* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 21 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL SHEFFIELD, Plaintiff - Appellant, v. BILL LARSEN, individually and in his official capacity; BRAD BLAIR, individually and in his official capacity, Defendant - Appellees. No. 96-4131 (D.C. No. 91-NC-49-C) (District of Utah)

ORDER AND JUDGMENT *

Before HENRY , HOLLOWAY and LUCERO , Circuit Judges.

Appellant Paul Sheffield seeks reversal of the district court’s order granting a new trial on the ground that the jury’s verdict w as clearly contrary to the great weight of the evidence and declaring a mistrial bas ed on testimony concerning defendants’ insurance coverage. He also seeks rein statement of the jury’s verdict in his favor. For the reasons set forth below, we conclude that this case must be-2-

remanded to the United States District Court for th e District of Utah for reconsideration of these motions by a different tri al judge. Sheffield filed charges against two police officers pursuant to 42 U.S.C. § 1983 for violating his federal civil rights. Trial commenced on February 27, 1995, and the jury returned a verdict in his favor on March 7, 1995, awarding compensatory damages of $300,000 and punitive damag es of $2,000. The defendants moved for a new trial under Fed. R. Civ. P. 59, for a mistrial, and for Judgment as a Matter of Law (“JMOL”) under Fed. R. Civ. P. 50. On April 18, 1995, the original trial judge granted the mistrial and new trial but denied JMOL. The defendants were represented by attorneys from the law firm of Snow, Christensen & Martineau. Between March 2, 1995 andJanuary 25, 1996, the original trial judge was represented in a personal matter by Harold Christensen, an attorney of counsel with that firm. See Clark v. City of Draper , No. 96-4006, 1997 WL 157382, at **1 (10th Cir. April 4, 1997). In January 1996, the judge disclosed this relationship to attorneys for both p arties during a telephone conference and gave both sides the opportunity to r equest a recusal. On February 8, 1996, plaintiff moved for him to recuse himself. That motion was granted, and the case was reassigned to another U.S. district ju dge. Subsequently, in an unrelated case, another panel o f this court discussed the relationship between the original trial judge and t he Snow law firm stemming1 The attorneys from Snow who tried the case assertin affidavits that

they were both unaware of the attorney-client relat ionship between the original trial judge and Christensen until after the post-tr ial motions had been decided. See Affidavits of Scott Daniels & Jullianne P. Blanch, Supp. App., tabs B & C. -3- from Christensen’s representation. See id. According to plaintiff’s counsel, it was only with the issuance of the Clark decision in April 1997 that they became aware that this representation had commenced during the trial of this matter and continued through the argument and consideration of the post-trial motions. 1 This case confronts us with an unusual posture on appeal. Plaintiff is ostensibly appealing the grant of defendants’ motio ns for a new trial and a mistrial. Yet, an order granting a new trial or a mistrial is interlocutory, and thus neither is appealable as a final decision within th e meaning of 28 U.S.C. § 1291.
See Allied Chemical Corp. v. Daiflon, Inc. , 449 U.S. 33, 34 (1980) (new trial); 4 Am. Jur. 2d Appellate Review § 186 (1995) (mistrial) (citing Esneault v. Waterman Steamship Corp. , 449 F.2d 1296, 1297 (5th Cir. 1971)). In order t o facilitate an immediate appeal, the parties entered into the following stipulation, which the district judge on reassignment approved b y order, before the case was set for retrial:

Plaintiff wishes to appeal the trial court’s granti ng of a new trial and mistrial but cannot do so at this time be cause it is not a final judgment. The parties, therefore, agree as follows :2 This stipulation was entered into on July 15, 1996, prior to plaintiff’s

discovery of the extent of the conflicting represen tation. -4- 1. This matter shall be dismissed, with prejudice, without the plaintiff in any way waiving his right to appeal th e granting of a new trial and a mistrial. 2. The parties agree that once the case is dismiss ed, the dismissal of the case, along with the granting of anew trial and a mistrial, is an appealable order. 3. The parties agree that if the trial court is af firmed, the decision of the Tenth Circuit Court of Appeals will be final, and in no event will the case be remanded for a retrial. 4. The parties agree that if the trial court’s ord er granting a new trial and mistrial is reversed and the jury ver dict reinstated, that decision will also be final. Stipulation for Dismissal and to Preserve Rights of Appeal, Appellant’s App., Tab G, at 2. 2 Generally, “consent of the parties cannot justify appellate review of an otherwise nonappealable order.” Albright v. UNUM Life Ins. Co. , 59 F.3d 1089, 1094 (10th Cir. 1995). Here, however, when the cou rt ratified the parties’ stipulation by dismissing the action with prejudice , a final order was entered and its appeal is properly before us. See United States v. Procter & Gamble Co. , 356 U.S. 677, 681 (1958) (sanctioning jurisdiction wher e “losing party got the lower court to dismiss the complaint rather than remand f or a new trial, so that it could get review”) (citing Thomsen v. Cayser , 243 U.S. 66, 83 (1917)); see also Deas v.-5-

Paccar, Inc. , 775 F.2d 1498, 1503 (11th Cir. 1985) (accepting j urisdiction where district court converted order granting new trial i nto JNOV at request of litigant to facilitate appeal); National Polymer Prods., Inc. v. Borg-Warner Corp. , 660 F.2d 171, 177 (6th Cir. 1981) (same); cf. 15A Charles Alan Wright et al., Federal Practice & Procedure § 3914.8, at 618 & n.9 (2d ed. 1992) (“Even after trial, a plaintiff who has won a jury verdict but who faces a new trial that seems too costly to endure may persuade a trial court to ente r a final adverse judgment as a means of testing the new trial order.”). Though the order adopting the parties’ stipulation is sufficient to secure appellate jurisdiction because it presents us with a final order, we reject the parties’ attempt to dictate the terms and result of our review. See Koch v. United
States , 47 F.3d 1015, 1018 (10th Cir. 1995) (“[I]t is wel l-settled that a court is not bound by stipulations of the parties as to question s of law.”) (internal quotations omitted). In terms of its practical impact, the st ipulation would have us treat the dismissal below as a grant of JMOL for defendants. Both judges below, however, expressly refused to grant JMOL. In the face of su ch clear contrary orders, we refuse to construe the order approving the stipulat ion as such a judgment. Further, the only decision by a trial court reflect ing a review of the record is the original trial judge’s order denying defendants’ motion for JMOL and3 The record is bereft of any consideration on reas signment regarding

the propriety of JMOL, or, indeed, of the merits of any of the other post-trial motions.

4 Defendants suggest that, because the disqualifying circumstance arose during the trial, if the post-trial orders ca n be tainted by the appearance of bias, then evidentiary rulings and the verdict shou ld be called into question as well. Defendants did not cross-appeal any trial ru lings, however, so we have no cause to consider them. See Hansen v. Director, OWCP , 984 F.2d 364, 367 (10th Cir. 1993) (holding party may not attack lower court’s decision with view toward enlarging own rights or lessening rights of adversary absent cross-appeal). We leave considerations of those rulings in the first instance to the trial judge on remand. -6- granting the new trial and mistrial. 3 Like the Clark panel, however, we conclude that that judge should have recused himself when th e disqualifying circumstances became apparent. See 28 U.S.C. § 455(a) (judge’s duty to disqualify ari ses “in any proceeding in which . . . impartiality might reasonably be questioned”); Clark , 1997 WL 157382, at **1. Here, at the very least, h e should have recused himself prior to disposition of the post-trial motions. We echo Clark ’s agreement “with the view that ‘the language of § 455 clearly affor ds an opportunity for reconsideration of any issue resolved by the disqualified judge.’” Id. at **2 n.4 (quoting Karen Nelson Moore, Judicial Disqualification Decisions in the Federal
Courts , 35 Hastings L.J. 829, 868 n.149 (1984)). It does not appear from the record before us that the district judge on reassig nment ruled anew on any of the post-trial motions. 4-7-

Accordingly, because we conclude that the district court is the most appropriate forum for initial consideration of the post-trial motions, and that the original trial judge who considered these motions s hould have recused himself sua sponte prior to deciding them, we REVERSE the dismi ssal with prejudice and REMAND to the United States District Court for the District of Utah for reconsideration of the post-trial motions and clari fication of the district court’s rulings, by the judge who has presided since the re cusal below or whichever judge is assigned to handle the case by the district court on remand.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge