author: THIBODEAUX, Chief Judge.

text:
    Marie LANGLINAIS, et al. v. Dr. Richard DEARMAN, et al.
    No. 2007-44.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Alan K. Breaud, Timothy Wayne Bas-den, Breaud & Meyers, LaFayette, LA, for Defendants/Appellees — Louisiana Medical Mutual Ins. Co. and Richard Dearman, M.D.
    Deborah Ellen Lavender, New Orleans, LA, for Plaintiffs/Appellants — Marie Lan-glinais and Larry Langlinais.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS; and ELIZABETH A. PICKETT, Judges.
   THIBODEAUX, Chief Judge.

| plaintiffs, Marie and Larry Langlinais (the Langlinaises), appeal a judgment pursuant to a jury verdict finding that Dr. Richard Dearman (Dr. Dearman) did not breach the standard of care when performing coronary by-pass surgery on Mrs. Lan-glinais. The Langlinaises also appeal the denial of their motion in limine requesting that the trial court limit Dr. Dearman’s ability to call all three members of the medical review panel as witnesses in his defense. For the following reasons, we affirm the trial court’s denial of the motion in limine and the judgment in favor of Dr. Dearman.

I.

ISSUES

The Langlinaises assign as error the following two issues:

1. was the jury verdict finding that Dr. Dearman did not breach the standard of care clearly wrong based on the evidence, or clearly without evi-dentiary support?
2. did the trial court err when it denied the Langlinaises’ Motion in Limine, asking that Dr. Dearman not be allowed to call all three members of the medical review panel as expert witnesses?

II.

FACTS

In February of 2001,' Mrs. Langlinais went to her doctor complaining of chest pains, among other symptoms. Her doctor sent her to á cardiologist. The cardiologist administered an angiogram which revealed that an artery in her heart had severe blockage. She was diagnosed as having severe coronary artery disease called coronary atherosclerosis. The artery with the severe blockage is called the left anterior descending coronary artery (LAD), and it provides up to fifty-percent of thejjblood flow to the heart. To correct the blockage, Mrs. Langlinais chose to undergo coronary by-pass surgery. The goal of that surgery was to circumvent the LAD, which was ninety-percent blocked. This would hopefully restore blood flow to the front part of her heart and alleviate her chest pains. Her cardiothoracic surgeon was Dr. Dearman, who was recommended to Mrs. Langlinais by her cardiologist.

Dr. Dearman intended to by-pass Mrs. Langlinais’s LAD. Immediately after surgery, Mrs. Langlinais experienced relief from the symptoms which had originally brought her in to see her doctor.

In September of 2001, she began to experience chest pains again while dancing and during an exercise walk. An angio-gram was performed. It was discovered that she was suffering from a new blockage. The angiogram also revealed that Dr. Dearman had by-passed the diagonal branch of the LAD instead of the main branch. The .diagonal is an artery that branches off of the main branch of the LAD. This time the blockage was located in the diagonal branch.

The only viable option for her long-term survival was to undergo open heart surgery once again to circumvent the new blockage of the diagonal and the previous blockage of the LAD. While Dr. Dearman offered to perform another by-pass surgery on Mrs. Langlinais, she elected to have the surgery done by a different car-diothoracic surgeon.

After a successful surgery and recovery, the Langlinaises filed a complaint against Dr. Dearman with the Louisiana Patients’ Compensation Fund. A medical review panel was convened in accordance with the requirements enumerated in La.R.S. 40:1299.47. The medical review panel opinion unanimously concluded that Dr. Dear-man’s actions did not breach the standard of care required of a cardiothoracic surgeon.

IsAfter receiving and reviewing the medical review panel opinion, the Langlinaises filed a medical malpractice claim in district court. A jury returned a verdict in favor of Dr. Dearman, concluding that he did not breach the standard of care required of a cardiothoracic surgeon. The Langlinaises filed a motion for a judgment notwithstanding the verdict which was denied. They then timely filed this appeal.

III.

LAW AND DISCUSSION

Standard of Review

The Supreme Court has set out in clear detail both the standard of review an appellate court must apply when evaluating a jury verdict, as well as the process that must be used when applying that standard of review.

A trial court’s findings of fact may not be reversed absent manifest error or unless clearly wrong. Stobart v. State of Louisiana, through Dep’t of Transp. and Dev., 92-1328 (La.4/12/93), 617 So.2d 880. This court has a constitutional duty to review facts. Ambrose v. New Orleans Police Dep’t Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So.2d 216. Because we have this duty, we must determine whether the verdict was clearly wrong based on the evidence, or clearly without evidentiary support. Id. The reviewing court must do more than just simply review the record for some evidence which supports or controverts the trial court’s findings; it must instead review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Id. at 882. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Id. The reviewing court must always keep in mind that “if the trial court’s or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 882-83 (citing Housley v. Cerise, 579 So.2d 973 (La.1991)) (quoting 4Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

Fusilier v. Dauterive, 00-151, p. 5 (La.7/14/00), 764 So.2d 74, 78.

The central question in this case is not whether Dr. Dearman made a mistake. All witnesses and parties, including Dr. Dearman, agree that the intended graft should have been to the LAD itself and not to the diagonal artery which branches off from it. Rather, the question to be answered is whether his actions in grafting the by-pass to the diagonal instead of the LAD constitute a breach in the standard of care required of physicians by Louisiana law.

The standard of care that Dr. Dearman must be held to is outlined by statute as follows:

2794. Physicians, dentists, optometrists, and chiropractic physicians; malpractice; burden of proof; jury charge; physician witness expert qualification
A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., ... the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.

La.R.S. 9:2794(A)(1).

The degree of knowledge or skill and care that Dr. Dearman must be held to is a national standard, as there are too few cardiologists in the state of Louisiana l.qto be considered “a similar community or locale and under similar circumstances” as required by the statute. Id.

The Louisiana Supreme Court has elaborated on the application of this standard.

A physician is required to exercise that degree of skill ordinarily employed under similar circumstances by others in the profession and also to use reasonable care, diligence, and judgment. A physician is not required to exercise the highest degree of care possible; rather, his duty is to exercise the degree of skill ordinarily employed by his professional peers under similar circumstances.

Fusilier v. Dauterive, 764 So.2d at 79 (citations omitted).

The record in medical malpractice cases contains testimony of a number of expert witnesses. The trier of fact is in the best position to evaluate and weigh the testimony of expert witnesses. Therefore, the evaluations of credibility and the weight given to each expert’s opinion by the trial court will be given great deference by a reviewing court. “When the expert opinions contradict concerning compliance with the applicable standard of care, the trial court’s conclusions on this issue will be granted great deference. It is the sole province of the factfinder to evaluate the credibility of such experts and their testimony.” Charpentier v. Lammico Ins. Co., 606 So.2d 83, 87 (La.App. 3 Cir.1992).

Was the Jury Verdict in Favor of Dr. Dearman Clearly Wrong and Unsupported by the Evidence and the Record?

It is our duty to examine the entire record to answer the question of whether the jury verdict in favor of Dr. Dearman was supported by the evidence. Therefore, we will discuss the testimony and evidence in order to determine whether the jury’s verdict was reasonable.

lijDr. Dearman testified that he checked Mrs. Langlinais’s angiogram directly before he commenced surgery on her. When he opened her chest and looked at her heart, the diagonal was approximately where he expected the LAD should be located based on the angiogram. The size of the diagonal met his expectation, based on prior experience, compared to the size of the LAD. Dr. Boustany, the surgeon performing the second open heart surgery on Mrs. Langlinais, stated that the LAD was actually only five tenths of a millimeter larger than the diagonal. Dr. Dear-man stated in his deposition that every indicator suggested that he was grafting the by-pass to the LAD.

Dr. Boustany also stated that he found Mrs. Langlinais’s LAD in the epicardial fat which covers the heart. He knew it was not in the location expected by viewing the angiogram as Dr. Dearman had already discovered that artery was the diagonal. He stated that angiograms are guides, not road maps. They are not precise and exact. Therefore, he knew he would need to look for the LAD. When the LAD is not readily visible it is often either in the epicardial fat surrounding the heart, or in the heart muscle itself. Dr. Boustany found the LAD located in the epicardial fat, approximately one inch from the location of the diagonal.

The surgery performed by Dr. Dearman on Mrs. Langlinais was done “off pump,” meaning that she was not connected to a heart lung machine and her heart was beating on its own. All physicians testifying at trial, including the expert hired by the Langlinaises, agreed that off pump was the right choice for this first surgery since it was intended to by-pass only one artery. All experts stated that digging into the epicardial fat covering the heart in order to look for an artery was dangerous in an off pump operation. Among other complications, it could cause 17bleeding, as well as fibrillations of the heart muscle. Fibrillations of the heart muscle could cause stroke, heart attack, and death.

The second open heart surgery performed by Dr. Boustany was done “on pump,” meaning that a machine was artificially circulating Mrs. Langlinais’s blood so that her heart would not be beating. It would remain unmoving during the surgery. He explained that “on pump” procedures are used when you are either re-operating or performing multiple bypasses. Therefore, digging in the epiear-dial fat surrounding her heart was less dangerous because the heart was not actively pumping blood and was in a relaxed state.

In retrospect, the second surgery seems to have resolved Mrs. Langlinais’s problem regarding blockage of the LAD and diagonal, at least for these five plus years since that operation. AJ1 experts agreed that coronary atherosclerosis, the disease which causes the arteries of Mrs. Langlinais’s heart to get clogged, is not curable. The blockages can be circumvented, but not prevented. There was no evidence presented that tended to show that Dr. Dear-man’s surgery created the subsequent blockage in the diagonal or necessitated the second surgery.

Mrs. Langlinais’s cardiologist stated that the graft to the diagonal had solved her original problem because the diagonal was getting blood to the area of the heart previously deprived by the blockage in the LAD. He stated that the subsequent development of blockage in the diagonal was something that happens to people with coronary heart disease and could not be explained. He did not attribute the need for a second surgery to Dr. Dearman’s bypass graft to the diagonal.

The jury heard from five cardiothoracic surgeons and a cardiologist on whether, in their opinions, Dr. Dearman met or breached the standard of care required of a cardiothoracic surgeon. Three of those six believed that Dr. Dearman’s mistake |Rdid not breach the standard of care. Two of those six offered no opinion as to whether the jury should find that Dr. Dearman did or did not meet the standard of care. One cardiothoracic surgeon stated that he felt Dr. Dearman breached the standard of care. “As fact finders, it was the jury’s role to consider the evidence and the differing expert opinions, make the necessary credibility determinations, and determine which evidence it found more compelling.” Fowler v. Bossano, 01-357, p. 9 (La.App. 3 Cir. 10/3/01), 797 So.2d 160, 167.

However, all five of the testifying surgeons — including the one who believed that Dr. Dearman breached the standard of care — stated that it was likely that they each could have unwittingly made the same mistake that Dr. Dearman did without knowing it. Indeed, all of the car-diothoracic surgeons stated that they had chosen to graft a by-pass to the diagonal instead of the LAD in cases similar to the facts of Mrs. Langlinais’s.

If a patient’s symptoms resolve, a doctor would have no way of knowing that he or she had grafted a by-pass to the diagonal instead of the LAD as intended. Mrs. Langlinais’s symptoms did resolve for a period of seven months. This indicated that the by-pass was providing adequate blood flow to the previously affected areas of her heart. Her new symptoms were attributed to the new blockage that was discovered in an artery other than the LAD.

Mrs. Langlinais’s expert was asked on cross-examination by Dr. Dearman’s attorney whether that opinion was supported by any writing or guideline created by the American Board of Thoracic Surgeons. The doctor answered, “I don’t believe so.”

The standard of care the jury was instructed to apply was whether Dr. Dear-man acted reasonably under the circumstances existing at the time. The standard J^of care is not based on the results achieved at a later time. The jury was instructed that unless they found that Dr. Dearman exercised the required care, skill and judgment in selecting and following the method that he chose, he should be found to have breached the standard of care. It was quite reasonable, based on reviewing all of the evidence in the record, for the jury to determine that Dr. Dear-man acted reasonably under the circumstances.

Under the manifest error standard of review we cannot say that the jury was manifestly erroneous for believing the testimony of some experts over that of others. Frederick v. Woman’s Hosp. of Acadiana, 626 So.2d 467 (La.App. 3 Cir.1993), writ denied, 93-2991 (La.2/4/94), 633 So.2d 169. Based upon these facts, it was reasonable for the jury to conclude that Dr. Dearman did not breach the standard of care when he did not dig through the epicardial fat to ensure he was grafting the LAD when all signs and signals suggested that the artery he was grafting was the intended artery. Therefore, we affirm the judgment of the trial court and find that Dr. Dearman did not breach the standard of care when he mistakenly grafted a by-pass to Mrs. Lan-glinais’s diagonal branch instead of the LAD.

Did the Trial Court Err in Denying the Langlinaises’ Motion in Limine, Allowing All Three Medical Review Panel Members to Testify at Trial?

Louisiana Code of Evidence Article 702 gives the trial court great discretion when allowing specialized experts to testify if their testimony will help the trial court understand the evidence or determine a fact at issue. Fowler, 797 So.2d 160. Louisiana Code of Evidence Article 403 tempers that great discretion with the caveat that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Only if a' reviewing court finds that the trial court’s judgment to allow multiple experts to testify was clearly erroneous will |inthat judgment be disturbed on appeal. Hall v. Brookshire Bros., Ltd., 01-1506 (La.App. 3 Cir. 8/21/02), 831 So.2d 1010, writs granted, 02-2404, 02-2421 (La.11/27/02), 831 So.2d 285, aff'd by, 02-2404 (La.6/27/03), 848 So.2d 559.

Any party may call as a witness any member of the medical review panel. Medine v. Roniger, 03-3436 (La.7/2/04), 879 So.2d 706. While the trial court is afforded great discretion in determining the admissibility of expert witness testimony, when that testimony may prove to be cumulative the trial court should make sure that the testimony fulfills three conditions:

The first condition questions the relevance of the testimony to be elicited. The second seeks to ascertain that the fact finder will be aided by the testimony. The third, balancing the probative value of this testimony against substantial prejudice, confusion, or inefficiency, guards against undue removal of reason from the fact finding process, as well as waste. Want of any of the three is fatal to admission of an expert’s unbridled testimony.

Frederick, 626 So.2d at 471.

Keeping these conditions in mind, we must remember our standard for reviewing the trial court’s decision on the motion in limine. “The admission of cumulative evidence is at the trial court’s discretion.” Mitchell v. Limoges, 05-832, p. 3 (La.App. 3 Cir. 3/1/06), 923 So.2d 906, 908, writ denied, 06-723 (La.6/16/06), 929 So.2d 1285.

The Langlinaises contend that having all three members of the medical review panel testify prejudiced their case beyond repair because the jury was “counting noses.” However, out of the six physicians testifying at trial either in person or via videotaped deposition testimony, each party had three testifying on their behalf. The Lan-glinaises called Dr. Boustany, Dr. Jeffrey Chen, Mrs. Langlinais’s cardiologist, and Dr. Andrew Wechsler, the cardiothoracic surgeon hired to testify as an expert for the Langlinaises’ case. Dr. Dearman called the three members of the medical review panel: Dr. Carlton Sheely, Dr. Nick Moustoukas, and Dr. Travis | nSpears. All three of the doctors called by Dr. Dearman appeared because they were summoned by subpoena.

One cannot assume that because the medical review panel members have found that the defendant doctor has not breached the standard of care that all of those panel members will be biased towards the defendant doctor. In fact, in this case all of the members of the medical review panel were independent from Dr. Dearman. None of them had ever met Dr. Dearman, worked with him, or testified either for or against him before this case.

While each of the medical review panel members testifying were cardiothoracic surgeons, they all practiced in different parts of the state of Louisiana, none had ever worked with any of the others before, and each had different backgrounds and training.

The trial judge denied the motion in limine, with the observation that he was not going to allow each of the panel members to be repetitive.

Dr. Sheely was the first of the three medical review panel members to testify. Dr. Sheely trained with Dr. Michael DeBa-key, the surgeon who was one of the first to perform cardiac by-pass surgery. Dr. Sheely stated that it is sometimes difficult to distinguish the LAD from the diagonal. He stated that it was his belief that the mistake Dr. Dearman made was a reasonable one and therefore did not rise to the level of malpractice. He also said that the new blockage would have required surgery even if the LAD had been grafted in the first surgery.

Before allowing either of the other two members of the medical review panel to testify, the trial judge instructed Dr. Dear-man’s attorney that the court was not going to allow each member of the panel to “parrot the findings of the medical review panel and the reasons why.” The judge made clear that each subsequent | ^witness must have something different to say from the one that came before and after him.

While both statute (40:1299.47(H)) and caselaw (Medine in particular) allow the defendant to call any member of the medical review panel to testify, the trial judge has discretion to limit those witnesses to avoid cumulative testimony. The trial judge did allow each member of the panel to state what each believed to be the standard of care for a cardiothoracic surgeon. The judge also recommended that Dr. Dearman’s lawyer ask the two remaining medical review panel members if they agreed with what was said by Dr. Sheely, and then ask if they had anything to add.

The trial judge was ensuring that all three of the factors outlined in Frederick were met.

Dr. Moustoukas stated that all of the information Dr. Dearman had up to and at the time he performed the by-pass indicated that he was grafting the LAD. In support of that conclusion, Mrs. Langlinais’s symptoms went away. If there were still a problem getting blood to the affected area of the heart, she would have had symptoms again very soon after surgery.

Dr. Spears stated that the surgeon performing the second cardiac by-pass had the benefit of Dr. Dearman’s diagonal graft to serve as a road map to help him find the LAD. Dr. Spears believed that Dr. Dearman was right not to go digging in the epicardial fat surrounding Mrs. Langli-nais’s heart because that would have been a risky and possibly dangerous maneuver on a beating heart.

The Langlinaises’ attorneys were able to cross-examine each of the three witnesses testifying for Dr. Dearman. And, as mentioned above, the Langlinaises presented the testimony of three expert witnesses of their own.

11sThe anatomy of the heart is specialized and complex. Doctors require many years of study in order to understand its intricacies. If the trial judge wanted as much expert testimony to help himself and the jury understand the evidence and determine the facts at issue, he had great discretion to do so. In doing so, he also kept a very close watch on the testimony to ensure that it did not become cumulative to the point of prejudice to the Langli-naises’ case.

Therefore, we find that the trial judge did not abuse his much discretion in denying the Langlinaises’ motion in limine requesting that Dr. Dearman be limited to calling only one of the medical review panel members as a witness in his defense. Both parties had an equal number of physicians testifying on their behalf, and each of the witnesses added expertise that aided the trial judge and jury in determining the facts at issue in this case. The denial of the Langlinaises’ motion in limine is affirmed.

IV.

CONCLUSION

A judgment pursuant to the verdict of a jury will not be overturned on appeal absent a showing, after review of the entire record, that the judgment was clearly wrong or not supported by the evidence. In this case, the jury’s verdict that Dr. Dearman did not breach the standard of care when he by-passed Mrs. Langlinais’s diagonal artery instead of the LAD as he intended was reasonable and supported by the evidence. As long as the verdict is reasonable and supported by the evidence, even if we would have come to a different conclusion, we cannot overturn that verdict. The jury’s verdict in favor of Dr. Dearman is affirmed.

A trial judge has much discretion in determining whether to allow experts to testify, even when that testimony may be cumulative. The trial judge made 1uclear his reasons for allowing each of the three members of the medical review panel to testify on Dr. Dearman’s behalf. The trial judge carefully presided over the direct examination of each of the panel members, and was clear that he would not allow mere recitation of the same testimony by each of these witnesses.

The trial judge did not abuse his much discretion, and the Langlinaises’ case was not irreparably harmed by the testimony of the three medical review panel members. Especially in light of the fact that the Langlinaises were able to cross-examine each of the panel members and call an equal number of expert witnesses for their own case. The trial court’s denial of the Langlinaises’ motion in limine requesting that Dr. Dearman be limited to calling only one member of the medical review panel as a witness is affirmed.

The costs of this appeal are assessed against the plaintiffs, Marie and Larry Langlinais.

AFFIRMED.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Alice F. ANDRIES v. David ANDRIES.
    No. 07-88.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.
    Henry H. Lemoine, Jr., Pineville, LA, for Defendant/Appellant, David Andries.
    Lauren Gay Coleman, Coleman & Henderson, LLC, Alexandria, LA, for Plaintiff/Appellee, Alice F. Andries.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   AMY, Judge.

|2Pavid Andries appeals the judgment partitioning the community property of his former marriage to Alice Andries. The appeal, however, appears before this court on an incomplete record as it lacks the transcript from the trial court proceedings. The pleadings demonstrate that Mr. and Ms. Andries were married in 1957 and that Mr. Andries filed for divorce on July 21, 2000. The trial court granted the divorce in August 2001. Thereafter, in June 2003, Ms. Andries filed a petition for partition of community property. The matter came before the district court for trial in March 2006. After the rendering of written reasons for ruling, the trial court signed the judgment of partition on November 16, 2006.

Mr. Andries appeals the partition of judgment, assigning the following as error:

1. The trial court erred in establishing a value of the Hancock Bank CD which was cashed and disbursed in 2000 between the parties prior to the filing of the Petition for Divorce, therefore it was not in existence at the time the Petition for Divorce was filed nor at the time of the trial of this matter.
2. The trial court erred in not placing a value on the 1990 Dodge Truck and a Lincoln that were last in the possession of Alice Andries, and who had sole use and possession of said automobiles, and did not take the necessary steps for the preservation of said automobiles.
3. The trial court erred in not even acknowledging the motor home that was a community asset and was last in the sole use and possession of Alice Andries.
4. The trial court erred in not allowing all reimbursement payments made by David Andries on community obligations that he paid after the Petition for Divorce was filed, said obligations being paid with his separate funds.
5. The trial court erred in accepting Alice Andries’ claim that she would be entitled to a reimbursement for one-half of an income tax refund.

For the following reasons, we affirm.

| ^Discussion

State of the Record,

Review of Mr. Andries’ assignments of error is hampered by the absence of a trial transcript. Both Mr. Andries’ brief and the trial court’s reasons for ruling note that the proceeding was not recorded. Counsel for Mr. Andries writes that: “When this matter went to trial on March 7, 2006, this writer had no reason to believe that the Trial Court would not record the testimony of the proceedings, as evidenced in the Reasons for Judgment.”

There is no indication what action, if any, was taken to transcribe the hearing according to La. Code Civ.P. arts. 2130 and 2131, which provide:

Art. 2130. Record on appeal; statement of facts
A party may require the clerk to cause the testimony to be taken down in writing and this transcript shall serve as the statement of facts of the case. The parties may agree to a narrative of the facts in accordance with the provisions of Article 2131.
Art. 2131. Same; narrative of facts
If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.

Despite his burden to do so as the appellant, there is no indication that Mr. An-dries caused to be provided either a transcript or narrative of facts. See Steinhoff v. Steinhoff, 03-24 (La.App. 3 Cir. 4/30/03), 843 So.2d 1290; Creech v. Creech, 29,499 (La.App. 2 Cir. 5/7/97), 694 So.2d 589. See also Saacks v. Saacks, 96-736, p. 5 (La. App. 5 Cir. 1/28/97), 688 So.2d 673, 675 (wherein the fifth circuit observed that: “Appellant is in the position of having the burden to demonstrate error in the [judgment of the trial court. For that reason the burden is on appellant to comply with La. C.C.P. art. 2131 and to have a complete record before the court of appeal.”)

Thus, while the parties’ exhibits have been submitted to this court, they are before us absent the context of the testimony that accompanied their introduction into evidence. The trial court, however, rendered written reasons for ruling, which demonstrate its reasoning as to its determinations. To the extent that Mr. An-dries’ assignments of error require reference to evidence and testimony that could have been discoverable from the transcript, this omission is imputable to him. See Steinhoff, 843 So.2d 1293. In Creech, 694 So.2d 589, the second circuit remarked that, in instances where the record lacks a transcript and factual issues are involved, the trial court’s judgment is presumed to be correct and supported by competent evidence. Thus, review is limited to determining whether the pertinent law was correctly applied to the facts. Therefore, we review Mr. Andries’ appeal in light of these considerations.

| sCertificate of Deposit

The trial court recognized that the parties possessed “a CD in the amount of $40,957.37, on June 25, 2000” and, based upon a June 2000 statement of the account submitted by Ms. Andries, awarded each one-half ownership of the certificate. Mr. Andries asserts that the trial court erred in valuing the certificate of deposit at $40,957.37. Rather, he contends that it should have been valued at the time of the trial as is required by La.R.S. 9:2801. Mr. Andries further contends that the certificate was “cashed some time after June 25, 2000 and prior to July 21, 2000, which was the date the community was terminated, and the funds were either used to pay on community obligations and/or disbursed between the parties.”

Notwithstanding any testimony which is absent from the record and any related credibility determinations made by the trial court, the reasons for ruling specifically indicate the trial court’s awareness of La. R.S. 9:2801. However, the trial court observed that the parties’ evidence precluded the statute’s application, stating:

The court also notes that the parties did not present all property values as of the trial date as is required by LSA-R.S. 9:2801, et seq. Neither party objected or offered trial-current evidence. The court has accepted the value presented and will calculate the distribution accordingly.

In light of this statement, and since the only evidence available for review is that offered by Ms. Andries, we find no error in the trial court’s determination.

Vehicles

Mr. Andries next asserts that the trial court erred in failing to place a value on a 1990 Dodge Truck and Lincoln that were in Ms. Andries’ possession. He contends | fithat she had full use and possession of the automobiles, but that she failed to properly preserve their value.

In this regard, the trial court stated:

There was much testimony about cars. David has a 1997 Ford F 150, which he showed has [sic] having a 2005 blue book listing of $11,675.00. He is awarded ownership of this vehicle. Alice had a Dodge truck and someone had a Lincoln, but the testimony at trial showed the Dodge had been wrecked, had the tags pulled and was not operable and the Lincoln had not been driven since 1995. The court finds these vehicle [sic] do not have any value and do not even exist for the purposes of assigning ownership in this partition.

If the factors that Mr. Andries’ advances were presented to the trial court, there is no indication of them in the materials available for review. Thus, the record reveals no error in this regard. As such, this assignment of error lacks merit.

Motor Home

Mr. Andries’ third assignment of error concerns the couple’s motor home, which, according to the trial court’s ruling, was repossessed in September 2001. Ms. An-dries’ exhibit number 1 indicates that a deficiency of $28,739.05 remained after repossession. Other than this fact, and copies of checks written as payment through September 2001, the record contains only the following comment by the trial court in its assessment of the motor home and Mr. Andries’ claimed reimbursements for payments made toward the home:

|77. Bank of the West (# 8656) — This debt was for the Motor Home, where Alice lived until she set up the Kendall Lane property. David is awarded reimbursement for one-half of $22,274.73 or $11,137.36, for payments he made from August 2000 to September 2001, when it was repossessed. The testimony of the parties does not persuade the court that Alice should be solely responsible for the Motor Home bill.

In this assignment of error, Mr. Andries asserts that the motor home was in Ms. Andries’ possession and, therefore, that she should have been held solely liable for the debt. He also contends that the trial court should have valued the motor home as “if it still existed at the time of trial” and then provided him with a proper amount of “credit” for this community asset.

This assignment lacks merit. The trial court’s reasons clearly indicate that it considered the parties’ evidence and testimony on this issue, awarding reimbursements for his contribution to the property. Nothing in the record reveals error in its determination.

Reimbursement

In a two-sentence assignment of error, Mr. Andries contends that he provided invoices and cancelled checks “proving” community debts and, therefore, he is entitled to credit “for one-half of all payments that he made as outlined and presented in the exhibits.”

On the issue of reimbursements, the trial court found:

At the time of trial, all of the debts were paid. There was a date in time where the parties reached some kind of agreement to pay off creditors, but this agreement did not result in any satisfaction for the parties. [Mr. Andries] continues to hold the majority of assets and seeks reimbursements for any payment he ever made, without proof it was payment on a community obligation or acknowledging half of the payment he made was for his own part of the community debt. [Ms. Andries], on the other hand, does not claim to have made any payment on community debts, herself, but has made little or no explanation for any debt or accounts.
_1⅛ •' •
[Mr. Andries] has made multiple claims for reimbursement for payments made post-termination. These payments are set forth in the trial notebook; however, the court was not presented with any arguments or law regarding what was done.

The trial court considered each of the items for which reimbursement was claimed, finding evidence supporting a reimbursement to Mr. Andries in the amount of $21,167.09. The trial court’s recognition that the cancelled checks and invoices lack context is equally true on appeal as there is no accompanying transcript.

This assignment lacks merit.

Tax Refund

Finally, Mr. Andries contends that the trial court erred in awarding Ms. Andries “one-half of an income tax refund from 2000, simply based on her testimony and no evidence. Mr. Andries, on the other hand, had all of the evidence in the world and the Trial Court still refused David Andries’ testimony that the parties had already divided the proceeds.”

Again, any testimony regarding the income tax refund is absent from the record. Further, the trial court’s reasons for ruling indicate that credibility determinations were involved regarding the tax refund. The trial court explained:

[Ms. Andries] seeks reimbursement of one half of an income tax refund of $13,170.00. She endorsed the check and says he cashed it. [Mr. Andries] claims he cashed the check and gave her half. The court accepts [Ms. Andries’] version of events. Everything else in this case demonstrates [Mr. Andries’] desire and intent to withhold paying [Ms. Andries] anything. The court does not believe he gave her the one half and she is owed reimbursement of one half or $6,585.00.

This assignment lacks merit.

IpDECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the appellant, David Andries.

AFFIRMED.

      . In addition to numbered exhibits provided at trial, the trial court's reasons for ruling reference the following:
      The marking of exhibits in this case has created some confusion, especially since the matter was not recorded. David Andries testified at length from a trial notebook prepared by his attorney and he used the numbering system in the notebook. The parties also introduced a few exhibits not in the notebook, which were handed to the clerk. Since the trial notebook had not been introduced at that time, the exhibits were identified as 1, etc. The trial notebook was not introduced until the end of trial, when the court asked the attorney how it was to be numbered. The attorney asked it be numbered D-l in globo. In fact, the notebook has multiple exhibits numbered as "1," etc. Apparently, the clerk did not hear the exchange between the court and the attorney, because the minute entry does not show the introduction of the notebook. The court is certain, however, that it was.
      The court is also certain, however, that the notebook contains much more than David’s actual testimony. There are explanatory statements that may have been more than he said and far more details are provided about bills. That is, the typed portions of the notebook are not regarded as part of the exhibits and the court has considered only the exhibits, themselves.
      A version of this trial notebook has been filed as an exhibit with the record and, in light of the trial court's statement, has been considered on review.

      . Louisiana Revised Statutes 9:2801(A)(4)(a) provides that: “The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.”

      . In discussing the couple's debts, the trial court explained:
      The evidence from the parties shows the former community was solvent on the date of termination, July 21, 2000. Complications have arisen, however, because the parties made interim payments, paid off remaining balances and sold property prior to the suit for partition. Thus, there were other assets that existed and were used to pay off the debts. Further, the parties have not communicated with each other and, therefore, what should have been simple has become very difficult. The parties allowed a motor home to be repossessed, instead of trying to sell the vehicle. In any event, this suit is really a partition of the remaining assets held by David, as other assets were used to pay off all debts.


author: DECUIR, Judge. SAUNDERS, J.,

text:
    Juanita G. GUILBEAUX v. OFFICE OF the DISTRICT ATTORNEY.
    No. 07-89.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Mark Ackal, Mark Ackal & Asáociates, Lafayette, LA, for Defendant/Appellee, Office of the District Attorney.
    Harry K. Burdette, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellant, Juanita G. Guilbeaux.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   DECUIR, Judge.

[ Claimant appeals a judgment of the workers’ compensation judge finding that she failed to establish a work-related injury and denying benefits.

FACTS

Juanita Guilbeaux worked as a secretary for the Lafayette Office of the District Attorney. On July 9, 2002, she allegedly sustained an injury to her back when lifting up on a file drawer that was stuck. Guilbeaux mentioned to her supervisor that she had pulled her back, but declined to file a report because the pull was like similar incidents she had experienced over the years arising out of a previous car accident. A week after the alleged accident, Guilbeaux went to her regular physician, Dr. Chi Vu Pham, for her annual examination. Dr. Pham gave a cortisone injection and ordered an MRI. The MRI came back within normal limits and the cortisone injection failed to help with Guil-beaux’s subjective complaints of pain. Subsequently, Dr. Pham administered another cortisone injection, ordered physical therapy and suggested that Guilbeaux see an orthopedist.

Guilbeaux consulted the yellow pages and selected Dr. John Cobb. Around the same time, she consulted an attorney and filed a report on the alleged accident with her employer. Dr. Cobb reviewed the original MRI and concluded there were subtle signs of abnormality. In addition, Dr. Cobb noted some objective findings in the mid-back region and suggested surgery for what appeared to be anterior column failure. Guilbeaux was not interested in surgery so Dr. Cobb referred her for pain management. The compensation carrier asked that Guilbeaux return to Dr. Cobb for an evaluation, and Dr. Cobb ordered another MRI. Dr. Cobb stated that in his opinion the MRI revealed minimal disc bulge and small disc herniation.

The workers’ compensation carrier asked that Guilbeaux see Dr. Gregory Gid-man for another opinion. Dr. Gidman found that there were no objective signs of Ipinjury, Guilbeaux was at maximum medical improvement and could return to work, and that 4 of 5 Waddel’s were positive for a psychological basis for the complaints. Based on the conflict in the findings between Dr. Cobb and Dr. Gidman, the carrier asked the court to approve an independent medical examination.

Dr. Angela Mayeaux conducted the IME and found no objective findings, Guilbeaux was at MMI, X-rays were normal, and Guilbeaux could return to work. The defendant paid indemnity benefits from July 17, 2002 through February 12, 2004.

After hearing the evidence, the workers’ compensation judge denied benefits based on Guilbeaux’s failure to establish a work-related injury. Guilbeaux lodged this appeal.

WORK-RELATED INJURY

Guilbeaux contends on appeal that the workers’ compensation judge erred in finding that she had failed to established she had sustained a work-related injury. We disagree.

The claimant seeking workers’ compensation benefits must prove by a preponderance of the evidence that she was injured in an accident in the course and scope of her employment. Burns v. Beauregard Nursing Ctr., 94-131 (La.App. 3 Cir. 10/5/94), 643 So.2d 443. The injured employee’s testimony alone may be enough to meet the burden of proof as long as 1) no other evidence contradicts the employee’s version of the accident, and 2) the testimony is corroborated by circumstances following the alleged incident. Bruno v. Harbert Int’l, Inc., 593 So.2d 357 (La.1992). If the employee’s testimony contains inconsistencies and discrepancies, then the injured employee’s testimony alone will not be enough to prove his injury occurred on the job. Harris v. General Motors, 577 So.2d 1160 (La.App. 2 Cir. 1991).

|3In addition, the claimant must also establish a causal link between the accident and the subsequent disabling condition. Marks v. 84 Lumber Co., 00-322 (La.App. 3 Cir. 10/11/00), 771 So.2d 751. If the evidence leaves the probabilities of causation equally balanced, the claimant has failed to carry her burden of proof. Bernard v. O’Leary Bros. Signs, Inc., 606 So.2d 1331 (La.App. 3 Cir.1992).

The trial court’s determinations with regard to the credibility of witnesses and the discharge of the claimant’s burden of proof are factual issues and should not be disturbed on appeal in the absence of manifest error. Bruno, 593 So.2d 357 The workers’ compensation judge’s assessments of the weight of the medical evidence are not to be disturbed unless clearly wrong. Chambers v. Louisiana Pac. Mfg., Inc., 97-1188 (La.App. 3 Cir. 4/22/98), 712 So.2d 608. Furthermore, where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed unless manifestly erroneous. Novak v. Texada, Miller, Masterson & Davis Clinic, 514 So.2d 524 (La.App. 3 Cir.), writ denied, 515 So.2d 807 (La.1987).

In this case, Guilbeaux did not report a work-related injury at the alleged time of the accident. There is no corroborating evidence from her co-workers. The preponderance of the medical evidence does not support her claim. She has longstanding back problems. Under these circumstances, in this admittedly close case, we cannot say that the workers’ compensation judge was clearly wrong in concluding that Guilbeaux failed to prove that she sustained a work-related injury.

Our resolution of the previous assignment of error renders the remaining assignments of error advanced by Guilbeaux moot.

| ¿DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. All costs of these proceedings are taxed to appellant, Juanita Guilbeaux.

AFFIRMED.

SAUNDERS, J., dissents and assigns reasons.

SAUNDERS, J.,

dissents and assigns written reasons.

hi feel that there is uncontroverted evidence in the record that Ms. Guilbeaux did have an accident at work. First, there is the testimony of Ms. Guilbeaux that she had an accident at work. Further, and I feel very significantly, Ms. Guilbeaux testified that she reported an accident to her supervisor, Ms. Pat Delahoussaye, on that date. While Ms. Delahoussaye did not testify, she was included on the defendant’s pre-trial statement as a witness. Her failure to testify would warrant a presumption in favor of Ms. Guilbeaux. At any rate, since Ms. Guilbeaux’s testimony is uncontroverted, and, therefore, it should be taken as proven.

Other evidence that Ms. Guilbeaux did indeed have an accident include Ms. Guil-beaux reporting her back pain to her family physician, Dr. Pham, within a week of the alleged accident. Further, when Ms. Guilbeaux reported to Dr. Cobb, she filed a written report with her employer regarding the alleged accident. Finally, Ms. Gu-ilbeaux received workers’ compensation benefits within a week of her alleged accident and continued to receive those benefits for over a year. These events suggest that the real issue in this case is whether the accident caused injuries and/or the extent of those injuries, but not whether there was an accident in the first place.

In this case we have uncontroverted evidence that Ms. Guilbeaux reported her accident to her supervisor on the day of the accident and to each of her physicians. | .¿There is absolutely no evidence to contradict her testimony that she suffered an accident at work. I feel that the record warrants a finding that the workers’ compensation judge was clearly wrong in determining that Ms. Guilbeaux did not have an accident at work. I would vote to reverse the workers’ compensation court’s finding that Ms. Guilbeaux failed to prove that an accident took place and remand the case to the workers’ compensation judge for a determination whether Ms. Guil-beaux’s injuries were related to that accident.


author: MARC T. AMY, Judge.

text:
    STATE of Louisiana v. Deurlo Derrick CHAMPAGNE.
    No. 07-97.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.

      Michael Cade Cassidy, District Attorney, Jennings, LA, for Appellee: State of Louisiana.
    W. Jarred Franklin, Louisiana Appellate Project, Bossier City, LA, for Defendant/Appellant: Deurlo Derrick Champagne.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   MARC T. AMY, Judge.

hOn April 19, 2005, the defendant, Deur-lo Derrick Champagne, was driving a rental vehicle from Texas to Florida when he and his passenger were stopped by a Louisiana State Trooper for a traffic violation. Thirty pounds of marijuana were subsequently discovered in the vehicle’s trunk. The defendant and his passenger were arrested and charged with possession of marijuana with intent to distribute, a violation of La.R.S. 40:966. The defendant pled guilty and was sentenced to ten years at hard labor, with the first five years to be served without the benefit of probation, parole, or suspension of sentence. He was given credit for time served. Upon the denial of his motion to reconsider sentence, the defendant perfected this appeal, arguing the excessiveness of his sentence. For the following reasons, we affirm as amended and remand with instructions.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent in need of correction.

Louisiana Revised Statutes 40:966(B)(3) states that the penalty for possession of marijuana with intent to distribute is imprisonment at hard labor “for not less than five nor more than thirty years” and “a fine of not more than fifty thousand dollars.” Here, the trial court sentenced the defendant to ten years at hard labor, with the first five years to be served without the benefit of parole, probation, or suspension of sentence. The statute does not require or authorize the denial of these benefits. Therefore, pursuant to La.Code Crim.P. art. 882, we amend the defendant’s sentence to delete the denial of parole, probation, or suspension of sentence for the first five Lyears of his sentence. See State v. Yarbrough, 596 So.2d 311 (La.App. 3 Cir.), writ denied, 599 So.2d 317 (La.1992) (wherein this court amended the portion of the defendant’s sentence that precluded parole, probation, or suspension of sentence where the preclusion of those benefits was not authorized by statute). The trial court is instructed to note the amendment in the court minutes.

Excessive Sentence

In his sole assignment of error, the defendant argues that his sentence “is excessive for this offender and offense.” He contends that the trial court did not adequately consider certain mitigating factors. The defendant points out that prior to his arrest in this case, he “had led an otherwise law-abiding life, been a productive member of society (as evidenced by his work record) and supported his family.” He contends that his imprisonment would cause excessive hardship on his dependents.

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331, this court articulated the standard for reviewing excessive sentence claims:

La. Const, art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

| aPursuant to La.R.S. 40:966(B)(3), a person convicted of possession of marijuana with intent to distribute shall serve “a term of imprisonment at hard labor for not less than five nor more than thirty years, and pay a fine of not more than fifty thousand dollars.” Here, the defendant received a ten-year sentence at hard labor. In its reasons for sentencing, the trial court explained:

You graduated from Woodham School in Pensacola, Florida. You also attended Pensacola Junior College for one (1) year where you studied criminal justice. Growing up, you worked for your grandfather doing logging work. You also stated that you started your own auto detail business in 1998 which you ran for three (3) or four (4) years. You sold the business in 2001, and then obtained your CDL license and started driving trucks across country with Wallace Sanders Trucking. You now own your dump truck and drive locally.
The Pre-Sentence Investigation states that you do not have a juvenile criminal history. You have several criminal charges in your history beginning in 1994, although the majority of the charges against you were traffic violations. You were convicted of Possession of a Controlled Substance without a Prescription in Florida on May 14,1996, and were sentenced to probation; however, your probation was revoked, and you served six months in the county jail. You were also arrested on new drug charges in Texas less than one (1) month after your arrest in this matter. You were sentenced in June 2006 to eight (8) years deferred probation in Jefferson County, Texas.
According to the Pre-Sentence Investigation, on April 19, 2005, you were arrested by the Louisiana State Police for POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE.... On May 22, 2006, you pled guilty to the charge of POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE .... It should be noted, however, that this is your second felony eonvic-' tion.
In reviewing the Pre-Sentence Investigation, the Court takes note of the fact that you are thirty-three (33) years of age and that you have five (5) children in your household. This has been taken into consideration in mitigating against imposition of the maximum sentence in this matter. However, the Court can find no other mitigating factors.
Your involvement in criminal activity involving drug offenses demonstrate[s] to this Court that you cannot live in society and that this community must be protected from you. You are certainly in need of correctional treatment in a custodial environment for a significant period of time. Anything less would deprecate from the seriousness of your Loffense, would not promote respect for - the law, and would not provide a just punishment for the crime of which you stand convicted. This Court has an obligation to protect the public from you and will do so by removing you from society.

After reviewing the record, we do not find that the defendant’s sentence is excessive. We note that this is the defendant’s third drug conviction and that he was sentenced to one-third of the statutory maximum for this offense. Because the defendant did not raise in his motion for reconsideration of sentence, the mitigating factors of his “otherwise law-abiding life” and the excessive hardship on his dependents, he cannot raise those issues for the first time on appeal. See La.Code Crim.P. art. 881.1(E) and Uniform Rules-Courts of Appeal, Rule 1-3. However, we note that the trial court gave adequate consideration to those mitigating factors, as evidenced in its reasons for sentencing. Given the circumstances, we find that the trial court did not abuse its discretion in imposing sentence.

This assignment is without merit.

DECREE

For the foregoing reasons, the defendant’s sentence is affirmed. The defendant’s sentence is amended to delete the denial of probation, parole, or suspension of sentence for the first five years of his sentence. This matter is remanded to the trial court with instructions to make a notation in the minutes reflecting the amendment.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.


author: SULLIVAN, Judge.

text:
    STATE of Louisiana v. Christopher Tromondo DUPREE.
    No. 07-98.
    Court of Appeal of Louisiana, Third Circuit.
    May 30, 2007.
    Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Defendant/Appellant, Christopher Tromondo Dupree.
    Michael Cade Cassidy, District Attorney, Bennett R. Lapoint, Assistant District Attorney, Jennings, LA, for State of Louisiana.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   SULLIVAN, Judge.

|iOn May 4, 2005, Defendant, Christopher Tromondo Dupree, and Deurlo Derrick Champagne were charged with possession of marijuana with intent to distribute, in violation of La.R.S. 40:966. At them May 16, 2005 arraignment, both men pled not guilty. Thereafter, Defendant accepted a plea agreement and pled guilty to the charged offense. In November 2006, the trial court sentenced him to serve fifteen years at hard labor with the first five years to be served without benefit of probation, parole, or suspension of sentence with credit for time served.

Defendant filed a Motion to Reconsider Sentence, which the trial court denied. He then filed a Motion and Order to Appeal Sentence. In his brief, Defendant assigns four errors. Three of the assignments concern his conviction; one concerns his sentence. For the following reasons, we amend Defendant’s sentence and affirm it as amended.

Facts

When he pled guilty, Defendant admitted that on April 19, 2005, he was a passenger in a rental car driven by Mr. Champagne and that they were transporting thirty pounds of marijuana from Texas to Florida for distribution.

Defendant’s Conviction

Defendant assigns the following errors with his sentence, which he contends constitute reversible error: 1) his attorney failed to seek review of or preserve for appellate review the trial court’s ruling on his motion to suppress, which constituted ineffective assistance of counsel; 2) his lawyer’s representation of his co-defendant caused mixed loyalties, which also constituted ineffective assistance of counsel because his lawyer was not free to fully explore all plea bargain avenues available to him, especially those that would be beneficial to him but detrimental to his co-|defendant;2 and 3) the trial court failed to advise him of his right to conflict-free representation as required by La.Code Crim.P. art. 517 before accepting his guilty plea.

In his Motion and Order to Appeal Sentence, Defendant appealed his sentence on the basis that it is excessive; he did not appeal his conviction. Therefore, the trial court entered an order of appeal solely for his sentence, and Defendant’s claims attacking his conviction are not properly before this court for review. There is jurisprudence which holds that an appellate court should consider assignments of error not filed with the trial court. However, Defendant assigns error with a judgment he did not appeal, his conviction. Accordingly, the three assignments of error which concern his conviction are not properly before this court and will not be addressed.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Defendant assigns the one error patent found herein as his fourth assignment of error; he complains that his sentence violates the sentencing provisions of La.R.S. 40:966(B).

The trial court sentenced Defendant to serve fifteen years at hard labor with the first five years to be served without benefit of probation, parole, or suspension of sentence with credit for time served. When Defendant committed the present offense, the penalty provision for possession with the intent to distribute marijuana provided for a sentence of five to thirty years at hard labor and a fine of not more than $50,000.00. La.R.S. 40:966(B)(3). The penalty provision did not require the first five years to be served without benefit of probation, parole, or suspension of sentence.

| ¡¡The trial court had the discretion to suspend all or part of Defendant’s sentence and place him on probation, La.Code Crim.P. art. 893, but not the discretion to require that the first five years of his sentence be served without benefit of parole. Because Defendant’s sentence includes a restrictive term beyond that provided in the sentencing provision of La. R.S. 40:966, it must be corrected. State v. Sanders, 04-17 (La.5/14/04), 876 So.2d 42. Accordingly, we amend Defendant’s sentence to delete the denial of parole eligibility for the first five years. See State v. Gregrich, 99-178 (La.App. 3 Cir. 10/13/99), 745 So.2d 694, and State v. Buckley, 02-1288 (La.App. 3 Cir. 3/5/03), 839 So.2d 1193. The trial court is instructed to make an entry in the minutes reflecting this change. See State v. Tate, 99-1483 (La.11/24/99), 747 So.2d 519.

Disposition

Defendant’s assignments of error pertaining to his conviction are not properly before this court and have not been considered. Defendant’s sentence is amended to delete the provision that the first five years of said sentence must be served without benefit of parole.

SENTENCE AMENDED. AFFIRMED AS


author: EASLEY, Justice,

text:
    Katherine L. BUCHANAN v. AMERISTAR CASINO VICKSBURG, INC.
    No. 2005-CA-01924-SCT.
    Supreme Court of Mississippi.
    March 15, 2007.
    Rehearing Denied June 21, 2007.

      David M. Sessums, Vicksburg, Attorney for Appellant.
    Timothy D. Moore, Edward J. Currie, Jr., Jackson, James J. Pisanelli, Attorneys for Appellee.
    Before SMITH, C.J., EASLEY and GRAVES, JJ.
   EASLEY, Justice,

for the Court.

¶ 1. The Circuit Court of Warren County, Mississippi determined that Ameristar Casinos, Inc. (Ameristar-Las Vegas) was not the alter ego of Ameristar Casino Vicksburg, Inc. (Ameristar-Vicksburg) and granted summary judgment, dismissing Ameristar-Las Vegas as a defendant. In addition, the trial court granted Ameris-tar-Las Vegas’s motion to strike the expert report and affidavit of James A. Koer-ber, Plaintiff Katherine Buchanan’s expert, as untimely. Koerber’s affidavit consisted merely of his sworn statement to the effect that the information contained in his report was true and correct as set forth therein. We find that the trial court did not err by granting Ameristar-Las Vegas’s motion for summary judgment and granting Ameristar-Las Vegas’s motion to strike the expert report and affidavit as untimely. Accordingly, the judgment of the Circuit Court of Warren County is affirmed.

PROCEDURAL HISTORY AND FACTS

¶ 2. On March 8, 1997, Buchanan was employed by Ameristar-Vicksburg. Buchanan claimed that she injured her left knee while working at Ameristar-Vicks-burg in the course and scope of her employment. Buchanan went to the emergency room for treatment, and Ameristar-Vicksburg and its workers’ compensation carrier, Legion Insurance Company, paid the emergency room expenses. Thereafter, Ameristar-Vicksburg and Legion refused to pay additional medical expenses for costs incurred with other medical visits and surgery.

¶ 3. On March 26,1997, Buchanan filed a petition to controvert with the Mississippi Workers’ Compensation Commission (Commission). The Administrative Law Judge (ALJ) found that Buchanan had received a work-related injury to her left knee. The ALJ ordered Ameristar-Vicks-burg and Legion, collectively “the Defendants,” to pay temporary total benefits, penalties, and interest on any unpaid compensation benefits, and to provide medical services and supplies as required by Buchanan in accordance with Mississippi statutes.

¶ 4. The Defendants appealed the ALJ’s ruling to the full Commission. The full Commission affirmed the ALJ’s order. Thereafter, the Defendants appealed the full Commission’s decision to the Circuit Court of Warren County. The trial court affirmed the Commission’s decision. In November 1999, the Defendants filed an appeal from this ruling with this Court. However, the Defendants dismissed their appeal with this Court in December 1999. The Defendants waited almost six months to begin payment as ordered by the trial court.

¶ 5. Thereafter, Buchanan filed suit against Ameristar-Vicksburg and Legion, alleging bad faith for its refusal to pay, bad faith for its delay in payment, and improper and inadequate investigation. During the discovery process, Buchanan learned that Ameristar-Vicksburg did not have separate financial statements from its parent company Ameristar-Las Vegas. The trial court granted Buchanan’s motion to amend to bring Ameristar-Las Vegas into the lawsuit as a party defendant.

¶ 6. Buchanan filed a third amended complaint adding Ameristar-Las Vegas as a party defendant on August 16, 2004, more than four years after the complaint was originally filed in the circuit court. The third amended complaint alleged that Ameristar-Las Vegas was the alter ego of Ameristar-Vicksburg. In the complaint, Buchanan sought two million dollars in actual damages and thirty million dollars in punitive damages. On December 23, 2004, Ameristar-Las Vegas filed a motion for summary judgment denying that it was the alter ego of Ameristar-Vicksburg and requesting that it be dismissed from the lawsuit.

¶ 7. On February 9, 2005, Buchanan filed a response in opposition to the motion for summary judgment. On the same day, Ameristar-Las Vegas filed a motion to strike the expert report and affidavit contained in Buchanan’s response in opposition to the motion for summary judgment. A hearing was conducted on February 10, 2005. The trial court granted the summary judgment and motion to dismiss in favor of Ameristar-Las Vegas. In addition, the trial court granted Ameristar-Las Vegas’s motion to strike Buchanan’s expert report and his affidavit as being untimely filed. On reconsideration, the trial court affirmed its decision to grant summary judgment and to strike Buchanan’s expert report and affidavit and entered its order as a final judgment pursuant to M.R.C.P. 54(b). Following this ruling, Buchanan filed a notice of appeal with this Court raising the following issues:

I. Whether the trial court erred by granting Ameristar-Las Vegas’s motion to strike.

II. Whether the trial court erred by granting Ameristar-Las Vegas’s motion for summary judgment

ANALYSIS

I. Motion to strike

¶ 8. Ameristar-Las Vegas filed a motion to strike Buchanan’s expert report and affidavit as being untimely submitted. The trial court agreed with Ameristar-Las Vegas and struck the expert report and affidavit as being untimely submitted pursuant to its discovery deadline order. Accordingly, Buchanan argues on appeal that the trial court erred by striking her expert’s affidavit and report as being untimely. Buchanan improperly relies on M.R.C.P. 56 and In re Last Will and Testament of Smith, 910 So.2d 562 (Miss.2005), which both concern when a party may serve affidavits in the context of summary judgment motions. This issue does not involve whether summary judgment was appropriate, but instead, whether the expert report and affidavit was timely submitted to Ameristar-Las Vegas in discovery, where the trial court had issued a discovery deadline order.

¶ 9. In Bowie v. Montford Jones Mem’l Hosp., this Court held:

Our trial judges are afforded considerable discretion in managing the pre-trial discovery process in their courts, including the entry of scheduling orders'setting out various deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases. Our trial judges also have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they should be prepared to do so at their own peril. See, e.g., Kilpatrick v. Miss. Baptist Med. Ctr., 461 So.2d 765, 767-68 (Miss.1984) (held that trial court did not abuse discretion in dismissing case due to failure to comply with pre-rules discovery statutes relating to timely designation of expert witnesses); Mallet v. Carter, 803 So.2d 504, 507-08 (Miss.Ct. App.2002) (held that trial court did not abuse discretion in dismissing case for failure to timely designate expert witness within the time allowed by the trial court’s scheduling order).

Bowie v. Montfort Jones Mem’l Hosp., 861 So.2d 1037, 1042 (Miss.2003). However, this Court also considers the time line for discovery submissions and each alleged discovery violation on a case-by-case basis. In Borne, this Court further held:

Discovery responses are to be supplemented seasonably pursuant to Rule 26(f) of the Mississippi Rules of Civil Procedure. It has been held that “seasonably does not mean several months later. It means immediately.” West v. Sanders Clinic for Women, P.A., 661 So.2d 714, 721 (Miss.1995). Additionally, “seasonableness must be determined on a case by case basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit.” Blanton v. Board of Supervisors, 720 So.2d 190, 195 (Miss.1998).

Bowie, 861 So.2d at 1041.

¶ 10. Here, Buchanan filed a motion for leave to amend her complaint to add Am-eristar-Las Vegas as a party defendant under an alter ego theory. Initially, the trial court denied Buchanan’s motion for leave to amend the complaint. However, in July 2004, the trial court conducted a hearing on the plaintiffs motion for reconsideration of the motion for leave to amend her complaint. On August 3, 2004, the trial court granted Buchanan leave to amend the complaint. Importantly, this order also re-opened discovery and provided that Buchanan had sixty days from the date of Ameristar-Las Vegas’s answer to conduct discovery to support her position, and thereafter, Ameristar-Las Vegas had thirty days, if warranted,' to submit a motion to dismiss.

¶ 11. According to the certificate, on October 19, 2004, Ameristar-Las Vegas, the newly added defendant, served a request for production of documents on Buchanan. In the request for production of documents, Ameristar-Las Vegas sought the production of any report received from an expert and all documents used by the expert to form his or her opinion instead of filing an interrogatory request for expert information pursuant to M.R.C.P. 26(b)(4)(A)(I).

¶ 12. Buchanan produced no documents in response to the eight requests for production of documents. On November 9, 2004, she responded to Ameristar-Las Vegas’s eight requests for production of documents. The relevant portion of the response provided:

Plaintiff further objects on the basis that if Ameristar-Casino, Inc.[,] [Las-Vegas] is not the alter ego of Ameristar Casino Vicksburg, Inc.[,] then there is not (sic) need for the requested information and that if Ameristar Casino, Inc.[,] [Las Vegas] is in fact the alter ego of Ameristar Casino Vicksburg, Ine.[,] this information has already been provided to Ameristar Casino, Inc [Las Vegas].

While Buchanan’s response stated that she objected to the requested information, her objection was not appropriate as it stated no grounds or basis for the objection. The response amounted to a waiver of any alleged objection.

¶ 13. After Ameristar-Las Vegas received Buchanan’s response, it filed a motion for summary judgment. Ameristar-Las Vegas then received the expert report and affidavit the day before the hearing on the motion for summary judgment, when Buchanan filed a motion in opposition to Ameristar-Las Vegas’s motion for summary judgment and attached the two documents. Ameristar-Las Vegas immediately filed a motion to strike Buchanan’s expert report and affidavit as being untimely, rather than a motion to compel discovery. The language of M.R.C.P. 37 does not mandate that a party must file a motion to compel unanswered or incomplete discovery.

¶ 14. At trial and on appeal, Buchanan’s position was that the expert report was timely submitted to Ameristar-Las Vegas pursuant to M.R.C.P. 56. Buchanan did not argue that M.R.C.P. 26 does not specifically require that the expert’s information listed under M.R.C.P. 26(b)(4)(A)(I) be provided in the form of a report.

¶ 15. Importantly, Buchanan raised no objection to producing the expert report from Koerber at the hearing on the motion to strike or the motion for summary judgment, which both were held on February 10, 2005. Instead, the day before the hearing, Buchanan filed a motion in opposition to the motion for summary judgment, including an affidavit and expert report from Koerber. The report stated that in Koerber’s expert opinion, Ameris-tar-Las Vegas and Ameristar-Vicksburg operated as one corporation.

¶ 16. At the September 9, 2005, hearing on the motion to reconsider, the trial court affirmed its decision to strike the expert report and affidavit as being untimely provided pursuant to the trial court’s discovery deadline order. In addition, the trial court made clear that the basis for granting Ameristar-Las Vegas’s motion to strike was the discovery deadline violation and not to the requirements of M.R.C.P. 56. Therefore, as to the expert report and affidavit, the trial court was concerned with violation of discovery deadlines, not whether the lack of the expert report merited summary judgment in favor of Ameristar-Las Vegas. The issue regarding summary judgment in favor of Ameristar-Las Vegas is discussed below in Issue II.

¶ 17. The trial court has the authority to set discovery scheduling orders with deadlines and to enforce its deadlines. Bowie, 861 So.2d at 1042. Furthermore, the trial courts are within reason to expect compliance by the parties and adherence to trial court orders. Id. Here, Buchanan did not timely file Buchanan’s expert report from Koerber within the sixty-day discovery deadline order.

¶ 18. In Miss. Ins. Guar. Ass’n v. Miss. Cas. Ins. Co., 947 So.2d 865, 877 (Miss.2006), this Court recently reemphasized that when a party acts to disregard the trial court’s discovery order he or she so acts at his or her own peril. In Miss. Ins. Guar. Ass’n, 947 So.2d at 877, the Court affirmed the trial court’s decision to strike the discovery. We stated:

“Our trial judges ... have a right to expect compliance with their orders, and when parties and/or attorneys fail to adhere to the provisions of these orders, they do so at their own peril.” Bowie, 861 So.2d at 1042. MIGA disobeyed the chancellor. MIGA gave redundant answers and more information than the chancellor said would be allowed. Therefore, MIGA acted at its own peril, and the chancellor did not abuse his discretion in striking the record.

Miss. Ins. Guar. Ass’n, 947 So.2d at 877.

¶ 19. We find that the trial court did not abuse its discretion by granting Amer-istar-Las Vegas’s motion to strike the expert report and affidavit. This issue is without merit;

II. Summary judgment

¶ 20. This Court applies a de novo standard of review on appeal from a grant of summary judgment by the trial court. See Hardy v. Brock, 826 So.2d 71, 74 (Miss.2002). See also Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001); Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995).

¶ 21. Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be granted by a court if “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact.” M.R.C.P. 56(c); see Saucier, 708 So.2d at 1354. The moving party has the burden of demonstrating there is no genuine issue of material fact, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990); see also Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). A fact is material if it “tends to resolve any of the issues properly raised by the parties.” Palmer v. Anderson Infirmary Benevolent Ass’n, 656 So.2d 790, 794 (Miss.1995).

¶ 22. “If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied.” Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (Miss.2001). “Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite.” Tucker, 558 So.2d at 872. In Simmons v. Thompson Mach, of Miss., Inc., 631 So.2d 798, 801 (Miss.1994) (citing Shaw v. Burchfield, 481 So.2d 247, 252 (Miss.1985)) this Court held:

Of importance here is the language of the rule authorizing summary judgment ‘where there is no genuine issue of material fact.’ The presence of fact issues in the record does not per se entitle a party to avoid summary judgment. The court must be convinced that the factual issue is a material one, one that matters in an outcome determinative sense ... the existence of a hundred contested issues of fact will not thwart summary judgment where there is no genuine dispute regarding the material issues of fact.

The evidence must be viewed in the light most favorable to the non-moving party. See Russell, 700 So.2d at 622; Richmond, 692 So.2d at 61; Northern Elec. Co., 660 So.2d at 1281; Simmons, 631 So.2d at 802; Tucker, 558 So.2d at 872.

¶ 23. Ameristar-Las Vegas filed a motion for summary judgment claiming that it was not the alter ego of Ameristar-Vicksburg. The trial court granted summary judgment in favor of Ameristar-Las Vegas. The trial court relied on Castillo v. M.E.K. Const., Inc., 741 So.2d 332, 340 (Miss.Ct.App.1999). Castillo addressed the issues of piercing the corporate veil and workers’ compensation law. In Castillo, Castillo claimed that certain evidence demonstrated that one subsidiary was the alter ego of another subsidiary. Id. at 342. The Court of Appeals held that Castillo failed to present “facts sufficient to justify piercing” the corporate veil under Mississippi law. Id.

¶ 24. Here, the trial court, relying on Castillo, ruled as follows:

I’m ready to rule. I’m going to rule— I’m going to grant the summary judgment. I’m going specifically on the point that there appears to be no sham or fraud shown or and intent to subvert justice, as mentioned in the Castillo case. I don’t think — I don’t think I need to address all the issues. To me, that’s the main basis of my ruling. Also the — in that regard, as far as no fraud or sham, there appears to be assets available to satisfy the judgment. It doesn’t seem to be — any of this was directed at shielding assets from creditors. They have a balance net worth of 90 — what, 98 million, which would be sufficient to satisfy a judgment.

The trial court denied Buchanan’s motion for rehearing on this issue.

¶ 25. Both Buchanan and Ameristar-Las Vegas cite to factors used by Mississippi federal district courts, applying Mississippi law, for alter ego theories. In Gammill v. Lincoln Life & Annuity Distribs., 200 F.Supp.2d 632, 634-35 (S.D.Miss.2001), the court, applying Mississippi law, considered ten factors to “pierce the corporate veil.” The factors considered were as follows:

[T]he factors relevant to the determination of whether plaintiff has made sufficiently particularized allegations demonstrating the applicability of the piercing doctrine to the facts of the case: (1), the parent corporation owns all or a majority of the capital stock of the subsidiary; (2), the parent and subsidiary corporations have common directors or officers; (3), the parent corporation finances the subsidiary; (4), the parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation; (5), the subsidiary has grossly inadequate capital; (6), the parent corporation pays the salaries or expenses or losses of the subsidiary; (7), the subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation; (8), in the papers of the parent corporation and in the statements of its officers, “the subsidiary” is referred to as such or as a department or division; (9), the directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take direction from the parent corporation; and (10), the formal legal requirements of the subsidiary as a separate and independent corporation are not observed. Id; and see Century Hotels v. United States, 952 F.2d 107, 110 (5th Cir.1992); and United States v. Jon-T Chemicals, Inc., 768 F.2d 686, 691-92 (5th Cir.1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (1986).

Gammill, 200 F.Supp.2d at 634-35 (citing North American Plastics v. Inland Shoe Manufacturing Company, 592 F.Supp. 875, 877 (N.D.Miss.1984)).

¶ 26. While these ten factors are instructive on the alter ego theory, this Court has not adopted the factors as applied by the federal courts. Likewise, in Castillo, the Court of Appeals merely set forth the federal factors since Castillo used them as the basis of her argument. However, this Court has held a three-factor test for piercing the corporate veil and imposing liability on corporate shareholders. These factors are set forth in Gray v. Edgewater Landing, Inc., as follows:

(a) some frustration of contractual expectations regarding the party to whom he looked for performance; (b) the flagrant disregard of corporate formalities by the defendant corporation and its principals; (c) a demonstration of fraud or other equivalent misfeasance on the part of the corporate shareholder.

Gray v. Edgewater Landing, Inc., 541 So.2d 1044, 1047 (Miss.1989); see also Hardy v. Brock, 826 So.2d 71, 75 (Miss.2002); Castillo, 741 So.2d at 340; Richardson v. Jenkins Builders, Inc., 737 So.2d 1030, 1031 (Miss.Ct.App.1999); Berhow v. Peoples Bank, 423 F.Supp.2d 562, 566 (S.D.Miss.2006) (applying the Gray three-part test for piercing the corporate veil). In Gray, this Court further held that “[t]o present a jury issue on a demand that the corporate veil be pierced, a party must present some credible evidence of each of these points.” Gray, 541 So.2d at 1047.

¶ 27. Mississippi case law generally favors maintaining corporate entities and avoiding attempts to pierce the corporate veil. Gray, 541 So.2d at 1047. “[T]he cardinal rule of corporate law is that a corporation possesses a legal existence separate and apart from that of its officers and shareholders.” Id. at 1047 (quoting Amason v. Whitehead, 186 Ga. App. 320, 367 S.E.2d 107, 108 (1988)); see also North American Plastics, Inc. v. Inland Shoe Manufacturing Co., Inc., 592 F.Supp. 875, 877 (N.D.Miss.1984). This rule applies “whether such shareholders are individuals or corporations.” North American Plastics, 592 F.Supp. at 877. In Johnson & Higgins of Miss., Inc. v. Comm’r of Ins., 321 So.2d 281, 284-85 (Miss.1975), this Court held that “the concept of the corporation is that the distinct corporate entities will be maintained unless to do so would subvert the ends of justice.” (Emphasis added).

¶ 28. In Murdock Acceptance Corporation v. Adcox, 245 Miss. 151, 163, 138 So.2d 890, 896 (Miss.1962), this Court has held that “[o]rdinarily two or more corporations are separate and distinct entities although the same individuals are the incorporators of, or own stock, in the several corporations, and although such corporations may have the same persons as officers.” See also Johnson & Higgins, 321 So.2d at 285. A corporation also retains a separate identify for corporation purposes when stock is owned wholly or in part by another corporation or natural person. Id. at 164, 138 So.2d 890; see also Johnson & Higgins, 321 So.2d at 284-85. Further, “[ojwnership of all the stock of a corporation coupled with common management and direction does not, however, operate as a merger of the two corporations into a single entity.” Johnson & Higgins, 321 So.2d at 285. This Court will not disregard corporate identity unless it is shown that one corporation is a “mere instrumentality or agency or adjunct in that sense, or as a sham or is used in fraud, by the dominant corporation.” Id.

¶ 29. Piercing the corporate veil of a subsidiary to reach the parent corporation is not “lightly undertaken” by Mississippi courts. Johnson & Higgins, 321 So.2d at 285. “Courts do not take piercing of the corporate veil lightly because of the chilling effect it has on corporate risk-taking.” Nash Plumbing, Inc. v. Shasco Wholesale Supply, Inc., 875 So.2d 1077, 1082 (Miss.2004) (citing Highway Dev. Co. v. Miss. State Highway Comm’n, 343 So.2d 477, 480 (Miss.1977)).

¶ 30. In Johnson & Higgins, this Court held:

The mere fact that one owns all the stock of the other, or substantially all, is not enough to warrant disregard, in the absence of some fraudulent purpose; nor is the fact that there was an opportunity to exercise control. Furthermore the fact that the shareholders of the two corporations are the same is not of itself sufficient to treat the two corporations as one. Fletcher [ (1 W. Fletcher, Cyclopedia of the Law of Private Corporations § 43 at 210 (Perm.Ed.1974)) ].

Id.; see also Berhow, 423 F.Supp.2d at 566.

¶ 31. Buchanan argues that Am-eristar-Las Vegas is the alter ego of Am-eristar-Vicksburg. To support her position, Buchanan relies upon the alter ego factors used by the federal courts. At the time of the summary judgment motion, Buchanan argued that Ameristar-Las Vegas was the parent company and owned all of the capital stock of its subsidiary, Amer-istar-Vicksburg. Ameristar-Las Vegas did not deny this relationship between the two companies. In his affidavit, Peter Walsh (Walsh), the senior vice-president, general counsel, and assistant secretary of Ameristar-Las Vegas, admitted that Am-eristar-Las Vegas was the parent company of six subsidiaries, one of them being Ameristar-Vieksburg.

¶ 32. According to the documents submitted in Buchanan’s response in opposition to the motion for summary judgment, Ameristar-Las Vegas and Ameristar-Vieksburg shared some common directors and officers. However, Ameristar-Las Vegas was incorporated in Nevada and had at least six directors and seven officers. In contrast, Ameristar-Vieksburg was incorporated in Mississippi, and had only one director and five officers. Craig H. Neilsen was the president and one of six directors of Ameristar-Las Vegas and the president and sole director of Ameris-tar-Vicksburg. In addition, Thomas M. Steinbauer was the senior vice-president of finance, chief financial officer, treasurer, and secretary for Ameristar-Las Vegas. Steinbauer was a vice-president of finance, treasurer and secretary of Ameristar-Vicksburg. Other than Neilsen and Stein-bauer’s positions, no other officer or director was the same for the two corporations. Ameristar-Las Vegas did not deny that the two corporations had common directors or officers.

¶ 33. As this Court has held, corporations are considered to be separate and distinct entities even if “the same individuals are the incorporators of, or own stock, in the several corporations, and although such corporations may have the same persons as officers.” Murdock Acceptance, 138 So.2d at 896; Johnson & Higgins, 321 So.2d at 285. Therefore, we find that the corporate veil should not be pierced merely because there was a commonality of ownership and directors or officers of Ameristar-Las Vegas and Am-eristar-Vicksburg.

¶ 34. Buchanan also claims that the parent corporation, Ameristar-Las Vegas, financed its subsidiary, Ameristar-Vicks-burg. To support this assertion, Buchanan argues that all the income generated by Ameristar-Vicksburg in excess of its operating costs was transferred to Ameristar-Las Vegas. Buchanan argues that all of Ameristar-Vicksburg’s assets were pledged as security for loans of Ameristar-Las Vegas. Indeed, Ameristar-Las Vegas admitted that there are loan agreements, however, these transactions were documented in the two corporation’s financial statements.

¶ 35. Buchanan claims that Ameristar-Las Vegas caused the incorporation of Am-eristar-Vicksburg. Buchanan claims that both corporations have identical incorpo-rators. While Ameristar-Las Vegas did not deny that it was the parent company of its wholly-owned subsidiary, Ameristar-Vicksburg, the record revealed only that Thomas B. Shepherd, III, was the incorpo-rator for Ameristar-Vicksburg.

¶ 36. Buchanan claims that Ameristar-Vicksburg was undercapitalized because (1) it sent all income in excess of its operating costs to Ameristar-Las Vegas; and (2) all of Ameristar-Vicksburg’s assets were pledged as security for loans of Am-eristar-Las Vegas. However, the financial statements of Ameristar-Vicksburg showed that the corporation had more than enough capital. Further, Walsh stated in his affidavit that Ameristar-Vicks-burg was a “well capitalized corporation.” At the time Walsh signed the affidavit in December 2004, he stated that Ameristar-Vicksburg had generated more than sixty-eight million dollars over the past seven years and more than one-hundred million dollars in the two-year period prior to signing the affidavit. Ameristar-Vicks-burg paid its employees from paychecks drafted on the Vicksburg property and drawn from AmSouth Bank in Mississippi.

¶ 37. Buchanan also argues that Amer-istar-Vicksburg was organized only as an eating place, whereas, Ameristar-Las Vegas was organized to operate casinos; and that Ameristar-Vicksburg was set up to fund Ameristar-Las Vegas and guarantee its loans. Ameristar-Vicksburg was set up to be a gaming operation. Further, Ameristar-Las Vegas engaged in loan agreements with all of its subsidiaries. All of the six subsidiaries were guarantors of Ameristar-Las Vegas’s corporate “Credit Agreement.” However, all transactions between the two corporations were documented on each corporation’s books and reflected in Ameristar-Vicksburg’s 2004 balance sheet.

¶ 38. Buchanan asserts that the two corporations had common business departments, as evidenced by daily, weekly, and monthly reporting from Ameristar-Vicks-burg to Ameristar-Las Vegas. Ameris-tar-Las Vegas admitted that these reports were sent from Ameristar-Vicksburg to Ameristar-Las Vegas. In addition, senior employees of Ameristar-Vicksburg communicated with Ameristar-Las Vegas employees about these reports.

¶ 39. Buchanan asserts that the two companies did not observe basic corporate formalities. To the contrary, Walsh stated that the two companies had separate bank accounts, accounting records, and corporate books and records. Ameristar-Las Vegas had a bank account in Las Vegas and Ameristar-Vicksburg had a bank account in Mississippi. In addition to maintaining separate corporate documents and records, the two corporations also had separate board meetings, minutes, corporate books, accounting records and payrolls. Additionally, the two companies had separate articles of incorporation and bylaws. Ameristar-Las Vegas was incorporated in Nevada, whereas Ameristar-Vicksburg was incorporated in Mississippi.

¶ 40. In addition, Buchanan takes issue with the fact that the companies filed a consolidated financial statement and report to the Security and Exchange Commission (SEC). Ameristar-Las Vegas did not deny this assertion. In fact, Walsh stated that Ameristar-Las Vegas was a publicly-traded company listed on the NASDAQ. Ameristar-Las Vegas was the parent corporation of six wholly-owned subsidiaries including Ameristar-Vicksburg. As a publicly traded company, Ameristar-Las Vegas had to report all earnings to the SEC on a consolidated basis and filed its tax returns on a consolidated basis with the Internal Revenue Service (IRS). Ameris-tar-Vicksburg provided Ameristar-Las Vegas with a separate financial statement of its own in order to report earnings on a consolidated basis.

¶ 41. Furthermore, Ameristar-Vicks-burg, as the only entity with a Mississippi gaming license, was required to report separate financial information to the Mississippi Gaming Commission and to adhere to Mississippi Gaming Regulations. Both companies had an independent accounting firm audit the annual financial statements for Ameristar-Las Vegas and its six subsidiaries, including Ameristar-Vicksburg.

¶ 42. While there is a significant connection between Ameristar-Las Vegas and Ameristar-Vicksburg, Buchanan failed to demonstrate that Ameristar-Las Vegas was the alter ego of Ameristar-Vicksburg. Buchanan did not show any frustration of contractual expectations regarding the party to whom she looked for performance. Buchanan had no contractual expectation regarding Ameristar-Las Vegas. In addition, Buchanan failed to show any flagrant disregard of corporate formalities by the Ameristar-Vicksburg and its principal, Ameristar-Las Vegas. Further, Ameris-tar-Vicksburg demonstrated that it had more than enough capital to cover a judgment in the event that Buchanan should prevail at trial. Ameristar-Las Vegas and Ameristar-Vicksburg maintained all corporate formalities. Finally, Buchanan failed to demonstrate any fraud or other equivalent misfeasance on the part of the corporate shareholders.

¶ 43. Accordingly, we find that the trial court did not err by finding that Ameris-tar-Las Vegas was not the alter ego of Ameristar-Vicksburg and granting summary judgment in favor of Ameristar-Las Vegas. This issue is without merit.

CONCLUSION

¶44. For the foregoing reasons the judgment of the Circuit Court of Warren County is affirmed.

¶ 45. AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., CONCUR IN RESULT ONLY.

      . GAB Robbins North America, Inc., also was added as a new party defendant to the third amended complaint.

      . The third amended complaint listed four defendants: Ameristar Casino Vicksburg, Inc.; Legion Insurance Company; GAB Robbins North America, Inc.; and Ameristar Casino, Inc. Legion was the workers’ compensation insurance carrier, and GAB Robbins investigated workers’ compensation claims and determined if the claims should be paid or denied. Legion was dismissed later from the lawsuit.

      . M.R.C.P. 26 provides in part:
      (b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
      (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the issues raised by the claims or defenses of any party. The discovery may include the existence, description, nature, custody, condition and location of any books, documents, electronic or magnetic data, or other tangible things; and the identity and location of persons (I) having knowledge of any discoverable matter or (ii) who may be called as witnesses at the trial. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
      (4) Trial Preparations: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under subsection (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

        (A) (I) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

      (Emphasis added).

      . M.R.C.P. 37(a)(1) and (3) provides:
      (a) Motion for Order Compelling Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
      (1) Appropriate Court. An application for an order may be made to the court in which the action is pending.
      (3) Evasive or Incomplete Answer. For purposes of this section, an evasive or incomplete answer is to be treated as a failure to answer.
      (Emphasis added).