Succession of Fred Blackwell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-343 consolidated with 20-344

SUCCESSION OF ETHEL FAYE BROWN BLACKWELL

Consolidated with

SUCCESSION OF FRED BLACKWELL

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 54801 C/W 55015
HONORABLE SHARON DARVILLE WILSON, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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

AFFIRMED.

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

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:

2

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
3

($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.
4

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 judgment.

At this time, the Court directs that the special requests made by [Ethel]
be followed as stated in her Wil[l] and that the following persons be put
into possession of the Special Bequest given to them by [Ethel] as
follows:

Ferris Brown, Robert L. Brown and Brenda Brown -- property
located at 2321 Elaine Street, Lake Charles, Louisiana;

Jackie Lynn Brown and Roxie Brown Smith -- property located
at 2319 Elaine Street, Lake Charles, Louisiana;

Frankie C. Brown and Robert Ulysses Brown -- property located
at 2325 Elaine Street, Lake Charles, Louisiana;

Harold G. Brown -- property located at 710 Kingsley Street, Lake
Charles, Louisiana;

Don G. Brown -- property located at 709 Kingsley Street, Lake
Charles, Louisiana;

Jerry G. Brown -- property located at 708 Kingsley Street, Lake
Charles, Louisiana;

Jaquese Brown -- property located at 714 Kingsley Street, Lake
Charles, Louisiana;

5

Norma Jean Burns and Myrna Rose Byrd (now known as Myrna
B Moore) -- property located at 711 Kingsley Street, Lake
Charles, Louisiana.

. . . Thereafter, the Court orders the transfer of the properties as
bequeathed by [Ethel], subject to liens by the SBA.

Further, the Court finds that Mr. and Mrs. Blackwell lived in
“community” and that based on a stipulation by the Parties, the
properties bequeathed by [Ethel], according to public records, are the
separate property of [Ethel] because [Fred] renounced, through active
donation, any claim or interest that he may have had in those properties.
Additionally, the Court finds that based on the Detailed Descriptive List
filed in both Successions, that furnishings located at 2321 Elaine Street
are community property with an estimated value of $14,500. The Court
makes a finding that those movables are the one-half (1/2) property of
the heirs of Ethel Faye Brown Blackwell and one-half (1/2) property of
the heirs of Fred Blackwell. The Court also finds that the property
located at 305 Enterprise Boulevard and listed on the Detailed
Descriptive List as “Boston Street,” is community property, divided
equally, with one-half (1/2) belonging to the Succession of [Ethel] and
one-half (1/2) belonging to the Succession to [Fred]. The Court further
notes for the record that the Detailed Descriptive List mentioned that
small business loans taken out by [Ethel] would have been liabilities
owed by [Fred]. The Court finds that this cannot be a justified debt of
[Fred] because the loans were taken out after [Fred’s] death and
therefore cannot be debts of his Succession. The Court notes the only
remaining debt listed for [Fred] on the Detailed Descriptive List is his
two-percent (2%) interest in B&C Broadcasting. The Court finds this
to be an error as the Blackwells lived in “community”. Therefore, the
Court finds that the ownership of B&C Broadcasting is fifty-percent
(50%) Fred Blackwell and fifty-percent (50%) Ethel Faye Brown
Blackwell.

The Court now[] takes up the requests of Myrna Moore, Succession
Administratrix.

1) Appoint an Administrator to oversee the Succession. The Court
notes for the record that conversations were held in Chambers with
Counsel regarding same. At this time, the Court appoints attorney
Corey Rubin as Administrator. . . .The Court appoints Mr. Rubin to
oversee the daily operations of B&C Broadcasting, Inc., operating as
K-Z-W-A and to provide the Court with a full report until the radio
station can be sold. Additionally, the Court appoints Anthony Bartie as
manager of the daily operations of the radio station and Mr. Bartie is to
report directly to Mr. Rubin, who will be operating under the
supervision of the Court until the radio station can be sold and the
proceeds divided in accordance with the Court’s ruling.

2) Accounting of monies that has been taken out of the Corporation
as a distribution of profits since the death of [Ethel]. The Court notes
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for the record that according to the accountant, Mr. Trimm, that was
hired by the current Administrator, and that based on Mr. Trimm’s
testimony, there is a total of $403,160.88 representing distributions of
profit and that it is normal for small business owners to use their
business and expend monies that belong to them as owners; and when
no legitimate business reason can be found for the expense, it is
normally qualified as an owner taking profits. The Court finds that the
taking of profits was not permissible since the Succession was under
administration, that Mr. Trimm’s figure is correct, and orders that the
money be returned to the business. Additionally, the Court finds that
one-half (1/2) of that amount or $201,580.44 is the amount of which
[Fred’s] Succession is entitled to be reimbursed for the distribution of
profits that should not have been taken out.

3) Fair Rental Value of Property Located at 305 Enterprise
Boulevard to be returned to the Succession of [Fred]. The Court notes
for the record that based on undisputed testimony the amount of rent
paid each month by [Ethel] was $5,000 for B&C Broadcasting. The
Court orders that one-half (1/2) of that amount be reimbursed, as a
credit, to the Estate of [Fred].

4) Reimbursement for Loan Payments. The Court notes for the
record that eighteen-percent (18%) is the amount assessed by Mr.
Trimm as to what is related to the business. The Court finds that [Ethel]
intermingled the way she did business and the debt, in its entirety,
belong to the station without any reimbursements for amounts paid to
the loan.

5) Fair Rental Value of Property Located at 711 Kingsley Street.
The Court notes for the record that it finds the request of Ms. Moore
and Ms. Burns to [be] fair but not the amount requested as the Court is
familiar with the area in which the property is located. The request for
$1,000 a month rent is decreased to $500 a month by the Court, with
$28,500 towards the reimbursement of the Succession of Fred
Blackwell.

6) General Ledger Note of a December Loan. The Court finds that
this loan was taken out, by the Administrator, after the death of [Ethel]
and without authorization of the Court and therefore, cannot be assessed
to either Succession.

7) Attorney Fees. The Court notes for the record that these fees
were taken out of the Corporation for representation. The Court finds
this to be an improper expense and orders that the Succession of Fred
Blackwell be credited $62,797 for attorney[] fees taken out of the
business during the Succession claim.

8) Contract Labor. This request is DENIED by the Court.

7

A judgment in accordance with this oral ruling was signed on November 6, 2019. It

is from this judgment that the heirs of Ethel have appealed. Specifically, the

Succession of Ethel alleges the following nine assignments of error:

1. The Trial Court appointed an “administrator” to the Succession of
Ethel Faye Brown Blackwell who was not named in any pleading
before the Court;

2. The Trial Court appointed a disqualified person to serve as
“administrator” of the Succession of Ethel Faye Brown Blackwell;

3. The Trial Court appointed an “administrator” to oversee a
corporation in violation of the Louisiana Business Corporation Act,
and in violation of the rights held by the corporation’s board of
directors;

4. The Trial Court appointed a single “administrator” to oversee
competing interests;

5. The Trial Court appointed other corporate management officers in
violation of the Louisiana Business Corporation Act;

6. The Trial Court failed to treat a Louisiana corporation as a separate
and distinct legal entity in holding the corporation itself is
“community property,” rather than treating the corporation’s shares
as potential community property;

7. The Trial Court ordered a total liquidation of a corporation in
violation of the Louisiana Civil Code and the Louisiana Business
Corporation Act;

8. The Trial Court miscalculated a credit due to the heirs of Ethel Faye
Brown Blackwell;

9. The Trial Court miscalculated the reimbursement owed to the heirs
of Fred Blackwell[.]

STANDARD OF REVIEW:

In order for an appellate court to set aside a trial judge’s factual findings,

manifest error must exist. Rosell v. ESCO, 549 So.2d 840 (La.1989). Under a

manifest error standard of review, this court can only reverse if it finds, based on the

entire record, that there is no reasonable factual basis for the factual finding and that

the fact finder is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880

8

(La.1993). However, “when a trial court applies incorrect legal principles and these

errors materially affect the outcome of a case and deprive a party of substantial

rights, legal error occurs.” Vidrine v. Vidrine, 17-722, p. 8 (La.App. 3 Cir. 5/2/18),

245 So.3d 1266, 1274. Legal errors are reviewed under the de novo standard of

review. Id.

In this case, the trial judge heard three days of evidence, made factual findings

as well as credibility determinations. Accordingly, we find the standard of review

applicable to this case is manifest error. See Rosell, 549 So.2d 840.

ASSIGNMENT OF ERROR NUMBER ONE AND TWO:

Both assignments of error one and two address the appointment of Mr. Rubin

as administrator of the Succession of Ethel and thus, will be considered together.

The Succession of Ethel argues that the trial court erred in appointing Mr. Rubin to

serve as “administrator” of its estate because he has no prior connection or

involvement with either succession and because neither the successions nor the

pleadings request his specific appointment. Further, the Succession of Ethel argues

that Mr. Rubin is not qualified to serve as an administrator under La.Code Civ.P. art.

3097(B).1

In response, the Succession of Fred argues that the trial court had authority

under La.Code Civ.P. art 3111 to appoint a provisional administrator because Mr.

Brown failed to appear at trial and because the record evidences the fact that the

Succession of Ethel improperly distributed proceeds and, thus, “breach[e]d a duty

1
Louisiana Code of Civil Procedure Article 3097(B) provides:

No person may be appointed dative testamentary executor, provisional
administrator, or administrator who is not the surviving spouse, heir, legatee, legal
representative of an heir or legatee, or a creditor of the deceased or a creditor of the
estate of the deceased, or the nominee of the surviving spouse, heir, legatee, or legal
representative of an heir or legatee of the deceased, or a co-owner of immovable
property with the deceased.
9

owed to the heirs and co-owners.” The Succession of Fred further argues that the

appointment of Mr. Rubin was reasonable because he will oversee only the

administration of community assets since the judgment “placed the heirs in

possession of the assets in the Succession of [Ethel][.]”

Louisiana Code of Civil Procedure Article 3111 addresses the appointment of

provisional administrators:

The court may appoint a provisional administrator of a
succession, pending the appointment of an administrator or the
confirmation of an executor, when it deems such appointment
necessary to preserve, safeguard, and operate the property of the
succession. On the application of an interested party, or on its own
motion, when such an appointment is deemed necessary, the court may
appoint a qualified person as provisional administrator forthwith.

The Official Revised comments (1960) to Article 3111 provide, in pertinent part:

(a) The general language, “preserve, safeguard, and operate the
property of the succession,” is intended to give the court discretion in
determining the necessity for the appointment of the provisional
administrator.

(b) When the appointment of a provisional administrator is necessary,
there will be no time available for the giving of notice to the heirs,
creditors, and other interested parties, or to permit them to oppose the
appointment of the particular person whom the court selects. The court
must be empowered to act immediately, on the application of any
interested person, and even on its own motion.

Louisiana Code of Civil Procedure Article 3112 addresses the duties and

obligations of a provisional administrator as follows:

A provisional administrator shall furnish security and take the
oath of office required by Articles 3152 and 3158, respectively. He
shall continue in office until an administrator or executor has been
qualified, or until the heirs or legatees have been sent into possession.

Except as otherwise provided by law, a provisional administrator
has all of the authority and rights of an administrator, and is subject to
the same duties and obligations, in the discharge of his functions of
preserving, safeguarding, and operating the property and business of
the succession.

10

Upon reviewing the testimony from trial, it is clear to this court that the trial

judge had serious concerns regarding Mr. Brown’s bookkeeping and various bank

transactions on behalf of the Succession of Ethel. In fact, at one point in the trial,

the trial judge stopped the testimony to discuss the case privately with the attorneys

and, upon returning to the bench stated: “This is a case that cries out for a settlement.

The issues aren’t that complex.” The trial judge further stated, in pertinent part:

I am holding the record open. Mr. Hawkins [trial counsel for the
Succession of Ethel] is going to get me the actual - - I say, raw material.
Meaning the actual - - I’m sure he explained it to you, Ms. [Roxie
Brown] Smith. But the actual - - I need something that shows me any
moneys that you or your siblings took out of - - if you took it out of
your retirement account, I need the statement from that showing the
withdrawal.

I need to see how the money was transferred. If it was all
transferred to your brother [Mr. Jackie Brown] and there’s a check to
him, I need to see that. I need to see what your brother did, what
account he deposited it in to get it to the corporation. Okay.

When I receive that, I will give a credit for the amounts that I am
going to find that were taken out of the corporation improperly. Okay?
But it will be subject to a credit once I have that verification.

Then once I figure that amount out, whatever that amount is, then
that is the amount that is owed to both estates, 50/50, to the estate of
Fred Blackwell and to the estate of Ethel Faye Brown Blackwell.

I’ve also said to both lawyers that it is the opinion of this Court
that the specific bequests that were made by Ms. Blackwell, those
people should be put in possession of those specific requests.

That leaves us with what should be under administration, and
that’s the radio station. What I said to both attorneys in the back is the
Court is inclined to appoint a provisional administrator; and what I am
leaning to and I haven’t made a final decision on that because I’m going
to give the date of when I’m going to make my final ruling.

But at this point I am leaning to appointing an attorney that is not
connected with either side to serve as the provisional administrator. I
am leaning to appointing Mr. Bartie as a manager of the station under
the supervision of the attorney that is appointed by the Court until we
can sell the station, get the station running at a profit so that we can
completely close both of these successions. That is the goal of the
Court.

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At this time the record is going to be held open for that
information that Mr. Hawkins is going to supply the Court.
Louisiana Code of Civil Procedure Article 3111 provides authority for the

trial judge, on her own motion, to appoint Mr. Rubin as provisional administrator of

the succession upon finding that the appointment was “necessary to preserve,

safeguard, and operate the property of the succession.” Under these unique facts,

we find the record supports the trial court’s decision to appoint Mr. Rubin as the

provisional administrator over the community assets until B&C Broadcasting, Inc.

can be sold, and the assets split between the two successions. Accordingly, we find

no merit to these assignments of error.

ASSIGNMENT OF ERROR NUMBER THREE:

The third assignment of error addresses whether the trial court’s appointment

of Mr. Rubin violated the Louisiana Business Corporation Act. The Succession of

Ethel argues that the trial court “failed to consider the powers held by the corporate

board of directors” before selecting “Mr. Rubin as chief officer of the corporation”

and that this appointment violates the Louisiana Business Corporation Act. 2 In

support of this argument, the Succession of Ethel cites to La.R.S. 12:1-801, a statute

that addresses the requirement for and functions of board of directors.3

2
Although the Succession of Ethel argues that the trial court appointed “Mr. Rubin as chief officer
of the corporation[,]” we find that the trial court judgment merely appointed Mr. Rubin to be the
provisional administrator to the succession in order to oversee “the operations of B&C
Broadcasting, Inc. operating KZWA Radio Station FM 104.9 and to give a full report to the court
as necessary until the station can be sold[.]”
3
La.R.S. 12:1-801 provides, as follows:

A. Except as provided in R.S. 12:1-732, each corporation must have a board of
directors.

B. All corporate powers shall be exercised by or under the authority of the board of
directors of the corporation, and the business and affairs of the corporation shall be
managed by or under the direction, and subject to the oversight, of its board of
directors, subject to any limitation set forth in the articles of incorporation or in an
agreement authorized under R.S. 12:1-732.

C. In the case of a public corporation, the board’s oversight responsibilities include
attention to all of the following:
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In response, the Succession of Fred argues that the corporation should not

receive the benefits afforded under the Louisiana Business Corporation Act “when

there are commingling of corporate and shareholder funds (which the trial court

impliedly found in the present case), failure to follow statutory formalities for

incorporation and transaction of corporate affairs, and failure to hold regular

shareholder or directors meetings.” It further argues that “any objection to the

court’s judgment with regard to the management of B&C Broadcasting, Inc. should

be contested by the corporation, and not the succession.”

After reviewing the record, we agree with the Succession of Fred that B&C

Broadcasting, Inc. was being managed more as a family owned small business than

a corporation. The general rule is that corporations are distinct legal entities,

separate from the individuals who comprise them; however, a court may ignore the

corporate fiction where the corporation is found to simply be the “alter ego” of the

shareholder. Riggins v. Dixie Shoring Co., Inc., 590 So.2d 1164 (La.1992). In

Riggins, the Louisiana Supreme Court set forth non-exclusive “factors courts

consider when determining whether to apply the alter ego doctrine” including: “1)

commingling of corporate and shareholder funds; 2) failure to follow statutory

formalities for incorporating and transacting corporate affairs; 3) undercapitalization;

(1) Business performance and plans.

(2) Major risks to which the corporation is or may be exposed.

(3) The performance and compensation of senior officers.

(4) Policies and practices to foster the corporation's compliance with law and ethical
conduct.

(5) Preparation of the corporation's financial statements.

(6) The effectiveness of the corporation’s internal controls.

(7) Arrangements for providing adequate and timely information to directors.

(8) The composition of the board and its committees, taking into account the
important role of independent directors.
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4) failure to provide separate bank accounts and bookkeeping records; and 5) failure

to hold regular shareholder and director meetings.” Id. at 1168.

At trial, William Trimm testified that he is a Certified Public Accountant

(“CPA”) and has been the bookkeeper for B&C Broadcasting, Inc. since 2015-2016.

Mr. Trimm testified that he considers B&C Broadcasting, Inc. a small business and

that when he was hired, “the books were in a disarray[.]” When Mr. Trimm was

asked who owned the corporation, he testified that he was told the owners were three

siblings of Ethel but that he had no paperwork to support this claim. Counsel for the

Succession of Fred continued questioning Mr. Trimm about the ownership of the

corporation, as follows:

Q What I’m sharing with you is the misinformation you have been
receiving and much of what you have done has been based on
misinformation because there’s nothing in the record that shows that
Jackie Brown is no more than the administrator [of] the succession.
And you’ve got three people as owners without a judgment of
possession. You should have been shown Jackie - - Faye Blackwell and
Faye Blackwell’s Succession owns the property. They’re the members
contributing.

....

Q So, do you have any way to explain why is it that the people that
hire you, that doesn’t own anything, he’s an administrator of this estate,
how is it that he decides how much money that everybody is entitled
without any ownership interest and why you don’t require more?

A I guess the only thing I can say to you is that I have a lot of faith
in people and I don’t doubt their integrity when they bring me
information and ask me to help them catch up and clean up a bad
bookkeeping situation because they came to me and brought me a mess.

We also find the record devoid of any evidence offered at trial showing a list

of the board of directors for B&C Broadcasting, Inc., a list of the shareholders, or

whether any corporate meetings have been held since Ethel’s death. Jurisprudence

supports our decision to pierce the corporate veil and apply the “alter ego” doctrine

in situations such as this when shareholders disregard the requisite corporate

14

formalities to the extent that the shareholders are no longer distinct from the

corporate entity. Hector v. Mo-Dad Envtl. Serv., LLC, 13-1184 (La.App. 3 Cir.

3/5/14), 134 So. 3d 133.

Nonetheless, even if this court were to find that B&C Broadcasting, Inc. was

operating as a corporate entity, we find that the trial court’s appointment of Mr.

Rubin as administrator to the succession does not violate the Louisiana Business

Corporation Act. Mr. Rubin, as the succession representative, has fiduciary duties

under La.Code Civ.P. art. 3191(A), which states:

A succession representative is a fiduciary with respect to the
succession, and shall have the duty of collecting, preserving, and
managing the property of the succession in accordance with law. He
shall act at all times as a prudent administrator, and shall be personally
responsible for all damages resulting from his failure so to act.

Further, “[a] succession representative has the duty as a prudent administrator to

obtain the best price reasonably obtainable in a sale of a succession asset.” Fuller v.

Baggette, 36,952, p. 13 (La.App. 2 Cir. 5/6/03), 847 So.2d 26, 34, writ denied, 03-

2076 (La. 11/7/03), 857 So.2d 498. Louisiana Code of Civil Procedure Article 3197

also burdens Mr. Rubin with the duty “to close the succession as soon as advisable.”

Thus, an executor owes to legatees a duty of faithful administration of succession

affairs in the same way as a director of a corporation owes to shareholders a duty of

faithful administration of the corporation’s affairs. See La.Code Civ.P. art. 3191;

15

La.R.S. 12:1-842(A),4 La.R.S. 12:1-831(A),5 and 12:1-832(A).6 Both a succession

representative and a corporate director rely on reports and accountings when

4
La.R.S. 12:1-842(A) sets forth the standard of conduct required of officers of a corporation and
states that an officer has the duty to act “(1) In good faith. (2) With the care that a person in a like
position would reasonably exercise under similar circumstances. (3) In a manner the officer
reasonably believes to be in the best interest of the corporation.”
5
La.R.S. 12:1-831(A) provides as follows:

A. A director shall not be liable to the corporation or its shareholders for any
decision to take or not to take action, or any failure to take any action, as a director,
unless the party asserting liability in a proceeding establishes both of the following:

(1) No defense interposed by the director based on R.S. 12:1-832, a provision in
the articles of incorporation authorized by R.S. 12:1-202(B)(6), the protection
afforded by R.S. 12:1-861 for action taken in compliance with R.S. 12:1-862 or R.S.
12:1-863, or the protection afforded by R.S. 12:1-870, precludes liability.

(2) The challenged conduct consisted or was the result of one of the following:

(a) Action not in good faith.

(b) A decision that the director did not reasonably believe to be in the best interests
of the corporation, or as to which the director was not informed to an extent the
director reasonably believed appropriate in the circumstances.

(c) A lack of objectivity due to the director's familial, financial, or business
relationship with, or a lack of independence due to the director’s domination or
control by, another person having a material interest in the challenged conduct,
which relationship or which domination or control could reasonably be expected to
have affected the director’s judgment respecting the challenged conduct in a
manner adverse to the corporation, and after a reasonable expectation to such effect
has been established, the director shall not have established that the challenged
conduct was reasonably believed by the director to be in the best interests of the
corporation.

(d) A sustained failure of the director to devote attention to ongoing oversight of
the business and affairs of the corporation, or a failure to devote timely attention,
by making, or causing to be made, appropriate inquiry, when particular facts and
circumstances of significant concern materialize that would alert a reasonably
attentive director to the need therefore.

(e) Receipt of a financial benefit to which the director was not entitled or any other
breach of the director’s duties to deal fairly with the corporation and its
shareholders that is actionable under applicable law.
6
La.R.S. 1-832(A) provides as follows:

A. Except to the extent that the articles of incorporation limit or reject the protection
against liability provided by this Section, no director or officer shall be liable to the
corporation or its shareholders for money damages for any action taken, or any
failure to take action, as a director or officer, except for one of the following:

(1) A breach of the director’s or officer’s duty of loyalty to the corporation or the
shareholders.

16

administrating a succession and a corporation. Thus, we find no merit to the

Succession of Ethel’s argument that the trial court’s appointment of Mr. Rubin

violates the Louisiana Business Corporation Act.

ASSIGNMENT OF ERROR NUMBER FOUR:

In its fourth assignment of error, the Succession of Ethel argues that the trial

court erred in appointing Mr. Rubin to oversee “competing interests” and “to serve

two different roles.” Specifically, it argues that Mr. Rubin was appointed “to oversee

the daily operations of the radio station and organize the radio station for sale” and

also to “oversee a specific succession whose heirs who [sic] do not want to sell their

interests in the radio station.”

In response, the Succession of Fred argues that it, as co-owner, “petitioned for

a partition of the radio station and, the trial court has ordered the radio station be

sold. Thus, the administrator’s fiduciary duty to the heirs is consistent with the duty

that is owed with regard to the administration of the station . . . .” We agree. As we

discussed above, an executor owes to legatees a duty of faithful administration of

succession affairs in the same way as a director of a corporation owes to shareholders

a duty of faithful administration of the corporation’s affairs. Accordingly, we find

no merit to the Succession of Ethel’s argument that the trial court appointed Mr.

Rubin to oversee competing interests.

ASSIGNMENT OF ERROR NUMBER FIVE:

In its fifth assignment of error, the Succession of Ethel argues that the trial

court’s appointment of Mr. Bartie as manager of the daily operations of the radio

(2) An intentional infliction of harm on the corporation or the shareholders.

(3) A violation of R.S. 12:1-833.

(4) An intentional violation of criminal law.

17

station violates the Louisiana Business Corporation Act. The Succession of Ethel

argues that the power to appoint officers and management belongs to the board of

directors of a corporation and that the court “may not supersede the board in this

instance, especially when such action is not specifically before the [c]ourt for

hearing.”

In response, the Succession of Fred argues that it “sought the appointment of

Mr. Rob Neal to act as chief administrative officer of the radio station” but that the

court rejected its request and instead appointed Mr. Bartie. Thus, the Succession of

Fred argues that the issue of the appointment of a manager for the station was before

the court and that the trial court acted reasonably in appointing an independent

manager, who had been with the station for several years, to oversee the day-to-day

management in order to protect the assets of both successions. We agree.

Again, as stated under assignment of error three, we see no evidence in the

record to support a finding that B&C Broadcasting, Inc. was following corporate

formalities and, as such, apply the “alter ego” doctrine under these unusual facts.

However, even if this court were not to apply the “alter ego” doctrine, we would still

find that the trial court properly appointed Mr. Bartie as he had been working for the

radio station as the office manager and had experience in the areas of traffic (also

called Broadcast Software), accounting, and sales from 1995 to 2011, and then again

from 2014-2015. Mr. Bartie’s testimony reflected that he had the experience and

the requisite knowledge to operate and manage B&C Broadcasting, Inc. for the

benefit of the two successions. Furthermore, Ms. Moore [the administrator of Fred’s

succession] testified that she petitioned the court to appoint new management for

B&C Broadcasting, Inc. and that she was comfortable with Mr. Bartie because

“[Ethel] trusted [him]” and because “Mr. Bartie ran the business for quite some

time.” For these reasons, we find no merit to the Succession of Ethel’s argument
18

that the trial court erred in appointing Mr. Bartie to manage the daily operations of

the radio station until the station is sold.

ASSIGNMENT OF ERROR NUMBER SIX:

In its sixth assignment of error, the Succession of Ethel argues that the trial

court failed to treat a Louisiana corporation as a separate and distinct legal entity in

holding the corporation itself as “community property” rather than treating the

“corporations shares” as potential community property. The Succession of Ethel

argues that B&C Broadcasting, Inc. is a juridical person and is thus distinct from its

members. In support of this argument, it cites to Simmons v. LUBA Workers’

Compensation, 16-523, p. 4 (La.App. 3 Cir. 11/2/16), 206 So.3d 397, 402, wherein

it states that “[a]s a general rule, this legal tenet [juridical person] applies regardless

of the fact that one person owns all or a majority of the stock of a corporation, and a

sole shareholder or majority shareholder is not liable for corporate debts, unless he

binds himself individually for those debts.” Thus, the Succession of Ethel argues

that the trial court erred in “treating a separate and distinct corporate entity as

community property.”

In response, the Succession of Fred argues that the testimony of Mr. Bartie

supports the trial court’s finding that, as of 2000, Ethel was the sole stockholder of

B&C Broadcasting, Inc., and that because she bought and managed the station

during her marriage with Fred, the corporation is considered community property.

Further, the Succession of Fred argues that because this is a “family-owned business

with no owners other than Mr. and Mrs. Blackwell at the time of Fred Blackwell’s

death [in March 2003], the distinction of ‘shares of a corporation’ as compared to

‘corporation’ does not cause confusion[.]” The Succession of Fred cites to Queenan

v. Queenan, 492 So.2d 902, 912 (La.App. 3 Cir. 1986), writ denied, 496 So.2d 1045

(La.1986), wherein this court recognized that “[t]he relationship of spouses and
19

former spouses (until there has been a property settlement following termination of

the community regime) cuts through the entirety of the law, including the laws of

partnership, property, and corporations.”

Again, we see no evidence in the record to support a finding that B&C

Broadcasting, Inc. was following corporate formalities and find that the “alter ego”

doctrine applies to these facts. However, even if this court were to find that B&C

Broadcasting, Inc. is a juridical person and is thus distinct from its members, we still

find no error in the trial court’s judgment upon finding that this case is more

analogous to a property settlement following the termination of a community regime.

Although we agree with the Succession of Ethel that the general concept is

that a corporation is a separate legal entity, distinct from its stockholders, we find

that the primary purpose of the corporate form is to limit the liability of individual

stockholders, shielding them from the liabilities of the corporation. See Riggins, 590

So.2d at 1168 (wherein it stated that “this shareholder liability shield encourages

business investments in high-risk areas by enabling investors who utilize the

corporate form to make capital contributions to corporations while insulating their

personal wealth from the risks inherent in business.”) However, shareholder liability

is not at issue in this matter. For this reason, we agree with the Succession of Fred

that this case is more like “a settlement following the termination of the community

regime following a divorce.”

At trial, Mr. Bartie testified, by the year 2000, the only stockholder of B&C

Broadcasting, Inc. was Ethel. Mr. Bartie stated that “[Ethel] issued herself stock

way back when she first started because she invested monies into the corporation”

and that “she went from having a minority share in the corporation to having a

majority share.” Mr. Bartie testified that “around 2000 or so,” Ethel bought out the

20

minority shareholders and, at that time, she and her husband, Fred, became the

principal sole owners of the station. Specifically, Mr. Bartie testified as follows:

Q The only thing I have is, you talk about who owned the station back
when it started as B&C; that was Ms. Collins and Ms. Blackwell.
Do you know that - - a fact of the matter is, it’s recorded in the
courthouse record that Ms. Blackwell bought Ms. Collins out?

A Right. I remember that.

Q And, Mr. Foster was bought out a long time before he bought her
out. So, actually, Ms. Blackwell is the only owner of the station
because she bought all of her partners out. She kept that name B&C,
but she owned the station with her husband[,] and she was married
at the time she bought it.

A Yes.

Q Do you agree with that?

A I agree.

It is also worth noting that this court previously held, in Foster v. Blackwell,

747 So.2d 1203 (La.App. 3 Cir. 1999), writ denied, 754 So.2d 970 (La. 2000), that

Ethel, as a shareholder/officer of B&C Broadcasting, Inc., did not breach her

fiduciary duty to other shareholders by purchasing “cash call” stocks since the other

shareholders were notified of the offerings, could have purchased the majority of

offered shares, and the corporation would have failed without the immediate influx

of capital. We find Mr. Bartie’s testimony, along with the fact that the record

justifies the application of the “alter ego” doctrine under these unique facts, supports

the trial court’s judgment that found “the ownership of B&C Broadcasting [to be]

fifty-percent (50%) Fred Blackwell and fifty percent (50%) Ethel Faye Brown

Blackwell.” Accordingly, we find no merit to this assignment of error.

21

ASSIGNMENT OF ERROR NUMBER SEVEN:

In its seventh assignment of error, the Succession of Ethel argues that the trial

court erred in ordering a total liquidation of a corporation in violation of the

Louisiana Civil Code and the Louisiana Business Corporation Act.

The evidence in the record substantiates the finding that Fred and Ethel’s heirs

own B&C Broadcasting, Inc. in indivision. Louisiana Civil Code Article 797 defines

ownership in indivision as “[o]wnership of the same thing by two or more persons”

and that “[i]n the absence of other provisions of law or juridical act, the shares of all

co-owners are presumed to be equal.” Louisiana Civil Code Article 807 provides,

in pertinent part: “No one may be compelled to hold a thing in indivision with

another unless the contrary has been provided by law or juridical act. Any co-owner

has a right to demand partition of a thing held in indivision.” Additionally,

La.Civ.Code art. 809 provides: “The mode of partition may be determined by

agreement of all the co-owners. In the absence of such an agreement, a co-owner

may demand judicial partition.”

Based on the record, Ms. Moore, on behalf of the Succession of Fred, was

within her legal rights to seek a judicial partition (sale) of B&C Broadcasting, Inc.

We find the trial court was well within her discretion in ordering the sale of the

business after the testimony at trial indicated that the parties to the two successions

were not in agreement as to any partition of the estate property and the two

successions could not agree on the management of B&C Broadcasting, Inc.

Accordingly, we find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER EIGHT:

In its eighth assignment of error, the Succession of Ethel argues that the trial

court miscalculated a credit due to the heirs of Ethel. The heirs of Ethel argue that

since her death, they have managed B&C Broadcasting, Inc. and have contributed
22

$463,500.00 dollars to keep the station running from January 2015 through October

2019. The Succession of Ethel does not specifically allege how the trial court erred

in its calculation of $133,000.00 for a credit due but rather merely argues that the

trial court did not properly calculate the credit. Thus, it requests this court remand

the issue of reimbursement to the trial court for further consideration.

In response, the Succession of Fred argues that the heirs of Ethel failed to

offer sufficient evidence in support of the member contributions they now assert they

are entitled to and that the Succession of Ethel “does not set forth in what manner it

alleges the trial court abused its discretion or how the calculations were in error.”

We agree.

Without more specificity as to how the trial court erred in its calculations for

the credit due, we find the trial court’s reasons helpful in reviewing this assignment

of error. Specifically, the trial court provided the following oral reasons for its

conclusion that the credit owed is $133,000.00:

All right. I went through - - at this time I will file in the record
everything that I was given by Mr. Hawkins on a request for credits for
funds expended by the family of [Ethel] to keep the station operable.

I had expressed in chambers that I was uncomfortable with stocks
being disbursed by the administrator, shares being disbursed by the
administrator, loans being undertaken by the administrator from family
members to run the business and - - but I was willing to consider
anything that there was actual proof where I could see how the money
went into the business.

I was not comfortable with most of the evidence that was
presented to me, uncomfortable in making a reimbursement. I have
reviewed the response from the attorney, Mr. Carter, representing the
succession of Mr. Blackwell. He agrees to a certain amount, and I want
to see this case resolved.

Honestly, based on what I’ve seen, my amount would probably
be less. So[,] I’m going to go with his number. And his number of
what he was willing to agree to is [$]266,000 - - actually, that’s not his
number because he wants me to take the [$]40,000 out. I’m not even
going there. Forty thousand was loaned to the business. It may not

23

have been done properly, but it was done by nonlegal experts. So that
is not something that I would hold against anyone.

Half of that is what would be owed from the estate of Fred
Blackwell as far as giving a credit for any money that’s owed to them,
and half of that would be [$]133,000. So[,] it will be subject to a credit
of [$]133,000, the amounts that would be owed from the Brown
Blackwell estate to the Fred Blackwell estate.

As we previously stated under assignment of error one and two, it is clear to

this court that the trial judge had concerns over Mr. Brown’s bookkeeping and

various bank transactions on behalf of B&C Broadcasting, Inc. and the Succession

of Ethel. Further, we, too, find there to be discrepancies between the bank records

and the documents submitted in support of the alleged member contributions. It is

also worth reiterating the fact that the trial court was “not comfortable with most of

the evidence that was presented” and would have awarded less than the $133,000.00

suggested by the Succession of Fred. Without more specificity to this assignment

of error, we find that the record supports the trial court’s reasons for calculating a

credit of $133,000.00 to the Succession of Ethel. Accordingly, we find no merit to

this assignment of error.

ASSIGNMENT OF ERROR NUMBER NINE:

In its ninth assignment of error, the Succession of Ethel argues that the trial

court miscalculated the reimbursement owed to the heirs of Fred. It alleges that the

appropriate retroactive date for any reimbursement to the Succession of Fred would

be: (1) December 22, 2016, the date the Petition for Intervention was filed; (2) May

12, 2017, the date the trial court invalidated Fred’s Last Will and Testament; or (3)

November 6, 2019, the date the trial court recognized the heirs of Fred and placed

them in possession of property.

In response, the Succession of Fred cites to La.Civ.Code art. 890 while

arguing that the trial court properly calculated the reimbursement date to be January

24

21, 2015, the date of Ethel’s death. It alleges that this is the date that Ethel’s

“usufruct over the share of the community property she shared with her husband

terminated[,]” and that “the unencumbered property succeeded to the two daughters

of Fred Blackwell.”

Louisiana Civil Code Article 890 states “[i]f the deceased spouse is survived

by descendants, the surviving spouse shall have a usufruct over the decedent’s share

of the community property to the extent that the decedent has not disposed of it by

testament. This usufruct terminates when the surviving spouse dies or remarries,

whichever occurs first.”

In Louisiana, “[t]he legal regime of community property is terminated by the

death . . . of a spouse[.]” La.Civ.Code art. 2356. Therefore, upon Fred’s death on

March 22, 2003, the community property regime terminated and Fred’s undivided

one-half interest in the former community property was transferred to his two

children, subject to the legal usufruct of Ethel. In addition, at Fred’s death, Ethel

maintained ownership of her undivided one-half interest in the former community

property. See La.Civ.Code art. 2336 (stating that “[e]ach spouse owns a present

undivided one-half interest in the community property.”)

Then, at Ethel’s death, her siblings inherited her undivided one-half interest

in the former community property estate and any income derived from it. See

La.Civ.Code art. 888 (stating that “[d]escendants succeed to the property of their

ascendants. They take in equal portions and by heads if they are in the same

degree.”) In addition, Ethel’s usufruct over Fred’s undivided one-half interest in the

former community property terminated at Ethel’s death, entitling Fred’s two

children to the return of their undivided one-half interest in the former community

property, as well as their undivided one-half interest in any income derived from

former community property. See La.Civ.Code arts. 535-549.
25

Therefore, we find that the trial court correctly calculated the appropriate

reimbursement date to be the date of the death of Ethel, which was January 21, 2015.

As such, we find no merit to this assignment of error.

DECREE:

For the foregoing reasons, we affirm, in its entirety, the trial court’s November

5, 2019 judgment. Costs of this appeal are assessed to appellant, the Succession of

Ethel.

AFFIRMED.

26