                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                         July 23, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
CLYDIE J. (JOE) CRAWFORD,

             Plaintiff-Appellant,

v.                                                         No. 12-2018
                                              (D.C. No. 1:10-CV-00926-KBM-LFG)
RICHARD BARNES,                                             (D. N.M.)

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.


      Plaintiff-Appellant Clydie J. (Joe) Crawford appeals from a jury verdict

entered in favor of defendant Richard Barnes. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we affirm.

      Mr. Crawford filed an action against Mr. Barnes in state court after the two

men were involved in an accident at Taos Ski Valley in January 2010. Mr. Crawford


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
was skiing and Mr. Barnes was snowboarding. Mr. Crawford alleged that

Mr. Barnes’s negligence caused the accident and his resulting injuries. Mr. Barnes

denied that he was negligent in any respect. He did assert, however, that if he were

negligent in any respect, Mr. Crawford’s claims were subject to the doctrine of

comparative fault under New Mexico law.

       The case was removed to federal court and tried to a jury. The jury entered a

verdict in favor of Mr. Barnes. Mr. Crawford filed a motion for a new trial. That

motion was denied. This appeal followed.

       In his opening brief, Mr. Crawford explains that “[t]he sole issue presented for

review is that the jury’s decision that [Mr. Barnes] was 0% negligent is not supported

by substantial evidence.” Aplt. Opening Br. at 2. In response, Mr. Barnes contends

that Mr. Crawford did not preserve this issue for appellate review. We agree.

       “It is well-established that ‘for a litigant to receive appellate review of a jury

verdict for want of sufficient evidence, he must first have moved for a directed

verdict before submitting the issue to the jury.’” FDIC v. Schuchmann, 235 F.3d

1217, 1231 (10th Cir. 2000) (quoting Koch v. City of Hutchinson, 814 F.2d 1489,

1496 (10th Cir. 1987)). Mr. Crawford may not circumvent this requirement by

relying on the fact that he raised the sufficiency of the evidence in his motion for a

new trial after the jury verdict. Id.

       Mr. Crawford acknowledges that he did not move for a directed verdict at the

conclusion of the trial and recognizes the waiver rule under these circumstances.


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See Aplt. Reply Br. at 1. He contends, however, that there is an exception to the

basic waiver rule and this court should exercise its discretion to excuse his waiver

“in order to prevent manifest injustice.” Id. at 2. He does not elaborate on how

enforcing the waiver in this case would result in manifest injustice and he concedes

that “[t]ypically, the exception is applied in situations involving matters of law.” Id.

Moreover, he does not cite to any cases where this court exercised its discretion to

consider the merits of a challenge to the sufficiency of the evidence after a party

failed to move for a directed verdict.

      We see no basis for this court to exercise its discretion to excuse

Mr. Crawford’s failure to move for a directed verdict. In his post-judgment motion

for a new trial, Mr. Crawford argued “that the clear or great weight of the evidence

. . . is that [Mr. Barnes] was negligent and was to some percentage at fault in this

accident.” Aplt. App. at 47. There was nothing preventing Mr. Crawford from

arguing that the evidence did not support a finding that Mr. Barnes was 0% negligent

before the case was submitted to the jury.

      Accordingly, we AFFIRM the judgment of the district court.


                                                Entered for the Court


                                                David M. Ebel
                                                Circuit Judge




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