author: AMY, Judge.

text:
    Charles BRYANT v. CITY OF ALEXANDRIA.
    No. 06-1439.
    Court of Appeal of Louisiana, Third Circuit.
    April 25, 2007.

      Daniel E. Broussard, Jr., Broussard, Bolton, Halcomb and Vizzier, Alexandria, LA, for Plaintiff/Appellee, Charles Bryant.
    Daphne R. Robinson, Alexandria, LA, for DefendanVAppellant, City of Alexandria.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and GLENN B. GREMILLION, Judges.

      . Article 10, § 15 provides:
      Nothing in this Part shall prevent the establishment by the legislature, or by the respective parish governing authority, of a parish civil service system in one or more parishes, applicable to any or all parish employees, except teaching and professional staffs and administrative officers of schools, or the establishment by the legislature or by the respective municipal governing authority of a municipal civil service system in one or more municipalities having a population of less than four hundred thousand, in any manner now or hereafter provided by law. However, paid firemen and paid municipal policemen in a municipality operating a regularly paid fire and police department and having a population exceeding thirteen thousand, and paid firemen in all parishes and in fire protection districts, are expressly excluded from such a civil service system.
      Nothing in this Part shall permit inclusion in the local civil service of officials and employees listed in Section 2 of this Article.

   AMY, Judge.

_JjThe plaintiff, an employee of the City of Alexandria, requested that the Alexandria Civil Service Commission review his wages as an increase in the hourly wage received by certain employees resulted in him earning less than those under his supervision. The Civil Service Commission declined his request. Upon appeal to the Ninth Judicial District Court, the trial court reversed the Civil Service Commission’s determination and ordered that the plaintiffs wages be raised by one pay step above those under his supervision. The City of Alexandria appeals. We reverse.

Factual and Procedural Background

The record indicates that the plaintiff, Charles Bryant, is employed as a Crew Leader by the City of Alexandria, Department of Electric Distribution. In July 2001, he filed a “request for an appeal” with the Alexandria Civil Service Commission, asserting that as a result of its earlier decision to increase “the starting pay of linemen in the Department of Electric Distribution, Mr. Bryant now supervises three (3) lineman employees who make a $1.71/ hr. more than he does.” He further complained that “the City recently filled the position of Service Worker from the lineman pool at Grade 117. That employee now makes $18.92/hr. while Mr. Bryant makes $15.97/hr.” Thus, Mr. Bryant requested an appeal and that “the above pay discrepancies and inequities be investigated and that he be paid a salary |?commensurate with the job that he is presently performing as a Crew Leader.” He further asked that any salary adjustment be made retroactive.

The City acknowledged the pay discrepancy and, in its brief to this court, traces the differential to difficulty in attracting qualified candidates to two Senior Electric Line Worker positions in 2000. According to the City, it requested that the Civil Service Commission approve an increase in the original rate of pay for the Senior Electric Line Worker position to $17.00 per hour in order to be more competitive with the private sector. This proposed increase was permitted for the three highest ranking eligible candidates for the Electric Line Worker positions. Thereafter, the wage of others employed in the same position was increased to the proposed minimum rate in their class. As these increases affected only the line worker positions, Mr. Bryant’s pay did not increase although, as Crew Leader, he was an experienced line worker and possessed the qualifications of those under his supervision.

After a period of delay, the Civil Service Commission denied Mr. Bryant’s appeal in November 2004. The transcript of the hearing indicates that the Civil [^Service Commission and the City were aware of the problems, but questions remained as to the method of addressing the problem sys-temieally. In light of this concern, and although it denied Mr. Bryant’s claim, the Civil Service Commission directed that a rule be drafted indicating that a supervisor be paid five percent above the highest paid subordinate. The record does not reveal what action, if any, followed that instruction.

Thereafter, Mr. Bryant appealed to the Ninth Judicial District Court. In a “Rule to Show Cause,” he explained that he was seeking “an appeal by Charles Bryant from the decision of the Alexandria Civil Service Commission rendered on November 17, 2004 denying his appeal to that Board that it correct pay inequities that arose between he and the linemen he supervises when the Commission raised the pay 14of the linemen.” Following a hearing, and after the trial court delayed its decision for a period in an effort to have the City resolve the pay discrepancy, the trial court ruled in favor of Mr. Bryant and rendered the following judgment:

This cause having come on for hearing on May 15, 2006 on a Rule to Show Cause filed by Appellant, Charles Bryant and the Court, having delayed its decision for a period of sixty (60) days to give the City of Alexandria time to correct the inequities complained of by Appellant, and it having been represented that no corrective action has been taken by the City and now having considered the entire record filed by the Alexandria Civil Service Commission and the memoranda and arguments of counsel, and finding that the law and evidence to be in favor of Appellant, Charles Bryant, for the oral reasons assigned on May 15, 2006;
IT IS ORDERED, ADJUDGED AND DECREED that the decision of the Alexandria Civil Service Commission dated November 17, 2004 denying Appellant’s Civil Service Appeal be and it is hereby reversed; and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Appellant, Charles Bryant, against the City of Alexandria, raising Appellant’s pay as a Crew Leader to an amount equal to one (1) pay step in the City Pay Plan above that of Senior Line Workers for the City of Alexandria, said increase to be retroactive to July 19, 2001, the date of filing of Appellant’s appeal, and to include all subsequent across-the-board employee raises given by the City and with legal interest on all amounts from the date of the appeal or date due, whichever is later until paid.

The City appeals that determination.

Discussion

Jurisdiction

We first consider the jurisdictional basis for this court to review this matter. See Boudreaux v. State, DOTD, 01-1329 (La.2/26/02), 815 So.2d 7 (wherein the supreme court observed that the court has a duty to examine subject matter jurisdiction sua sponte). However, neither the record nor the parties’ initial briefs contained sufficient information to determine the jurisdiction of the lower court or of | Sthis court to review the decision of the Alexandria Civil Service Commission. See Uniform Rules, Courts of Appeal, Rule 2-12.4. Thus, upon order of this court, the parties filed supplemental briefs on the issue of jurisdiction and provided further authority for the procedural path of this ease.

Louisiana Constitution art. 10, § 1, et seq. pertain to the creation and procedures of the State and City Civil Service Systems. While Alexandria is excluded from the definition providing for a “city civil service commission” at Section 4(A), as it requires that such a commission “shall exist in each city having a population exceeding four hundred thousand,” Article 10, § 15 indicates that a municipality of a population of less than four hundred thousand may establish a |fimunicipal civil service system. Thus, in Section 4-08 of its Home Rule Charter, adopted in 1977, the City of Alexandria established:

The classified civil service system for the City of Alexandria heretofore established by Act 487 of 1954, as amended by Act 120 of 1962, Act 396 of 1964, and as may be amended by the legislature in the future is hereby incorporated in this charter and shall continue in full force and effect and be carried out and regulated in accordance with the provisions of said statutes, except as the same may be inconsistent with the provisions of this charter, in which case the provisions of this charter shall prevail.

This matter appeared before the Alexandria Civil Service Commission per Rule 8, Section 1.1 of the Alexandria Civil Service Commission Rules and Regulations, which provides, in part:

Any regular employee in the classified service, subject to the provisions of this Act, or the rules made pursuant thereto, who deems that he or she has been improperly treated, discriminated against, or denied any right under the provisions of this Act, or who deems that he or she has been removed, dismissed, retired, reduced in pay, demoted, subjected to a second suspension of sixty (60) days or less without pay, or subject-
No law enacted after the effective date of this constitution establishing a civil service system applicable to one or more parishes or to one or more municipalities having a population of less than four hundred thousand shall be effective in any parish or in any municipality until approved by ordinance adopted by the governing authority of the parish or municipality. ed to any other disciplinary action set out in Section 19 of this Act, without just cause, may, within thirty (30) days of such action, demand a hearing to determine the reasonableness of such action, and the Commission shall grant the employee a hearing within ninety (90) days after receipt of such request, as provided in Section 19 of this Act.

See also Alexandria Civil Service Commission Rules and Regulations, Rule 8, Section 1.3.

| ./Thereafter, Mr. Bryant pursued an appeal of the Civil Service Commission in the Ninth Judicial District Court as provided for by 2001 La. Acts No.. 390, § 2, as follows:

Act No. 487 of the 1954 Regular Session of the Legislature, as amended and reenacted by Act No. 655 of the 1997 Regular Session of the Legislature is hereby amended and reenacted to read as follows:
[Section 1.] (H) In the event the city of Alexandria or any interested person is aggrieved by a decision of the commission, the aggrieved party may appeal from the decision of the commission to the Ninth Judicial District Court, Parish of Rapides, or its successor.

(Emphasis added.)

As set forth in La. Const, art. 5, § 16, the jurisdiction of the district court is:

(A) Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.
(B) Appellate Jurisdiction. A district court shall have appellate jurisdiction as provided by law.

ls(Emphasis added.) In this case, the district court considered this matter under appellate jurisdiction as conveyed by Article 5, § 16(B) and 2001 La. Acts No. 390, § 2, above. Mr. Bryant’s Rule to Show cause filed below was clearly styled as an “appeal.” The matter was submitted to the trial court on memoranda and following a hearing. It appears that no new evidence was taken.

As an appeal has been taken, we consider whether the appeal before this court may now be maintained. An appellate court’s jurisdiction is established in La. Const, art. 5, § 10 (emphasis added), which provides:

(A) Jurisdiction. Except as otherwise provided by this constitution, a court of appeal has appellate jurisdiction of (1) all civil matters, including direct review of administrative agency determinations in worker’s compensation matters as heretofore or hereafter provided by law, (2) all matters appealed from family and juvenile courts, and (3) all criminal cases triable by a jury, except as provided in Section 5, Paragraph (D)(2) of this Article. It has supervisory jurisdiction over cases which arise within its circuit.
(B) Scope of Review. Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts. In the review of an administrative agency determination in a worker’s compensation matter, a court of appeal may render judgment as provided by law, or, in the interest of justice, remand the matter to the administrative agency for further proceedings. In criminal cases its appellate jurisdiction extends only to questions of law.
(C) Other Criminal Matters. In all criminal cases not provided for in Paragraph (D)(2) or Paragraph (E) of Section 5 or Paragraph (A)(3) of this Section, a defendant has a right of appeal or review, as provided by law.

In Touchette v. City of Rayne, 321 So.2d 62, 64 (La.App. 3 Cir.1975), this court remarked that: “Under the 1974 Constitution, even if the district court review is an appeal, this court has jurisdiction to review that decision. Appellate jurisdiction is no longer based on the nature of the jurisdiction exercised by the district court.” As I flthis indicates that appellate jurisdiction exists, we turn to consideration of the City’s assignment of error.

Wage Increase

The City acknowledges that Mr. Bryant’s pay is less than those under his supervision. However, it points to its rationale in increasing the wage rate of the line workers, i.e., its inability to attract qualified applicants at the existing wage rate. Mr. Bryant continues to assert that he is being treated differently from others similarly situated.

Although the judgment reflects that oral reasons for ruling were issued by the trial court at the time of its hearing, the transcript reveals only the trial court’s struggle to identify the appropriate way to address the pay differential and its interim decision to remand the matter for the City to address the situation within sixty days. After the Civil Service Commission and the City failed to rectify the situation during that period, the trial court ordered an increase in Mr. Bryant’s “pay as a Crew Leader to an amount equal to one (1) pay-step in the City Pay Plan above that of Senior Electric Line Workers for the City of Alexandria .... and to include all subsequent across-the-board employee pay raises given by the City.” On review, however, it is apparent that the trial court was without positive authority to exercise the wage setting function of the Civil Service Commission and the City.

As below, Mr. Bryant summarily argues that his request is based on principles of equal protection, implicating La. Const, art. 1, § 3, and that the Civil Service | ^Commission “has a constitutional trust to establish, implement and administer a uniform classification and pay plan.” As for this latter argument, reference is made to both La. Const. art. 10, § 10 and Thoreson v. Department of State Civil Service, 433 So.2d 184 (La.App. 1 Cir.), writ denied, 440 So.2d 726 (La.1983), writ denied, 440 So.2d 727.

The Louisiana Supreme Court has explained the equal protection analysis attendant to La. Const, art. 1, as follows:

La. Const, art. I, § 3 provides for three levels of constitutional review or scrutiny. Laws which classify individuals based on race or religious beliefs are repudiated completely. An intermediate level of scrutiny is reserved for laws which classify persons on the basis of birth, age, sex, culture, physical condition, or political ideas or affiliation. The lowest level of scrutiny applies to laws which classify persons on any basis other than those enumerated in La. Const. I, § 3. Such laws need only be rationally related to a legitimate governmental purpose, and a person attacking the constitutionality of such a classification has the stringent burden of demonstrating that the law does not suitably further any appropriate state interest.

Soloco, Inc. v. Dupree, 97-1256, p. 4 (La.1/21/98), 707 So.2d 12, 15 (citations omitted). The alleged disparate treatment in this case does not involve classifications enumerated in Article 1, § 3, and thus, the City’s action need only be rationally | ^related to a legitimate governmental purpose. The City argues that the higher pay offered to senior electric line workers, which caused the pay disparity, was rationally related to its need to be competitive with the private sector.

Mr. Bryant addresses the fact that he and the line workers are not of the same job classification/grade by advancing the case of Marceaux v. State, 97-273 (La. App. 1 Cir. 9/25/98), 720 So.2d 29, writ denied, 98-3134 (La.2/5/99), 738 So.2d 10, wherein the first circuit considered a class action filed by certain Louisiana Department of Wildlife and Fisheries wildlife agents who did not receive supplemental pay and/or grade and pay increases available to those agents in the Department’s enforcement division. The first circuit found no merit in the Department’s assertion that the additional benefits for the enforcement division were due to the hazardous nature of their work. Rather, the court noted that it was unable to identify “any reason why the state would want to treat one division of its DWF commissioned officers differently from the other divisions, since all of them enforce the laws and are exposed to hazardous conditions in accomplishing their duties.” Id. at 38. Thus, the first circuit concluded that the denial of the supplemental pay and/or grade and pay increases lacked a rational relation to a legitimate interest and thus, the plaintiffs were denied the equal protection of laws. Id.

However, the dissimilarity in the posture of Marceaux to this case is striking. This matter was instituted as an “appeal” by Mr. Bryant, individually, before the Civil Service Commission and then, again, as an “appeal” of that determination to the trial court. The limited record before us contains transcripts of the Civil Service Commissions and the trial court proceedings. Cursory statements regarding the parties’ respective positions are contained therein. Mr. Bryant’s memorandum | ^contains the job descriptions for Crew Leader, Senior Electric Line Worker, and Electric Line Worker.

In Marceaux, 720 So.2d at 31, however, the plaintiffs filed a class action by the affected workers and after what the first circuit described as “considerable discovery,” the trial court resolved the issue on cross motions for summary judgment and to which were attached numerous exhibits, listed in the opinion. Thus, the court was able to render a decision utilizing the equal protection analysis before taking the considerable step of adjusting the pay plan of the department.

Rather than this case being analogous to Marceaux, the trial court’s order would seemingly create a further pay differential insofar as the increased wages only affect Mr. Bryant, not other Crew Leaders. While true that this may relieve Mr. Bryant’s problem, the decision could arguably compound any equal protection implications as it does not address others throughout the uniform pay plan.

Similar problems are seen in the reliance on Thoreson, 433 So.2d at 186, which also involved a class of plaintiffs who filed suit “to challenge the manner in which a Uniform Pay Plan was applied to their classification in the Civil Service System.” In that case, the problem stemmed from partial implementation of a pay increase within the classification. Contrary to Thoreson, the trial court’s order in this case creates a further problem within Mr. Bryant’s own class. Moreover, Thoreson contains the following observation:

[W]e note that Civil Service Rule 6.2 provides for approval by the Governor of a pay plan “in its entirety.” To allow the Governor to approve a plan in less than its entirety, would circumvent the Commission’s ultimate authority to establish “a comprehensive and unified [personnel] plan for all state employees.” Louisiana Civil Service League v. Forbes, [246 So.2d 800, 808], We hold that Civil Service Rule 6.2, following the intent of the Constitution with regard to [ 1sthe Governor’s approval, requires said approval to be of the entire plan.
Therefore, we hold that there is no authorization in the Constitution, jurisprudence, or Civil Service rules of this State, which would authorize the Governor to modify or amend any Uniform Pay Plan recommended and established by the Commission. His authority is that of approval or disapproval of a plan, in its entirety. If the Governor chooses not to approve a plan, the proper recourse is to send the plan back to the Commission for its modification, in line with the purposes and intent of its Constitutional mandate.

Id. at 199.

Further reference to the Civil Service Commission proceedings indicates that, although it denied Mr. Bryant’s immediate request, it noted intent to pursue options that would further a more uniform approach to the claimed inequities. The minutes of the commission proceeding reflect:

Dr. Nassif made a motion to instruct the Director to draft a rule that any person in a supervisory position be paid 5% above the highest paid subordinate and, based on that motion, the appeal of Mr. Bryant be denied. It was seconded by Dr. Weinzettle. A roll call vote was in favor of the motion four to one. Mr. Harvey abstained from voting.

Motion Carried.

Having reviewed the jurisprudence and relevant positive law in light of the facts of the plaintiffs case, we find no authority by which the trial court could have intruded upon the City and Civil Service Commission’s role in administering its pay plan. Therefore, the trial court’s judgment is reversed. The decision of the Alexandria Civil Service Commission denying Mr. Bryant’s complaint is reinstated.

DECREE

For the foregoing reasons, the trial court’s judgment is reversed. The decision of the Alexandria Civil Service Commission denying Charles Bryant’s complaint is reinstated. All costs of this proceeding are assessed to Mr. Bryant.

REVERSED.

      . The job description of Crew Leader, a Grade 117 position, is contained within the record. The description lists the "Characteristics of the Class” as:
      Under the general direction of a designated supervisor, performs technical work in and has lead worker responsibility over employees engaged in the performance of varied and complex construction, maintenance, repair, and operational activities. Incumbent may be on 24-hour call out for emergency situations and work may be hazardous. Position is responsible for obtaining necessary materials, providing training and instructions for a crew, and ensuring safety procedures are followed on each job. Work is assigned orally and in writing and is reviewed while in progress and upon completion. Work is also reviewed through conferences and written reports for adherence to established policies and procedures. Performs other work as requested.

      . The job description of the Senior Electric Line Worker, a Grade 116 position, lists the Characteristics of the Class as:
      Under the general direction of a designated supervisor, performs skilled, independent work in the installation, maintenance, and repair of power lines and related components of the electrical distribution system. Position is subject to 24-hour call and work is sometimes hazardous. The objective is the application of electrical skills and knowledge to a variety of electrical problems, including diagnosis of power problems. Incumbents have completed required courses and obtained certification. Work is reviewed through conferences and written reports for adherence to established policies and procedures. Performs other work as requested.
      The Characteristics of the Class for an Electric Line Worker, a Grade 112 position, are described as:
      Under the general direction of a designated supervisor, installs and restores electrical service to residential and commercial customers. Position is subject to 24-hour call and work is sometimes hazardous. Work is reviewed through conferences and written reports for adherence to established policies and procedures. Performs other work as requested.

      . Consistent with the transcript, the minutes of the hearing reflect:
      Chairman Ford explains this matter was presented to the Commission in 2001. Mr. Bryant filed an appeal because his salary as a Crew Leader is lower than the salary of the employees he supervises. All parties consented to tabling the decision in the matter pending a resolution that would be acceptable to all parties. No solution had been reached; therefore, the matter was before the Commission again for a decision. Dan Broussard represented Mr. Bryant and Barry Laiche and Daphne Robinson represented the administration. Both sides presented facts pertinent to their case. Chairman Ford asked what relief Mr. Bryant sought. Mr. Broussard stated his client was seeking the job description of Crew Leader be revised and reevaluated to be graded higher in order for Mr. Bryant to receive an increase in salary.
      After closing statements, Mr. Harvey made a motion to go into Executive Session, which was seconded by Dr. Nassif. All were in favor.
      Motion Carried.
      The Commission returned to regular session at 5:25 p.m. with a motion made by Mr. Douglas and seconded by Mr. Nassif. All were in favor.
      Motion Carried.
      Dr. Nassif made a motion to instruct the Director to draft a rule that any person in a supervisory position be paid 5% above the highest paid subordinate and, based on that motion, the appeal of Mr. Bryant be denied. It was seconded by Dr. Weinzettle. A roll call vote was in favor of the motion four to one. Mr. Harvey abstained from voting. Motion Carried.

      . Rule 2-12.4 (emphasis added) provides that an appellant's brief shall include, in part:
      The brief of the appellant or relator shall set forth the jurisdiction of the court, a concise statement of the case, the action of the trial court thereon, a specification or assignment of alleged errors relied upon, the issues presented for review, an argument confined strictly to the issues of the case, free from unnecessary repetition, giving accurate citations of the pages of the record and the authorities cited, and a short conclusion stating the precise relief sought.

        . Section 1.3 provides:
      Where any appeal is taken to the Commission by an employee under the provisions of Section 19 of the Civil Service Law, the proceedings shall be conducted as nearly as possible in accordance with court trials but without any of the formalities incident thereto. The appointing authority who has removed or disciplined the employee shall first present to the Commission the evidence in support of his action; the employee shall then submit the evidence in support of his appeal. The appointing authority shall have the right of rebuttal but same shall be limited strictly to matters that contradict evidence offered by the defendant in general accord with the legal rules of evidence on the subject. The time, place, hours for hearing shall be fixed by the Commission in such case and notice thereof given to those involved. The evidence shall be limited to the charges contained in the written- reasons given by the appointing authority for his discharge or disciplining of the employee, or stated in the written request for a hearing. The employee or appointing authority shall have the right to appear before the Commission in such matters with counsel of their own choosing. Appeals for hearings from any other source shall be made in writing, stating the charges, and the evidence shall be limited to the charges contained in the written reasons for the appeal, and procedure shall be as above described in this paragraph. Appeals from other sources shall be governed by time limits as in paragraph 1.1.

      . Article 1, § 3 provides:
      No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

      . Article 10, § 10, applicable to the state and defined city civil service commissions, provides, in part:
      (A) Rules. (1) Powers. Each commission is vested with broad and general rule-making and subpoena powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualifications, political activities, employment conditions, compensation and disbursements to employees, and other personnel matters and transactions; to adopt a uniform pay and classification plan; to require an appointing authority to institute an employee training and safety program; and generally to accomplish the objectives and purposes of the merit system of civil service as herein established. It may make recommendations with respect to employee training and safety.
      (Emphasis added.)


source: Caselaw Access Project

author: GASKINS, J.

license: Public Domain

text:
    Exie JONES, Individually and as Natural Tutrix of the Minor Children, A.J., and T.J., Plaintiff-Appellant v. The STATE of Louisiana, Through the DEPARTMENT OF SOCIAL SERVICES, et al., Defendants-Appellees.
    No. 42,034-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 2007.

      W. James Singleton, Sandy E. Clause, Shreveport, for Appellant.
    Charles C. Foti, Jr., Attorney General, John F. Frederickson, Assistant Attorney General, for Appellee State of Louisiana Department of Social Services.
    Brian D. Landry, Special Assistant Attorney General, for Appellees Sherman and Bernice Houston.
    Before GASKINS, CARAWAY and MOORE, JJ.
   GASKINS, J.

hln this suit alleging sexual abuse of two female children while in foster care, the plaintiff appeals from the granting of summary judgment in favor of the State of Louisiana and the foster parents. We reverse and remand.

FACTS

A.J. (DOB 12/14/93) and T.J. (DOB 7/16/88) are the daughters of the plaintiff, Exie Jones. On February 8, 2000, the mother filed suit, individually and on behalf of A. J. and T. J., against the Louisiana Department of Social Services (DSS), Sherman Lee Houston, Sr., and Bernice F. Houston. Mr. Houston is the mother’s brother. The petition alleged that on August 23, 1995, DSS placed A.J. and T.J. in the foster care of Mr. Houston and his wife. According to the petition, on or about July 23, 1999, Mr. Houston, with his wife’s “knowledge, concurrence and consent,” sexually abused the girls. In addition to damages from the Houstons, the mother sought recovery against DSS for negligence in placing the girls in the Hous-tons’ home.

On March 9, 2000, Mrs. Houston filed a general denial. On May 23, 2000, DSS filed its answer, in which it asserted that T.J. was placed with the Houstons on September 15, 1995, while A.J. was placed there on March 14, 1996. On July 21, 2004, Mr. Houston also filed an answer in which he likewise corrected the dates the children were placed in his home.

In October 2005, the Houstons filed a motion for summary judgment, seeking dismissal of the claims of sexual abuse against them. In support of | ¡¡their motion, they filed, among other documents, deposition excerpts from Dr. Margaret Ann Springer, an expert in child abuse medicine, and Charlotte Williams Fuller, the children’s foster care worker. Information in these depositions established the following: the children were removed from their mother’s care on June 2,1995. After an initial placement elsewhere, T.J. was placed with the Houstons on September 15, 1995; she adjusted well in the care of her uncle and aunt, attended school regularly, and made honor roll every six weeks. After first being placed elsewhere, A.J. was also placed with the Houstons on March 14, 1996. Within a few days of A.J.’s placement there, the Houstons contacted DSS to express concern that the child’s genitalia was enlarged and requested that she be examined. DSS arranged for A.J. to be seen by Dr. Springer on March 28, 1996. Dr. Springer found evidence of sexual molestation with penetration which predated A.J.’s placement with the Houstons. In June 1998, the children were returned to their mother’s custody. Almost 14 months later, both girls were seen by Dr. Springer on July 28,1999. At that time, Dr. Springer found that each child had recent evidence of sexual molestation with penetration. According to Dr. Springer, these injuries were more recent than 14 months. While some of the injuries required only a few days to heal, some had healing times ranging from several weeks to a few months.

Another exhibit attached to the Hous-tons’ motion was a letter report from psychologist Bruce K. McCormick, who saw both girls in December 2002; he expressed doubt about the possibility of obtaining an accurate and ^specific report from either about any mistreatment. As to A.J., he found that she had “little independent” memory of any abusive act; however, the topic was apparently openly discussed at home and was “a matter taken for granted and frequently reinforced.” While T.J. seemed to have a memory of a specific event that she believed involved sexual abuse, Dr. McCormick expressed concern about the effect of the trauma of her placements, the amount of elapsed time, and the potential contamination of her memory. Other exhibits included A.J.’s medical records, which showed that her health while with the Houstons was normal, and deposition excerpts from Baxter Welch, a state trooper who administered a polygraph exam to Mr. Houston — which he passed— as part of DSS’ investigation of the 1999 accusations.

In opposition to the motion for summary judgment, the mother argued that there was a genuine issue of material fact as to when and by whom the girls were molested. She cited Dr. Springer’s recitation of A.J.’s answer when queried about the reason for the 1999 exam: “My Uncle Sherman stuck his finger up in me.” The mother also submitted deposition excerpts from social worker Cindy Woods in which she recounted interviewing another foster child of the Houstons’ who had claimed during a discussion of sexual abuse at camp in 1999 that Mr. Houston was “messing” with her. However, Ms. Woods found this girl to be a poor witness whose story kept changing. The girl had been raped, apparently prior to her placement with the Houstons, in an incident involving complicity by her own brother, and she had emotional and behavioral problems.

l/The day before the hearing on the motion for summary judgment identical affidavits were executed by A.J. and T.J., then ages 11 and 17, in which each asserted that she was sexual abused by Mr. Houston when she lived in his home from 1996 to 1998.

The motion for summary judgment was argued on December 6, 2005, and submitted. At the hearing, the Houstons objected to the submission of the affidavits as untimely. On December 20, 2005, the trial court granted the motion as to the claims pertaining to T. J., but denied it as to those concerning A.J. Judgment dismissing T.J.’s claims was signed on January 31, 2006. The judgment was certified as a final appealable judgment; however, this court vacated the certification and dismissed the appeal in August 2006, while noting that the appellants could seek review later on an appeal from a final judgment dismissing their claims.

In the meantime, jury trial was set for June 12, 2006.

In April 2006, DSS filed a motion for summary judgment. In support of the motion, DSS attached many of the same items utilized in the Houstons’ motion, including A.J.’s medical records, Dr. McCormick’s letter report, as well as deposition excerpts from Dr. Springer, Mrs. Fuller, and Trooper Welch. Also attached were affidavits from Dr. Springer, Mrs. Fuller, Marsha McCall, the foster care supervisor who dealt with the Jones family, and Eliza Oakley, the mother’s sister. In her affidavit, Dr. Springer reiterated that the scar tissue she found during her March 28, 1996, exam of A. J. showed that the injuries had occurred more than two weeks before and that it was impossible for the injuries to have occurred since A. J.’s | Bplacement in the Houstons’ home on March 14, 1996. She also opined that the injuries she found during her exams of the girls in July 1999 were only a few weeks old, instead of being more than a year old. Mrs. Fuller’s affidavit and its attachments detailed the children’s history in foster care, beginning with their removal from their mother’s care for inadequate food and shelter. Ms. McCall recounted the facts surrounding A.J.’s placement with the Houstons and their request for a medical examination within a week of receiving the child. Ms. Oakley, the children’s maternal aunt, stated that she is close to her nieces, that they never reported any sexual abuse to her, and that she was not aware of any reports of sexual abuse against her brother Sherman.

On April 28, 2006, the Houstons joined in DSS’ motion for summary judgment.

A hearing on the motion was set for May 10, 2006. However, neither the mother nor her counsel appeared on that date. When contacted by the trial court, the mother’s counsel communicated her belief that the matter had been stayed. The court allowed the mother until first May 25, 2006, then May 26, 2006, to file an opposition.

An opposition to the motion was apparently faxed to the clerk of court by the mother’s attorney on May 26, 2006. However, the clerk’s stamp indicates that it and the accompanying documents were not processed until June 5, 2006. In support of her opposition, the mother attached several [ ^documents, including a deposition excerpt showing that Mrs. Fuller, the foster care worker, was now married to the foster mother/aunt’s nephew; a deposition excerpt from Shirley Connley in which she stated that a majority of her visits with the children as their case worker were in the foster parents’ presence; and an excerpt from Dr. Springer’s deposition in which she recounted that one of the children (presumably A.J., although the child is not named on the excerpted pages) responded to the doctor’s query as to why she was seeing the doctor with “My Uncle Sherman stuck his finger up in me.” Another excerpt from Dr. Springer’s deposition referenced an exam finding on a female child; however, the identity of the child is unclear. The mother also included an excerpt from her own deposition in which she stated that the other foster child who accused Mr. Houston had come by her house with him after A. J. and T. J. were returned to her care.

On June 21, 2006, DSS filed an objection to the mother’s opposition, asserting that none of the mother’s opposition had been timely filed or served. In its reply memorandum, DSS particularly objected to the affidavits of A.J. and T.J. on multiple grounds, including the age of the affiants and the lack of service. It also asserted that the entire deposition of Mrs. Fuller showed that she had no involvement with Mrs. Houston’s nephew from 1992 to 1999 and that they only married in May 1999.

On June 27, 2006, the trial court issued a written judgment in which it noted that it allowed the mother until May 26, 2006 to file a written opposition with the defendants reserving a right to traverse any 17submissions. According to the court, the opposition was filed on May 26, 2006. Because the mother allegedly failed to serve her memorandum in opposition upon the defendants, traversal by the defendants was extended by the trial court until June 21, 2006, at which time the matter was submitted. The court granted the motion for summary judgment, dismissing with prejudice all of the mother’s claims, individually and on behalf of the children.

The mother appeals.

DSS filed a motion to strike the children’s affidavits and the deposition excerpts attached to the mother’s memorandum in opposition to DSS’ motion for summary judgment. We denied the motion inasmuch as the complained of documents were part of the trial court record and, as such, were properly included in the appellate record.

SUMMARY JUDGMENT

Law

Appellate courts review summary judgments de novo using the same criteria that govern a district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342 (La.1991); Costello v. Hardy, 2003-1146 (La.1/21/04), 864 So.2d 129. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). Summary judgment procedure is | Javored and is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966(A)(2); Mosley v. Temple Baptist Church of Ruston, Louisiana, Inc., 40,546 (La.App. 2d Cir.1/25/06), 920 So.2d 355.

The burden of proof is on the movant. If, as in this case, the moving party will not bear the burden of proof at trial on the matter before the court on the motion and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must come forward with factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Foshee v. Louisiana Farm Bureau Casualty Insurance Company, 41,842 (La.App. 2d Cir.1/31/07), 948 So.2d 1171.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967.

Timeliness

The defendants question the timeliness and service of the mother’s documents in opposition to their motion for summary judgment. However, trial judges have discretion, absent prejudice to the moving party, to consider affidavits opposing summary judgment served after the time |flprescribed by the article. Savoie v. Savoie, 03-893 (La.App. 5th Cir.12/30/03), 864 So.2d 742; Kops v. Lee, 2003-1407 (La.App. 4th Cir.3/31/04), 871 So.2d 1187; Debrun v. Tumbleweeds Gymnastics, Inc., 39,499 (La.App. 2 Cir. 4/6/05), 900 So.2d 253. In its written judgment, the trial court noted that, “due to alleged failure of service of process” of the mother’s memorandum in opposition, it had extended the defendants’ time period to traverse. Thus, it appears that the trial court cured any prejudice to the defendants by giving them a longer time period to traverse.

Credibility

The mother argues that a genuine issue of material fact exists in the instant case. In support of her position, she points to her daughters’ affidavits in which they state that during the period of 1996 to 1998 when they resided in their uncle’s foster care, he sexually assaulted them. Additionally, the mother points to Dr. Springer’s testimony that the younger daughter, A.J., volunteered to her that Mr. Houston had molested her. In another deposition excerpt, Dr. Springer described one of the girls as having a healed hymeneal laceration; she stated that the injury was at least two weeks old, “but it could be anywhere in the past before that.” While the name of the child is not specified on the excerpted page, the mother’s memorandum in opposition identified the child as T.J.

The defendants challenge the girls’ affidavits as competent evidence because they were executed when the girls were minors. DSS also contends that the dates in the affidavits were inconsistent with the facts shown in the case. The Houstons likewise assail the reliability of the affidavits.

|inA trial judge cannot make credibility determinations on a motion for summary judgment. Independent Fire Insurance Company v. Sunbeam Corporation, 1999-2181, 1999-2257 (La.2/29/00), 755 So.2d 226; Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533 (La.2/20/04), 866 So.2d 228. In deciding a motion for summary judgment, the court must assume that all of the affiants are credible. Independent Fire Insurance Company v. Sunbeam Corporation, supra. The credibility of a witness is a question of fact. Hutchinson v. Knights of Columbus, Council No. 5747, supra.

Much of the evidence put forth both for and against summary judgment involves issues of credibility. In his report, Dr. McCormick indicates that A.J. and T.J. are of somewhat diminished intellectual functioning which might contribute to an inability to provide accurate information about any abuse. Yet he also stated that T.J. had a sincere memory of a specific event that she believed was sexual abuse. And Ms. Fuller recounted that T.J. was of sufficient ability to make the school honor roll while living with the Houstons.

No medical evidence here conclusively shows that sexual abuse occurred while the girls were in the Houstons’ foster care. The results of A.J.’s first exam indicated that the child was abused prior to her placement with the Houstons. No exams to determine sexual abuse were done thereafter while the girls were still in the Houstons’ foster care. However, at the same time, the medical evidence does not necessarily clear Mr. Houston of sexually abusing the girls while they were in his foster care. Dr. |nSpringer indicated that T.J. had a sexual injury, the date of which could not be definitively determined.

Moreover, because credibility is not an issue in a motion for summary judgment, evidence of Mr. Houston’s “passed” polygraph test, likely inadmissible at trial, cannot be used to bolster his credibility.

We find that it is unnecessary to resolve the issues pertaining to the competency of the girls’ affidavits in which, at ages 11 and 17, they stated that they were abused by Mr. Houston while in his foster care. In view of A.J.’s identification of the uncle to Dr. Springer as someone who molested her, Dr. McCormick’s documentation of T.J. having a specific recollection of an incident of abuse, and the medical evidence that indicated that the date of one of T. J.’s injuries could be “anywhere in the past” beyond its two-week healing period, we find that there is a genuine issue of material fact as to whether Mr. Houston sexually abused A.J. and T.J. during the time period when DSS placed the girls in the Houstons’ foster care. Thus, we find that summary judgment dismissing the mother’s claims, individually and on behalf of A.J. and T.J., is not appropriate.

CONCLUSION

The summary judgment in favor of the defendants dismissing the claims asserted against them on behalf of A.J. and T.J. is reversed. The assessment of the costs of this appeal is deferred until a final judgment on the merits. The matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The record contains two dates of birth for this girl, June 16, 1988 and July 16, 1988. We utilize the one found on a medical record.

      . In addition to A.J. and T.J., two other siblings were removed from the mother's care in June 1995. A fifth sibling was born in December 1996 and was allowed to remain in the mother’s care from birth.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana, Appellee v. Benny YOSSETT, Jr., Appellant.
    No. 41,926-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 2007.

      Larrion L. Hillman, G. Paul Marx, Lafayette, for Appellant.
    J. Schuyler Marvin, District Attorney, C. Sherburne Sentell, III, Assistant District Attorney, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   WILLIAMS, Judge.

I,The defendant, Benny Yossett, Jr., was charged by bill of information with two counts of sexual battery (LSA-R.S. 14:43.1); two counts of oral sexual battery (LSA-R.S. 14:43.3); two counts of molestation of a juvenile (LSA-R.S. 14:81.2); two counts of indecent behavior with a juvenile (LSA-R.S. 14:81); and two counts of aggravated incest (LSA-R.S. 14:78.1). All of the charges involved defendant’s alleged abuse of his two sons. After a trial, the jury found defendant guilty as charged on all ten counts. The trial court imposed consecutive ten-year sentences at hard labor without benefit of parole, probation or suspension of sentence on each of the first four counts, consecutive ten-year hard labor sentences for each of counts five and six, five years at hard labor for each of counts seven and eight, to run concurrently with each other, but consecutively with counts one to six and consecutive 20-year hard labor sentences for each of counts nine and ten. Defendant appeals his convictions and sentences. For the following reasons, we affirm.

FACTS

The evidence presented at trial shows that defendant married Brenda in February 1992 and three children were born of the marriage. The first child was a son, M.A.Y., born in March 1992. A second son, A.S.Y., was born in April 1993 and a third child, a daughter, was also born. Brenda separated from the defendant in 1997 or 1998, but they were not divorced. Between 1999 and 2001, Brenda lived in Shreveport and had legal custody of the children. The defendant, who lived in a trailer home in Webster Parish, exercised his parental visitation rights every other weekend.

12Brenda’s landlord, Lona, sometimes helped out by watching the children. Lona also disciplined the children by having them “write lines,” and then later, essays or letters about various topics. One of the subjects Lona asked the children to write about was their activities when they visited their father. She usually glanced at and then put away the essays/letters without reading them. Lona noted at trial that A.S.Y.’s older brother M.A.Y. did not know how to write at that time. M.A.Y. has a low I.Q., suffers from severe learning disabilities and is a special education student.

Between 1999 and 2001, M.A.Y., began “acting out” sexually after his visits with his father. His behavior included exposing himself and having sex with his young sister. He was six years old when this behavior began. Lona discovered the children having sex among themselves and disciplined them. The excessive sexual behavior made Lona suspicious and she finally asked A.S.Y. if anyone had ever molested him. A.S.Y. answered affirmatively and replied, “My father.” Lona told A.S.Y. that he needed to write the whole thing down on paper. She reported the sexual abuse to Brenda and pressured Brenda to contact the authorities. Brenda, who was hesitant at first because she needed the child support, eventually contacted the child protection agency. The children were temporarily removed from her home. A.S.Y.’s writings revealed details of oral and group sex involving the defendant, A.S.Y., M.A.Y. and other males, and also described anal sexual intercourse involving himself and the defendant.

Caddo Parish Juvenile Probation Officer Karen Baird conducted an investigation of M.A.Y.’s bizarre behavior, which included “acting-out,” | ^explicit and excessive sexual activity, head-banging and aggression. Baird learned that M.A.Y. had recently disclosed the sexual abuse perpetrated against him by his father, the defendant. Baird interviewed M.A.Y., who specifically stated that defendant made him perform oral sex. Baird opined that M.A.Y.’s behavior was consistent with that exhibited by victims of sexual abuse. Based on Baird’s experience and training, she found M.A.Y.’s statements to her to be truthful and consistent. Baird confirmed that her investigation revealed that the sexual abuse of M.A.Y. also included abuse perpetrated by the 14-year-old “stepson” of the defendant and a man named “Mr. Robbins.”

Both of the defendant’s sons testified against him at trial. M.A.Y., who was 13 years old at the time of trial, described in detail what transpired when he and his siblings visited the defendant, their father, at his trailer on weekends. M.A.Y. testified that the defendant would make him and his brother perform oral sex on him and defendant would also perform oral sex on them. M.A.Y. stated that this sexual activity would occur in different locations inside the trailer and sometimes other adults would participate, but he could not remember the names of the other adults. M.A.Y. testified that sometimes with defendant he and his brother watched movies showing naked people having sex. He stated that the defendant threatened to hit him and his brother with a hammer on their knees if they ever told anyone. M.A.Y. related that all of the sexual activity stopped when Lona found out about him having sex with his sister. He assured the court that nobody told him what to say, and that he was telling the truth. On cross-examination, RM.A.Y. could not remember the exact time frame when this activity occurred, but thought that the abuse began when he was in kindergarten.

Twelve-year-old A.S.Y. made an in-court identification of the defendant as his father. A.S.Y. explained that the “bad things” all started when the defendant entered the boys’ room at night during their weekend visits to his trailer. A.S.Y. testified that on those occasions, the defendant was naked, told them to take off their clothes and then forced them to perform oral sex. A.S.Y. stated that more than once the defendant stuck his penis in A.S.Y.’s rectum. A.S.Y. testified that this abuse occurred almost every weekend the children visited the defendant at his trailer and that he showed them movies about naked people having sex. A.S.Y. stated that a male friend of the defendant, Paul Robbins, who also lived in the trailer for a time, participated in having oral and anal sex with the boys. A.S.Y. testified that the defendant threatened to kill him if he ever told anyone and also threatened to hit his knees with a hammer. A.S.Y. related that he eventually told Lona about the sex with the defendant. A.S.Y. made an in-court identification of the letters as those he had written detailing what had transpired at the defendant’s trailer. His were the only letters introduced at trial. A.S.Y. stated that he did not need to read his writings to refresh his memory of what had happened, that he had written and testified truthfully, and that no one had coached him regarding his testimony.

In a multiple-count indictment, the defendant was charged with committing a total of ten sexual crimes against his two male children, A.S.Y. and M.A.Y., during the years of 1999 through 2001, including two | r,counts each of sexual battery, oral sexual battery, molestation of a juvenile, indecent behavior with a juvenile, and aggravated incest. A unanimous six-person jury found defendant guilty as charged on all ten counts. The defense filed motions for new trial and post-verdict judgment of acquittal, which were denied. The trial court sentenced the defendant as follows:

COUNT ONE; sexual battery of A.S.Y. (R.S. 14:43.1); ten years at hard labor without benefit of probation, parole or suspension of sentence;
COUNT TWO; sexual battery of M.A.Y. (R.S. 14:43.1); ten years at hard labor without benefit of probation, parole or suspension of sentence, to run consecutive with count one;
COUNT THREE; oral sexual battery of A.S.Y. (R.S. 14:43.3); ten years at hard labor without benefit of probation, parole or suspension of sentence, to run consecutive with counts one and two;
COUNT FOUR; oral sexual battery of M.A.Y. (R.S. 14:43.3); ten years at hard labor without benefit of probation, parole or suspension of sentence, to run consecutive with counts one, two and three;
COUNT FIVE; molestation of a juvenile, A.S.Y. (R.S. 14:81.2); ten years at hard labor, to run consecutive with counts one, two, three and four;
COUNT SIX; molestation of a juvenile, M.A.Y. (R.S. 14:81.2); ten years at hard labor, to run consecutive with counts one, two, three, four and five;
COUNT SEVEN; indecent behavior with a juvenile, A.S.Y. (R.S. 14:81); five years at hard labor, to run consecutive with counts one through six but concurrent with count eight;
COUNT EIGHT; indecent behavior with a juvenile, M.A.Y. (R.S. 14:81); five years at hard labor, to run consecutive with counts one through six but concurrent with count seven;
COUNT NINE; aggravated incest of A.S.Y. (R.S. 14:78.1); twenty years at hard labor, to run consecutive with counts one through eight;
COUNT TEN; aggravated incest of M.A.Y. (R.S. 14:78.1); twenty years at hard labor, to run consecutive with counts one through nine.

The defense filed a motion to reconsider sentence, alleging that the sentences were excessive for a first felony offender considering the circumstances of the case and the defendant’s background and that the trial 1 (¡court failed to consider mitigating factors. The motion to reconsider sentence was denied by the trial court. This appeal followed.

DISCUSSION

The defendant contends the verdict was unconstitutional because it represents multiple convictions for one course of conduct without any evidence as to when any particular incident happened. Defendant argues that the jury could not have found specific separate facts supporting the convictions on the various counts, since the bill of information merely recited the statutory definitions of the crimes alleged and the state failed to present specific evidence on each of the charges, but relied instead on the “summary” testimony of the vie-tims, who could not specify any date when these offenses occurred.

LSA-C.Cr.P. art. 463 sets forth the form that a bill of information may follow and provides that the “particulars of the offense may be added.” State v. Carcamo, 03-589 (La.App. 5th Cir.10/28/03), 860 So.2d 220. An information must set forth an identifiable offense and inform defendant of the statutory basis of the offense, but need not set out detailed facts constituting violation since those facts can be given to defendant by answers to a bill of particulars. State v. Gainey, 376 So.2d 1240 (La.1979).

LSA-C.Cr.P. art. 859 provides that the court shall arrest the judgment only when the indictment is substantially defective because an essential averment is omitted, or when the verdict is not responsive to the indictment. An irregularity or error cannot be availed of after the verdict unless it was objected to at the time of occurrence. LSA-C.Cr.P. art. 841; State v. Smith, 739, 698 (La.App. 2d Cir.6/29/05), 907 So.2d 192.

In this case, the defense basically asserts in its brief that the bill of information was substantially defective and that the verdict was not responsive to the bill. However, the record shows that the information provides the statutory basis and definition for each offense charged. Thus, the bill of information substantially conforms with the requirements of Article 463. The defendant did not request a bill of particulars prior to trial. Nor did defendant file a post-trial motion in arrest of judgment, which would have been the proper procedural vehicle for raising the issue of the validity of the information or the verdict. Additionally, the defendant’s motion for new trial complained only that the evidence was insufficient to support the verdicts. Consequently, the defendant failed to properly preserve the alleged error for appeal. In any event, we conclude that the bill of information adequately informed defendant of the statutory basis of the charged offenses and a detailed statement of the facts constituting the violations was not required. The assignment of error lacks merit.

Sufficiency of the Evidence

The defendant contends the evidence was insufficient to support the convictions. Defendant argues that the jury verdicts were contrary to the law since the victims’ testimony was not corroborated by any medical evidence and they failed to provide specific dates for any of their allegations.

The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to |sthe prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively embodied in LSA-C.Cr.P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442. A reviewing court gives great deference to a jury’s decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La. App. 2d Cir.8/30/02), 827 So.2d 508, writ denied, 02-3090 (La.11/14/03), 858 So.2d 422.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1988); State v. Owens, 30,903 (La.App. 92d Cir.9/25/98), 719 So.2d 610, writ denied, 98-2723 (La.2/5/99), 737 So.2d 747. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the issue is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.9/18/02), 828 So.2d 622, units denied, 02-2595 (La.3/28/03), 840 So.2d 566, 02-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. White, 28,095 (La.App. 2d Cir.5/8/96), 674 So.2d 1018, writ denied, 96-1459 (La.11/15/96), 682 So.2d 760, writ denied, 98-0282 (La.6/26/98), 719 So.2d 1048. This is equally applicable to victims of sexual assault. State v. Robinson, 36,-147 (La.App. 2d Cir.12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So.2d 490. See State v. Simpson, 39,268 (La.App. 2d Cir.1/26/05), 892 So.2d 694. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra.

In cases involving a defendant’s claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of inproof. State v. Powell, 27,959 (La.App. 2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520. Positive identification by only one witness may be sufficient to support a defendant’s conviction. State v. Davis, 27,961 (La.App. 2d Cir.4/8/96), 672 So.2d 428, writ denied, 97-0383 (La.10/31/97), 703 So.2d 12; State v. Miller, 561 So.2d 892 (La.App. 2d Cir.), writ denied, 566 So.2d 983 (La.1990).

COUNTS ONE AND TWO-SEXUAL BATTERY:

At the time of the offenses, LSA-R.S. 14:43.1(A) defined sexual battery in part as the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender acts without the consent of the victim, or where the other person has not yet attained 15 years of age and is at least three years younger than the offender: (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; or (2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.

The actual date on which the offense is alleged to have occurred is not an essential element of the crime. LSA-R.S. 14:43.1; State v. DJ, 29,474 (La.App. 2d Cir.4/2/97), 691 So.2d 839; State v. Cleve land, 25,628 (La.App. 2d Cir.1/19/94), 630 So.2d 1365.

COUNT ONE charged the defendant with the sexual battery of A.S.Y., a male juvenile under 15 years of age between 1999 and 2001. A review of the record reveals that the state presented credible direct evidence that A.S.Y. performed oral sex on the defendant, who was more than three 1 ^years older than A.S.Y. It was also proved that A.S.Y. was born in April 1993 and the defendant was 35 years old at the time of trial.

COUNT TWO charged the defendant with the sexual battery of M.A.Y., a male juvenile under 15 years of age. The record shows that the state likewise proved by credible direct evidence that M.A.Y. performed oral sex on the defendant, who was more than three years older than M.A.Y. It was also proved that M.A.Y. was born in March 1992 and the defendant was 35 years old at the time of trial. The actual date on which each of the offenses occurred is not an essential element of the crime.

COUNTS THREE AND FOUR-ORAL SEXUAL BATTERY:

From 1999 until August 15, 2001, the effective date of its amendment by Acts 2001, No. 301, § 1, LSA-R.S. 14:43.3(A) defined oral sexual battery in part as the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, when the other person has not yet attained 15 years of age and is at least 3 years younger than the offender: (1) The touching of the anus or genitals of the victim by the offender using the mouth or tongue of the offender; or (2) The touching of the anus or genitals of the offender by the victim using the mouth or tongue of the victim.

COUNT THREE charged the defendant with the oral sexual battery of A.S.Y., a male juvenile under 15 years of age. The state proved by credible direct evidence that the defendant, who was more than three years older than A.S.Y., performed oral sex on A.S.Y., who was born in April 1993.

LijCOUNT FOUR charged the defendant with the oral sexual battery of M.A.Y., a male juvenile under 15 years of age. The state likewise proved by credible direct evidence that the defendant, who was more than 3 years older than M.A.Y., performed oral sex on M.A.Y., who was born in March 1992.

COUNTS FIVE AND SIX-MOLESTATION OF A JUVENILE:

At the time of the offenses, LSA-R.S. 14:81.2(A) defined molestation of a juvenile as the commission by anyone over the age of 17 of any lewd or lascivious act upon the person or in the presence of any child under the age of 17, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile.

COUNT FIVE charged the defendant with molestation of a male juvenile, A.S.Y. It was proved by credible direct evidence that the defendant included A.S.Y. in group sex. It was further proved that this offense occurred during the defendant’s parental visitation with A.S.Y., and that he threatened to hit A.S.Y.’s knees with a hammer if he told anyone.

COUNT SIX charged the defendant with molestation of a male juvenile, M.A.Y. It was likewise proved by credible direct evidence that the defendant included M.A.Y. in group sex. It was further proved that this offense occurred during the defendant’s parental visitation with M.A.Y., and that he threatened to hit M.A.Y.’s knees with a hammer if he told | ^anyone.

COUNTS SEVEN AND EIGHT-INDECENT BEHAVIOR WITH A JUVENILE:

From 1999 to 2001, LSA-R.S. 14:81 defined indecent behavior with a juvenile in part as the commission of any lewd or lascivious act upon the person or in the presence of any child under the age of 17, where there is an age difference of greater than 2 years between the two persons, with the intention of arousing or gratifying the sexual desires of either person.

COUNT SEVEN charged the defendant with indecent behavior with a male juvenile, A.S.Y. It was proved by credible direct evidence that the defendant showed pornographic movies to A.S.Y., that A.S.Y. was born in April 1993 and the defendant was 35 years old at the time of trial.

COUNT EIGHT charged the defendant with indecent behavior with a male juvenile, M.A.Y. It was likewise proved by credible direct evidence that the defendant showed pornographic movies to M.A.Y., that M.A.Y. was born in March 1992 and the defendant was 35 years old at the time of trial.

COUNTS NINE AND TEN-AGGRAVATED INCEST:

At the time of the offenses, LSA-R.S. 14:78.1 prohibiting aggravated incest provided in pertinent part:

A. Aggravated incest is the engaging in any prohibited act enumerated in Subsection B with a person who is under eighteen years of age and who is known to the offender to be related to the offender as any of the following biological, step, or adoptive relatives: child, grandchild of any degree, brother, sister, half-brother, half-sister, uncle, aunt, nephew, or niece.
B. The following are prohibited acts under this Section:
(1) Sexual intercourse, sexual battery, aggravated sexual battery, carnal knowledge of a juvenile, indecent behavior with juveniles, pornography | ^involving juveniles, molestation of a juvenile, crime against nature, cruelty to juveniles, parent enticing a child into prostitution, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.
(2) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child, the offender, or both.

COUNT NINE charged the defendant with aggravated incest with A.S.Y. The state proved this offense by presenting credible direct evidence that the defendant performed anal sexual intercourse with his biological son, A.S.Y. It was also proved that A.S.Y. was born in April 1993, and was therefore under 18 years of age. It was further proved that the defendant knew at the time of the offense that he was A.S.Y.’s biological father.

COUNT TEN charged defendant with aggravated incest with M.A.Y. The state likewise proved this offense with credible direct evidence that defendant performed sexual battery with his biological son, M.A.Y. It was further proved that M.A.Y. was under 18 years of age and that defendant knew at the time of the offense that he was M.A.Y.’s biological father.

The defendant’s ten convictions are supported by the testimony of these two young victims. The record supports the conclusion that the victims’ testimony was credible because of the consistency with, and corroboration by, other trial testimony and the documentary evidence consisting of the letters written by A.S.Y. When the direct evidence is viewed in the light most favorable to the prosecution, together with the facts established by the direct evidence and inferred from the circumstances demonstrated by that evidence, there was a sufficient evidentiary basis for 17fithe jury to conclude beyond a reasonable doubt that defendant was guilty of every essential element of all ten crimes.

Considering the nature of the crimes, the ages of the victims, the length of time over which the crimes were perpetrated, and the fact that there is no significant internal contradiction or irreconcilable conflict with physical evidence, the testimony of these two sexual assault witnesses, which was obviously believed by the trier of fact, was sufficient support for the requisite factual conclusions. Their testimony alone was sufficient even though the state did not introduce medical or scientific evidence to prove the commission of the offenses by the defendant. Furthermore, the defendant was positively identified by his son, A.S.Y., as the perpetrator and such an identification is sufficient to support the convictions. Thus, the assignment of error lacks merit.

Sentencing

The defendant contends the trial court erred in imposing an excessive sentence. Defendant argues that the trial court abused its discretion in sentencing defendant to 105 years imprisonment because the evidence presented was too vague to support the consecutive sentences imposed and the defendant was a first felony offender.

The test imposed by the reviewing court in determining the exces-siveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately |, (-.considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Dunn, 30,767 (La.App. 2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57, 04-2380 (La.6/3/05), 903 So.2d 452.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

Prior to imposing sentence in this case, the trial court reviewed a pre-sentence investigation report, which set forth defendant’s criminal history that included a 2002 conviction of possession of marijuana and hit-and-run, careless operation and open container violations in 2003. The court noted defendant’s first felony offender status for the record and considered his social and work history. Particularly, the trial court observed that the defendant suffered from learning disabilities, had obtained a tenth grade |17education, and had worked odd jobs beginning at the age of 18. The court was aware of defendant’s claim of physical abuse by his mother.

The trial court discussed the facts of the defendant’s crimes against his own two sons, who were ages six and seven when the abuse began, and which occurred over the time period from 1999 to 2001. The trial court noted that the crimes involved the defendant performing anal sex on one son and oral sex with the other son, allowing other individuals to be involved in sex acts with his sons, and showing his sons pornographic movies. The trial court described in detail the emotional and mental harm caused to the defendant’s sons and noted that the defendant’s daughter also suffered emotional and mental harm because she fell victim to sexual activity at the hands of one of the sons. Thus, the court considered the important elements of defendant’s personal history, prior criminal record and seriousness of the offenses. See State v. Jones, 398 So.2d 1049 (La. 1981).

In his brief, defendant argues the court erred in imposing excessive sentences because of the lack of specificity as to when individual acts occurred. The trial court has discretion to order sentences to run consecutively rather than concurrently. All factors in the case are to be considered in choosing whether to impose consecutive or concurrent sentences, including the defendant’s criminal history, the gravity or dangerousness of the offense, the viciousness of the crimes, the harm done to the victims, and the potential for defendant’s rehabilitation. State v. Morgan, 40,976 (La.App. 2d Cir.4/12/06), 926 So.2d 822; State v. Maxie, 30,877 (La.App. 2d Cir.8/19/98), 719 So.2d 104.

11sHere, the trial court meticulously set forth specific factors and reasons for imposing the consecutive sentences. Specifically, the trial court noted the fact that the abuse was inflicted “over and over and over again” during the course of a two-year period upon two separate children. In addition, the court observed the seriousness of the harm caused to the victims and pointed out that all of defendant’s children would likely require therapy for the indefinite future. Referring to defendant’s continued denial that he committed these offenses and his claim that he had been “framed,” the court found that defendant had shown no remorse.

After reviewing the record, we conclude that the trial court provided adequate reasons for imposition of these consecutive sentences, which are within the sentencing range for the offenses of conviction. Although severe, the sentences imposed are neither grossly disproportionate to the seriousness of the offenses committed nor shocking to the sense of justice. There is no showing that the district court abused its discretion in sentencing this defendant. Thus, we cannot say the sentences are constitutionally excessive. The assignment of error lacks merit.

We have examined the record for error patent and found none.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

AFFIRMED.


author: DREW, J.

text:
    Dorsheka BAKER, Linda Mitchell, Beverly Winzer and the Concerned Citizens of Bonita, Plaintiff-Appellant v. MOREHOUSE PARISH SCHOOL BOARD, Defendant-Appellee. Janice Dukes, Tijuanna Bonner-Ford, Gale Palm, James Lee, and Concerned Parents of East Morehouse, Plaintiff-Appellant v. Morehouse Parish School Board, et al., Defendant-Appellee.
    Nos. 41,874-CA, 41,875-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 25, 2007.

      Carol Denise Powell Lexing, Monroe, for Appellants, Dorsheka Baker, Linda Mitchell, Beverly Winzer, and The Concerned Citizens of Bonita.
    Louis Granderson Scott, for Appellants, Janice Dukes, Tijuanna Bonner-Ford, Gale Palm, James Lee, and Concerned Parents of Morehouse Parish.
    Rankin, Yeldell & Katz, by Stephen J. Katz, for Appellee, Morehouse Parish School Board, et al.
    Before DREW, MOORE and SEXTON (Pro Tempore), JJ.
   DREW, J.

hln these consolidated actions, plaintiffs appeal a judgment granting various exceptions and dismissing their claims. We reverse the judgment in part and affirm the judgment in part, and remand.

FACTS

Bonita Elementary School, Collinston Elementary School, and Delta High School were in the Delta Attendance Zone of Morehouse Parish. The Delta Attendance Zone is located in the eastern area of the parish. These three schools are also located in a special taxing district, the East Morehouse School District (“EMSD”).

On May 5, 2001, voters in the EMSD passed a five-year 10 mill property tax and a 1/2% sales and use tax. Both taxes were for the purpose of “providing additional support for constructing, improving, maintaining, and operating public schools for the District, including salaries and benefits of teachers and employees.”

On April 2, 2005, voters in the EMSD approved a nine-year 9.95 mill property tax for the purpose of “providing additional support for constructing, improving, maintaining, and operating public schools for the District, including salaries and benefits of teachers and employees.”

In February of 2006, because of significant budget problems, the Morehouse Parish School Board (“MPSB”) voted to take some very controversial steps concerning the EMSD schools. Bonita Elementary and Collinston Elementary were closed. Delta High’s students were transferred to Bastrop High School. Delta High was renamed Delta Junior High, and students from Bonita and Collinston were sent there.

12Understandably, many parents of affected students and others impacted by the MPSB’s decision were not pleased, especially since there were concerns about the use of revenue collected through the special taxes in the EMSD. The August 2005 Legislative Auditor Report of the MPSB stated that in October of 2004, approximately $1,554,000 in funds from a capital improvements bond issue and $50,000 in ad valorem taxes collected for the EMSD were spent for other purposes. The Report further stated that as of June 30, 2005, the majority of the funds had been transferred to the proper accounts.

“Baker” Lawsuit

On March 24, 2006, Dorsheka Baker, Linda Mitchell, Beverly Winzer, and the Concerned Citizens Organization of Bonita filed suit against the MPSB. In their petition for declaratory relief, the plaintiffs alleged that the MPSB had not acted as a prudent administrator in dealing with tax revenues, that money raised through the special taxes had been spent for purposes other than their dedicated uses, and that the MPSB acted fraudulently, arbitrarily, and unreasonably in inducing support for the special taxes on the premise that the taxes were necessary to keep the schools open.

Petitioners prayed that the court: (i) prevent the MPSB from closing Bonita Elementary and consolidating schools in the EMSD; (ii) declare that the MPSB failed to use the tax revenues for the intended purpose of preventing the closing or consolidation of schools, or in the alternative, | ^declare the special taxes null and void; and (iii) order the production of documents.

The documents requested were school board minutes from January 1, 2005, to March 24, 2006; correspondence with the U.S. Justice Department regarding the closure and consolidation of the EMSD schools; and orders and approvals from the Justice Department preclearing the closing or consolidation of those schools.

In response to the petition, the MPSB filed numerous exceptions, including the exceptions of no cause of action, prescription, peremption, and lack of subject matter jurisdiction.

“Dukes” Lawsuit

On April 5, 2006, Janice Dukes, Tijuanna Bonner-Ford, Gale Palm, James Lee, and Concerned Parents of East Morehouse filed a petition for declaratory judgment and writ of mandamus against the MPSB and five of its members. They alleged that the MPSB had made assurances that Delta High would remain open if the special taxes passed; that the MPSB had acted arbitrarily, fraudulently, and unreasonably in collecting and spending the special tax funds; that the MPSB spent revenues raised from the taxes on projects at schools outside the EMSD, while failing to use the revenues for the purposes intended by the taxes; that for at least the first two years of the taxes, proceeds from the taxes were deposited in the general fund rather than in an account designated for the EMSD; and that the tax propositions envisioned at least two schools being maintained in the EMSD.

^Petitioners prayed that the trial court declare that: (i) closing and consolidating the schools was arbitrary, fraudulent, and illegal; (ii) they were entitled to examine and copy all documents indicating the funds collected by the EMSD, where those funds were deposited, and where those funds were spent; (iii) the EMSD violated La. R.S. 39:704 by using its money for purposes other than those for which the special taxes were collected; (iv) the ordinance adopted in 2001 to impose a sales and use tax was null, void, and unenforceable because it was obtained through fraud and misrepresentation; (v) removing items such as computers, desks, books, lab equipment, chairs and'tables would not be allowed because the removal would be a violation of La. R.S. 39:704; (vi) the tax passed on April 2, 2005, required that at least two schools be maintained and operated within the EMSD; and (vii) the MPSB used fraudulent means and deceptive practices to trick voters into supporting the special taxes.

The plaintiffs also sought a writ of mandamus compelling the MPSB to keep Delta High open during the existence of the nine-year 9.95 mill property tax, and ordering the MPSB to account for all money collected in the EMSD since May of 2001 and to place in the EMSD account all money collected in the EMSD but placed into other accounts or spent outside the EMSD.

Defendants responded with various exceptions, including the exceptions of improper cumulation of actions, improper use of summary proceedings, no cause of action, no right of action, lack of subject matter jurisdiction, and mootness.

1 ⅛Federal Court Action

On April 19, 2006, the U.S. District Court for the Western District of Louisiana entered an order that approved the decision by the MPSB to consolidate and close schools and to reassign students in the Delta Attendance Zone beginning with the 2006-2007 school year. Students in grades 9 through 12 who had attended Delta High were to attend Bastrop High. Delta High was to be renamed Delta Junior High. Bonita Elementary and Collin-ston Elementary were to be closed, and all students in grades K through 8 in the Delta Attendance Zone were to attend Delta Junior High.

Consolidation and Hearing on Exceptions

On May 25, 2006, the two lawsuits were consolidated and the trial court conducted a hearing on the exceptions. As noted in a judgment signed on June 12, 2006, the court granted the exceptions of lack of subject matter jurisdiction, mootness, no cause of action, prescription, and peremption. The claims were dismissed. Plaintiffs appealed.

DISCUSSION

The issues on appeal can be broken down into two components. The first concerns the plaintiffs’ efforts to thwart the closing and consolidation of schools in the EMSD. The second concerns the plaintiffs’ complaints about the spending of revenue generated by the special taxes in the EMSD.

| «Closing/Consolidation Issues

Once the federal court approved the closing and consolidation of EMSD schools, any issues related to this became moot and the trial court lacked subject matter jurisdiction to stop the school closings or consolidations. In Bonner v. Morehouse Parish School Bd., 366 So.2d 588 (La.App. 2d Cir.1978), writ denied, 367 So.2d 379 (La.1979), the petitioners sought an injunction requiring the school board and its superintendent to allow the transfer of students to schools in a neighboring parish. The federal district court had earlier ruled that such transfer requests were to be presented to it for a determination of whether or not the transfer was to be allowed. The state district court sustained the defendants’ exception of lack of subject matter jurisdiction based upon preemption by the federal court. In affirming the judgment, this court remarked:

The U.S. District Court’s judgment relied upon by the trial judge is supreme over and superior to any judgment that the state court might render detracting from or interfering with the U.S. Court decree. The state court had no power to issue an injunction ordering the school board or its superintendent to violate the U.S. Court decree.

Id., 366 So.2d at 592-3.

The federal district court has already approved the school board’s actions in closing and consolidating the EMSD schools. Allowing plaintiffs to now undo the MPSB’s decision, and hence, accomplish judicially what they could not do politically, would run afoul of the federal court decree. Accordingly, the exceptions of mootness and lack of subject matter jurisdiction were properly sustained against all claims related to the closing and consolidation of EMSD schools. Included among these claims are the |7Baker plaintiffs’ request for production of documents, the declaratory judgment sought by the Dukes plaintiffs that the April 2005 tax proposal required more than one school to remain open, and the declaratory judgment sought by the Dukes plaintiffs prohibiting the removal of classroom equipment.

We further note that it is ordinarily within the discretion of a school board to determine which schools that it wishes to operate. See La. R.S. 17:151(A), which states, “Parish and city school boards may establish such public schools as they may deem necessary to provide adequate school facilities for the children of the parish....” See also La. R.S. 17:81(A)(1), which provides, “Each city and parish school board shall determine the number of schools to be opened, the location of school houses.... ”

Tax-Related Issues

The Dukes plaintiffs sought a declaratory judgment that they were entitled to examine and copy all documents indicating the funds collected by the EMSD, where those funds were deposited, and where those funds were spent.

The right of the public to obtain access to various public records is set forth in La. Const. Art. 12, § 3. This right is implemented in La. R.S. 44:1, et seq. When a person has been denied this right, he may institute proceedings for the issuance of a writ of mandamus, injunctive or 1 «declaratory relief. See La. R.S. 44:35. It is unclear whether plaintiffs in this instance had actually made a request to examine these public records, and that this request had been denied. As such, the Dukes plaintiffs lack a cause of action for a declaratory judgment of their entitlement to examine and copy documents.

Plaintiffs in both lawsuits also asserted that the special taxes were null, void, and unenforceable because their passage was obtained through fraud and misrepresentation. In support of these assertions, plaintiffs introduced at the hearing a copy of a flyer persuading voters to approve the taxes on May 5. What particularly bothered plaintiffs was a statement on the flyer that the taxes were needed to prevent the possible combining or closing of some or all of the three EMSD schools. We note that nothing on this flyer indicated that it was produced on behalf of the MPSB. Nevertheless, even if the flyer was created or distributed at the behest of the MPSB, plaintiffs’ remedy is in the political process. Therefore, they lack a cause of action to nullify the taxes based upon unfulfilled campaign promises.

Plaintiffs in both suits also sought a declaratory judgment that the MPSB violated La. R.S. 39:704 by using money raised by the special taxes for purposes other than those intended when the taxes were passed. La. R.S. 39:704 states:

The proceeds of any special tax shall constitute a trust fund to be used exclusively for the objects and purposes for which the tax was levied. The records of the taxing authority shall clearly reflect the objects and purposes for which the proceeds of the tax are used.

|aThe report from the Legislative Auditor appears to support plaintiffs’ claim, as the report revealed that funds raised by special taxes in the EMSD had been used for unintended purposes, although most of the funds had been since placed in the proper accounts.

A declaratory judgment action is designed to provide a means for adjudication of rights and obligations in cases involving an actual controversy that has not reached the stage where either party can seek a coercive remedy. Chauvet v. City of Westwego, 599 So.2d 294 (La.1992). It is well settled that courts will not decide abstract, hypothetical or moot controversies, or render advisory opinions with respect to such controversies. Louisiana Associated General Contractors, Inc. v. State Through Div. of Admin., Office of State Purchasing, 95-2105 (La.3/8/96), 669 So.2d 1185.

No controversy exists that the MPSB violated La. R.S. 39:704, as demonstrated by the Legislative Auditor Report. Accordingly, the exception of no cause of action was properly granted as to this claim for declaratory relief.

Finally, the Dukes plaintiffs seek a writ of mandamus ordering the MPSB to account for all money collected in the EMSD since May of 2001, and to place in the EMSD account all money collected in the district but placed in other accounts or spent outside the district.

A writ of mandamus may be directed to a public officer to compel the performance of a ministerial duty required by law. La. C.C.P. art. 3863. The prescribed duty must be purely ministerial; mandamus will not lie to [incompel performance of an act which contains any element of discretion, however slight. Felix v. St. Paul Fire & Marine Ins. Co., 477 So.2d 676 (La.1985); Terral Barge Line Inc. v. Madison Parish Port Com’n, 22, 251 (La.App.2d Cir.4/3/91), 577 So.2d 787; Golden v. Patient’s Compensation Fund Oversight Bd., 40,801 (La.App.2d Cir.3/8/06), 924 So.2d 459, writ denied, 2006-0837 (La.6/2/06), 929 So.2d 1261.

As noted above, the spending of the proceeds of a special tax is governed by La. R.S. 39:704. Tax revenues obtained from a special tax must be used for no other purpose than that stated in the proposition submitted to and approved by the electorate. Watkins v. Ouachita Parish School Board, 173 La. 259, 136 So. 591 (1931); Hodnett v. Monroe City School Bd., 270 So.2d 598 (La.App. 2d Cir.1972).

The MPSB contends that the decision as to how, where, and when to provide funds from the taxes is within its discretion. However, it is not within the discretion of the MPSB to spend funds collected by the special taxes outside the EMSD, as such actions would run afoul of the clear language in the tax propositions that the purpose of the taxes was to “provid[e] additional support for constructing, improving, maintaining, and operating public schools for the District, including salaries and benefits of teachers and employees.” Accordingly, under the circumstances of this case, we find that the trial court erred in dismissing the Dukes plaintiffs’ writ of mandamus ordering the MPSB to account for funds collected in the EMSD since May of 2001 and to place in the proper account all money h collected in the EMSD from the special taxes but placed in other accounts or spent outside the EMSD.

The MPSB correctly asserts that the Dukes plaintiffs improperly cumulated their mandamus action with an action seeking declaratory relief. See Citizens Organized for Sensible Taxation (C.O.S.T.) v. St. Landry Parish School Bd., 528 So.2d 1048 (La.App. 3d Cir.1988). A suit for declaratory judgment is an ordinary, not a summary proceeding. Frierson v. Sheridan, 593 So.2d 655 (La.App. 1st Cir.1991). A writ of mandamus may be brought by a summary proceeding. See La. C.C.P. art. 2592(6). However, in the interests of judicial economy, and in light of the fact that the claims for declaratory relief were properly dismissed, we will permit the aforementioned writ of mandamus to proceed despite it having been originally filed with a prayer for declaratory relief.

CONCLUSION

We reverse the judgment insofar as it dismissed the Dukes plaintiffs’ writ of mandamus ordering the MPSB to account for all money collected in the EMSD since May of 2001 and to place in the EMSD account all money collected in the district from the special taxes but placed in other accounts or spent outside the district. In all other respects, the judgment is affirmed.

h .¿With each party to bear its own costs, the judgment is REVERSED IN PART and AFFIRMED IN PART, and the matter REMANDED for further proceedings.

      . An audit in June of 2004 had revealed that funds were being loaned from the sales tax and capital improvement funds to the general fund.

      . Plaintiffs additionally complain on appeal that the trial court erred in not allowing testimony in opposition to the exceptions. Our review of the record fails to show that the plaintiffs attempted to offer this testimony, much less that the trial court did not allow it.

      . Although the Dukes plaintiffs contend that removal of books, chairs, computers, desks, lab equipment, and tables is a violation of La. R.S. 39:704, there is no proof that these items were purchased solely through the revenues raised by the special taxes. More importantly, this was obviously a backdoor attempt to disrupt the closing and consolidation of the schools.

      . The MPSB filed the dilatory exception of improper cumulation of actions against the Dukes lawsuit. At the hearing on the exceptions, the trial court stated that it was granting the exceptions without specifically stating which exceptions were being granted. The judgment signed by the trial court on June 12, 2006, did not mention the exception of improper cumulation of actions.