* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The 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. 

** Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States Court

of Appeals for the Third Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS

Filed 8/9/96

FOR THE TENTH CIRCUIT

JOY L. GAGE,

Plaintiff-Appellant,

v.

WESLEY D. HERDT, LESTER L.

HERDT and MARGARETTE JUNE

HERDT, dba Price Right Motel,

Defendants-Appellees.

No. 95-3291

(D.C. No. 93-CV-1157)

(D. Kan.)

ORDER AND JUDGMENT*

Before TACHA, ALDISERT,** and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this
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appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

Appellant Joy Lee Gage brought this negligence action against appellees

Wesley D. Herdt, Lester L. Herdt, and Margarette June Herdt, claiming damages for

injuries sustained when appellant fell on an outside stairway while a guest at

appellees’ motel in Oakley, Kansas. Following trial, the jury entered a verdict

finding neither party at fault. Appellant filed a motion for judgment as a matter of

law, or in the alternative, for a new trial pursuant to Fed. R. Civ. P. 50(b), asserting

that the jury’s verdict was against the weight of the evidence. The court denied the

motion, and appellant appeals.

I. Jurisdiction

Initially, appellees claim that appellant’s notice of appeal was untimely, and

therefore, this court lacks jurisdiction. Thus, as a threshold matter, we must address

our jurisdiction to entertain this appeal. We review a district court’s grant of a

motion for an extension of time in which to file a notice of appeal for an abuse of

discretion. Gooch v. Skelly Oil Co., 493 F.2d 366, 368 (10th Cir.), cert. denied, 419

U.S. 997 (1974).

Federal Rule of Appellate Procedure 4(a)(1) provides that, generally, a notice

of appeal in a civil case must be filed within thirty days of the date of the entry of
1 Michael Lehr, by affidavit attached to appellant’s jurisdictional brief to this

court, denies that he received a copy of the order. Appellant’s Memorandum in

Opposition to Defendants’ Motion to Dismiss, App. II.

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the order or judgment appealed from. On December 19, 1994, the jury returned a

verdict in this case, and on December 20, 1994, the district court entered judgment

accordingly. On January 3, 1995, appellant filed a motion for judgment as a matter

of law, or in the alternative, for a new trial. On May 26, 1995, the magistrate judge

recommended that appellant’s motion be denied. The district court adopted this

recommendation by order dated May 30, 1995.

On June 30, 1995, one day following the expiration of her thirty-day appeal

time, appellant filed a motion for leave to appeal out of time, alleging that she had

not received timely notice of the court’s May 30, 1995 order. Apparently, the court

sent notice of the decision to Michael Lehr, an attorney who had been terminated

from appellant’s representative law firm, Larry Wall & Associates, on December 15,

1994, four days before the jury returned its verdict in this case.1 Michael Lehr had

signed appellant’s complaint, and therefore, pursuant to local rule, was entered as

attorney of record. The matter was tried by Michael Lehr and Larry Wall, who each

announced his entry of appearance at the time of trial. Mr. Lehr did not formally

withdraw at the time of his termination, however, and the docket does not indicate

that Mr. Wall, or any other member of his firm, entered a formal written appearance

following Mr. Lehr’s termination.
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Federal Rule of Appellate Procedure 4(a)(5) allows the court to extend the

time for filing a notice of appeal upon a finding of “excusable neglect or good

cause.” Here, the magistrate judge found that appellant had failed to show excusable

neglect, but determined that she was entitled to relief pursuant to Fed. R. App. P.

4(a)(6). Rule 4(a)(6) provides:

The district court, if it finds (a) that a party entitled to notice of the

entry of a judgment or order did not receive such notice from the clerk

or any party within 21 days of its entry and (b) that no party would be

prejudiced, may, upon motion filed within 180 days of entry of the

judgment or order or within 7 days of receipt of such notice, whichever

is earlier, reopen the time for appeal for a period of 14 days from the

date of entry of the order reopening the time for appeal.

Appellees argue that the district court’s determination that appellant could not

be afforded relief under Rule 4(a)(5) because there was no showing of excusable

neglect precludes the court’s reopening of time for appeal under Rule 4(a)(6).

Appellees assert that counsel’s alleged noncompliance with local rules governing

entries of appearance is inexcusable neglect, and that appellant is bound by the

action or inaction of her chosen counsel. In support, appellees cite Pioneer

Investment Services Co. v. Brunswick Associates Limited Partnership, 507 U.S. 380

(1993), and Link v. Wabash Railroad, 370 U.S. 626 (1962), neither of which are

factually applicable here.

In Pioneer, the Supreme Court discussed the contours of neglect in the context

of a challenge to the bankruptcy court’s discretion to allow late filings of proofs of
2 Appellant alleges that various representatives of Larry Wall & Associates

contacted the court regarding a decision in this matter, including a May 1, 1995

letter from a legal assistant, James Howell, confirming his telephone

conversations with the court regarding the status of appellant’s motion. 

Appellant’s App., Vol. I at 107.

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claim. Although determining that the court of appeals erred in not holding the client

accountable for the acts or omissions of counsel, Pioneer held that the Sixth Circuit

was correct in affirming the allowance of late filings in light of the good faith of the

respondents and the lack of prejudice to the debtor. 507 U.S. at 397.

In Link, the Court affirmed a district court dismissal for failure to prosecute

when the petitioner’s counsel failed to appear at a scheduled pretrial conference.

The Court held that, in light of the prolonged history of the case, the dilatory fashion

in which the petitioner had proceeded in the case, and the inadequacy of counsel’s

excuse for his absence, the dismissal did not impose an unjust penalty on the client.

370 U.S. at 633.

This court, in Smith v. United States, 834 F.2d 166 (10th Cir. 1987), discussed

a line of cases which suggest that it is not always proper to hold the client

accountable for the acts or omissions of counsel if it is apparent that the client did

not participate in the act or omission. Id. at 171 (listing cases). Here, it appears

clear that appellant did not participate in any omission of counsel. It is evident that

counsel acted in good faith in attempting to stay informed of the status of the case,2

and under the circumstances presented here, appellees have not established prejudice.
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Accordingly, we do not believe that the procedural facts of this case support

a determination that the district court abused its discretion in reopening the time for

filing a notice of appeal. Therefore, appellant’s notice of appeal is timely, and this

court has jurisdiction.

II. Merits

A. Judgment as a Matter of Law

On May 4, 1991, Ms. Gage and a friend were traveling from Ohio to Wyoming

when they encountered a freezing rain and snow storm. Due to the severe weather

conditions, appellant and her friend checked into appellees’ motel. While at the

motel, appellant fell on an outside stairway, suffering serious injury.

Here, all of the evidence pertaining to fault was conflicting. Appellant claims

that appellees were at fault for failing to keep the ice and snow off of the stairway.

Appellees presented testimony that the snow storm was in progress for a number of

hours before and after appellant’s fall, and pursuant to Kansas law, they were under

no duty to remove the ice and snow as long as the storm continued. See Agnew v.

Dillons, Inc., 822 P.2d 1049, 1054 (Kan. Ct. App. 1991).

Appellant claims that appellees were negligent in failing to warn that the

stairway was slippery and in a dangerous condition and for failing to barricade the

stairway. Appellees testified that prior to the accident, the stairway had been
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chained with a warning sign designating the stairway as available for emergency use

only. There was an alternate covered stairway available, but appellees testified that

guests often removed the chain and used the barricaded stairway as a shortcut. 

Next, appellant asserted that appellees were negligent in failing to adequately

light the area. Appellees asserted that the stairway was lit adequately by nearby

floodlights, a light directly at the top of the stairway, and the neon sign in front of

the motel.

Finally, although appellant alleged that the ice and snow on the stairway

caused her fall, she claimed that appellees were negligent in failing to keep the

carpet on the stairs in good repair, and that the stairway was in violation of certain

codes. Appellant’s witness, Denzell Ekey, testified that the condition of the stairway

was in violation of the “Life Safety Code,” a fire safety code. In rebuttal, appellees

asserted that inspection reports completed in 1990 and 1992 by the Kansas

Department of Health and Environment (KDHE) found the lighting and condition of

the stairway to be adequate and in compliance with the applicable codes. Appellees

alleged that the KDHE based their reports, in part, on the “Life Safety Code,” relied

on by Mr. Ekey.

In her complaint, appellant claimed appellees failed (1) to keep the stairway

in reasonably safe condition, (2) to warn of unsafe conditions on the premises, (3)

to keep snow and ice removed from the stairway, (4) to warn of slippery conditions
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on the stairway, (5) to keep a barricade and warning sign in position on the stairway,

and (6) to keep the stairway adequately lit. Appellees asserted the affirmative

defense of comparative fault. The jury, by a special verdict interrogatory,

determined that neither the appellant nor the appellees were at fault.

On appeal, appellant contends that the district court erred in denying her

motion for judgment as a matter of law, or in the alternative, for a new trial. We

review the denial of a motion for directed verdict or for judgment as a matter of law

under the same standard. See FDIC v. United Pac. Ins. Co., 20 F.3d 1070, 1079

(10th Cir. 1994). Both motions are reviewed de novo, Sheets v. Salt Lake County,

45 F.3d 1383, 1387 (10th Cir.), cert. denied, 116 S. Ct. 74 (1995), applying the same

standard applied by the district court, Orth v. Emerson Elec. Co., White-Rodgers

Div., 980 F.2d 632, 635 (10th Cir. 1992). 

Where, as here, the party having the burden of proof at trial moves for

judgment as a matter of law, the evidence is evaluated for its “overwhelming effect,”

rather than for its sufficiency to support a finding for the opposing party. Hurd v.

American Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir. 1984). A directed

verdict for the party bearing the burden of proof is granted “only where [she] has

established [her] case by evidence that the jury would not be at liberty to disbelieve.”

Id. The court cannot weigh the evidence, consider the credibility of witnesses, or

substitute its judgment for that of the jury. Harolds Stores, Inc. v. Dillard Dep’t
3 Appellant’s argument that it was impermissible for the jury to find no fault

without an intervening “Act of God” instruction was not raised to the district

court and will not be considered for the first time on appeal. See Walker v.

Mather (In re Walker), 959 F.2d 894, 896 (10th Cir. 1992).

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Stores, Inc., 82 F.3d 1533, 1546 (10th Cir. 1996). “A directed verdict for the party

bearing the burden of proof may be granted only if the evidence is such that without

weighing the credibility of the witnesses the only reasonable conclusion is in [her]

favor.” Hurd, 734 F.2d at 499. Having reviewed appellant’s case with these strict

standards in mind, we conclude that the district court correctly denied her motion for

judgment as a matter of law.

The thrust of appellant’s argument appears to be that the jury did not have the

option of finding no fault, but should have determined “the percentage of fault of

each party and the nature and extent of the injuries.”3

 Appellant’s Br. at 6.

Appellant then contends that, if the jury had followed the jury instructions, “there

must be evidence that neither party was at fault in order to support their verdict.”

Id. at 15.

In its order denying appellant’s motion, the court noted that this was an

incongruous argument in light of the fact that appellant did not object to the verdict

form which directly asked the jury, “Do you find any of the parties to be at fault?”

Appellant’s App., Vol. I at 60. The form instructed that only if the jury answered yes

to this question was it permissible to continue with an apportionment of blame. Id.
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The magistrate judge stated, and appellant does not dispute, that she requested

inclusion of this question on the jury form. Appellant also did not object to the jury

instruction which informed the jury that its first obligation was to determine if either

party was at fault. Id. at 48. 

Although we apply federal law when considering the propriety of a judgment

as a matter of law, in a diversity case, the sufficiency of the evidence in terms of the

underlying case is reviewed pursuant to state law. Magnum Foods, Inc. v.

Continental Casualty Co., 36 F.3d 1491, 1503 (10th Cir. 1994). In order to recover

for negligence under Kansas law, the injured party must show (1) that the plaintiff

was injured; (2) that the defendant was at fault; (3) that the defendant’s fault caused

the plaintiff’s injury. Chambers v. Skaggs Cos., 732 P.2d 801, 803 (Kan. Ct. App.

1987).

The relevant testimony and evidence as to fault presented in this case was

conflicting and does not conclusively favor appellant. See Hurd, 734 F.2d at 499.

Thus, it is clear that the jury would have been “at liberty to disbelieve” appellant’s

evidence. Id.

A grant of judgment as a matter of law in this case would have required the

court impermissibly to weigh the evidence and judge the credibility of the witnesses,

thus making an inappropriate invasion into the realm of the jury. See Harolds Stores,

Inc., 82 F.3d at 1546 (when deciding a motion for judgment as a matter of law, court
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cannot substitute its judgment for that of the jury). Consequently, the district court

denial of appellant’s motion for judgment as a matter of law was correct.

B. Motion for New Trial

Appellant alternately sought a new trial, asserting that the verdict was against

the weight of the evidence. It is well established that a district court’s decision not

to grant a new trial will not be disturbed on appeal absent a showing of clear abuse

of discretion. Sheets, 45 F.3d at 1390. We will reverse the denial of a motion for

a new trial only if the “‘verdict is clearly, decidedly or overwhelmingly against the

weight of the evidence,’” Getter v. Wal-Mart Stores, Inc., 66 F.3d 1119, 1125 (10th

Cir. 1995)(quoting Black v. Hieb’s Enters., Inc., 805 F.2d 360, 363 (10th Cir. 1986)),

cert. denied, 116 S. Ct. 1017 (1996), and the trial court “‘made a clear error of

judgment or exceeded the bounds of permissible choice in the

circumstances,’” Sheets, 45 F.3d at 1390-91 (quoting Hinds v. General Motors Corp.,

988 F.2d 1039, 1046 (10th Cir. 1993)). Here, appellant failed to establish any basis

for grant of a new trial. Therefore, we determine that the district court did not abuse

its discretion in denying appellant’s motion.
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The judgment of the United States District Court for the District of Kansas is

AFFIRMED.

Entered for the Court

Ruggero J. Aldisert

Senior Circuit Judge