United States of America for the Use and Benefit of Goetz Construction Inc., and Walter E. Goetz, Plaintiffs-appellants, v. J. R. Yorfino D/b/a Skyline Construction Co., and United States Fidelity & Guaranty Co., Defendants-appellees, 412 F.2d 329 (5th Cir. 1969)Annotate this Case
Rehearing Denied July 23, 1969
Walter E. Goetz, San Antonio, Tex., for appellants.
James F. Gardner, San Antonio, Tex., W. F. Nowlin, San Antonio, Tex., for appellees.
Before BELL and GOLDBERG, Circuit Judges, and ATKINS, District Judge.
We have carefully considered the errors assigned by plaintiffs. We find each to be without merit. No attorneys' fees were due. Transamerica Insurance Company v. Red Top Metal, Inc., 5 Cir., 1967, 384 F.2d 752. Moreover, this was not an issue in the district court.
In the absence of a cross-appeal, as was the case, defendants-appellees are without standing to contest the judgment entered by the district court herein. Mr. Goetz shall have ten days from the date the mandate issues to comply with the remittitur provision of the order of October 22, 1968, failing which defendants-appellees will be granted a new trial on the issue of the reasonable value of services rendered by Mr. Goetz. It may be added that defendants-appellees, notwithstanding the sparsity of evidence on the value of such services, do not, as stated, have standing to complain on this appeal.