                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 21 1998
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 PAUL SHEFFIELD,

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

          Defendant - Appellees.




                             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 was clearly contrary to the great

weight of the evidence and declaring a mistrial based on testimony concerning

defendants’ insurance coverage. He also seeks reinstatement of the jury’s verdict

in his favor. For the reasons set forth below, we conclude that this case must be

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
remanded to the United States District Court for the District of Utah for

reconsideration of these motions by a different trial 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 damages 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 and January 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 parties during a telephone

conference and gave both sides the opportunity to request 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 judge.

       Subsequently, in an unrelated case, another panel of this court discussed the

relationship between the original trial judge and the Snow law firm stemming


                                           -2-
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’ motions 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 the 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 to

facilitate an immediate appeal, the parties entered into the following stipulation,

which the district judge on reassignment approved by order, before the case was

set for retrial:

              Plaintiff wishes to appeal the trial court’s granting of a new
       trial and mistrial but cannot do so at this time because it is not a final
       judgment. The parties, therefore, agree as follows:




       1
               The attorneys from Snow who tried the case assert in affidavits that
they were both unaware of the attorney-client relationship between the original
trial judge and Christensen until after the post-trial motions had been decided.
See Affidavits of Scott Daniels & Jullianne P. Blanch, Supp. App., tabs B & C.

                                             -3-
              1. This matter shall be dismissed, with prejudice, without the
       plaintiff in any way waiving his right to appeal the granting of a new
       trial and a mistrial.

             2. The parties agree that once the case is dismissed, the
       dismissal of the case, along with the granting of a new trial and a
       mistrial, is an appealable order.

             3. The parties agree that if the trial court is affirmed, 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 order granting a
       new trial and mistrial is reversed and the jury verdict 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 court 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 where “losing party got the lower

court to dismiss the complaint rather than remand for a new trial, so that it could

get review”) (citing   Thomsen v. Cayser , 243 U.S. 66, 83 (1917));   see also Deas v.



       2
             This stipulation was entered into on July 15, 1996, prior to plaintiff’s
discovery of the extent of the conflicting representation.

                                           -4-
Paccar, Inc. , 775 F.2d 1498, 1503 (11th Cir. 1985) (accepting jurisdiction where

district court converted order granting new trial into 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 enter 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 well-settled that a court is not

bound by stipulations of the parties as to questions of law.”) (internal quotations

omitted). In terms of its practical impact, the stipulation 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 such clear contrary orders, we

refuse to construe the order approving the stipulation as such a judgment.

       Further, the only decision by a trial court reflecting a review of the record

is the original trial judge’s order denying defendants’ motion for JMOL and




                                             -5-
granting the new trial and mistrial.   3
                                           Like the Clark panel, however, we conclude

that that judge should have recused himself when the disqualifying circumstances

became apparent.      See 28 U.S.C. § 455(a) (judge’s duty to disqualify arises “in

any proceeding in which . . . impartiality might reasonably be questioned”);       Clark ,

1997 WL 157382, at **1. Here, at the very least, he 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 affords 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 reassignment ruled anew on any of the

post-trial motions.   4




       3
              The record is bereft of any consideration on reassignment 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 can be tainted by the appearance of
bias, then evidentiary rulings and the verdict should be called into question as
well. Defendants did not cross-appeal any trial rulings, 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-
       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 should have recused himself sua

sponte prior to deciding them, we REVERSE the dismissal with prejudice and

REMAND to the United States District Court for the District of Utah for

reconsideration of the post-trial motions and clarification of the district court’s

rulings, by the judge who has presided since the recusal 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




                                            -7-
