concurring. I would concur in the opinion of the majority of the court in reversing and remanding this matter to the trial court for further proceedings consistent with the opinion, but for differing reasons.
As the majority opinion has stated, this court in its prior decision in United States Fidelity & Guaranty Co. v. Monroe Love, 260 Ark. 374, 538 S.W. 2d 558-559 (1976), held:
“To be recoverable by the indemnitee, the attorney’s fees must be reasonable, proper, necessary and incurred in good faith and with due diligence. . . . These are factual questions to be determined by the trier of fact, and when properly placed in dispute are not matters to be disposed of on motion for summary judgment. Sheriff Love does, by sworn answers to interrogatories, place in issue the question of reasonableness of the fees paid. Accordingly, this case is reversed and remanded to the trial court for a determination of the reasonableness of the attorney’s fees.”
When the appellant on remand in the trial court attempted to introduce evidence concerning the reasonableness, propriety, necessity, the incurrence in good faith and with due diligence of expenses by U. S. F. & G. in conduct of their own defense, the trial court ruled that the only issue before the court was the reasonableness of the attorney’s fees.
The appellant brought the present appeal on the ground that the trial court erred in prohibiting Love from challenging the reasonableness, necessity, propriety and due diligence of U. S. F. & G. in incurring legal fees in its defense of the federal action under the bond. To me the central question before the court in this appeal is the meaning of the court’s language quoted above from the opinion in the former appeal. The language of that opinion is susceptible of being interpreted in either of two ways. It could mean the appellant was entitled to introduce evidence, as he contends, relating to reasonableness, propriety, necessity and due diligence in incurring attorney’s fees. The factor of “good faith”, as will be pointed out, is no longer in issue. The latter part of the paragraph is susceptible of the interpretation that all of the factors mentioned in the preceding language could be introduced in a proper case when contentions are made properly raising these points before the court, but in this case only the question of “reasonableness” has been raised and was to be considered on remand to the trial court.
Under the rule of the law of the case, this court has held:
“It is well settled that on a second appeal the judgment on the former appeal becomes the law of the case, and is conclusive on every question of law or fact decided in the former suit, and also of those which might have been but were not presented.”Storthz v. Fullerton, 185 Ark. 634, 48 S.W. 2d 560.
Since the previous opinion in this case stated that the sworn answers to interrogatories by appellant placed in issue the question of reasonableness of the fees paid, it. would be instructive to examine the interrogatories referred to to see what contentions had been made and, to determine whether the use of the phrase “the question of reasonableness of the fees paid” was a shorthand expression including all the factors previously mentioned in the paragraph or was a determination that only the specific issue of the reasonableness of the method of calculating the fees was in issue.
The interrogatories in question are as follows:
“Interrogatory No. 4: Do you contend that the attorney’s fees and expenses in the amount of $1,962.50 which were incurred by the plaintiff in defending the civil law suit described in the complaint are unreasonable?
Answer: In light of the services ostensibly performed, yes.”
“Interrogatory No. 5: Do you contend that the attorney’s fees and expenses in the amount of $1,962.50 which were incurred by the plaintiff in defending the civil lawsuit described in the Complaint were incurred in bad faith?
ANSWER: Based on present knowledge, no.”
By the appellant’s negative response to Interrogatory No. 5 he eliminated the question of good faith as a factor to be considered in determination of the attorney’s fee. This was apparently acknowledged by the appellant since no reference is made to this factor in his ground for seeking reversal of the trial court’s ruling.
On first reading of the response to Interrogatory No. 4, one could conclude that the question and answer raised only the matter of whether the amount of the attorney’s fees was a reasonable sum considering the various elements which go into arriving at a fee for such services as is fully explored in the majority opinion. On further consideration, however, it is apparent that the amount of attorney’s fees and expenses would be directly affected by and related not only to whether the attorney’s fees are reasonable under the proper criteria, but also, whether the attorney’s fees were properly incurred, whether under the circumstances such services were necessary and whether the services rendered were performed with due diligence. The appellant’s response that “In light of the services ostensibly performed ... ”, he was questioning in all respects the amount of attorney’s fees and expenses incurred by the plaintiff in defending the civil lawsuit, placed in contention before the court all the factual questions which the court’s prior opinion stated should be decided by the trier of fact. These issues were therefore raised and it is my understanding of the prior court’s opinion, in light of what was before it at that time, that the trial court should have heard such admissible evidence as was offered concerning the various factors, with the exception of good faith, as previously noted.
With the modifications herein expressed, I would concur in the majority opjnion that the judgment of the trial court be reversed and the matter be remanded to the trial court. In addition to the consideration of the question of the reasonableness of the attorney’s fees involved, I would allow proof of the necessity, propriety and due diligence of the appellee in incurring legal fees in its defense of the federal action under the bond.