dissenting. This is the second appeal in this case. Under our firmly settled rules of practice we are bound by the opinion on the first appeal, even though we may now think it to have been wrong. Wilson v. Rodgers, 256 Ark. 276, 507 S.W. 2d 508 (1974); International Harvester Co. v. Burks Motors, 252 Ark. 816, 481 S.W. 2d 351 (1972); Farmers Cooperative Assn. v. Phillips, 243 Ark. 809, 422 S.W. 2d 418 (1968).
The majority do not imply that our first opinion was wrong. Instead, they purport to be following that opinion in declaring that on remand the trial court should have permitted Love to proceed with evidence about questions of reasonableness, propriety, necessity, good faith, and due diligence with regard to the attorneys’ fees. The majority, in reaching their conclusion, simply disregard the plain language of the final paragraph in our earlier opinion, which reads:
To be recoverable by the indemnitee, the attorneys’ fees must be reasonable, proper, necessary, and incurred in good faith and with due diligence. [Citations omitted.] 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 attorneys’ fees.
Since the above paragraph is controlling on this second appeal, it must be studied with care. When that is done, anyone who has experienced again and again the anguish of trying to write with brevity but with clarity must realize that the paragraph is admirably written. Special Chief Justice Ross, in writing the paragraph, made in logical sequence five important points, which I restate with some comment:
First: Recoverable attorneys’ fees must have five characteristics. They must be reasonable, be proper, be necessary, be incurred in good faith, and be incurred with due diligence.
Second: These characteristics present factual questions to be determined by the trier of fact. Note that there are five possible questions — not, as the majority now hold, only one (that of reasonableness).
Third: These factual matters are not to be disposed of on summary judgment when properly placed in dispute. Again the reference is in the plural, not to this mailer but to these matters.
Fourth: Sheriff Love does place in issue the question of reasonableness. In other words, the sheriff does place in issue not all five questions but the single question of reasonableness. Otherwise the word “does” has no place in the sentence.
Fifth: Accordingly, the cause is remanded for a determination of the reasonableness of the fees. Again one question out of five is singled out for further consideration.
If we were now being presented for the first time with a broad question, whether the “reasonableness” of an attorney’s fee includes such matters as its necessity, the attorney’s good faith, and so on, I would have no quarrel with the majority’s broad interpretation of “reasonableness. ” But that is not the issue. On the first appeal the question was narrowed down to exclude propriety, necessity, good faith, and due diligence. We are duty-bound to adhere to our former opinion, as the law of the case. Otherwise what is now happening becomes unavoidable: The trial court is reversed a second time for doing exactly what this court told him to do. Gilbert and Sullivan might have added that the trial judge’s lot is not a happy one!