The opinion
Judgment rendered August 28, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.
No. 55,892-CA
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
DAMITA BRASWELL Plaintiff-Appellee
versus
DAWN DUNCAN, WARREN Defendants
CARY, JR., HONEY JUPITER,
AND WHITNEY BROWN YOUNG
*****
Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Webster, Louisiana
Trial Court No. 79,857
Honorable Michael Owens Craig, Judge
*****
WHITNEY BROWN YOUNG In Proper Person,
Appellant
THE SMITH LAW OFFICE, LLC Counsel for Appellee
By: Eskridge E. Smith, Jr.
*****
Before COX, STEPHENS, and HUNTER, JJ.
COX, J.
This civil dispute arises out of the 26th Judicial District Court, Webster
Parish, Louisiana. Appellant, Whitney Brown Young (“Young”),1 appeals a
judgment granting the Appellee, Damita Braswell (“Braswell”), rental value
and other fees following the judicial partition of two inherited properties the
parties held in indivision with their siblings. For the reasons stated herein,
we amend the portion of the judgment regarding the dates of payments and
affirm all other portions.
FACTS
Following the succession of Kay D. Caesar, a judgment of possession
was rendered on May 18, 2021, wherein Braswell, Young, Warren Cary Jr.
(“Cary”), Dawn Duncan, and Honey Jupiter2 inherited a one-fifth ownership
interest in two family homes located at 602 College Street and 413 E. Union
in Minden, Louisiana. On August 25, 2021, Braswell sent notice expressing
her desire to either sell her one-fifth interest in the inherited properties or in
the alternative, file to have the properties partitioned by licitation.
On March 4, 2022, Braswell filed a petition for partition, naming each
of her siblings as defendants. In her petition, Braswell claimed that Young
and Cary respectively resided in the 413 E. Union and 602 College Street
homes and had exclusive use and occupancy of the properties. Braswell
requested deductions be made from Young’s and Cary’s one-fifth shares of
1
This Court notes that while Whitney Brown Young referred to herself as simply
Whitney Brown, the record reflects that the appellant is designated as Whitney Brown
Young.
2
Duncan agreed to the partition of the properties and waived her appearance at
trial, and Jupiter’s curator provided Jupiter would not be present at trial.
the proceeds. The trial was held on August 23, 2023, with both Young and
Cary appearing in proper person. The following testimony was presented:
First, Braswell testified that following her mother’s succession, she
and her siblings inherited a one-fifth interest each in their mother’s two
properties: two homes located on 602 College Street and 413 E. Union in
Minden. Braswell testified that on August 25, 2011, she notified her
siblings that she wanted to either sell her one-fifth interest or, if they could
not reach an agreement, file for a partition because the property could be
divided equally. Braswell explained that she requested damages because
Young lived at 413 E. Union and denied her access and use of the property.
Specifically, Braswell stated that Young told her in a text message that if she
“ever step[ped] foot on 413, [she] would never leave.” On cross-
examination, Braswell admitted that Young offered to buy her interest in
both properties for $8,800.
Braswell further acknowledged that Cary has resided in the home on
602 College since 2017, paying their mother $500 in rent. On inquiry from
the trial court, Cary clarified that he paid his mother each month with the
intention of purchasing the property from her. Cary admitted he did not pay
the monthly rent to the succession after his mother passed but stated that no
one requested that he continue to make payments. Braswell then testified
that their mother kept documents of the rental agreement but there were no
deeds or copies of any documents to show Cary purchased the home before
their mother passed or that their mother had relinquished the property to
him.
Next, Randall Miller (“Miller”), a real estate appraiser, was tendered
as an expert witness in the appraisal of residential real estate. Miller stated
2
that he was contacted to determine the market and rental value of the two
properties. Miller explained that his methodology in making appraisals and
property valuation was based on comparable sales and active listings in the
area. Specifically, Miller stated that generally, the “market is going to be
determined by location, neighborhood, [and] age of the house” as well as
bedroom and bathroom count, and whether the home was for sale or rent.
Miller admitted that while it was customary practice to conduct an exterior
inspection of the property, it was better to conduct an interior inspection
because its condition could impact the appraisal value and determine if the
property was in good, marketable condition, which would increase its value.
Miller admitted that in this case he only conducted an exterior inspection of
both properties. Miller also stated that it was typical to conduct an exterior
inspection when he cannot get access to a property.
With respect to the 602 College Street property, Miller testified that
Caesar hired him to inspect the interior of the home several years ago. He
stated that Caesar renovated the home after that inspection, but he did not
appraise the property after the updates. Regarding this current appraisal,
Miller stated that he compared the 602 College Street property to properties
in the same area that had also been renovated within the past six or ten years.
From this, Miller stated that the property, which was approximately 1,520
square feet, was valued at $113,000 with a monthly lease or rental value of
$850. With respect to the 413 E. Union property, Miller admitted that he did
not conduct an interior inspection of the home. Miller stated that from his
exterior inspection, he appraised the property, which was approximately
1,800 square feet, at $126,000, with a monthly lease or rental value of $950.
3
Finally, Young testified that on September 9, 2021, shortly after she
moved into the home on 413 E. Union, she notified her siblings of her move
and asked if they wanted any of their mother’s possessions. Young stated
that during this time, Braswell messaged her and expressed an interest in
moving into the 413 E. Union so she could live “rent-free.” Young stated
that she never prohibited Braswell or any of her siblings from coming to the
home and denied that she ever threatened Braswell from coming onto the
property. Young stated that she has always allowed her siblings to come to
the home and stay there if they needed or wanted to and that everyone has a
key to access the home. Young explained that she and her four children only
moved into the 413 E. Union property because she evacuated her home after
Hurricane Laura and could find no other place to live. Young stressed that
her financial situation affected her decision to move into the home and this
was the only home she could find that could comfortably accommodate her
and her children.
Young testified that she offered to buy Braswell’s one-fifth interest
for $8,800, which was based on the original value of the properties as it was
listed in the succession from the tax assessor. The trial court then explained
that the value placed by the tax assessor is not an appraised value of the
home. From there, Young reiterated that she never denied Braswell use of
the home and that under Louisiana law, she was not required to pay Braswell
rent for the use or occupancy of the property.
At the close of testimony, the trial court expressed its sympathy with
the parties for the loss of their mother and recognized the difficulties that can
arise from resolving the intricacies of succession property, especially when
held in indivision with other individuals. The trial court then stated:
4
. . . [I]f there is property that is owned . . . in indivision by
multiple heirs and it cannot be divided equally, the only option
is to order it to be divided by licitation, which is to be sold, and
for the proceeds to be divided. There’s no—there’s not really
any other option without some legal basis to show that there
was a prior contractual agreement or that there was some will
that provided for some other—a distribution of the assets. It
just comes down to simply y’all can’t divide two houses in five
parts. And so the only thing you can divide in five parts is the
money. And whether or not you agree to the appraisals that
were done by Mr. Millers—I have no reason to doubt that
they’re accurate, but once-now that I’m rendering an order for
the properties to be sold at public sale and for the monies to be
divided by licitation, that’s my appreciation, the sheriff’s office
is going to have to do a separate appraisal anyway pursuant to
the law, so those appraisals are going come out either very
consistent to Mr. Miller’s or different because, who knows, Mr.
Miller may be the one they use to do the appraisals.
But both of you are going to have to allow whoever does the
appraisals access to the home to come inside and do the
appropriate measurements and things like that. The costs of the
appraisals will—and sale is set by statute. The sheriff’s officer
will get their percentage of the sale, so there’s no reason for me
to do that. I do understand that the two of you are living in
those properties and that you have a right of ownership.
...
So as to the rental values, Mr. Miller is deemed as an expert and
used the comparables to determine that rental values; however,
as to the College Street address, I’m going to override the—I
am going to award to the—the succession, the heirs, and set the
rental value so that each of the heirs are to receive one-fifth
interest of the rental values. As to the College Street address,
it’s unrefuted testimony from Mr. Carey that he was paying
$500 a month at the time to his mother and—and that she
was—that was evidently set by her, and I’m not going to
disturb that. So we’ll set the rental value of the College Street
property at $500. As to the Union Street, the rental value will
be set at $950. The—once the proceeds. . . the reimbursement
or payment—I don’t know if Mr. Miller has been paid yet or
not, but the. . . his $1,500 fee will be paid or reimbursed from
the proceeds of the sale. . . and $2,500 in attorney fees.
The trial court’s judgment provided that, in addition to the judicial
partition of both properties, Braswell would be awarded damages for her
loss of right to occupy the two properties, to be measured by the rental value
of the property. The judgment specified that the damages owed by Cary
5
regarding the 602 College property, would be assessed “in the amount of
one-fifth of the rental value. . . in the amount of $500 per month, from the
date of the filing of the Judgment of Possession” on May 18, 2021, through
the date paid, with damages to be deducted from the sale proceeds.
Moreover, the judgment provided that the damages owed by Young
regarding the 413 E. Union property would be “one-fifth of the rental value
of the property” from August 2021, through the date paid, in the amount of
one-fifth of the rental value of $950 per month. The judgment further
decreed that the expenses of the sale, including appraiser fees set at $1,500,
curator fees set at $300, and attorney fees set at $2,500, would be deducted
from the sale proceeds. It is from this judgment that Young appeals.
DISCUSSION
As a precursor, this Court highlights the following procedural order of
this case. The notice of judgment was issued on October 13, 2023. Young
filed a motion to set aside judgment on November 14, 2023. Young argued
generally that as a co-owner, she was not required to pay rent to another co-
owner for her use and enjoyment of the property jointly owned by all parties.
Moreover, she attached a copy of a text exchange between the co-owners,
asserting that Braswell never requested use or occupancy of the property and
was subsequently denied. However, there is no indication in the record that
any party was given notice of the motion or even received a copy of it.
On December 5, 2023, Young filed a notice of appeal, which the trial
court granted on January 23, 2024. The trial court later scheduled a hearing
to address the motion to set aside the judgment for April 9, 2024. Braswell
objected to the motion. Regardless of the scheduled hearing, this Court
notes that the motion to set aside judgment was untimely filed and appears
6
not to have been properly served to the involved parties. Accordingly, the
text exchange attached to the motion cannot be considered by this Court.
This Court further expresses its sympathies with all parties involved,
and like the trial court before us, acknowledges the inherent difficulties that
can unfortunately arise when families inherit property after a loved one’s
passing.
Rental Damages
By her first assignment of error, Young contends that the trial court
erred in granting Braswell damages for the rental value of the 413 E. Union
property. Young argues that because she is a one-fifth co-owner, she was
entitled to use the property and was not required to pay rent for the exclusive
use of the co-owned property. Moreover, she argues that co-owners are not
indebted to one another for the occupancy or enjoyment of the co-owned
property unless a co-owner has been denied or deprived of their right of
possession by another co-owner’s exclusive occupancy. Young remains
adamant that she never threatened or denied Braswell or any other sibling
use or occupancy of the property; therefore, Braswell was not entitled to
damages.
Ownership of the same thing by two or more persons is ownership in
indivision. La. C.C. art. 797. The proportion of ownership of co-owners is
presumed to be equal unless by juridical act or other provisions of law they
are shown to be unequal shares. Id. The use and management of a thing
held in indivision is determined by agreement of the co-owners. La. C.C.
art. 801. Except as otherwise provided in Article 801, a co-owner is entitled
to use the thing held in indivision according to its destination, but he cannot
prevent another co-owner from making such use of it. La. C.C. art. 802.
7
By her testimony, Braswell stated that she informed her siblings that
she desired to move into the 413 E. Union home, but was subsequently
denied occupancy by Young, who Braswell claimed threatened her if she
attempted to come onto the property. Young denied such claims and
testified that all of her siblings had access to the property and were welcome
to stay if they wanted. Young also testified that Braswell did not discuss the
matter with her again after the initial conversation.
An appellate court may not set aside a trial court’s finding of fact in
the absence of manifest error or unless it is clearly wrong. Where two
permissible views of the evidence exist, the factfinder’s choice between
them cannot be manifestly erroneous or clearly wrong. Cole v. State Dept.
of Public Safety & Corr., 01-2123 (La. 9/4/02), 825 So. 2d 1134; Stobart v.
State through Dept. of Transp. & Dev., 617 So. 2d 880 (La. 1993); Jewitt v.
Alvarez, 50,083 (La. App. 2 Cir. 9/30/15), 179 So. 3d 645. Therefore, to
reverse a factfinder’s determination, the appellate court must find from the
record that a reasonable factual basis does not exist for the finding of the
trial court and that the record establishes that the finding is clearly wrong.
Jewitt, supra.
Even if an appellate court may feel its own evaluations and inferences
are more reasonable than the factfinder’s, reasonable evaluations of
credibility and reasonable inferences of fact should not be disturbed upon
review where conflict exists in the testimony. Id. Where the factfinder’s
conclusions are based on determinations regarding credibility of witnesses,
the manifest error standard demands great deference to the trier of fact
because only the trier of fact can be aware of the variations in demeanor and
8
tone of voice that bear so heavily on the listener's understanding and belief
in what is said. Id.
In the present case, the trial court was presented with two different
versions of the facts which led to this suit. Braswell claimed that she
requested and was denied occupancy, and Young denied those claims. From
the record and testimony, it does not appear there was ever an agreement
among any of the siblings as to the use or occupancy of 413 E. Union
or,specifically, that Young would use the home to the exclusion of any other
co-owner. Therefore, given the conflict in testimony, the trial court heard
and weighed the testimony and credibility of the parties, and given the
judgment rendered in this case, it appears the trial court was of the opinion
Young occupied the 413 E. Union home exclusively.
Given the testimony presented in this case, we give great deference to
the trial court and its factual findings. Therefore, we find that this argument
lacks merit.
However, this Court disagrees with the time frame imposed by the
trial court in which Young was ordered to pay rental damages. The trial
court ordered that rent was retroactive to August 2021, presumably when
Braswell sent formal notice to the other co-owners of her desire to either sell
her one-fifth interest or have the properties partitioned. A co-owner in
exclusive possession may be liable for rent, but only beginning on the date
another co-owner has demanded occupancy and has been refused. Von
Drake v. Rogers, 43,546 (La. App. 2 Cir. 10/8/08), 996 So. 2d 608.
In the record before this Court, Braswell did not demand damages in
rental value until she filed the instant suit in March of 2022. Accordingly,
9
Young’s one-fifth portion owed for occupancy of 413 E. Union should be
made retroactive to March 4, 2022.
Award for Expert and Appraisal Fees
By her second assignment of error, Young argues that the trial court
erred in awarding fees related to expert testimony and the property appraisal.
Specifically, Young claims that Miller’s fees should not have been awarded
because Miller did not conduct an in-person appraisal of the 413 E. Union
property. Young argues that since Miller’s last inspection, a tree fell on the
home, “the foundation is sinking, there are plumbing issues” due to a winter
storm in February 2021, and that the “exterior is deteriorating due to
improper carpentry.” Young generally denies that Miller conducted a proper
inspection of the property and without an updated appraisal, the trial court
erred in awarding fees for Miller’s testimony.
As a general proposition, a fact finder may evaluate expert testimony
by the same principles that apply to other witnesses and has great discretion
to accept or reject expert or lay opinion. Morris v. Rainwater, 51,018 (La.
App. 2 Cir. 1/11/17), 218 So. 3d 226, writ denied, 17-0414 (La. 5/1/17), 220
So. 3d 744. The effect and weight to be given to expert testimony rests
within the broad discretion of the trier of fact. Marsh v. USAgencies Cas.
Ins. Co., 42,176 (La. App. 2d Cir. 5/16/07), 957 So. 2d 901, writ denied, 07-
1286 (La. 10/26/07), 966 So. 2d 575. When findings are based on
determinations regarding the credibility of witnesses, lay and expert alike,
the manifest error standard demands great deference to the trier of fact’s
findings. State, Dept. of Transp. & Dev. v. Biscomb, 47,223 (La. App. 2 Cir.
6/20/12), 94 So. 3d 193.
10
In this case, Miller testified that he had 22 years of experience in
appraising residential homes and was state-certified. Miller explained his
methodology in conducting his appraisal of both properties and his detailed
reports were submitted to the trial court. Although Miller did not conduct an
interior inspection of the property, it appears that Miller may not have had
access to the property as indicated by his testimony that exterior inspections
are typical if “you’re not able to get access to a property.” Regardless, the
trial court also performed its own inquiry for further clarification regarding
the appraisal process and the information Miller gathered to make his
assessments. Given the testimony and evidence presented, we find no error
in the trial court’s reliance on the appraisals Miller produced for each
property.
Regarding Miller’s fees, the law generally provides that an expert
witness is entitled to reasonable compensation for his court appearance and
his preparatory work. The trial judge is not required to set an expert witness
fee at the amount charged by the expert witness. The trial judge has great
discretion in awarding and fixing costs and expert witness fees. Boone v.
Top Dollar Pawn Shop of Bossier, LLC, 50,493 (La. App. 2 Cir. 2/24/16),
188 So. 3d 1093. A trial court’s assessment of costs can be reversed by an
appellate court only upon a showing of abuse of discretion. Ryan v. Case
New Holland, Inc., 51,062 (La. App. 2 Cir. 12/22/16), 211 So. 3d 611.
In this case, Miller testified that he conducted two appraisals in this
matter, and generally charged $750 per appraisal. We find that the trial
court was well within its discretion to award fees and have them deducted
from the proceeds of the sale. Therefore, this assignment of error is without
merit.
11
CONCLUSION
For the foregoing reasons, the portion of the judgment awarding
Braswell damages for one-fifth the amount of rental value for the 413 E.
Union property is amended to reflect payments are due retroactively to
March 4, 2022, the date of the filing of the petition for licitation where rental
damages were sought. All other portions of the judgment are affirmed.
Costs of this appeal are assessed to Young.
JUDGMENT AMENDED IN PART, AND AS AMENDED, AFFIRMED.
12