This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).


Jeffrey Bruce, et al.,


Progressive Insurance Company,
a/k/a Progressive Casualty
Insurance Company,

Filed September 7, 1999
Anderson, Judge

Washington County District Court
File No. C2-96-5341

Duane E. Arndt, Kathryn K. Smith, Arndt & Benton, P.A., 1012 Grain Exchange, 400 South Fourth Street, Minneapolis, MN 55415 (for appellants)

Richard S. Stempel, Michael W. Lowden, Stempel & Associates, PLC, 41 Twelfth Avenue North, Hopkins, MN 55343 (for respondent)

Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schultz, Judge.[*]

U N P U B L I S H E D   O P I N I O N


Appellants Jeffrey and Bridgette Bruce challenge the district court's (a) refusal to recuse from deciding the issue of attorney's fees following a mistrial; and (b) finding that appellants' counsel intentionally provoked a mistrial. We affirm.


Appellants commenced litigation against respondent Progressive Insurance Company after respondent denied appellants' claim for damages from the destruction of their mobile home by fire. On the fourth day of trial, the district court declared a mistrial after concluding that neither party could receive a fair trial because the conduct of appellants' counsel had prejudiced the jury. The district court also stated that it would review the record and would impose substantial financial sanctions. Finally, the district court stated that it could "no longer tolerate" appellants' counsel's conduct in the courtroom. Immediately following the mistrial, the district court participated in ex parte communication with respondent's attorneys.

After the mistrial, the case was reassigned to another judge who, prior to the commencement of the second trial, referred the matter of attorney fees back to the district court judge who declared the mistrial. Appellants then argued that the ex parte communication with respondent's counsel evidenced the district court's bias against appellants' counsel. The district court denied the recusal request and found that appellants' counsel had caused the mistrial and awarded attorney fees to respondent.

The judgment was vacated and stayed by a subsequent district court awarding attorney fees pending trial on the merits of the case. After the second trial, respondent requested the district court re-enter the original judgment awarding attorney fees. The district court re-entered the judgment, noting that appellants offered no testimony concerning or rebutting the award.

Appellants now challenge (1) the district court's refusal to recuse from deciding the issue of attorney fees; and (2) the award of attorney fees.



"Whether to honor a request for removal based on allegations of actual prejudice is a matter for the trial court's discretion." Durell v. Mayo Found., 429 N.W.2d 704, 705 (Minn. App. 1988), review denied (Minn. Nov. 16, 1988); see also Uselman v. Uselman, 464 N.W.2d 130, 139 (Minn. 1990) (generally, a party who fails to remove a judge before the start of trial has waived the opportunity to do so unless there is prejudice or implied or actual bias); Carlson v. Carlson, 390 N.W.2d 780, 785 (Minn. App. 1986) (denial of a recusal motion is within the trial court's discretion, and should not be reversed absent a clear abuse of discretion), review denied (Minn. Aug. 20, 1986).

Appellants first argue that the district court abused its discretion by refusing to recuse from deciding the issue of attorney fees because certain actions or conduct by that judge during the first trial raised the appearance of partiality. Appellants failed to raise this argument to the district court; therefore we decline to address this argument. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, an appellate court will not consider maters not argued and considered in the court below). Furthermore, a judge who concludes that he is "able to preside fairly over the proceedings should not be required to step down upon allegations of a party which themselves may be unfair or which simply indicate dissatisfaction with the possible outcome of the litigation." McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn. 1984).

Next appellant argues that the district court's ex parte communication with respondent's counsel after the declaration of the mistrial was evidence of bias.

The Minnesota Code of Judicial Conduct, Cannon 3A(7), provides that:

A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding * * * .

Appellants bear the burden of demonstrating that error is prejudicial. See Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993), review denied (Minn. June 28, 1993). Appellants do not attempt to show how they were prejudiced by ex parte communication, other than relying on their argument that the judge's conduct during the trial raised the appearance of partiality. But as already stated, that argument is waived on appeal.

Appellants have not demonstrated that they were prejudiced by the ex parte communication. Because the district court had already indicated that it was going to impose substantial financial sanctions based on the mistrial, the ex parte communication was harmless error. Accordingly, the district court did not abuse its discretion by refusing to recuse.


Appellants argue that the finding that their counsel intentionally provoked a mistrial is clearly erroneous, and therefore, that the district court abused its discretion by awarding attorney fees based on the mistrial.

A district court has broad discretion to award attorney fees in connection with a mistrial. See Erickson v. Hinckley Mun. Liquor Store, 373 N.W.2d 318, 326 (Minn. App. 1985) (holding that trial court did not abuse its discretion by awarding respondent attorney fees in connection with mistrial that trial court found was caused by appellant's attorney's neglect). An appellate court gives a district court's findings of fact great deference, and those findings shall not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. Findings of fact are clearly erroneous only if this court is "left with the definite and firm conviction that a mistake has been made." Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987). "An appellate court may not reverse a trial court due to mere disagreement with its findings." Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999) (citing Minn. R. Civ. P. 52.01).

There is evidence in the record to support the findings of fact. During a recess near the close of the third day of trial, the district court warned appellants' counsel that it would not put up with his "[p]laying around like this" (after he pursued a line of questioning that had been already been answered by the witness). The next morning, the court indicated concern that the case was close to a mistrial. After the trial reconvened appellants' counsel repeated questions that had been objected to and the objections had been sustained. At one point, the court warned appellants' counsel, outside the presence of the jury, that many of his questions had been asked the previous day, and that he should move on. Appellants' counsel, however, continued asking questions that had been asked and answered, to which sustained objections followed. The district court declared a mistrial and stated that sanctions would be imposed.

The district court's finding that appellants' attorney committed misconduct that forced a mistrial was not clearly erroneous, and therefore, the district court did not abuse its discretion by awarding attorney fees to respondent.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.