enter an order dismissing the adoption proceeding. W.L.K. II. We granted the prospective adoptive parents’ petition for a writ of certiorari.

The Court of Civil Appeals set forth the following factual and procedural history in W.L.K, I:

“W.L.K. (‘the father’) and S.F. (‘the mother’) were involved in a relationship between April and July -2012; they lived together in the father’s house in Middle-burg, Florida, during that period. The mother became pregnant early in the relationship, and she and the father had begun preparing for the baby by purchasing baby items. However, the mother left the father in July 2012, and, after she broke into the father’s house and stole several items, the father swore out a warrant against her. The mother was arrested, and, after that, the father lost contact with her. In December 2012, the father, who is in the United States Navy, contacted an attorney in the Judge Advocate General [office] about his situation; that attorney referred the father to a nonmilitary attorney, who assisted the father by instituting a paternity and custody action in a Florida court in January 2013. The father registered with the putative father registry in Florida. The father attempted to locate the mother at nearby hospitals on January 18, 2013, the expected date of delivery. However, the father was unable to locate the mother.
“On January 9, 2013, the mother gave birth to M.M. (‘the child’) in Montgomery, Alabama. The mother had consented to an adoption of the child by T.C.M. and C.N.M. (‘the prospective adoptive parents’), who were present at the birth and who took the child home from the hospital. On January 29, 2013, the prospective adoptive parents filed a petition to adopt the child in the Jefferson Probate Court.
“The father first learned of the birth of the child in Alabama on March 1, 2013. After he was served with an amended petition to adopt the child oh March 25, 2013, and upon the advice of his Florida counsel, the father sought legal counsel in Alabama. He filed a contest to the adoption petition and a motion to dismiss the adoption petition on April 11, 2013.
“As required by Ala. Code 1975, § 26-10A-24(a), the probate court held a contested hearing on the father’s contest to the adoption petition on September 26, 2013. At issue was whether the father had impliedly consented to the child’s adoption pursuant to the theory of ‘pre-birth abandonment,’ under which consent to an adoption may be implied based on abandonment if a father fails, ‘with reasonable knowledge of the pregnancy, to offer financial and/or emotional support for a period of six months prior to the birth.’ Ala. Code 1975, § 26-10A-9(a)(1). After hearing the testimony of the father and T.C.M., the probate court entered an order on March 19, 2014, concluding that the father had not impliedly consented to the adoption and specifically rejecting the contention that the father’s conduct had amounted to an abandonment of the mother during her pregnancy. The order set a hearing for June 12, 2014, ‘to determine the best interest of [the] child.’
“On April 1, 2014, the prospective adoptive parents filed a motion, purportedly pursuant to Rule 59, Ala. R. Civ. P., seeking to have the probate court amend its judgment. The father filed a motion seeking to have the probate court dismiss the adoption proceeding as required by § 26-10A-24(d). The probate court purported to deny both motions on July 22, 2014. Also on July 22, 2014, the probate court entered an order stating that, on its own motion, it was transferring the adoption proceeding to the Jefferson Juvenile Court pursuant to § 26-10A-24(e).”

W.L.K. I, 175 So.3d at 654-55.

The father had petitioned the Court of Civil Appeals for a writ of mandamus, seeking an order prohibiting the transfer of the adoption proceeding from the probate court to the juvenile court; an order requiring the probate court to dismiss the adoption proceeding as he said was mandated by § 26-10A-24(d); and an order requiring the probate court to vacate its interlocutory order awarding temporary custody of the child to the prospective adoptive parents.

Relying upon § 26-10A-24(d), the father argued that the probate court was required to dismiss the adoption proceeding following the contested hearing of September 26, 2013, in which the probate concluded that the father had not impliedly consented to the adoption of the. child on the theory of prebirth abandonment. Section 26-10A-24(d) provides:

“(d) After hearing evidence at a contested hearing, the court shall dismiss the adoption proceeding if the court finds:
“(1) That the adoption is not in the best interests of the adoptee.
“(2) That a petitioner is not capable of adopting the adoptee.
“(3) That a necessary consent cannot be obtained or is invalid.
“(4) That a necessary consent may be withdrawn. Otherwise the court shall deny the motion of the contesting party.”

(Emphasis added.) In transferring the adoption proceeding from the probate court to the juvenile court, the probate court expressly relied upon § 26-10A-24(e), which provides that, “[o]n motion of either party or of the court, a contested adoption hearing may be transferred to the court having jurisdiction over juvenile matters.” However, the Court of Civil Appeals correctly noted that transfer of the adoption proceeding under § 26-10A-24(e) was not proper in this case because the probate court had already held the contested hearing when it entered its July 22, 2014, order transferring the adoption proceeding to the juvenile court.

However, the prospective adoptive parents contended that § 26-10A-3, Ala. Code 1975, provided a basis for the probate court’s July 22, 2014, order transferring the adoption proceeding to the juvenile court. Section 26-10A-3 provides that “[i]f any party whose consent is required fails to consent or is unable to consent, the proceeding will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights.” Therefore, the prospective adoptive parents argued to the Court of Civil Appeals that, pursuant to § 26-10A-3, the probate court properly transferred the adoption proceeding to the juvenile court for that court to consider the termination of the father’s parental rights. The Court of Civil Appeals rejected this argument, concluding that the transfer of the adoption proceeding to the juvenile court was not proper under either § 26-10A-24(e) or § 26-10A-3. The Court of Civil Appeals reasoned as follows:

“At first blush, it appears that § 26-10A-24(d) and § 26-10A-3 conflict. One statute, § 26-10A-24(d), directs the probate court to dismiss the adoption proceeding if, after a contested hearing, it concludes that, among other things, ‘consent cannot be obtained or is invalid.’ The other statute, § 26-10A-3, indicates that, when a parent ‘fails to consent or is unable to consent,’ the proceeding should be transferred to the juvenile court for the limited purpose of considering termination of parental rights.
“We are aware that this court and our supreme court have indicated that the transfer language contained in § 26-10A-3 mandates transfer to the juvenile court of adoption proceedings lacking implied or express consent from a parent. Ex parte A.M.P., 997 So.2d [1008] at 1018 [ (Ala.2008) ] (‘It is only when there is no express or implied consent or relinquishment from a parent of the adoptee that the mandatory transfer portion of § 26-10A-3 applies.... When applicable, this transfer provision is mandatory....’); R.L. v. J.E.R., 69 So.3d 898, 901 (Ala.Civ.App.2011) (‘The mother refused to consent to the adoption; therefore, pursuant to § 26-10A-3, the probate court was required to transfer the matter to the court having jurisdiction to determine whether the mother’s parental rights were due to be terminated.’). In Ex parte A.M.P., our supreme court further opined that, ‘[w]hen § 26-10A-3 is read in para materia with § 26-10A-9, it is clear that if the probate court finds that the evidence does not prove implied consent ..., then the probate court must transfer the case to juvenile court for a determination of whether to terminate parental rights.’ Ex parte A.M.P., 997 So. 2d at 1019. However, our supreme court did not consider the language of § 26-10A-24(d) in its analysis in Ex parte A.M.P., and neither Ex parte A.M.P. nor R.L. involved the resolution of an adoption contest in favor of the objecting parent under § 26-10A-24(d). Thus, we are presented with a question that cannot be answered by reliance on those- cases.
“Our consideration of the entire Alabama Adoption Code, Ala. Code 1975, § 26-10A-1 et seq., given the principles of statutory construction, convinces us that § 26-10A-3 and § 26-10A-24(d) each have specific fields of operation. In a situation in which a probate court has resolved a contest in favor of the parent objecting to the adoption, the plain language of § 26-10A-24(d) must control. That statute addresses a specific form of hearing, held in an adoption proceeding, at which a contest to an adoption—including a contest based on an argument that an express or an allegedly implied consent is invalid—is determined. See § 26-10A-24(a)(3) (stating that one issue a probate court may determine at a contested hearing is ‘[wjhether an actual or implied consent or relinquishment to the adoption is valid’). Moreover,, although, according to the prospective adoptive parents, § 26-1OA-3 appears-to require the transfer of an -adoption proceeding in every situation where a parent has failed to give his or her consent, enforcing the transfer provision contained in § 26-10A-3 after a parent has successfully contested the adoption would leave no field of operation for the requirement in § 26-10A-24(d) that the adoption proceeding be dismissed after a successful contest. Enforcing § 26-10A-24(d) and requiring dismissal of an adoption proceeding after a successful contest, however, leaves room for the operation of § 26-10A-3 in those adoption proceedings in which a parent does not mount a contest to the adoption but fails to consent or is unable to do so. Such a construction of the two provisions is supported by the language used in the statutes, and. it also meets our duty ‘ “to harmonize and’ reconcile all parts of a statute so that effect may be given to each and every part,” ’ Hays [v. Hays], 946 So.2d [867] at 877 [ (Ala.Civ.App. 2006) ] (quoting Leath v. Wilson, 238 Ala. 577, 579, 192 So. 417, 419 (1939)).
, “Because we have concluded that the juvenile court’s July 22, 2014, order transferring the adoption proceeding to the juvenile court is .not proper under either § 26-10A-24(e) or § 26-10A-3, we grant the petition for the writ of mandamus and order the probate court to rescind its July 22, 2014, order transferring the adoption proceeding to the juvenile court and to comply with § 26-10A-24(d) and § 26-10A-24(h).[]”

W.L.K. I, 175 So.3d at 657-59. The Court of Civil Appeals expressly noted: “In deciding whether the probate court, properly transferred the adoption proceeding, we have not considered, whether the probate court correctly decided the father’s contest, because that issue [was] not before us in [the] petition.” W.L.K. I, 175 So.3d at 659 n. 3.

The father also asked the Court of Civil Appeals to order the probate court to vacate its interlocutory order awarding temporary custody of the child to the prospective adoptive parents. The father argued that, because he did not consent to the adoption of the child, the probate court never acquired jurisdiction to enter the interlocutory custody order. The Court of Civil Appeals rejected that argument, stating:

“[W]hen the issue of consent is challenged, such as when a parent attempts to withdraw consent or when a parent contests an implied consent, the probate court does not automatically lose jurisdiction over the proceeding. Instead, it is called upon to determine that issue, because the preadoptive relationship has created a res to which jurisdiction has attached. Id. Furthermore, the Adoption Code provides that the probate court ‘may enter further orders concerning the custody of the adoptee pending appeal,’ Ala. Code 1975, § 26-10A-26(b), indicating that the probate court’s jurisdiction over an adoptee’s custody is not terminated by the entry of a final order in that court.
“At present, the probate court has not concluded its proceedings in this matter. Once it complies with this court’s directive and enters a final judgment in this case, the prospective adoptive parents will likely appeal, as they have attempted an appeal from the interlocutory order under review. The probate court may, pursuant to § 26-10A-26(b), [Ala. Code 1975,] enter an order respecting the custody of the child at that time. Accordingly, we deny the father’s petition insofar as he requests that the probate court be ordered to set aside the interlocutory custody order.”

W.L.K. I, 175 So.3d at 659-60.

Thereafter, the probate court set a hearing in the adoption proceeding for July 9, 2015. On July 8, 2015, the prospective adoptive parents moved the probate court to reopen the issue of the father’s implied consent to the adoption. At the hearing on July 9, 2015, the probate court stated that it was authorized, pursuant to W.L.K. I, to hear evidence regarding the best interests of the child relative to a determination of custody! The father objected, stating that once the probate court determined that the father did not give his implied consent to the adoption of the child, the probate court lost its jurisdiction to act other than to assess costs pursuant to § 26-10A-24(h) and to enter an order dismissing the adoption proceeding pursuant to '§ 26-10A-24(d). The probate court overruled the father’s objection and proceeded to take evidence relative to the best interests of the child. The probate court did not complete the taking of evidence and-determined that the hearing would continue at a later date.

However, on July 23, 2015, the father again petitioned the Court of Civil Appeals for a writ of mandamus directing the probate court to enter an order dismissing the adoption proceeding. In granting the petition and ordering the probate court to dismiss the adoption proceeding, the Court of Civil Appeals noted that the- probate court had failed to comply with its directive “to complete the ministerial task of entering a judgment dismissing ‘the adoption proceeding as required by § 26-10A-24(d) because, based on the findings and conclusions set out in the probate court’s March 2014 order, the adoption contest had been decided in favor of the father.” W.L.K. II, 222 So.3d at 359.

The prospective adoptive parents petitioned this Court for a writ of certiorari, which we granted. After reviewing the record, this Court now quashes the writ. -I note that the Court of Civil Appeals’ decision in W.L.K. I addresséd the issue of the validity of the transfer of the adoption proceeding from the probate court to the juvenile court. Once the Court of Civil Appeals determined in W.L.K. I that the transfer was improper, its express order to the probate court to rescind its July 22, 2014, order transferring the adoption proceeding to the juvenile court and to comply with § 26-10A-24(h) and § 26-10A-24(d) became the law of the case, and the probate court was required to follow that mandate. Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983). In my opinion, the prospective adoptive parents’ argument that the probate court’s order was interlocutory because there has been no appellate review of the probate court’s order on the issue of implied consent was not well taken because the only issue presented to the Court of Civil Appeals to this point is the validity of the transfer from probate court to juvenile court. The specific issue of the validity of implied consent has yet to be put before the Court of Civil Appeals. See W.L.K. I, expressly noting that the issue of implied consent was not before that court.

Discussion

I submit that all the probate court actually did following the hearing on the father’s contest to the adoption in this case was to determine that the father had not impliedly given his consent to the child’s adoption based on the theory of “prebirth abandonment.” It was only when that order was entered that, pursuant to the provisions of § 26-10A-24(d)(3), it was judicially determined that neither an express, 1.e., written, consent nor an implied consent had been given by the father. However, the noun “consent” is not the only key word in § 26-10A-24(d)(3); the second key word—just as important as “consent”—contained in this section is the qualifying adjective “necessary.” Had the contest been denied by the probate court, it would have satisfied the requirement of a “necessary” consent, because consent would have been found to have been impliedly given by the father. But a finding that an implied consent was not given still begs the question as to whether such consent was necessary to begin with—a determination not known by either the probate court or the parties in this proceeding until the contest was upheld.

Section 26-10A-10, Ala. Code 1975, provides that, “[njotwithstanding the provisions of § 26-10A-7 [Persons from Whom Consents or Relinquishments are Required], the consent or relinquishment of the following persons shall not be required for an adoption: (1) A parent whose rights with reference to the adoptee have been terminated by operation of law in accordance with the Alabama Child Protection Act, [Ala. Code 1975,] Sections 26-18-1 through 26-18-101.” (Bracketed language and emphasis added.) A permissible, if indeed not mandatory upon request, next step after the probate court found that no implied consent had been given is found in § 26-10A-3, which deals with jurisdiction over proceedings brought under the Alabama Adoption Code. This section states that “[i]f any party whose consent is required fails to consent or is unable to consent, the proceedings will be transferred to the court having jurisdiction over juvenile matters for the limited purpose of termination of parental rights.” (Emphasis added.) See Ex parte A.M.P., 997 So.2d 1008, 1018 (Ala.2008)(“It is only when there is no express or implied consent or relinquishment from a parent of the adop-tee that the mandatory transfer portion of § 26-10A-3 applies.... When applicable, this transfer provision is mandatory .... ”). There is no requirement that a transfer under § 26-10A-3 be initiated before a contest is filed; indeed, the petitioners for adoption would have no way of knowing whether a contest would be both filed and successful, and therefore it could never be known at the outset whether a consent will be “necessary.” Both § 26-10A-24(d) and § 26-10A-3 each have independent separate fields of operation. There is no inconsistency between those two sections that would require reading them in para materia to give them both effect.

After a successful adoption contest on the ground of implied consent is concluded, there is still work for the probate court to do before a dismissal should be ordered pursuant to § 26-10A-24(d). There are at least two steps left in such scenario: First, unless waived by the parties, a transfer to the juvenile court for the limited purpose of the potential termination of the non-consenting parent’s parental rights to the adoptee (if the parental rights are terminated by the juvenile court, a dismissal by the probate court is not in order due solely to § 26-10A-24(d)(3), because the consent is no longer necessary and, if the parental rights are not terminated, then the adoption petition cannot be granted, and dismissal is proper); and second, in the event that parental rights are not terminated for the non-consenting parent and the adoption is due to be denied, the probate court, pursuant to § 26-10A-24(h), “unless just cause is shown otherwise by the contestant, shall issue an order for the reimbursement to the petitioner or petitioners for adoption for all medical and living expenses incidental to the care and well-being of the minor child for the time the child resided with the petitioner or petitioners for adoption.” (Emphasis added.)

In conclusion, we may only wish for the judgment of Solomon. The child involved in these proceedings, having been born on January 9, 2013, is nearly four years of age now and has been in the home of the prospective adoptive parents since they took the child home from the hospital. The great majority of adoptions do not result in protracted litigation, and the result is the creation of a new family unit. However, the rights both of birth parents as well as of adoptive parents must be safeguarded when a dispute arises, which generally delays reaching the correct legal result. While the delay continues, an adoptee, and particularly an infant or a child of tender years, continues to grow day by day. There are always at least two losers in matters such as this one—'first, either the birth parent who loses the comfort and companionship of his or her biological child during the period of litigation or, alternatively, the adoptive parents, who have received the child into their home and loved and nurtured the child as their own; but second, and infinitely the most important, the child/adoptee, who generally has no knowledge of or say so in the legal proceedings.

To be sure, both legislators and jurists, individually or collectively, do not possess Solomonic wisdom, but surely grown-ups can fashion a better way to protect the best interests of a child, which should always be uppermost in both our thoughts and in our laws.

Stuart, J., concurs.

      . Section 26-10A-24(h) provides:
      "Where there is a contested case hearing, if the adoption is denied, then the probate court or court of competent jurisdiction, unless just cause is shown otherwise by the contestant, shall issue an order for reimbursement to the. petitioner or petitioners for adoption for all medical and living expenses incidental to the care and well being of the minor child for the time the child resided with the petitioner or petitioners fo_r adoption."

      . Section 26-10A-24(d)(3) states that, "[ajfter hearing evidence at a contested hearing, the [probate] court shall dismiss the adoption proceeding if the court finds ... [t]hat a necessary consent cannot be obtained or is invalid.”


author: PITTMAN, Judge. MOORE, Judge,

text:
    STATE DEPARTMENT OF REVENUE v. OMNI STUDIO, LLC.
    2140889.
    Court of Civil Appeals of Alabama.
    April 29, 2016.
    Rehearing Denied July 29, 2016.

      Jason C. Paulk and Mary M. Mitchell, Alabama Department of Revenue, Legal Division, Montgomery, for appellant.
    Thomas J. Mahoney and Julie Schiff of Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C., Birmingham, for appellee.
   PITTMAN, Judge.

The State Department of Revenue (“the Department”) appeals from a summary judgment entered by the Jefferson Circuit Court (“the trial court”) in favor of Omni Studio, LLC (“Omni”), in a dispute between the Department and Omni over Omni’s alleged duty to collect and remit sales tax in connection with Omni’s business.

Introduction

Omni operates a photography business that provides photography services to clients that are, primarily, other businesses, such as advertising and marketing firms. According to one of Omni’s members, Omni provides “commercial photography for advertising, agencies and marketing companies to help provide imagery for [advertising] campaigns,” although there is evidence indicating that Omni provides at least some photography services to noncommercial clients, such as wedding parties.

Generally speaking, Alabama law requires persons selling tangible personal property at retail to collect and remit sales tax based on a percentage of the gross proceeds resulting from the sales. Ala. Code 1975, § 40-23-2(1). In June 2013, in an effort to determine whether Omni had complied with Alabama’s sales-tax laws, the Department began auditing the business that Omni had conducted during the period from May 1, 2007, through May 31, 2013 (“the audit period”). It is undisputed that Omni had not remitted any sales tax during the audit period.

Pursuant to its audit, the Department concluded that Omni owed sales tax for various business transactions that it had conducted during the audit period. Specifically, the Department determined that Omni owed sales tax for “transactions such as: headshots, flat-rate photography sessions, digital studio photography, portraits, weddings and reception events.” According to the Department, Omni owed sales tax for amounts it had charged for those transactions without deduction for charges that may have been for creative services, such as the designing and arranging of the subject matter of the photographs. The Department’s position is that, because such services ultimately culminate in the production of photographs that are transferred to Omni’s clients, charges for those services are taxable. That position is based in part on a Department regulation, which provides:

“(1) The gross proceeds accruing from retail sales of photographs, blueprints and other similar árticles are subject to sales or use tax, without any deduction for any part of the cost of production....
“(2) Any fee for sitting, consultation or any other activity that is done in preparation of the final product, even when separately stated, is a part of the labor or service cost and cannot be deducted from the gross proceeds accruing from retail sales. Therefore, gross proceeds, as referenced in paragraph (1) include, but are not limited to consultation fees, sitting fees, and all other fees when such fees are charged in conjunction with the sale of photographs, blueprints, and other items sold by the retailer as provided in paragraph (1). Any reasonable and customary retainer fee separately stated on the photographer’s contract that is both nonrefundable and may not be credited toward any purchase of photographs is not taxable. The separate fee is unrelated to the production of the finished photographs.”

Ala. Admin. Code (Dep’t of Revenue), Rule 810-6-1-.119.

The Department eventually issued a final assessment against Omni for just over $27,000, which amount included sales tax allegedly due, interest, and penalties. Pursuant to § 40-2A-7(b)(5)b., Ala.Code 1975, Omni appealed from the Department’s final assessment to the trial court. Omni and the Department each filed motions for a summary judgment. The trial court denied the Department’s motion, granted Omni’s motion, and set aside the Department’s final assessment. The Department appealed.

Standard of Review

Both the Department and Omni agree that the standard of review this court should apply in this case is the standard applicable to the review of a summary judgment.

“ ‘ “In reviewing the disposition of a motion for summary judgment, ‘fen appellate court] utilizefe] the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the non-movant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)). Our review is further subject to the caveat that fen appellate court] must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”
“ ‘Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997). It has also been observed that “where the facts are not in dispute and we are presented with pure questions of law, [the] standard of review is de novo.” State v. American Tobacco Co., 772 So.2d 417, 419 (Ala.2000) (citing Ex parte Graham, 702 So.2d 1215 (Ala. 1997), and Beavers v. County of Walker, 645 So.2d 1365 (Ala.1994)).’ ”

State Dep’t of Revenue v. Union Tank Car Co., 974 So.2d 1024, 1026-27 (Ala.Civ.App. 2007) (quoting Carlisle v. Golden Rod Feed Mill, 883 So.2d 710, 711-12 (Ala.Civ.App. 2003)).

Discussion

“Section 40-23-2(l)[, Ala.Code 1975,] levies a sales tax on persons ‘engaged or continuing within this state, in the business of selling at retail any tangible personal property whatsoever, including merchandise and commodities of every kind and character.’ ” State Dep’t of Revenue v. Kennington, 679 So.2d 1059, 1060 (Ala.Civ.App.1995). In a case applying § 40-23-2(1), Ala.Code 1975, this court acknowledged that our supreme court “has defined tangible personal property as ‘something that can be seen, felt, handled, sold commercially and has physical substance.’” Association of Alabama Prof'l Numismatists, Inc. v. Eagerton, 455 So.2d 867, 869 (Ala.Civ.App.1984) (quoting State v. Advertiser Co., 257 Ala. 423, 429, 59 So.2d 576, 580 (1952)). See also § 40-1-1(9), Ala.Code 1975 (defining “personal property,” for purposes of Title 40 of the Alabama Code, as “[a]ll things other than real property”).

The Department asserts that Omni sells tangible personal property to its clients in the form of photographs. There is no dispute that photographs are, for purposes of this appeal, tangible personal property. In support of its motion for a summary judgment, however, Omni argued to the trial court that its transfer of photographs to its clients is merely incidental to the provision of nontaxable services and, therefore, does not constitute a taxable sale of personal property.

The amount of sales tax that a seller of tangible personal property owes is calculated as a percentage of “gross proceeds of sales.” § 40-23-2(1). “Gross proceeds of sales” is defined, in part, as “[t]he value proceeding or accruing from the sale of tangible personal property ... without any deduction on account of ... labor or service cost ... or any other expenses whatsoever....” Ala. Code 1975, § 40-23-1(a)(6). As noted, the Department has adopted a regulation providing that the proceeds from the transfer of photographs are taxable without deduction for amounts attributable to “sitting, consultation or any other activity that is done in preparation of the final product.” Rule 810-6-1-.119.

As Omni correctly asserts, however, notwithstanding that the gross proceeds of a sale include charges for “labor [and] service cost,” it has been established that some transfers of tangible personal property are considered merely incidental to the nontaxable sale of services and, therefore, are not themselves taxable. It has been said that,

“if the transaction is essentially one for service, the fact that some materials are used as an incident to such service, and consumed in the using, does not render it a sale of tangible property within the act. But, where the aim and end of the transaction is the passing of a tangible article from one to the other for the latter’s use or consumption, the fact that service or materials, or both, have been put into the article, or that it is useful only to the party who receives it, does not remove such business from the scope of the [sales tax] act.”

Long v. Roberts & Son, 234 Ala. 570, 577, 176 So. 213, 219 (1937) (Bouldin, J., concurring specially). See also Crutcher Dental Supply Co. v. Rabren, 286 Ala. 686, 691, 246 So.2d 415, 419 (1971) (suggesting that “the preparation and production of a deed or a will or a lengthy brief by a lawyer for a client” is not the “manufacture of the instrument for sale” and would not be subject to sales tax); and Haden v. McCarty, 275 Ala. 76, 78, 152 So.2d 141, 142 (1963) (“[T]he transfer of dentures and other prosthetic devices from a dentist to his patient is not a sale within the meaning of the [Sales Tax] Act. It is ... a mere incident to the professional treatment rendered by dentists”).

In Haden, our supreme court acknowledged that the proposition that a transfer of personal property incidental to the provision of nontaxable services is not itself taxable has been applied as part of the “learned profession” doctrine. 275 Ala. at 78, 152 So.2d at 142-43 (“ ‘Dentists are not traders in commodities engaged in a merchandising business. A dentist is a practitioner of one of the true “learned professions,” like unto a physician or surgeon.’ ” “ ‘The fashioning and furnishing of dentures, crowns, inlays, bridges, and similar medical [prosthetic] devices, by a dentist, incidental to his professional care and treatment of his patient, is not a retail sale of tangible personal property under the Alabama Sales Tax Act.’” (quoting the trial court’s judgment in Haden)). The idea that incidental transfers of personal property are not taxable, however, has been extended to taxpayers that some might not consider to be “learned professionals.”

As Omni pointed out in support of its summary-judgment motion, this court, in State v. Harrison, 386 So.2d 460 (Ala.Civ. App.1980), considered the issue whether Douglas Harrison, who was “engaged in the business of rendering public relations services through an advertising agency,” id. at 460, was required to remit sales tax for the sale of “catalogues and brochures” that he created for his clients. Id. at 461. As part of .Harrison’s business, Harrison “advise[d] and consulted] a client or customer as to [the client’s] public relations and advertising needs” and, through application .of Harrison’s creative talent and skill, designed catalogues and brochures “to be used by clients in displaying products or merchandise.” 386 So.2d at 460. The court also pointed out that the cata-logues and brochures “ha[d] no value except for those for whom the materials were designed.” Id. at 461. Analogizing the catalogues and brochures to the dentures involved in Haden, supra, this court determined that Harrison’s transfer of tangible personal property to his clients was merely incidental to the rendering of professional services and was, therefore, not taxable. 386 So.2d at 461.

The proposition that some transfers of personal property are only incidental to the provision of services and, therefore, are not taxable has been extended even further. Specifically, Omni referred the trial court to State v. Kennington, 679 So.2d 1059 (Ala.Civ.App.1995). In that case, this'court determined that'the transfer by Dale Kennington, a portrait artist, of painted portraits to her clients did not constitute taxable sales of personal property because those transfers were, like the transfers of catalogues and brochures involved in Harrison, merely incidental to the sale of the artist’s creative services. 679 So.2d at 1061. Omni argues that there is no meaningful distinction between the services and personal property Harrison and Kennington provided to their clients and the services, and property that Omni provides to its clients.

Anthony Rodio, who is one of the members of Omni and serves as Omni’s production- manager, submitted an affidavit in support of Omni’s motion for a summary judgment. Rodio described Omni as a “commercial advertising production studio” that operates in the “commercial” or “media” photography industry. Rodio asserted in his affidavit that “[commercial photography is primarily a production service provided to business entities, most often to advertising agencies and magazine publishers,” and he testified during his deposition that the majority of Omni’s clients are advertising and marketing agencies. Ro-dio further averred in his affidavit that,

,“[a]s a commercial advertising production studio, Omni’s professionals .-use their talent, expertise, and experience, in consultation with- their clients, to gather the necessary resources to produce images (both still and video images) that fit a particular commercial need.
' “,.. Omni consults with its clients on imaging, sets up’the production parameters, and works with its clients through processing and editing so that, in the end, the images or videos produced fit within the business uses, advertising campaigns, websites, magazines, or newspaper layouts of their clients in a professional and seamless manner.
“... Omni performs a wide range of services from helping its clients design advertising campaigns or magazine layouts to hiring and managing assistants, models, stylists, and other necessary team members to choosing locations, setting.up lighting, reviewing and processing images and videos to helping edit copy and much more.”

Rodio also averred that Omni charges its clients based on the time and resources spent by Omni in providing services rather than based on the number, size, or type of photographs actually produced. According to Rodio, Omni’s charges are payable regardless of whether photographs are,delivered to its clients and regardless of whether photographs are ultimately produced at all.

In granting Omni’s summary-judgment motion, the trial court stated that Omni’s clients purchase Omni’s “skill and experience” and that Omni’s transfer of personal property to its clients.is merely incidental to Omni’s professional services. Accordingly, the trial court determined that Omni’s business was analogous to -the businesses at issue in Harrison and Kenning-ton and that, like Harrison and Kenning-ton in those cases, Omni is not engaged in the taxable sale of personal property.

In contrast to Omni’s position and the trial court’s conclusion, the Department asserts that, “[l]ike the majority of states, Alabama has long rejected the argument that a photographer renders a professional service, and instead, Alabama law finds the sale of photographs to be a retail sale subject to the levy of sales tax.” In support, the Department does-not point to any decisions of this court or our supreme court. Rather, the Department relies.on three .decisions issued by its own administrative-law division on appeals from sales-tax assessments. See generally § 40-2A-7(b)(5)a., Ala.Code 1975 (allowing for an administrative appeal from a sales-tax assessment).

In Thigpen Photography, Inc. v. State, Op. of Dep’t of Revenue, Admin. Law Div., Docket No. S. 95-127 (Aug. 30, 1995) (Opinion and Preliminary Order), an administrative-law judge (“ALJ”) considered the sales-tax liability of a professional photographer. Although the ALJ in Thigpen appears to have rejected the broad proposition that a photographer’s transfer of photographs is merely incidental to the provision of creative services and should not be taxed at all, the ALJ did opine that a photographer’s provision of “photographic services,” which were described as “consulting with the customer, and deciding when, where and how to shoot” photographs, was not taxable. Thus, although the ALJ concluded that charges for the “labor and services necessary to actually prepare and develop the photograph[s]” should be taxed, the ALJ appears to have concluded that at least some of a photographer’s creative services should not be taxed.

We also note that the ALJ’s rejection in Thigpen of the proposition that a photographer’s delivery of photographs is merely incidental to the nontaxable provision of creative services was based in part on a previous administrative opinion that has since been abrogated. Specifically, the ALJ in Thigpen stated:

“In State v. Kennington, Admin. Docket S. 93-308, decided August 8, 1994, a portrait artist argued that sales tax was not due on the sale of her portraits because she was providing an intangible professional service, and the portrait itself was only incidental to the service. The taxpayer’s argument was rejected as follows:
‘“The courts have ruled that the sale of tangible personal property by those engaged in a “learned profession” is incidental to the professional services provided and thus not subject to sales tax. “Learned profession” [is] defined by the courts [as] (some) doctors and lawyers. See, Lee Optical Company of Alabama v. State, Board of Optometry, [288 Ala. 338,] 261 So.2d 17 [ (1972) ].
“T agree with Justice Jones’ dissent in Alabama Board of Optometry v. Eagerton, 393 So.2d 1373, at 1378 [ (Ala.1981) ], in which he questions the relevancy of the “learned profession” dichotomy for purposes of determining the applicability of sales tax. However, recognizing that the courts have created an exception for learned professions, with all due respect painting has not and should not be recognized as a learned profession. The Taxpayer undoubtedly uses great skill in her work, but if the use of skill or talent in creating a product qualifies a vocation as a learned profession, then all artisans such as master furniture makers, clothing designers/makers, etc. that also use skill and originality in designing or making their product would also qualify.’ ”

Regardless of the merits of the above-stated rationale relied upon by the ALJ in Thigpen, that rationale was not embraced by this court when it later issued its decision in Kennington, which held that the portrait artist’s transfer of portraits was merely incidental to the sale of the artist’s services.

In Smith v. State, Op. of Dep’t of Revenue, Admin. Law Div., Docket No. S. 05-1240 (Nov. 17, 2006) (Opinion and Preliminary Order), also relied upon by the Department, the primary issue was whether photographs that had been transferred to customers by digital means, as opposed to physical copies, constituted tangible personal property. As a subissue, however, the ALJ in that matter did opine that a professional photographer’s transfer of photographs to commercial customers (whether digitally or otherwise) was not merely incidental to the photographer’s provision of professional services. The administrative opinion in Smith quoted Thig-pen in support of its reasoning as follows:

“ ‘The Taxpayer certainly uses skill and creativity in his business, but that skill and creativity goes into making the tangible photograph, which is sold at retail and sales tax is due thereon. Unlike a lawyer’s brief or a will, or a prescription prepared by a physician, or the catalogs and brochures in Harrison, which are only means by which professional services are provided, the final product provided by the Taxpayer is the tangible photograph.’ ”

As noted, however, the ALJ in Thigpen had concluded that a photographer’s provision of services whereby he or she “de-cidles] when, where and how to shoot” are not taxable. Indeed, the ALJ in Smith also determined that the photographer involved in that proceeding was not liable for sales tax on amounts he had charged for his time in attending functions and actually taking photographs. It is clear that Thig-pen and Smith, although rejecting the broad proposition that the transfer of photographs is merely incidental to the nontaxable provision of professional services, did recognize that a professional photographer provides creative services that may not be taxable.

In Robinson v. State, Op. of Dep’t of Revenue, Admin. Law Div., Docket No. S. 13-807 (Sept. 8, 2014) (Opinion and Preliminary Order), upon which the Department also relies, an ALJ determined the extent of a professional wedding photographer’s sales-tax liability. In what may have been a departure from the idea that services provided by a photographer in determining “when, where and how to shoot” photographs may not be taxable, the ALJ in Robinson determined that fees charged for the photographer’s “labor in planning, shooting and editing” photographs were taxable because those services were “necessary steps in producing the finished [photographs].” The ALJ in Robinson instructed the Department to notify “professional photographers in Alabama that they are liable for sales tax on all sitting and other fees they may charge for planning, arranging, taking, editing, and otherwise preparing photographs for sale.”

In cases of doubt, tax statutes are to be construed in favor of the taxpayer. Harrison, 386 So.2d at 461. Although the interpretation of a statute by an administrative agency that is charged with enforcement of the statute is persuasive, Alabama Dep’t of Revenue v. Jim Beam Brands Co., 11 So.3d 858, 866 (Ala.Civ.App.2008), that interpretation is not binding on this court. Britnell v. Alabama State Bd. of Educ., 386 So.2d 1148, 1149 (Ala.Civ.App.1980). This court is not writing on a clean slate, and we are not convinced by the Department’s attempts to distinguish Harrison and Kennington. Like the trial court, we see no meaningful difference between the services that Omni provides and the services that were at issue in those cases, and we have not been asked to revisit their holdings. “Stare decisis commands, at a minimum, a degree of respect from [an appellate court] that makes it disinclined to overrule controlling precedent when it is not invited to do so.” Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 926 (Ala.2002). Accordingly, we conclude that the trial court’s judgment is due to be affirmed.

AFFIRMED.

THOMPSON, P.J., and THOMAS and DONALDSON, JJ., concur,

MOORE, J., concurs specially.

MOORE, Judge,

concurring specially.

I concur only because I am constrained by § 12-8-16, Ala.Code 1976 (“The decisions of the Supreme Court shall govern the holdings and decisions of the courts of appeals.... ”), and the doctrine of stare decisis as to the construction of § 40-23-2(1), Ala.Code 1976. See Moore v. Prudential Residential Servs. Ltd. P’ship, 849 So.2d 914, 926 (Ala.2002).

      . The' Department does not provide any details regarding the exact makeup of these categories of allegedly taxable transactions, nor does it discuss the percentage of Omni’s business that is attributable to each category.

      . This court also noted in Harrison that Harrison's services included the filming of motion pictures, the taldng of photographs, and the creation of recordings for television and radio programs. 386 So.2d at 460. Contrary to Omni's assertion in this case, it is not clear that this court considered in Harrison whether Harrison's delivery of photographs, separate ' and apart from catalogues and brochures, constituted the taxable sale of tangible personal property. Id. at 461 (“The sole issue presented by this -appeal is whether a transfer by [Harrison] to a client of catalogues and brochures is a 'sale’ of tangible personal property within the meaning of the sales tax act.”), Although it may be a reasonable assumption, this court did not-expressly state in Harrison whether the photographs that Harrison created were the same photographs that eventually were incorporated into the cata-logues and brochures he transferred to his clients.

      . Omni initially argued to the trial court that it does not “sell” photographs at all because it does not transfer ownership of photographs to its clients but, rather, simply grants its clients a license to use the images in the photographs. Omni, however, appears to have backed away from that position to an extent and, instead, argues that it is irrelevant whether Omni transfers ownership of photographs because, Omni asserts, any such transfers are merely incidental to the provision of professional services.