In re Blackwell

Decision Date16 December 2020
Docket Number20-343,20-344
Citation310 So.3d 640
Parties SUCCESSION OF Ethel Faye Brown BLACKWELL Succession of Fred Blackwell
CourtCourt of Appeal of Louisiana — District of US

B. Thomas Shea, Tom Shea Family Law, L.L.C, One Lakeshore Drive, Suite 1720, Lake Charles, LA 70629, (337) 564-4148, COUNSEL FOR PLAINTIFF/APPELLANT: Succession of Ethel Faye Brown Blackwell

Wilford D. Carter, 1025 Mill Street, Lake Charles, LA 70601, (337) 564-6990, COUNSEL FOR DEFENDANT/APPELLEE: Succession of Fred Blackwell

Annette Fuller Roach, Roach & Roach, APLC, Post Office Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLEE: Succession of Fred Blackwell

Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Candyce G. Perret, Judges.

PERRET, Judge.

In these consolidated succession cases, appellants, the heirs to the Succession of Ethel Faye Brown Blackwell (hereinafter "Succession of Ethel"), appeal a November 6, 2019 judgment in favor of the Succession of Fred Blackwell (hereinafter "Succession of Fred") and against the Succession of Ethel in the amount of $302,577.44, which represents $201,580.44 awarded for the improper distribution of proceeds by the Succession of Ethel; $142,500.00 rent due by the Succession of Ethel for the use of the corporate office; $28,500.00 for the rental value of the property situated at 711 Kingsley Street, Lake Charles, La; $62,797.00 for reimbursement of attorney fees, less $133,000.00 that the trial court ordered to credit the Succession of Ethel. Additionally, the Succession of Ethel appeals the November 6, 2019 judgment that ordered: (1) several legatees be put into possession of immovable properties that were listed in Ethel Faye Brown Blackwell's will; (2) all community property belonging to the Succession of Ethel and Succession of Fred be divided one-half (1/2) to the heirs of Ethel and one-half (1/2) to the heirs of Fred Blackwell; (3) the sale of the community property FM radio station KZWA 104.9 with the proceeds to be divided between the two successions; (4) attorney Corey Rubin to be the administrator for the Succession of Ethel; (5) Mr. Rubin to oversee the operations of B&C Broadcasting, Inc., and to operate "KZWA Radio Station FM 104.9 and to give a full report to the court as necessary until the station can be sold;" and (6) Anthony Bartie to be appointed operations officer and manager in order to oversee the daily operations of FM Radio Station KZWA 104.9.

For the following reasons, we find no manifest error in the trial court's November 6, 2019 judgment and affirm.

FACTS AND PROCEDURAL HISTORY:

Fred Blackwell died on March 22, 2003, leaving Ethel Faye Brown Blackwell as his surviving widow. Fred and Ethel did not have any children together; however, Fred had two daughters from his first marriage, Myrna B. Moore and Norma Jean Burns. Twelve years later, Ethel died on January 21, 2015. Ethel's sole heirs are her siblings: Farris Brown, Robert L. Brown, Brenda Brown, Jackie Lynn Brown, Roxie Brown Smith, Frankie C. Brown, Robert Ulysses Brown, Harold G. Brown, Don G. Brown, Jerry G. Brown, and Jaquese Brown.

Ethel's brother, Jackie Lynn Brown, opened her succession on January 22, 2015, and is serving as the administrator of her estate. Thereafter, Fred's daughter, Ms. Moore, opened his succession on April 2, 2015, and is serving as the administratrix of his estate.

On June 2, 2015, the trial court granted Ms. Moore's Motion to Consolidate Succession Proceedings; however, on June 17, 2016, the Louisiana Supreme Court vacated the order consolidating the two succession proceedings due to procedural defects. Thereafter, on December 28, 2016, Ms. Moore and Ms. Burns filed a Petition for Intervention in the Succession of Ethel, which was granted on March 8, 2017. At that time, the trial court also declared that Fred's Last Will and Testament was null and void for lack of an attestation clause.

On February 1, 2019, Ms. Moore filed a Petition to Recover Succession Property and Motion for Contempt against the following defendants: (1) the Succession of Ethel; (2) B&C Broadcasting (Partnership), B&C Broadcasting, Inc. (Limited Partnership), B&C Broadcasting, Ltd., KZWA 104.9 FM Radio Station, and MLK Coalition; (3) Jackie Brown; and (4) Jacques Brown. The petition alleged the following pertinent allegations:

5.
KZWA 104.9 FM Radio Station is located and operated on property owned by [Ethel] and Fred Blackwell, situated at municipal address 305 Enterprise Blvd., Lake Charles, Louisiana where the Blackwell's constructed several brick buildings for the purpose of operating the radio station.
6.
Mr. Fred Blackwell died [o]n March 22, 2003 and at his death his surviving spouse received the usufruct of all of the community property existing between them, including, but not limited to, the radio station and the property situated at 305 Enterprise Blvd., Lake Charles, Louisiana. However, at the time of Ethel Faye Brown Blackwell's death on January 21, 2015, the usufruct she had over the property terminated. Myrna B. Moore and Norma Jean Burns are Mr. Blackwell's children and sole heirs; and, as such, became entitled to the possession of all of the property belonging to his estate, including, but not limited to, the radio station and the property situated at 305 Enterprise Blvd., Lake Charles, Louisiana. Mr. Fred Blackwell's succession was opened on August 15, 2016 and petitioner Myrna B. Moore was appointed as administrator of his succession.
7.
The Fred Blackwell succession has not received any rent for the use of the buildings that defendants are occupying since the death of Ethel Faye Brown Blackwell, and they have not received any proceeds from the operation of the radio station. At all material times since Mr. Blackwell's death, the station was operated by [Ethel] and, after her death, by Jackie Brown as the administrator of the Succession of Ethel Faye Brown Blackwell.
8.
Since the defendants have been operating the radio station on property belonging to the succession of Fred Blackwell without rent, the defendants are guilty of unjust enrichment under LSA-C.C. Art. 2055. Accordingly, petitioner desires that this court grant petitioner damages in an amount to be determined at the hearing of this cause for the unjust enrichment of the defendants in the use of petitioner's property without petitioner's consent and without rent payments.
9.
Based on information and belief, the radio station has acquired profits over $200,000.00 annually since the death of Ethel Faye Brown Blackwell and is indebted unto the succession of Fred Blackwell for one-half of those profits since the death of Ethel Faye Brown Blackwell, in the amount of Four Hundred Thousand and NO/00 ($400,000.00) Dollars, or an amount to be determined by the trier of fact.
10.
In her Last Will and Testament dated April 23, 1984, Ethel Faye Brown Blackwell bequeathed to Norma Jean Burns and Myrna Rose Byrd (aka Myrna Moore) the ownership of the property bearing municipal address 711 Kingsley Street, Lake Charles, Louisiana. Jackie Brown, as administrator of the Succession of Ethel Faye Brown Blackwell, has been in possession of this property. Myrna Moore and Norman Jean Burns should be placed in possession of this property as well as any rent generated from the operation of the station since the death of Ethel Faye Brown Blackwell on January 25, 2015.
11.
Jackie Brown an[d] Jacques Brown [have] been operating KZWA 104.9 FM RADIO STATION incompetently, fraudulently, and without regard for lawful court order or fair distribution of proceeds with all owners. Based on information and belief, if the radio station had been effectively operated it would have generated more profits for the owners. Plaintiffs desire that the court appoint a person to operate KZWA 104.9 FM RADIO STATION until further orders of the court and to determine the realistic debts, profits, assets, liabilities and value of the radio station. Further, the court should order that the administrator have access to all of the radio station's bookkeeping and account records, including, but not limited to, all bank statements, sales agreements, bills, accounts receivables and accounts payable ledgers to determine the annual profit and value of KZWA 104.9 FM RADIO STATION. Further, an appraisal should be done to determine the real value of the property and the fair market value of the rent.
12.
Moreover, the radio station is indebted to the Succession of Fred Blackwell for one of all profits generated from advertising agreements and from the operation of the station. The proceeds are not being adequately used for the development and protection of resources of the radio station.
13.
Plaintiff alleges that it is in the best interest of all owners, that the radio station be sold, the debts be paid, and the balance distributed amongst all owners. Plaintiff has been in contact with persons who are interested in purchasing the radio station for what appears to be a reasonable price. Plaintiffs desire that this court set a date for a hearing for the purpose of determining whether the station should be sold and the price therefor.
14.
Plaintiffs recommend Mr. Rob Neal be appointed chief administrative officer of KZWA 104.9 FM RADIO STATION with all access described in Paragraph 9 above with authority to hire bookkeepers, accountants and such other persons to adequately operate the station, pay the bills, and distribute profits to the owners.
15.
Mr. Rob Neal, who is the owner and Executive Director of 105.3 FM WQID radio station and President and Chief Executive Officer of The International Black Broadcasters Association is qualified to be appointed chief administrative officer of KZWA 104.9 FM Radio Station.

A trial on these issues was held on October 1, 2, and 4, 2019. According to the October 21, 2019 minutes of court, the trial judge ruled from the bench stating, in pertinent part:

The Court notes for the record that [Fred] died intestate, without a Will[ ], and renders this as its final
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