author: CHANDLER, Justice, KITCHENS, Justice,

text:
    LONE STAR INDUSTRIES, INC., Specialty Sand Company, Pearl Sands Inc., Pearl Specialty Sands, Inc. and Dependable Abrasives, Inc. v. Charles Larry McGRAW and Nikki McGraw.
    No. 2010-IA-01005-SCT.
    Supreme Court of Mississippi.
    June 7, 2012.

      Kimberly P. Mangum, David A. Barfield, Madison, G. Martin Street, Jr., W. Wright Hill, Jr., Clyde L. Nichols, III, Wade G. Manor, Jackson, J. Scott Rogers, Silas W. McCharen, Sandra D. Buchanan, Jackson, attorneys for appellants.
    David Neil McCarty, R. Allen Smith, Jr., Timothy W. Porter, Patrick Malouf, Ridge-land, John T. Givens, Jackson, attorneys for appellees.
   ON MOTION FOR REHEARING

CHANDLER, Justice,

for the Court:

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. On February 6, 2009, Charles Larry McGraw filed a personal-injury action in the Circuit Court of Claiborne County against four sand suppliers: Clark Sand Company, Inc.; Mississippi Valley Silica Co., Inc.; Precision Packaging, Inc.; and Custom Aggregates and Grinding, Inc. McGraw alleged the four defendants’ sand caused his lung disease, silicosis. On the day of the trial, after the jury had heard the parties’ opening statements, the court recessed, and the parties reached a settlement agreement.

¶ 3. On October 19, 2009, McGraw filed a motion for leave to amend his complaint to add his wife as a plaintiff and American Optical Corporation as an additional defendant. On December 4, 2009, McGraw filed an amended motion for leave to amend his complaint (First Amended Complaint) to modify his request to add four more defendants: Lonestar Industries, Inc.; Specialty Sand Company; Pearl Sands, Inc.; and Pearl Specialty Sand, Inc. On January 5, 2010, the trial court granted McGraw’s amended motion and allowed him to add the five new defendants to the complaint. The First Amended Complaint was filed on that date. On January 19, 2010, McGraw filed a Second Amended Complaint, which added a sixth defendant, Dependable Abrasives, Inc., without seeking leave of court.

¶4. All six defendants petitioned this Court for interlocutory appeal concerning the trial court’s order denying the defendants’ Motion for Summary Judgment, or Alternatively, Motion to Strike Second Amended Complaint and Dismiss First Amended Complaint. The defendants argue that, because the original parties settled with McGraw prior to his motions for leave to amend, the trial court improperly allowed the filing of the First Amended Complaint to add new parties. The defendants also argue that, because McGraw did not seek court approval in filing his Second Amended Complaint, that complaint should be struck.

¶ 5. We find that the trial court abused its discretion in allowing McGraw to file his Second Amended Complaint, because he was required to obtain court approval. However, we find that the trial court did comply with Rule 15 when it allowed McGraw to file his First Amended Complaint, because McGraw filed his motion before all of the original parties were dismissed with prejudice. In addition, the doctrine of election of remedies does not apply, because McGraw has not presented inconsistent theories against the original defendants and new defendants. The issues raised regarding judicial estoppel and claim-splitting are without merit. We affirm the denial of the motion to dismiss the First Amended Complaint and reverse the denial of the motion to strike the Second Amended Complaint.

FACTS

¶ 6. McGraw filed the instant lawsuit on February 6, 2009, against several makers of the sand used in sandblasting. McGraw originally claimed his lungs had been permanently injured from his exposure to res-pirable silica due to the use of the products manufactured by the following companies: Clark Sand Company, Inc.; Mississippi Valley Silica Co., Inc.; Precision Packaging, Inc.; and Custom Aggregates and Grinding, Inc. McGraw claimed that, as a result of his exposure, he suffers from shortness of breath and silicosis.

¶ 7. After the case went to trial on September 22, 2009, and McGraw agreed to settle with the four original defendants, he filed a motion for leave to amend his complaint in order to add more defendants to the suit. McGraw consummated his settlement with two of the four original four defendants on October 27, 2009, but filed his motion before any of the original parties was dismissed with prejudice. In his amended complaint, McGraw alleged that his claims against the new defendants were substantially the same as those against the original four defendants. As in the original complaint, McGraw asserted counts of strict liability and product defects, negligence, breach of warranty, civil conspiracy, acting in concert and gross negligence. The trial court granted McGraw’s motion to amend on January 5, 2010.

¶ 8. The order allowing McGraw to file the First Amended Complaint was styled listing the four original defendants. On January 19, 2010, McGraw filed a Second Amended Complaint, which added a sixth party, Dependable Abrasives, Inc. McGraw did not obtain court approval to file this complaint. It is uncontested by both parties that the defendants were not served with the First Amended Complaint. The Second Amended Complaint was the complaint served to the six new defendants. As a result, all six newly added defendants moved to strike McGraw’s Second Amended Complaint and dismiss McGraw’s First Amended Complaint. McGraw argued that he was not required to obtain court approval to file his Second Amended Complaint because Mississippi Rule of Civil Procedure 15 allowed him to amend his First Amended Complaint without leave of court. The trial court heard the defendants’ motion on May 3, 2010, and denied it on June 1, 2010.

STANDARD OF REVIEW

¶ 9. This case was petitioned to this Court based on the trial’s court order denying the motion to strike McGraw’s Second Amended Complaint and dismiss McGraw’s First Amended Complaint. “Motions for leave to amend complaint are left to the sound discretion of trial court; the Supreme Court reviews such determinations under an abuse of discretion standard; and, unless convinced that trial judge abused discretion, the Supreme Court is without authority to reverse.” Moeller v. Am. Guarantee & Liab. Ins. Co., 812 So.2d 953, 961 (Miss.2002) (citations omitted).

DISCUSSION

I. WHETHER THE AMENDED COMPLAINT WAS PROPER.

¶ 10. Rule 15 of the Federal Rules of Civil Procedure allows for amendment of complaints. Fed.R.Civ.P. 15. The Mississippi Rules of Civil Procedure were modeled after the Federal Rules of Civil Procedure. White v. Stewman, 932 So.2d 27, 39 (Miss.2006).

¶ 11. Rule 15(a) states in pertinent part:

A party may amend a pleading as a matter of course at any time before a responsive pleading is served, or, if a pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within thirty days after it is served ... Otherwise a party may amend a pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.... '

Miss. R. Civ. P. 15(a) (emphasis added). This Court has held that “freely given” means that “if the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Estes v. Starnes, 732 So.2d 251, 252 (Miss.1999) (citations omitted). “Motions for leave to amend a complaint are left to the sound discretion of the trial court,” and are reviewed “under an abuse of discretion standard.... ” Moeller, 812 So.2d at 961. Based on Rule 15 and the relevant caselaw discussing amendments to pleadings, we find that the trial court did not abuse its discretion in granting McGraw leave to file his First Amended Complaint. In addition, we find that the trial court did abuse its discretion in allowing McGraw’s Second Amended Complaint, because McGraw failed to obtain court approval as required by Rule 15(a).

¶ 12. The defendants assert that, because the defendants in the original complaint claimed the case was fully settled with McGraw at the close of trial on September 22, 2009, the trial court should have denied McGraw’s motion to amend his complaint filed on October 19, 2009. Therefore, the defendants allege that the suit ended on September 22 when the original parties announced a settlement agreement. However, only two of the defendants were dismissed by court orders, and none of the original defendants was dismissed with prejudice until after McGraw had filed his first motion for leave to amend his complaint.

¶ 13. The defendants rely upon Wilner v. White, 929 So.2d 315 (Miss.2006), and Veal v. J.P. Morgan Trust Co., N.A., 955 So.2d 843 (Miss.2007), to support their position that McGraw’s amendments were improper. We find Wilner to be unpersuasive in the instant case. However, we agree that this Court’s holding in Veal supports the conclusion that the Second Amended Complaint should be struck. In Wilner, the plaintiff filed a motion to amend on the day the statute of limitations expired. Wilner, 929 So.2d at 318. Ultimately, the trial court denied Wilner’s motion to amend because it was untimely and therefore could not relate back to the original filing under Rule 15(c). Id. at 319. Wilner is readily distinguishable from the present case. First, neither party has raised the issue of statute of limitations. Second, McGraw did obtain court approval for the First Amended Complaint, and that motion was timely. Therefore, the discussion and holding in Wilner cannot be used to support the defendants’ motion.

¶ 14. The defendants also argue that, because the Second Amended Complaint was served on all six defendants, and that complaint was improper, the First Amended Complaint should be dismissed. This issue is without merit. McGraw filed his motion for leave to amend his complaint on October 19, 2009. In that filing, he added American Optical Corporation. On December 4, 2009, McGraw amended that complaint to include Lonestar Industries, Inc.; Specialty Sand Company; Pearl Sands, Inc.; and Pearl Specialty Sand, Inc. On January 5, 2010, the trial court issued an order allowing McGraw to file his First Amended Complaint. Those five defendants were properly served within the 120-day period allowed by Mississippi Civil Procedure Rule 4(h). When there is no “undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. — the leave sought should, as the rules require be ‘freely given.” Estes, 732 So.2d at 252 (Miss.1999) (citations omitted). Based on this Court’s precedent, we find that the trial court did not abuse its discretion in allowing McGraw to file the First Amended Complaint, which added the five new defendants.

¶ 15. Although Veal is distinguishable from the present case, this Court’s discussion of Rule 15(a) supports the defendants’ motion to strike the Second Amended Complaint. In Veal, the plaintiff also filed two amended complaints, but did not seek leave of court for either complaint. Veal, 955 So.2d at 847. Rather than seeking leave from the trial court, the plaintiff obtained consent from the defendants to amend the complaint to substitute named defendants for the fictitious defendants. Id. at 844-45. This Court granted interlocutory appeal and affirmed the trial court’s decision to strike the amended complaint. Id. at 847. This Court discussed the importance of Mississippi Rule of Civil Procedure 21 when read in conjunction with Mississippi Rule of Civil Procedure 15. This Court also acknowledged that, because it had not dealt with this specific issue prior to Veal, it should look to federal courts and their interpretation of Federal Rule of Civil Procedure 15. Id. at 847. In affirming the trial court, this Court explained that, “because the Second Amended Complaint added new defendants, it also included an amendment which required court approval pursuant to Rule 21. Veal’s failure to obtain court approval rendered the entire Second Amended Complaint improper.” Id. at 848.

¶ 16. This Court’s holding in Veal makes McGraw’s Second Amended Complaint improper. In his complaint, McGraw failed to obtain leave of court to add the sixth defendant, Dependable Abrasives, Inc. Therefore, we find that the trial court abused its discretion in denying the motion to strike the Second Amended Complaint, because it failed to read Rule 15 in conjunction with Rule 21, which requires court approval to amend a second complaint that adds new defendants.

II. WHETHER THE DOCTRINE OF ELECTION OF REMEDIES APPLIES.

¶ 17. The doctrine of election of remedies does not apply in the present case because it requires two separate actions filed in different courts. This doctrine, used before the enactment of the Federal Rules of Civil Procedure, and thus the Mississippi Rules of Civil Procedure, has three elements: “(1) the existence of two or more remedies, (2) the inconsistency between such remedies, and (8) a choice of one of them.” O’Briant v. Hull, 208 So.2d 784, 786 (Miss.1968) (citations omitted). The defendants allege that the present case actually is two cases, because the original four defendants settled at trial. We disagree. None of the parties was dismissed from the case until after McGraw filed his motion for leave to amend the complaint. Further, the trial court granted this motion on January 5, 2010, which added all new defendants, with the exclusion of Dependable Abrasives, Inc. This case has only one cause number and was filed in one court: the Claiborne County Circuit Court. Additionally, McGraw alleges substantially the same injuries against all defendants. This consistency of theories negates the use of the doctrine and renders it inapplicable. McGraw’s remedies against all defendants in this action are consistent: McGraw claims he was injured by these manufacturers’ defective products, which led to the development of his silicosis. As McGraw correctly points out, this is not an either/or situation. It is possible that several different manufacturers caused McGraw’s onset of silicosis. For these reasons, the doctrine of election of remedies cannot apply.

III. WHETHER THE DOCTRINE OF JUDICIAL ESTOPPEL APPLIES.

¶ 18. The doctrine of judicial es-toppel is inapplicable in the present case. “Judicial estoppel is a doctrine of law applied by a trial court to a situation where a party asserts one position in a prior action or pleading but then seeks to take a contrary position to the detriment of the party opposite.” Mississippi Power & Light Co. v. Cook, 832 So.2d 474, 482 (Miss.2002) (citations omitted).

¶ 19. The defendants claim that, because McGraw gave conflicting testimony at separate depositions, he should be es-topped from bringing his amended claim. First, McGraw should not be estopped, because this is not a separate action. The trial court granted McGraw’s motion to amend his original complaint. As we previously stated, this case has the same docket number and is in the same court. Judicial “estoppel arises from the taking of a position by a party to a suit that is inconsistent with the position previously asserted in prior litigation.” Beyer v. Easterling, 738 So.2d 221, 227 (Miss.1999) (internal quotations and citations omitted). Second, even if this was a separate action, this Court explained in Beyer that “the doctrine of judicial estoppel generally does not apply to false statements which were made without full knowledge of the applicable facts.... ” This Court used the legal encyclopedia American Jurisprudence to support its reasoning:

Clearly, testimony given in a prior action does not estop the witness from testifying to the contrary in a subsequent action against one not a party to the prior action, where the former testimony was given by mistake or inadvertence or without full knowledge of the facts and is so explained by the witness in a subsequent action. In other words, the oath, to be binding as an estoppel, must be willfully false....

Id. at 227 (citing 28 Am. Jur. 2d Estoppel and Waiver § 71) (1996) (footnotes omitted). Therefore, even if judicial estoppel were applicable in the present suit, McGraw would not be estopped based on his previous testimony. During his second deposition, McGraw stated that his illness impaired his ability to tell the facts in the first deposition. Although McGraw’s actions and his attorney’s actions are questionable, silicosis often can be attributed to several different silica manufacturers, and there is no evidence to indicate that McGraw’s statements were willfully false. We find that this question should be left for the jury.

IV. WHETHER McGRAW HAS ENGAGED IN CLAIM-SPLITTING.

¶ 20. There can be no claim-splitting in the present case, because there has been only one complaint. The defendants use Adams v. Baptist Memorial Hospital-Desoto, Inc., 965 So.2d 652, 655 (Miss.2007), to illustrate that Mississippi prohibits claim-splitting in two separate actions. Because there is only one action, this issue is without merit.

CONCLUSION

¶ 21. We find that the trial court complied with Rule 15 in allowing McGraw to file his First Amended Complaint. We also find that the trial court abused its discretion in allowing McGraw to file his Second Amended Complaint. Therefore, we affirm the denial of the motion to dismiss the First Amended Complaint and reverse the denial of the motion to strike the. Second Amended Complaint. Based on our decision to strike the Second Amended Complaint, which was the Complaint actually served upon the defendants, we remand the issue of service of process to the trial court so that it may determine whether to allow the plaintiff properly to effectuate service. The case is remanded for further proceedings consistent with this opinion.

¶ 22. AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WALLER, C.J., CARLSON, P.J., RANDOLPH AND PIERCE, JJ., CONCUR. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY KING, J. DICKINSON, P.J., AND LAMAR, J., NOT PARTICIPATING.

KITCHENS, Justice,

concurring in part and dissenting in part:

¶ 23. I concur with my esteemed colleagues in the majority that the trial court did not abuse its discretion in allowing MeGraw to file the First Amended Complaint. Maj. Op. at ¶ 14. However, I do not agree that the Defendants’ Motion to Strike the Second Amended Complaint should have been granted.

¶24. The majority finds that, because the Second Amended Complaint included an additional defendant, MeGraw was required to seek leave of the court under Mississippi Rule of Civil Procedure 21 before filing the amended complaint. Rule 21, in pertinent part, provides: “Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” Miss. R. Civ. P. 21. I, however, do not interpret Rule 21 as precluding a party from amending a complaint when no responsive pleading has been filed. In the instant case, MeGraw, with leave of the court, filed his First Amended Complaint, then added new defendants, who were not immediately served with process. As a result, no responsive pleadings had been generated when MeGraw added still another defendant and filed the Second Amended Complaint; thus, issue had not been joined. I fail to see how this was impermissible under Rule 15(a) of the Mississippi Rules of Civil Procedure, which provides: “A party may amend a pleading as a matter of course at any time before a responsive pleading is served.... ” Miss. R. Civ. P. 15(a). “[Ajmended pleadings have been liberally permitted throughout Mississippi legal history.” Miss. R. Civ. P. 15 cmt. Moreover, I cannot discern how the addition of this last defendant prejudiced any other party, and, indeed, no party has made any such contention.

¶ 25. Since the Mississippi Rules of Civil Procedure were patterned after the Federal Rules of Procedure, “[i]n construing our rules, we look for guidance to the federal cases.... ” Bourn v. Tomlinson Interest, Inc., 456 So.2d 747, 749 (Miss.1984). Several federal courts have held that adding parties to an amended pleading requires leave of the court under Rule 21 of the Federal Rules of Civil Procedure, even when filed prior to a responsive pleading. 6 Charles Alan Wright, et al., Federal Practice and Procedure § 1479 (3d ed. 2010). In so doing, the rationale “seems to be that because Rule 21 specifically provides for the addition or elimination of parties and Rule 15(a) simply sets forth a general amendment procedure, the former provision should be controlling.” Id.

¶ 26. However, in McLellan v. Mississippi Power & Light Co., 526 F.2d 870, 872-73 (5th Cir.1976), vacated on other grounds, 545 F.2d 919 (5th Cir.1977), the Fifth Circuit Court of Appeals rejected that rationale, and instead found that Rule 15(a) takes precedence over Rule 21 when a party amends a complaint to drop or add parties prior to a responsive pleading’s having been filed; accordingly, leave of the court is not required. The rationale of courts holding that Rule 15(a) is the more specific and, thus, the controlling provision, is as follows:

It might be argued that Rule 21 is the general provision since it deals in broad terms with dropping and adding parties by motion, and Rule 15(a) is a more specific provision because it sets forth a particular means by which a party may attempt to drop or add parties — by an amendment to the pleadings. Viewed from this perspective, any attempt to change parties by amendment before the time to amend as of course has expired should be governed by Rule 15(a)(1) and may be made without leave of court.

6 Wright, et al., supra § 1479.

¶ 27. Accordingly, I decline to join the majority in its reliance on the holding in Veal v. J.P. Morgan Trust Co., N.A., 955 So.2d 843 (Miss.2007), namely that Rule 21 requires leave of the court for a defendant to be added, even where a responsive pleading has not been filed, since Rule 15(a) would otherwise allow in that instance for an amended pleading. I would hold that the trial court did not abuse its discretion in failing to grant the Defendants’ Motion to Strike the Second Amended Complaint, and I would take the opportunity in the instant case to overrule Veal.

KING, J„ JOINS THIS OPINION.

      . McGraw said that he had developed silicosis during his work on numerous worksites from 1975 to 1999, where he was exposed to sandblasting.

      . McGraw claimed that, because no responsive pleading had been served since the First Amended Complaint, he was allowed to amend his complaint under Rule 15 without obtaining court approval.

      . All five defendants acknowledged receipt of summons between February 2, 2010, and February 8, 2010.

      . Rule 21 provides that the "[m]isjoinder of parties is not ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.” Miss. R. Civ. P. 21.

      . This Court cites several federal cases that interpret Federal Rule of Civil Procedure 15(a). All cases cited hold that leave of court is required when adding new defendants. Veal, 955 So.2d at 847.

      . Joinder of issue: The taking up of the opposite side of a case, or the contrary view on a question. Black’s Law Dictionary 854 (8th ed. 2004).


source: Caselaw Access Project

author: CARLSON, Presiding Justice,

license: Public Domain

text:
    W.C. FORE d/b/a W.C. Fore Trucking, Inc. v. MISSISSIPPI DEPARTMENT OF REVENUE f/k/a Mississippi State Tax Commission, Mississippi Department of Environmental Quality, and Mississippi Commission on Environmental Quality on Motion for Rehearing.
    No. 2010-CA-02098-SCT.
    Supreme Court of Mississippi.
    June 14, 2012.

      Bobby R. Long, Gulfport, attorney for appellant.

      Gary Wood Stringer, Jackson, Abigail Marshall Marbury, Carol Ann Walker, Roy Furrh, Jackson, attorneys for appellees.
    Before CARLSON, P.J., LAMAR and CHANDLER, JJ.
   CARLSON, Presiding Justice,

for the Court:

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor.

¶ 2. After Hurricane Katrina hit the Mississippi Gulf Coast in August 2005, W.C. Fore entered into a contract with Harrison County, Mississippi, to remove the large amount of debris that was left behind. The Mississippi State Tax Commission (MSTC) then assessed a fee of $1.00 per ton of debris removed. Fore appealed the assessment to the MSTC Board of Review, claiming that the fee did not apply to emergency waste removal. The Board of Review upheld the assessment. Fore appealed the Board of Review’s decision to the MSTC Full Commission, which also affirmed the assessment. Fore then appealed to the Harrison County Chancery Court, First Judicial District. The chancery court upheld the assessment, and Fore has now appealed to this Court. Finding that the MSTC’s and the chancery court’s findings were supported by substantial evidence and that there was no misapprehension of the law, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Following Hurricane Katrina’s devastation of the Mississippi Gulf Coast, the coastal counties faced the monumental task of cleaning up in the wake of the storm. Millions of pounds of debris — food waste, industrial and commercial waste, household goods, building and structural debris, vegetative debris, and hazardous substances — covered the counties hardest hit by the storm. On September 18, 2005, in response to this unprecedented event, Governor Haley Barbour issued a Resolution authorizing the Mississippi Department of Environmental Quality (MDEQ) to execute an Emergency Order that addressed various environmental concerns, including: wastewater treatment, air-pollution sources, solid-waste management, hazardous-waste management, asbestos, and underground storage tanks. The solid-waste management section of the order allowed for emergency waste-disposal sites for vegetative, building, and structural debris.

¶ 4. Prior to the governor’s resolution, Fore had entered into a contract with Harrison County for the removal of Hurricane Katrina debris at the price of $10.64 per cubic yard. The contract provided, in pertinent part:

I. PURPOSE:
The purpose of this Contract is to provide debris removal from certain public property and such other areas as may be designated, in writing, by the County as defined herein as a result of Hurricane Katrina[,] which occurred on August 29, 2005. This Contract is also entered into under the provisions of Section 33-15-17 Mississippi Code of 1972, and pursuant to the Governor’s Declaration of Disaster as provided by Section 33-15-31, Mississippi Code of 1972, as well as the President’s Declaration of Disaster.
II. SERVICES OF CONTRACTOR
(B).... Contractor represents that it is familiar with all federal, state, and local ordinances, laws, rules, and regulations with respect to debris pick-up, transportation, and disposal, and that it will fully comply therewith at all times during the performance of work under this Contract.
(H) Contractor shall furnish and pay the cost, including sales taxes and all other applicable taxes and fees, of all the necessary materials and shall furnish and pay for all the superintendents, labor, tolls, equipment, transportation and pay for all disposal site dumping fees....

¶ 5. After he entered into the contract with Harrison County, Fore requested that the county approve two sites for waste disposal: the Delancey site and Lo-Bouy Road site. These requests stated, “W.C. Fore agrees to follow all DEQ rules, regulations^] and law on this property.” Harrison County then forwarded Fore’s requests to the MDEQ and requested approval of the sites. The MDEQ approved both requests. Fore was approved to dispose of building, structural, vegetative, and household debris at the Delancey site and to dispose of vegetative debris at the Lo-Bouy Road site.

¶ 6. After the MDEQ’s approval, Fore began removing debris from the public rights-of-way in Harrison County. Fore also entered into an agreement with another contractor, Phillips and Jordan, Inc. (P & J), allowing P & J to use the Delancey site for disposal of hurricane debris that P & J collected in accordance with a contract it had with the City of Gulfport. Fore charged P & J either $1.00 per cubic yard or $1.50 per cubic yard, depending on the type of debris.

¶ 7. On February 8, 2006, the MDEQ sent a memorandum to the “Owners/Operators of Commercial Sites Used for Disposal of Wastes from Hurricane Katrina.” The memorandum stated that the emergency sites used to dispose of hurricane debris were commercial disposal sites and were subject to the MDEQ reporting requirements for solid-waste disposal. A reporting form was attached to the memorandum. The memorandum provided:

Please note that the owner/operator of the commercial disposal site is also required to file a report with the Mississippi State Tax Commission before July 15, 2006 showing the total amounts of waste disposed at the facility during Calendar Year 2005 and shall at the same time pay a $1.00 per ton fee to the Tax Commission.

Fore completed the attached reporting forms and returned them to the MDEQ. For the Delancey site, Fore reported 291,-012.08 cubic yards of debris. Using the MDEQ’s conversion factor of 0.25 tons per cubic yard, Fore reported that he had disposed of 72,753.02 tons of waste at the Delancey site. On the LoBouy Road site reporting form, Fore reported that 136,-870.50 cubic yards of hurricane debris had been disposed. Again, using the conversion factor of 0.25 tons per cubic yard, Fore reported that 34,217.63 tons of debris had been disposed of at the LoBouy Road site.

¶ 8. On May 19, 2006, the MSTC sent a letter to nonhazardous solid-waste management facilities, requesting that owners and operators of the facilities complete an annual reporting form. The letter stated that the reports should be filed in accordance with Mississippi Code Section 17-17-219, and that a $1.00 per ton fee was imposed on municipal solid waste. The owners and operators of the sites were to file a report with the MSTC even if no fee was due. Fore returned reporting forms for both the Delancey and LoBouy Road sites. On the Delancey form, Fore reported that he had disposed of 298,964 tons of nonhazardous solid waste. The form required the owners and operators to report the total tons of waste that were subject to a fee and the total fee due. Fore entered a zero for both on the Delancey form. On the LoBouy Road form, Fore reported that 34,218 tons of waste had been disposed and again entered zeros in the blanks for the total tons of waste that were subject to a fee and the total fee due.

¶ 9. In response to Fore’s reports, the MSTC assessed a fee of $333,182 for both the Delancey and LoBouy Road sites. Because Fore did not attach payment to the reporting forms, the MSTC assessed interest and a penalty fee of $103,286.42. The total amount assessed was $436,468.42.

¶ 10. Fore appealed the assessment to the MSTC Board of Review, and the Board of Review affirmed the assessment. Fore then appealed to the Full Commission and presented the following arguments:

(1) that the Delancey and LoBouy Sites were not commercial non-hazardous solid waste management facilities primarily because the only legal authority for such emergency facilities is found in Miss. Code Ann. § 33 — 15—ll(b)(17) which directs that the Governor can proclaim a state of emergency and direct officials to take emergency actions such as the creation of emergency disposal sites and because Miss.Code Ann. § 33 — 15—31(b) suspends inconsistent laws, rules and regulations;
(2) that Mr. Fore did not operate the Delancey Site for City of Gulfport debris because the City of Gulfport contracted with Phillips and Jordan, Inc. for debris pick-up[,] transportation and disposal and because Phillips and Jordan, Inc. subleased a portion of the Delancey site from Mr. Fore for those purposes; and
(3) that the conversion factor from cubic yards to tons was excessive because the conversion factor used to convert cubic yards to tons was 0.25 tons per cubic yard rather than 0.083 tons per cubic yard per an MDEQ conversion chart.

Fore also requested that the penalty and interest assessed by the MSTC be abated. The Full Commission found that the De-lancey and LoBouy sites were commercial nonhazardous waste-management facilities and were subject to the $1.00 per ton fee, that Fore was the operator of the entire Delancey site, and that the 0.25 conversion factor was correct. The Full Commission abated the penalty and interest and assessed a total fee of $333,182.

¶ 11. After paying the assessed fees under protest, Fore appealed the Full Commission’s finding to the Chancery Court of Harrison County, First Judicial District. A trial de novo was held, and the chancellor entered a thirty-nine-page opinion and final judgment affirming the findings of the Full Commission. Fore has now appealed to this Court.

STANDARD OF REVIEW

¶ 12. Generally, review of any administrative-agency decision is limited. Hinds County Sch. Dist. Bd. of Trs. v. R.B., 10 So.3d 387, 394 (Miss.2008). Ordinarily, the trial courts and appellate courts will “reverse the decision of an administrative agency only if the decision (1) was unsupported by substantial evidence; (2) was arbitrary and capricious; (3) was beyond the power of the administrative agency to make; or (4) violated the complaining party’s statutory or constitutional right....” Buffington v. Miss. State Tax Comm’n, 43 So.3d 450, 453-54 (Miss.2010) (footnote omitted) (quoting Miss. Methodist Hosp. and Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So.3d 600, 606-607 (Miss.2009)). The MSTC asserts the chancery court must apply this general standard of review, because Mississippi Code Section 27-77-7(4) provides that “the chancery court shall give deference to the decision and interpretation of law and regulations by the [MSTC] as it does with the decisions and interpretation of any administrative agency.” Miss.Code Ann. § 27-77-7(4) (Rev. 2006). However, this language governs the trial court’s review of the applicable law and regulation, not evidence. We recently clarified the court’s role in interpreting the law governing agency action:

The ultimate authority and responsibility to interpret the law, including statutes, rests with this Court. But in determining the most reasonable and appropriate interpretation of a statute, the agency’s interpretation is an important factor that usually warrants strong consideration. However, we do not defer to the agency’s interpretation in the sense that we yield judgment or opinion.

Queen City Nursing Ctr., Inc. v. Miss. State Dep’t of Health, 80 So.3d 73, 84 (Miss.2011). In other words, statutory interpretation is a question of law that is reviewed de novo. Akins v. Miss. Dep’t of Revenue, 70 So.3d 204, 208 (Miss.2011) (citing Adams v. Baptist Mem’l Hosp.-DeSoto, Inc., 965 So.2d 652, 655 (Miss.2007)).

¶ 13. As for the chancellor’s review of factual questions, Section 27-77-7(4) specifically requires the chancellor:

... try the case de novo and conduct a full evidentiary judicial hearing on the issues raised. Based on the evidence presented at the hearing, the chancery court shall determine whether the taxpayer has proven by a preponderance of the evidence or a higher standard if required by the issues raised, that he is entitled to any or all of the relief he has requested. The chancery court shall decide all questions presented, including those as to legality and the amount of tax or refund due, and if it finds that the tax assessment or denial of refund claim in issue is incorrect or invalid, in whole or in part, it shall determine the amount of tax or refund due, including interest and, if applicable, penalty to date, and enter such order or judgment as it deems proper. ...

Miss.Code Ann. § 27-77-7(4) (Rev. 2006) (emphasis added). This section clearly requires the chancellor to be the trier of fact on appeal. We review the chancellor’s factual determinations applying a manifest-error standard. Miss. State Tax Comm’n v. ANR Pipeline Co., 806 So.2d 1081, 1084 (Miss.2001). We will not reverse where the chancellor’s findings are supported by “substantial, credible, and reasonable evidence.” City of Jackson v. Perry, 764 So.2d 373, 376 (Miss.2000).

DISCUSSION

¶ 14. Fore presents three issues for this Court’s consideration: (1) whether the De-lancey and LoBouy Road sites were commercial nonhazardous solid-waste management facilities; (2) whether the MSTC’s treatment of the waste-management facilities was unequal and therefore violated Fore’s constitutional rights; and (3) whether Fore operated the portion of the Delancey site that was used by P & J.

I. Whether the Delancey and Lo-Bouy Road sites were commercial nonhazardous solid-waste management facilities.

¶ 15. Fore contends that the De-lancey and LoBouy Road sites were not commercial nonhazardous solid-waste management facilities and were not subject to the tax for such facilities. Fore made this argument before the MSTC and the chancery court, and both found that the sites were commercial facilities and subject to the $1.00 per ton tax assessed by the MSTC. The following is from the MSTC’s finding:

The Delancey and LoBouy sites were commercial non-hazardous solid waste management facilities subject to the $1.00 per ton fee. Miss.Code Ann. § 17-17-3(d) defines a commercial nonhazardous waste disposal facility as “... any facility engaged in the storage, treatment, processing or disposal of nonhazardous solid waste from more than one (1) generator not owned by the facility owner.” (emphasis added). The De-lancey and LoBouy sites clearly come within the definition. Miss.Code Ann. § 17-17-219 imposes a One Dollar ($1.00) per ton disposal fee on all such facilities. While these sites were created pursuant to the Mississippi Emergency Management Law (Miss.Code Ann. § 33-15-1 et seq.), there is no merit to Mr. Fore’s argument that the Delancey and LoBouy Sites were not commercial sites and that Miss.Code Ann. § 33-15-31(b) suspends the $1.00 per ton fee. As stated hereinabove, the sites clearly fall within the definition of commercial nonhazardous waste disposal facilities. While it is correct that Miss.Code Ann. § 33-15-31(b) suspends inconsistent laws, rules and regulations, it effected no such suspension in this matter because there were no inconsistent laws, rules or regulations in as much as the Mississippi Emergency Management Law is completely silent with regard to fees and exemptions.

¶ 16. The chancery court upheld the MSTC’s ruling, finding that the two sites met the statutory definition of a commercial nonhazardous solid-waste management facility. Further, the chancery court found that the “imposition of the fee under § 17-17-219 is not inconsistent with the Emergency Management Laws of this State.”

¶ 17. In his appellate brief, Fore contends that the two sites were used for emergency purposes only, and were not subject to the $1.00 per ton tax. Fore cites Mississippi Code Section 33-15-1 (Rev. 2010) and claims that there is no specific authority for establishing emergency disposal sites. He further contends that, because the fee was not mentioned in either the governor’s proclamation of a state of emergency or the MDEQ’s Emergency Order, the fee did not apply. Fore also cites Mississippi Code Section 33-15-31(b) (Rev. 2010) for the proposition that all laws relating to the operation of disposal sites were suspended during the time when the MDEQ’s Emergency Order was in effect. Finally, Fore cites Bolivar County v. Wal-Mart Stores, Inc., 797 So.2d 790 (Miss.1999), to support his contention that Mississippi Code Section 33-15 — 31(b) (Rev. 2010) suspends laws that impose waste-disposal fees during emergencies.

¶ 18. Fore’s reliance on the Bolivar County ease is misplaced. Bolivar County involved a dispute between a county and a town as to who was responsible for a charge account. Id. at 790. An ice storm hit Bolivar County in 1994, and the county allowed the town to use its charge account at a local Wal-Mart to purchase supplies after the storm. Id. at 791. Wal-Mart charged both the county and the town for the supplies, and both refused to pay, claiming that the other was responsible for the charges. Id. at 792. Discussing who was responsible for the Wal-Mart charges, the Court considered which statutes govern in emergency situations and how they should be construed. Id. at 793. The Court looked at two conflicting statutes-Mississippi Code Sections 33-15-17 and 31-7-13(k). Id. at 794-95. Mississippi Code Section 33-15-17 (Rev. 2010) allows municipalities to enter into contracts in times of emergency for the purpose of ensuring the public health and safety. Mississippi Code Section 31-7-13(k) (Rev. 2010) addresses emergency purchase powers and allows municipalities to forego normal competitive bidding procedures. In addressing the two statutes, this Court found that Section 33-15-17 “is the controlling statute in times of emergency.” Id. at 795. Because Section 33-15-17 controls during times of emergency, the Court found that it could not be read in conjunction with Section 31 — 7—13(k). Id. at 796.

¶ 19. Unlike the facts in Bolivar County, in today’s case there are no conflicting statutory provisions. Rather, Fore contends that Section 33 — 15—31(b) absolves any obligation to pay a fee for waste disposal. Fore’s reading of the statute is misplaced. Section 33-15-31(b) suspends existing laws and obligations that are inconsistent with the provisions of the Emergency Management Law. It does not, however, suspend all existing laws and obligations.

¶ 20. The chancery court and the MSTC both found that the tax obligation under Section 17-17-219 was not inconsistent with the Emergency Management Law. Nothing in the Emergency Management Law expressly waives taxes or waste-disposal fees. Thus, the inconsistency that Section 33-15-31 (b) waives is not present in today’s case. For these reasons, the chancery court’s finding was supported by substantial evidence and does not contain a misapprehension of the law. Accordingly, this issue is without merit.

II. Whether the MSTC’s treatment of the waste-management facilities was unequal, and therefore, violated Fore’s constitutional rights.

¶ 21. In his next contention of error, Fore claims that the MSTC gave other similarly situated emergency site operators preferential treatment-lowering or waiving fees for some operators, but not others. He contends that the MSTC’s and MDEQ’s treatment of the waste-management facilities was arbitrary and capricious and that the unequal treatment violated his right to equal protection.

¶ 22. Fore cites Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), for the proposition that a “class of one” may bring an equal protection claim. In class-of-one cases, the plaintiff must prove two elements: (1) that he or she was treated differently from others similarly situated; and (2) that there was no rational basis for disparate treatment. Id. at 564, 120 S.Ct. 1073 (citing Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 43 S.Ct. 190, 67 L.Ed. 340 (1923); Allegheny Pittsburgh Coal Co. v. County Comm’n of Webster County, W. Va., 488 U.S. 336, 109 S.Ct. 633, 102 L.Ed.2d 688 (1989)). The chancery court found that Fore was not a class of one, rather, Fore was a member of a class of emergency waste-management facility operators.

¶ 23. To this point, the chancery court erred in finding that Fore was not a class of one. Under a class-of-one argument, the plaintiff need not assert membership in a particular class, but rather, his claim rests on the government’s arbitrary classification of him as opposed to others who are similarly situated. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 602-03, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). This is the argument that Fore makes, claiming that the MDEQ and MSTC arbitrarily have treated him differently than other similarly situated waste-management facility operators. Thus, he is a class of one, and the relevant inquiry for this Court is whether Fore was treated differently from others similarly situated, and if so, was there a rational basis for the treatment.

¶ 24. Fore bears the burden of proving that he was similarly situated with other operators and that he was treated differently from those similarly situated. Olech, 528 U.S. at 564, 120 S.Ct. 1073. The Court of Appeals has held that “ ‘[s]imilarly situated’ individuals must be ‘prima facie identical in all relevant respects.’ ” Suddith v. Univ. of S. Miss., 977 So.2d 1158, 1173 (Miss.Ct.App.2007) (quoting McDonald v. Vill. of Winnetka, 371 F.3d 992, 1002 (7th Cir.2004)). The trial court found that Fore did not show that he was similarly situated with the other site operators.

¶ 25. The chancery court first noted that some operators were treated differently because of the amount of profit they made from operating the site — “that the amount of tax assessed might be adjusted ‘if a lesser amount of compensation or no compensation was paid to you for waste received at the facility.’ ” Further, the chancellor found that Fore was not similarly situated with other taxpayers who had filed their own tax returns prior to an assessment by the MSTC. The chancellor noted that the operators who chose to file their own tax returns had the “opportunity to present evidence showing exceptional circumstance and/or providing interpretation of fact or law being followed by MTC,” but Fore did not take advantage of this opportunity. Because of this, the chancellor found that Fore was not similarly situated with these operators. The chancellor also found that the MSTC’s delay in auditing and assessing the other operators did not indicate preferential treatment over Fore. The chancery court noted that the nature of the agency prevents all operators from being assessed or audited at the exact same time.

¶ 26. In his appellate brief, Fore again claims that he was treated differently from similarly situated operators. Fore first contends that he received the same emergency authorization and followed the same MDEQ reporting procedures as an operator whose fee was waived by the MDEQ. The MSTC and MDEQ respond in their brief that this operator charged much less than Fore-$1.00 per ton, rather than $10.64 per cubic yard. It should be noted that the fee charged by the MSTC also is $1.00 per ton.

¶ 27. Fore also contends that he was treated differently from other operators who either had their fees reduced or waived for certain periods of time. For example, Fore claims that one operator was charged fees only for 2006, and not 2005. He also claims that another operator used an incorrect conversion factor, which resulted in that operator paying less than he would have if the MDEQ’s 0.25 factor had been used. Fore contends that the MSTC has made no attempt to collect the difference in fees from the operator. Fore also contends that another operator did not pay the full amount due, and that the MSTC did not attempt to collect the delinquent payment.

¶ 28. Fore asserts several other examples of alleged unequal treatment in his brief. In response, the MDEQ and MSTC provided various explanations for the alleged different treatment. First, they claim that one of the operators was not disposing of debris, but was staging the debris to be disposed of in another location. They also claim that the MSTC is pursuing collection of fees against operators who have been delinquent in payment or who have paid an incorrect amount. Further, they contend that some delinquent payments were not pursued because the statute of limitations had run on those particular claims.

¶ 29. The record supports the MDEQ’s and MSTC’s contentions. Charmin Tillman, director of the Miscellaneous Tax Bureau at the MSTC, testified that one operator was not charged a fee because his site was used for staging, rather than disposal. She also testified that, although some assessments for other operators were stalled, they now have been assessed, and the MSTC is in the process of collecting the fees or auditing the operators.

¶ 30. The chancery court found that Fore did not prove that he was similarly situated with the other operators. Fore contends in his appellate brief that he is similarly situated because he was operating an emergency waste-disposal site and followed the same emergency procedures as the other operators, but he focuses most of his brief on the allegedly different treatment among the various operators. Fore is not similarly situated with all of the operators noted in his brief. For example, Fore is not similarly situated with the operator who staged debris, rather than disposed of it. He also is not similarly situated with the operators who charged little or no fee for the disposal. However, as to those who are similar to Fore-operators who disposed of waste and charged a regular fee-Fore has failed to show that he was treated differently from those operators. Evidence was presented at trial showing that the MSTC is either in the process of auditing the operators or collecting fees from the operators. Simply because one operator may be further along in the process of being audited or paying taxes does not make the treatment of that operator different from another for equal-protection purposes.

¶31. In sum, Fore has failed to show that he was treated differently from other similarly situated operators. Because Fore has failed to demonstrate different treatment, it is not necessary to discuss whether there was a rational basis for the alleged disparate treatment. Although the chancellor erred in finding that Fore was not a class of one, the chancellor’s finding that Fore was not treated differently from other similarly situated operators contained no error of law and was supported by substantial evidence. This issue is without merit.

III. Whether Fore operated the portion of the Delancey site that was used by Phillips and Jordan.

¶ 32. As an alternative argument, Fore claims that if he is subject to the fees assessed by the MSTC, he should not have to pay the fees attributable to the portion of the Delancey site that was used by P & J. Fore made this argument before the MSTC, and the Full Commission made the following finding:

Mr. Fore was the operator of the Delan-cey site and is liable for disposal fees generated at that site. By letter dated September 16, 2005, the Mississippi Department of Environmental Quality granted authorization to Mr. Fore to operate the Delancey site. The mere fact that Mr. Fore may have entered into an agreement with Phillips and Jordan, Inc. by which Mr. Fore agreed to allow Phillips and Jordan, Inc. to dispose of waste at the facility pursuant to an agreement or agreements Phillips and Jordan, Inc. might have had with third parties does not absolve Mr. Fore of liability for the disposal fees. Mr. Fore was granted authorization to operate the Delancey facility and admitted during the course of the hearing before the Commission on January 21, 2009 that he was compensated by Phillips and Jordan, Inc. for disposal of debris at the Delancey Site.

¶ 33. The chancellor also addressed whether Fore was responsible for all of the Delancey site fees. The chancellor stated in his opinion and final judgment:

Fore admitted that he was not the owner of the Delancey property, but that he had a written agreement with the Delan-ceys allowing him to utilize the property. As discussed above, Fore sought the approval for the use of this property for disposal of emergency debris through Harrison County, who in turn sought approval from DEQ. Harrison County passed a resolution allowing the contractors for the municipalities to use the emergency sites for disposal of the municipalities’ hurricane debris. Fore then entered into an agreement with P & J in which Fore was compensated by P & J for debris disposed at Delancey at a rate of $1.00 per cubic yard ($4.00 per ton) for the disposal of vegetative debris and $1.50 per cubic yard ($6.00 per ton) for disposal of construction and demolition debris.
Fore points out that DEQ documents recognize that P & J was an operator for, at least part of, the Delancey site. However, the record also contains documents in which the DEQ went directly to Fore for reporting and compliance. DEQ also argues that under Fore’s argument, Fore failed to join P & J as a necessary party pursuant to M.R.C.P. 19. Because this Court finds that Fore is responsible for reporting of the entire amount of debris disposed at Delancey, this issue need not be addressed. Pursuant to the SW-2 Regulations, Section II.O:
When a disaster occurs, such as a tornado, hurricane, or flood, and results in urgent need for public solid waste disposal or processing facilities, the Department may approve a site or facility for immediate operation subject to stipulated conditions and for a limited period of time.
DEQ looked to the “owner” of the facility for compliance with its regulations. Fore held himself out to be the owner of the property. SW-2 regulations define “owner” as “the person(s) who owns a facility or part of a facility and is responsible for the overall operation.” SW-2, Section I.C. Thus, Fore was responsible for compliance with the bookkeeping requirements (Section IV.B.11) and the annual report (Section IV.B.15).

¶ 34. Fore contends in his appellate brief that P & J was the operator of a portion of the Delancey site, and, therefore, he is not responsible for the fees assessed to that portion. Fore claims that he “did not operate, manage or receive any compensation for operating or managing that portion of the Delancey site where City of Gulfport debris was placed [by P & J] and would not be responsible for any disposal fees imposed on the same.” (Emphasis in original.) In response, the MDEQ and MSTC contend that Fore was the only MDEQ authorized operator of the Delancey site, and that Fore and P & J had a relationship similar to a contractor and subcontractor. Further, they point out that Fore was compensated by P & J for the use of the Delancey site.

¶ 35. Mississippi Code Section 17-17-205(e) (Rev. 2003) defines “operator” as “any person, corporation, county, municipality or group of counties or municipalities acting jointly operating a sanitary landfill or having any interest in the land whereon a sanitary landfill is or has been located.” The evidence at trial demonstrated that Fore was the operator of the entire Delancey site. Fore charged P & J a fee for disposing of debris on the Delan-cey site and regularly sent P & J invoices for the dumping. Fore also testified that he covered and closed the entire Delancey site after the debris disposal and that he was responsible for making sure the entire site was closed. He also signed a letter stating that he “agree[d] to follow all DEQ rules, regulations^] and law on” the Delan-cey property. Further, the MDEQ communicated directly with Fore when concerns arose about the Delancey site.

¶ 36. The evidence at trial supported the MSTC’s and the chancery court’s finding that Fore was the operator of the entire Delancey site. The MDEQ approved Fore to operate the entire site, and then he entered into a separate contract with P & J to allow them to use a portion of the site. The chancellor’s judgment was supported by substantial evidence and contains no error of law. Accordingly, this issue is without merit.

CONCLUSION

¶ 37. The MSTC’s and chancery court’s findings were supported by substantial evidence, and there was no misapprehension of the law. The evidence shows that the Delancey and LoBouy Road sites were both commercial nonhazardous solid-waste management facilities and were subject to the $1.00 per ton fee. Fore failed to demonstrate that he has been treated differently from other similarly situated facility operators. As an operator of the Delancey site, Fore is responsible for the entire fee assessment for that site. Therefore, we affirm the judgment of the Chancery Court for the First Judicial District of Harrison County.

¶ 38. AFFIRMED.

WALLER, C.J., RANDOLPH, LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ, CONCUR. DICKINSON, P.J., NOT PARTICIPATING.

      . The contract was between W.C. Fore Trucking, Inc. and Harrison County, Mississippi. However, the parties and the trial court have treated the corporation as an individual. For consistency, any references to the corporation or the individual in this opinion will be as "Fore.”

      . The Mississippi State Tax Commission is now known as the Mississippi Department of Revenue. For consistency with the record, "Mississippi State Tax Commission" or "MSTC” will be used to refer to the Mississippi Department of Revenue.

      . As part of the MSTC reorganization in 2010, the Full Commission became a separate agency known as the Mississippi Board of Tax Appeals. However, for consistency with the record, "Full Commission” will be used to refer to what is currently known as the Mississippi Board of Tax Appeals.

      .The provision stated: "Requirements are hereby waived for permitted municipal solid waste landfills to obtain prior MDEQ approval of linear construction quality assurance ("QA”) plans for new disposal cells for a period of 6 months. During this 6 month period, the QA plans must be submitted to MDEQ within 14 days of construction; however, MDEQ approval is not necessary prior to initiating use of the cell."

      . Although Fore entered 298,964 tons on the form, it appears that this actually may be the amount of waste in cubic yards, rather than tons, based on the calculations for converting cubic yards to tons set out above.

      . Section 27-77-7 was revised effective July 1, 2010, after the assessment involved here was issued. Subsection (4) is now subsection (5), and several minor, nonsubstantive changes were made to the statute. See Miss. Code Ann. § 27-77-7(5) (Rev. 2010).

      . Mississippi Code Section 33 — 15—31(b) provides:
      All orders, rules, and regulations promulgated by the Governor, the Mississippi Management Agency or by any political subdivision or other agency authorized by this article to make orders, rules and regulations, shall have the full force and effect of law, when, in the event of issuance by the Governor, or any state agency, a copy thereof is filed in the office of the Secretary of State, or, if promulgated by a political subdivision or agency promulgating the same. All existing laws, ordinances, rules and regulations inconsistent with the provisions of this article, shall be suspended during the period of time and to the extent that such conflict, disaster or emergency exists.

      Miss.Code Ann. § 33-15-31(b) (Rev. 2010) (emphasis added).


author: PIERCE, Justice,

text:
    Eddie MITCHELL v. STATE of Mississippi.
    No. 2010-KA-00095-SCT.
    Supreme Court of Mississippi.
    June 21, 2012.

      Julie Ann Epps, Canton, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before DICKINSON, P.J., RANDOLPH and PIERCE, JJ.
   PIERCE, Justice,

for the Court:

¶ 1. On April 22, 2005, Eddie Mitchell shot and killed Cliff Patterson while both were working as mechanics at Anglin Tire in Jackson, Mississippi. Mitchell claimed that he killed Patterson in self-defense. A jury in the First Judicial District of Hinds County found Mitchell guilty of murder, and as a result, the trial court sentenced Mitchell to life in prison. At issue on appeal is whether the trial court properly instructed the jury on self-defense and manslaughter; whether the trial court erred in admitting evidence of a past physical altercation between Mitchell and a former coworker; whether prosecutorial misconduct existed in cross-examination and closing arguments; and whether trial counsel was ineffective.

FACTS

¶2. Mitchell and Patterson had known each other for sixteen years and had worked with each other for eight years. Around October 2004, Patterson accused Mitchell of stealing one of his tools, and although Patterson later found the missing tool that same day, he continued to maintain that Mitchell had taken it. According to Mitchell, Patterson refused to speak with him and informed him that he should not borrow any more of his tools. Patterson also agreed not to use Mitchell’s tools, microwave, or refrigerator. Even though Mitchell claims that he and Patterson were having a six-month dispute over a missing tool, the shop supervisor and the other employees who testified were unaware of any animosity between Mitchell and Patterson.

¶ 3. The day before Mitchell killed Patterson, April 21, 2005, Mitchell claimed that Patterson had used his microwave and refrigerator. Mitchell said he then reminded Patterson about their agreement not to use each other’s things, at which point Patterson became extremely angry and threatened to kill Mitchell. Mitchell said that Patterson then went to his truck, got a gun, and placed it in his toolbox. However, the day ended without further incident, and in fact, Timothy Wiley, the shop supervisor, testified that all of the shop employees stayed after closing to have a few beers together.

¶ 4. Mitchell testified that, on April 22, 2005, while Patterson was working with a bench-vise, he approached Patterson to discuss their differences. Mitchell asserted that Patterson again became angry and began to come after him. Mitchell claimed that he had believed that Patterson might use the wrench he was using as a weapon, so Mitchell went to his toolbox to retrieve his .38 caliber pistol. Mitchell averred that, once he had his pistol, he fired, hitting Patterson in the torso. Mitchell claimed that Patterson then turned around to go to his toolbox, and Mitchell thought that he may have been going to get a gun Mitchell claimed Patterson had placed there earlier. However, Patterson never made it to his toolbox, because Mitchell shot him two more times — once in the back of the shoulder and once in the back of the head.

¶ 5. After the shooting, investigators did not find a wrench near Patterson’s body, nor did they find a gun in his toolbox. Jackson Police arrested Mitchell and took him to the police station to give a statement. Detective Tyree Jones interviewed Mitchell for forty-five minutes and took a written statement from Mitchell, who confessed to killing Patterson.

¶ 6. Mitchell’s trial began on December 18, 2006, and at trial, two of Mitchell’s coworkers testified to having seen Mitchell shoot Patterson. Although Mitchell maintains that he acted in self-defense in killing Patterson, no one testified to knowing about any animosity between Patterson and Mitchell, and no one testified to seeing Patterson threaten Mitchell in any manner at any time. The jury unanimously found Mitchell guilty of murder, and Mitchell now appeals his conviction.

¶ 7. On appeal, Mitchell asserts that the trial court improperly instructed the jury on self-defense and manslaughter; that the trial court erred in allowing evidence of a past physical altercation between Mitchell and a former eoworker; that the prosecutor committed misconduct in cross-examination and closing arguments; and that he was a victim of ineffective assistance of counsel. We hold that the trial court properly instructed the jury; the trial court did not err in admitting evidence of a past physical altercation; prose-cutorial misconduct did not take place during cross-examination nor during closing arguments; and trial counsel gave effective representation. Therefore, the judgment of the Circuit Court of Hinds County should be affirmed.

DISCUSSION

¶ 8. Mitchell admits that defense counsel made no objections on his behalf at trial, which would have preserved the issues for appeal. Therefore, he asks that this Court review his assignments of error under the plain-error doctrine. In addition, he asserts that his constitutional right to a fair trial was violated. Normally, the failure to make an objection imposes a procedural bar, prohibiting an appellate court from review. Yet, Mississippi case-law establishes that when fundamental rights are implicated, this Court will not impose procedural bars and will review for plain error. And the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee a criminal defendant the right to a fair trial in all criminal prosecutions. “To determine if plain error has occurred, this Court must determine if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.” If a criminal defendant is not given a fair trial, his or her constitutional rights have been violated. However, merely asserting a constitutional-right violation alone is insufficient to overcome procedural bars. “There must at least appear to be some basis for the truth of the claim before the procedural bar will be waived.” Therefore, this Court must review the record based on Mitchell’s assignments of error to determine whether any arguable basis exists for Mitchell’s claim that his right to a fair trial has been violated.

I. Whether the trial court properly instructed the jury on murder, self-defense and manslaughter.

¶ 9. Mitchell asserts that the jury instructions on self-defense and manslaughter either individually or cumulatively denied him his constitutional rights to a fair trial, to a properly instructed jury, and to present his theory of defense. Mitchell admits in his brief that defense counsel made no objections to the jury instructions as given, but he asserts that, because his fundamental rights were violated, his designations of error should not be barred.

¶ 10. “Every person is entitled to a fair and impartial trial, and the dispensing of justice is the object of the courts.” It is undeniable that Mitchell has a right to a fair trial, and for the trial to be fair, the jury must be instructed properly on the theory of defense for which he presented proof. This Court’s primary concern regarding jury instructions is whether “the jury was fairly instructed and that each party’s proof-grounded theory of the case was placed before it.” However, a defendant’s entitlement to jury instructions is limited because the court can refuse instructions which incorrectly state the law, are covered elsewhere in the instructions, or where no foundation in evidence exists for such an instruction.

¶ 11. This Court reviews jury instructions as a whole and not in isolation. And when this Court reads the instructions as a whole, it will not find reversible error so long as the instructions given fairly announce the law and do not stand to create injustice. In other words, “[rjeversal is not warranted when instructions, taken as a whole, fairly, though not perfectly, announce the law.”

A. Self-Defense

¶ 12. The trial court gave its own instructions on self-defense and is allowed to do so by rule. In fact, the trial court gave two self-defense instructions, C-6 and C-7. Jury instruction C-6 read, in pertinent part, as follows:

The Court instructs the jury that the killing of a human being by the act of another is justifiable under the law if done in the lawful defense of one’s person under certain circumstances. To make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present, and urgent, or the defendant must have objectively reasonable grounds, in the opinion of the jury, to apprehend a design on the part of the deceased to kill him or do him some great bodily harm. In addition, the defendant must have objectively reasonable grounds to apprehend that there is imminent danger of such design being accomplished.
It is for the jury to determine the reasonableness of the ground upon which the defendant acts. If the jury determines that the defendant in this case, Eddie Mitchell, killed Cliff Patterson in necessary self-defense, as defined above, then you must find the defendant not guilty.

Jury instruction C-7 read as follows:

The Court instructs the jury that while the danger that would justify the taking of another’s life must be imminent, impending, and present, such danger, if any, need not be unavoidable except by killing in self-defense. So long as the defendant, Eddie Mitchell, was in a place where he had the right to be and was neither the immediate provoker nor aggressor, he had the right to stand his ground and resist force with force, taking care, however, that any such resistance was not disproportionate to any attack upon him or any imminent threat to do him some great bodily harm by the deceased, Cliff Patterson.

Under these instructions, Mitchell alleges on appeal that the jury was instructed improperly, because the instructions conflict on a material issue — imminent, impending, and present danger. More specifically, Mitchell claims that imminent, impending, and present danger is not required. Additionally, he contends that it was improper for the trial court to use the language “in the opinion of the jury.” He further argues that he was deprived of his imperfect self-defense theory because of the trial court’s omission, and that C-6 improperly shifted the burden to Mitchell to prove that he acted in self-defense.

¶ 13. The cases Mitchell cited fail to address the issue of whether imminent danger is required. Rather, the cases Mitchell cited focus on his subjective belief and whether, under that belief, he could have used reasonable force. And in fact, Mitchell cited a headnote, drafted by a legal publisher as if it were caselaw, from Godwin v. State, 73 Miss. 873, 19 So. 712 (Miss.1896), stating that the danger is to be imminent. Nevertheless, Mississippi Code Section 97 — 3—15(f), the justifiable homicide statute, requires that “there shall be imminent danger” in order for one lawfully to “defend one’s own person.” At one time, common law required the danger to be actual, but now, the danger required must be that which is reasonably apparent and imminent.

¶ 14. Although Mitchell testified at trial that he and Patterson were having a six-month dispute over a missing tool, none of the other employees testified to knowing about it, and the testimony elicited showed that, on the day before the shooting, both Mitchell and Patterson stayed after work with the other employees to have a few beers. Yet, Mitchell claimed that he initially believed that Patterson may have been coming at him with a wrench, so he shot him in the stomach area. Then, he shot him two more times in the back after Patterson turned away, because Mitchell claims he additionally believed that Patterson may have been going for a gun. However, the investigators did not find a wrench near Patterson’s body, nor did the investigators find a gun in Patterson’s belongings at the tire shop.

¶ 15. The issue of self-defense is to be determined by the jury. All factual disputes in this regard are determined by the jury and “do not mandate a new trial.” The jury was presented with all the facts, both Mitchell’s account as well as the other witnesses’ accounts. In other words, the jury heard from Mitchell that he shot a man who was wielding a wrench, and the jury heard from other disinterested witnesses that Mitchell shot an unarmed man. Moreover, the jury heard from Mitchell that he and Patterson were fighting over tools, the use of a microwave, and the use of a refrigerator. They also heard through testimony that both men stayed around the night before with other employees to have some beers. The jury is charged with determining the truth. Obviously, it was unpersuaded by Mitchell’s testimony. Accordingly, Mitchell’s argument is without merit.

B. Manslaughter

¶ 16. Mitchell contends that the trial court’s instruction on murder in C-5 deprived him of his imperfect self-defense theory (the subject of C — 6), and that it shifted the burden of proof to the defense. C-5 read:

I.
The Court instructs the jury that murder is the killing of a human being, not in necessary self-defense, and without authority of law, by any means or any manner, when done with malice aforethought or deliberate design to effect the death of the person killed or any other person. The Court further instructs the jury that if you find from the evidence in this case, beyond a reasonable doubt, that:
1) the defendant, Eddie Mitchell, on or about April 22, 2005, in the First Judicial District of Hinds County, Mississippi,
2) killed Cliff Patterson, a human being, without authority of law, by any means or in any manner, with malice aforethought or deliberate design to effect the death of Cliff Patterson, and
8) the defendant, Eddie Mitchell, was not then and there acting in necessary self-defense,
then and in that event the defendant, Eddie Mitchell, is guilty of murder and it is your sworn duty to so find.
The Court further instructs the jury that the terms “malice aforethought” and “deliberate design,” as used in these instructions of the Court, means a full awareness of what one is doing and generally implies careful and unhurried consideration of the consequences; to calculate, plan and contemplate. Malice aforethought or deliberate design cannot be formed at the very moment of the fatal act, however, malice aforethought or deliberate design need not exist in the mind of the defendant for any definite time, not for hours, days or even minutes, but if there is malice aforethought or deliberate design, and it exists in the mind of the defendant but for an instant before the fatal act, this is sufficient malice aforethought or deliberate design to constitute the offense of murder.
II.
The Court further instructs the jury that if the State fails to prove, beyond a reasonable doubt, each and every element of murder, as set forth above, you may not find the defendant guilty of murder, but should proceed in your deliberations to determine whether the said defendant is guilty of the lesser offense of manslaughter, as defined in other instructions of the Court.

The trial court instructed the jury on manslaughter as part of C-6, which read, in pertinent part, as follows:

The Court further instructs the jury, however, that the killing of another person without malice aforethought or deliberate design, as defined in other instructions of the Court, under the defendant’s bona fide belief, but without objectively reasonable grounds in the opinion of the jury, that it was necessary for him to do so in order to prevent the deceased from inflicting death or great bodily harm upon him, is manslaughter. If the defendant’s apprehension was objectively reasonable in the opinion of the jury, the killing is justifiable, in which event you must find the defendant not guilty. If, on the other hand, the defendant’s apprehension is only subjectively, in his own mind, reasonable, the killing is manslaughter.
Therefore, the Court instructs the jury that if you find from the evidence in this case, beyond a reasonable doubt, that the defendant, Eddie Mitchell, on or about April 22, 2005, in the First Judicial District of Hinds County, Mississippi:
1) killed Cliff Patterson, a human being;
2) without malice aforethought or deliberate design, as those terms are defined in other instructions of the Court;
3) under the bona fide belief, in his own mind, that it was necessary for him to do so in order to prevent the said Cliff Patterson from inflicting death or great bodily harm; but
4) such apprehension was not objectively reasonable in the opinion of the jury, then in that event, the killing of Cliff Patterson was without authority of law, not in necessary self-defense, and is manslaughter, for which it would be your sworn duty to find the defendant, Eddie Mitchell, guilty.

¶ 17. The instructions given to the jury regarding Mitchell’s imperfect self-defense theory were adequate, and the burden of proof was not shifted to the defense. The instructions clearly required the State to prove beyond a reasonable doubt that Mitchell was guilty of murder. And as mentioned previously, due to the testimony and evidence presented at trial, it is clear that the jury simply was unpersuaded by Mitchell’s testimony and returned a verdict accordingly. Moreover, the instructions cannot be read in isolation as Mitchell asks this Court to do; instead, this Court must take the instructions as whole. Read as a whole, it is clear that the instructions given to the jury were sufficient and did not constitute a serious miscarriage of justice. As a result, Mitchell’s contentions are without merit.

C. Murder

¶ 18. Mitchell also challenges his murder instruction on the grounds that the “but for an instant” language was inappropriate. He cites Williams v. State for the proposition that the phrase “but for an instant” requires reversal. However, this Court found no error with such an instruction in Young v. State. Therefore, Mitchell’s argument is without merit.

II. Whether the trial court erred in admitting evidence of a past physical altercation between Mitchell and another individual.

¶ 19. Mitchell admits that defense counsel failed to object to evidence of a past physical altercation. Yet, he maintains that his fundamental right to a fair trial was violated because the court admitted evidence of his past physical altercation with another individual where he worked. Evidence of prior bad acts is admissible as long as the requirements of the Rules of Evidence are met. And a trial court enjoys a great deal of discretion in determining whether evidence is admissible.

¶ 20. Mitchell premises his argument on Mississippi Rule of Evidence 404(b):

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Mitchell argues that, because the prior bad act in question did not result in a conviction, the prosecution could not elicit any testimony about it, and thus, the trial court erred in admitting it. On cross-examination of Mitchell, the prosecution elicited testimony that he had engaged in a past physical altercation with a previous employee, Wendell Christmas. However, defense counsel failed to object. Regardless, the comment to Rule 404(b) specifically addresses this issue: “[tjhese past acts admitted into evidence may be ones for which the person in question was either convicted or not convicted.” Therefore, Mitchell’s mere assertion of a violation of his fundamental right to a fair trial is insufficient.

¶ 21. Essentially, a trial court cannot err when it makes no ruling. Objections are a fundamental concept of the practice of law, because an objection prevents costly new trials, allows the offering party a chance to avert the objection, and an objection grants the trial court an opportunity to rule on the issue. Although it is the duty of the trial court “to direct the activity of the juries, the lawyers, and the litigants,” the trial court has no duty to interfere with an attorney’s particular line of questioning, for objecting is the province of the defense attorney. Because no objections were made, the trial court could not pass judgment, and therefore, cannot be in error on a ruling never made.

III. Whether prosecutorial misconduct existed in cross-examination and closing arguments.

¶ 22. Even in the absence of defense objection, Mitchell asserts that his fundamental right to a fair trial was violated by prosecutorial misconduct. Mitchell alleges that the State erred when it referred to his past physical altercation with Wendell Christmas during closing arguments;, misstated the evidence and the law; and asked improper questions during the cross-examination of Mitchell’s character witness, Rev. Lloyd Inmon — which allegedly impeded the jury’s ability to make important credibility evaluations. After a review of the record, we find no reversible error with regard to any of Mitchell’s points of contention comprising this issue.

¶23. First, the references made to the past physical altercation were proper because those references were made after Mitchell had placed his character in issue. However, Mitchell continues to assert that, for the past physical altercation to be referenced, he must have been convicted. Such argument is unsupported by the Mississippi Rules of Evidence.

¶ 24. Second, Mitchell’s argument that the State misstated the evidence is exaggerated. Mitchell claims that the State misstated the evidence on the cross-examination of Mitchell by making it appear that Mitchell never had seen Patterson with a gun the day before the shooting. Yet, the State presented Mitchell with his sworn statement taken after the shooting. The State attempted to impeach Mitchell’s testimony that he had seen Patterson with a gun the day before the shooting. Impeaching a witness with the witness’s own sworn statement is not a misstatement of the evidence, but basic trial tactics. Therefore, Mitchell’s claim has no foundation in law.

¶ 25. As to the cross-examination of Rev. Inmon, the record shows the following exchange:

Q: Pastor, you were not present at the Anglin Tire Company on April the 22nd of 2005, were you?
A: No.
Q: And are you aware that Eddie Mitchell has been charged with shooting Cliff Patterson three times?
A: Yes.
Q: And if he were convicted of that offense, would that have any effect on your belief or opinion about his reputation?
A: No.
Q: Would not?
A: No.

¶26. Relying on Craft v. State, 254 Miss. 413, 181 So.2d 140 (1965), and a Fifth Circuit case, United States v. Candelaria-Gonzalez, 547 F.2d 291 (5th Cir.1977), Mitchell contends the law is well established that a prosecutor may not ask a defendant’s character witness on cross-examination if his or her opinion of the defendant’s good reputation would change if the defendant were to be convicted of the charged offense. The State responds that the prosecution’s question was not improper under Craft.

¶ 27. We disagree with the State. Though somewhat lacking in its legal analysis on the issue, Craft more than seemingly holds that it is improper to ask a guilt-assuming question of a character witness testifying as to the defendant’s reputation in the community. But because we are limited to plain-error review in this instance, and because Craft and Candelaria-Gonzalez are distinguishable from this case in a number of significant respects, we need only point out what Mitchell fails to take into consideration by relying on these two cases for support of the notion that such a question constitutes per se reversible error.

¶ 28. Unlike here, the defense in Craft and Candelaria-Gonzalez had entered contemporaneous objections on the complained-of questions, which the trial court overruled in each case. In Craft, the defendant presented “many good citizens— ministers, doctors, a banker, public offi-eers[,] and other prominent persons — who testified unequivocally that [defendant] bore a reputation of good character in the community.” Craft, 181 So.2d at 143. The trial court permitted the prosecution to ask each witness “whether or not they would have a different opinion if they were reliably informed of [the defendant’s] guilt of the crime for which he was then being tried.” Id. This Court emphasized that, even though the defendant had objected in most instances to this method of interrogation, the trial court had required the witnesses to answer. The Craft Court then touched on the substance of the error, which — procedurally speaking — was proper in that case, because the error had been preserved for appeal.

¶ 29. Craft also entailed other trial errors. In addition to the impropriety found with regard to the cross-examinations in the case, the Craft Court found that the defendant was unfairly prejudiced by an immaterial, obscene photograph allowed into evidence and by testimony relating that the codefendant had committed suicide after the arrest shown in the case. Id. at 417-21, 181 So.2d 140.

¶ 30. A reading of Candelaria-Gonzalez shows that the prosecutor had asked four of the defendant’s character witnesses if their opinion of defendant’s reputation for good character would be affected if the defendant were convicted of trafficking in narcotics, the crime for which the defendant stood charged. Candelaria-Gonzalez, 547 F.2d at 293. The defense had entered an objection in each instance on the ground of prejudice. Id. The trial court allowed the question to be asked to the first three witness, but ultimately sustained the objection when the question was asked of the last witness. Id. On appeal, the Fifth Circuit held that the trial court had abused its discretion in allowing the prosecutor to ask these hypothetical questions because they were not relevant for good character and were based on the assumption of the defendant’s guilt. Id. (emphasis added). Again, unlike here, the error(s) were preserved for appeal.

¶ 31. Notably, a year after Candelaria-Gonzalez was decided, the Fifth Circuit was presented with a similar issue in United States v. Palmere, 578 F.2d 105 (5th Cir.1978). There, one character witness was asked if his opinion of the defendant’s reputation for “truth and veracity” would change if the witness knew the defendant had smuggled cocaine into the country, the crime for which that defendant stood charged. Palmere, 578 F.2d at 107. The defense objected on the ground that the question was repetitive, and the trial court sustained. Relying on Candelaria-Gonzalez, the defendant argued on appeal that such a question was so prejudicial that his conviction must be reversed. Id. In affirming the defendant’s conviction, the Palmere court first noted that in Candelaria-Gonzalez, such a question had been put to multiple witnesses over the defense’s objection(s). Id. at 107-08. The Palmere court then stated the following:

In Candelaria [-Gonzalez,] the primary ground of reversal was the appearance of hostility toward the defense manifested by the court. We need not determine here whether under its authority a repeated resort by the prosecution to hypothetical questions of this sort is sufficient in and of itself to require reversal, since here the sole objection voiced was on grounds of repetitiveness. Thus, any reversal here would have to rest on a determination that one asking of such questions constitutes plain error. We conclude that it does not.

Id. at 107; see also U.S. v. Pirani, 406 F.3d 543, 554 (8th Cir.2005) (holding that, although it was improper for the prosecutor “to ask ... guilt-assuming questions” of the defendant’s character witness, “particularly one which assumed [the defendant] was guilty of the charged offenses,” the impropriety did not constitute plain error); U.S. v. Shwayder, 312 F.3d 1109, 1122 (9th Cir.2002) (holding that “asking character witnesses hypothetical questions that assume the defendant’s guilt during cross-examination is error[,]” but “error did not affect [defendant’s] substantial rights and thus does not warrant reversal under the plain error standard”).

¶ 32. Here, we have one question that was presented to one witness, with no objection from the defense so as to allow the trial court an opportunity to obviate the impropriety of it. From a plain-error standpoint, we can only surmise that the defense either made a deliberate, tactical decision not to object or was unfamiliar with Craft. Taking only the latter into consideration, we find that irrespective of appellate counsel’s legal acuity on the issue, it cannot be said that this type of issue is clear-cut. Craft appears to be the only Mississippi decision that has specifically addressed this issue. And we also point out that in Shwayder, a 2002 decision, the Ninth Circuit noted that neither it nor the United States Supreme Court had yet addressed whether a question by the prosecution on cross-examination which asks a witness to assume the defendant’s guilt for the crime charged constitutes error. Shwayder, 312 F.3d at 1121. In short, we cannot say the alleged error here was plain. Cox, 793 So.2d at 597. Moreover, based upon the record before us, we do not conclude that the outcome of Mitchell’s trial would have been different had it not been for this error.

¶ 33. Finally, in arguing prosecutorial misconduct, Mitchell’s brief misstates the record, reweighs the evidence, reexamines testimony of various witnesses, and makes various leaps of logic. The focus of this argument is apparently to show how the statements of the prosecutor shifted the burden of proof to the defense and undermined the ability of the jury to make credibility determinations. But, after review of the record in this regard, this Court finds no error in the prosecutor’s actions. Accordingly, Mitchell’s argument is without merit.

IV. Whether ineffective assistance of counsel existed.

¶ 34. Mississippi employs the Strickland test to determined whether trial counsel was ineffective. Under Strickland, “a defendant must prove that his attorney’s performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial.” Ineffective-assistance-of-counsel claims typically are reserved for post-conviction relief, since those claims generally rely on evidence outside the appellate record. Nonetheless, this Court “will consider an ineffective-assistance claim on direct appeal if the presented issues are based on facts fully apparent from the record.”

¶ 35. Mitchell’s contentions stem from his trial counsel’s failure to object. In some instances, the decision to object or not to object is a strategic determination of the trial attorney. Because this Court is left to speculate at Mitchell’s trial counsel’s strategy, this Court -will leave the question of ineffective assistance of counsel to be resolved another day.

CONCLUSION

¶ 36. The trial court properly instructed the jury on self-defense and manslaughter. Moreover, the trial court did not err in allowing the prosecution to question Mitchell about a past physical altercation with a former coworker. Also, this Court fails to find where the prosecution committed misconduct. Finally, Mitchell’s claim of ineffective assistance of counsel cannot be substantiated from the appellate record. Accordingly, Mitchell’s conviction and sentence are affirmed.

¶ 37. CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR, KITCHENS, CHANDLER AND KING, JJ., CONCUR.

      . Debrow v. State, 972 So.2d 550, 553 (Miss.2007).

      . Anderson v. State, 62 So.3d 927, 949 (Miss.2011) (citing Graves v. State, 969 So.2d 845, 846-47 (Miss.2007)).

      . Cone v. Bell, 556 U.S. 449, 129 S.Ct. 1769, 1772, 173 L.Ed.2d 701 (2009); U.S. v. Agurs, 427 U.S. 97, 107, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (overruled on other grounds by U.S. v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985)).

      . Cox v. State, 793 So.2d 591, 597 (Miss.2001).

      . Means v. State, 43 So.3d 438, 442 (Miss.2010).

      . Id.

      . See id.

      . Brooks v. State, 209 Miss. 150, 46 So.2d 94, 97 (Miss.1950).

      . See Spires v. State, 10 So.3d 477, 483-84 (Miss.2009); see also Chinn v. State, 958 So.2d 1223, 1225 (Miss.2007).

      . Banyard v. State, 47 So.3d 676, 681 (Miss.2010) (internal quotations omitted).

      . Thomas v. State, 48 So.3d 460, 470 (Miss.2010); Newell v. State, 49 So.3d 66, 73-74 (Miss.2010); Banyard, 47 So.3d at 681; Spires, 10 So.3d at 483-84; Poole v. State, 826 So.2d 1222, 1230 (Miss.2002).

      . Thomas, 48 So.3d at 470.

      . Harden v. State, 59 So.3d 594, 608 (Miss.2011); Dedeaux Util. Co., Inc. v. City of Gulfport, 63 So.3d 514, 542 (Miss.2011); Newell, 49 So.3d at 73-74.

      . Thomas, 48 So.3d at 470.

      . URCCC 3.07.

      . Miss.Code Ann. § 97-3-15(f) (Rev.2006).

      . Scott v. State, 203 Miss. 349, 34 So.2d 718, 719 (Miss.1948).

      . See Jones v. State, 39 So.3d 860, 865 (Miss.2010).

      . Id.

      . Thomas, 48 So.3d at 470.

      . Williams v. State, 729 So.2d 1181, 1186 (Miss.1998).

        . Young v. State, 891 So.2d 813, 820 (Miss.2005).

      . Hargett v. State, 62 So.3d 950, 953 (Miss.2011).

      . Id.

      . Miss. R. Evid. 404(b).

      . Miss. R. Evid. 404(b) cmt.

      . Hughes v. Hosemann, 68 So.3d 1260, 1265 (Miss.2011).

      . Oates v. State, 421 So.2d 1025, 1030 (Miss.1982).

      . Roberson v. State, 257 So.2d 505, 508 (Miss.1972).

      . See Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987) ("Logic is strained at the thought of an appellate court affirming or reversing a decision never made.”).

      . Williams v. State, 73 So.3d 1125, 1128-29 (Miss.2011) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

      . Parker v. State, 30 So.3d 1222, 1233 (Miss.2010).

      . Williams, 73 So.3d at 1129.

      . Id.