Michael S. Brandner, Jr. Versus Kathleen A. Brandner

MICHAEL S. BRANDNER, JR. NO. 22-C-486

VERSUS FIFTH CIRCUIT

KATHLEEN A. BRANDNER COURT OF APPEAL

STATE OF LOUISIANA

October 06, 2022

Linda Wiseman
First Deputy Clerk

IN RE KATHLEEN A. BRANDNER

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT
COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
SHAYNA BEEVERS MORVANT, DIVISION "M", NUMBER 819-038 C/W 830-976

Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and Hans J. Liljeberg

WRIT GRANTED

In this domestic matter, relator, Kathleen A. Brandner, seeks this Court’s

supervisory review of the trial court’s denial of her Motion to Recuse. For the

reasons that follow, we grant this writ application, vacate the trial court’s ruling,

and remand the matter for the trial court to either recuse herself or to make a

written request to the Supreme Court for the appointment of an ad hoc judge as

provided in La. C.C.P. arts. 154 and 155.

On October 4, 2022, at 3:33 p.m., relator filed her Motion to Recuse the trial

judge alleging that she had engaged in an ongoing pattern of conduct that exhibited

bias against relator. On October 5, 2022, the trial court denied the motion to

recuse finding that it was untimely filed pursuant to La. C.C.P. art. 154(A). On

October 5, 2022, at 1:18 p.m., after the trial court had begun hearings on incidental

matters in the case, relator filed her writ application with this Court seeking

22-C-486

expedited review of the denial of her Motion to Recuse. In her writ application,

relator contends that the trial court erred in finding her motion to be untimely, and

therefore further erred in not making a written request to the Supreme Court for the

appointment of an ad hoc judge as provided in Article 155.

Louisiana Code of Civil Procedure article 154 provides:

A. A party desiring to recuse a judge of a district court shall
file a written motion therefor assigning the ground for recusal under
Article 151. This motion shall be filed no later than thirty days after
discovery of the facts constituting the ground upon which the motion
is based, but in all cases prior to the scheduling of the matter for trial.
In the event that the facts constituting the ground upon which the
motion to recuse is based occur after the matter is scheduled for trial
or the party moving for recusal could not, in the exercise of due
diligence, have discovered such facts, the motion to recuse shall be
filed immediately after such facts occur or are discovered.

B. If the motion to recuse sets forth a ground for recusal under
Article 151, not later than seven days after the judge's receipt of the
motion from the clerk of court, the judge shall either recuse himself or
make a written request to the supreme court for the appointment of an
ad hoc judge as provided in Article 155.

C. If the motion to recuse is not timely filed in accordance
with Paragraph A of this Article or fails to set forth a ground for
recusal under Article 151, the judge may deny the motion without the
appointment of an ad hoc judge or a hearing but shall provide written
reasons for the denial.

In this case, the trial court, finding the Motion to Recuse to be untimely

pursuant to Paragraph A, denied the motion on the procedural grounds of

untimeliness without the appointment of an ad hoc judge or a hearing, and

provided written reasons for her ruling pursuant to Paragraph C.

Paragraph A of La. C.C.P. art. 154, regarding the time frame for filing a

Motion to Recuse, provides a general rule that the “motion shall be filed no later

than thirty days after discovery of the facts constituting the ground upon which the

motion is based, but in all cases prior to the scheduling of the matter for trial.”

Paragraph A also provides an exception to this general rule in circumstances in

which the grounds for recusal occur after the matter is “scheduled for trial,”

2

providing that “[i]n the event that the facts constituting the ground upon which the

motion to recuse is based occur after the matter is scheduled for trial …, the

motion to recuse shall be filed immediately after such facts occur or are

discovered.”

It is clear from the trial judge’s written reasons for judgment, in which she

points out that the hearings on three different motions to disqualify various

attorneys are scheduled for that day, October 5, 2022, the day after the Motion to

Recuse was filed, and that she had scheduled the October 5 hearings on August 23,

26 and 31, that she found the Motion to Recuse untimely under the exception to

Article 154(A) because it was filed after the October 5, 2022 hearings had already

been scheduled. Implicit in her ruling is that, under the exception, the motion was

not filed “immediately after” the facts constituting the ground for recusal occurred

or were discovered.

We are therefore called upon to determine whether in the circumstance that a

hearing is scheduled on miscellaneous matters incidental to the litigation at the

time that a Motion to Recuse is filed, the “scheduled for trial” language of Article

154(A) applies and therefore renders the “immediately after” occurrence or

discovery time-bar of the exception applicable to the issue of timeliness.

Prior to its amendment in 2021, Article 154, in establishing a time-bar for

the filing of a Motion to Recuse, provided that the motion “ … shall be filed prior

to trial or hearing …,” suggesting that the Legislature recognized that “trial” and

“hearing” are not interchangeable terms. In the 2021 amendment to Article 154,

the Legislature chose to eliminate the word “hearing” and establish an exception to

the time-bar only when the matter is “scheduled for trial” (emphasis added). We

presume this to be a considered, intentional change by the Legislature. We

therefore interpret this language to refer to a trial of the merits of the substantive

claims and causes of actions made in the litigation, not hearings on miscellaneous,

3

incidental motions that frequently arise in the course of litigation. Consequently,

we conclude that the trial court erred in applying the exception in Article 154(A) to

relator’s Motion to Recuse.1

Based upon our review of the application presented, we find that the motion

to recuse at issue was timely filed setting forth alleged recent acts of bias by the

trial court which fall within the time limitation of La. C.C.P. art. 154(A). This

Court, in McDevitt v. Salisbury, 22-C-442 (La. App. 5 Cir. 9/20/22) (unpublished

writ disposition), reached the same result under circumstances where an ongoing

pattern of conduct was alleged.2 Thus we find that the trial judge erred in denying

the motion to recuse as untimely.

Accordingly, we grant the relator’s writ, vacate the trial court’s ruling, and

remand the matter for the trial court to either recuse herself or to make a written

request to the Supreme Court for the appointment of an ad hoc judge as provided in

La. C.C.P. arts. 154 and 155. In all other respects, relief is denied.

Gretna, Louisiana, this 6th day of October, 2022.

RAC
FHW
HJL

1
We are well-aware that the rationale for the “immediately after” time-bar is to disallow a Motion to Recuse filed at
the eleventh-hour to serve as a substitute means to obtain an otherwise denied continuance or stay of a matter set for
trial. We further recognize the delay and justifiable frustration that occurs when an eleventh-hour Motion to Recuse
necessitates the continuance of a hearing on motions incidental to the litigation. We thus strenuously would
admonish attorneys to avoid such last-minute Motions to Recuse and caution that any attorney who develops a
pattern of such filings runs the serious risk of violating various canons of the Code of Professional Conduct.
2
While we are not impressed by relator’s excuses for waiting from September 14 until October 4 to file her motion,
we nonetheless recognize that it was filed within thirty days of her latest alleged discovery of conduct which she
claims as grounds for recusal.

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 10/06/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-C-486
E-NOTIFIED
24th Judicial District Court (Clerk)
Honorable Shayna Beevers Morvant (DISTRICT JUDGE)
Jeffrey M. Hoffman (Relator)

MAILED
Michael S. Brandner, Jr. (Respondent)
Attorney at Law
3621 Veterans Memorial Boulevard
Metairie, LA 70002