dissenting. I respectfully dissent. The circuit court should be reversed, and this case should be remanded for reconsideration of the grant of attorney’s fees to Doss. Doss is now the losing party but holds an order awarding attorney’s fees. A losing party is not entitled to attorney’s fees. See Ark. Code Ann. § 16-22-308 (Repl. 1999) 1
When this court remanded the case in Seidenstricker I, the circuit court should have reconsidered the grant of attorney’s fees.2 Under the remand, the circuit court was to recommence its work on the case at the point it decided that Doss prevailed on its argument on the termination of the lease. This case was remanded for “proceedings on the issue of damages, if any.” Seidenstricker, 372 Ark. 72, 79, 270 S.W.3d 842, 847 (2008). This was a point in the case before it had granted the attorney’s fees. When a case is remanded for further proceedings, the circuit court begins anew at the point where this court found error. See Hill v. State, 341 Ark. 211, 16 S.W.3d 539 (2000).
Further, this court should order the circuit court to reconsider the issue of attorney’s fees because a losing party may not be awarded attorney’s fees. That is an absurd result. It is not permitted under the law.3 This court compounds that error because this unlawful judgment is now made final by the doctrine of res judicata. Such an interpretation of our appellate rules would lead to an absurd result, and this court has often stated that we will not adopt an interpretation of the law that leads to an absurd result. See, e.g., Fountain v. State, 348 Ark. 359, 72 S.W.3d 511 (2002).
The principle of refusing to interpret the law in a way that leads to an absurd result is at the heart of our common law system. The common law is a “mode of judicial and juristic thinking, a mode of treating judicial problems rather than a fixed body of definite rules.” Roscoe Pound, The Spirit of the Common Law 1 (1921). Under the common law, we apply the judicial experience of the past to the cause at hand rather than simply attempting to place the cause in an exact pigeon hole. Pound, supra, at p. 3. However, the majority mechanically applies the rules as if we are devoid of any power beyond applying a fixed body of definite rules. In this case, we must look at the appellate rules and recognize that they were never intended to allow this result. The circuit court never intended this result. The law does not allow this result. To heedlessly adhere to the exact language of the rules without regard to the effect is contrary to our duty under the common law and as the superintending court under Ark. Const. Amend. 80. I would reverse and remand the case for the circuit court to consider the issue of attorney’s fees anew.
Corbin, J., joins.There is no need to discuss the majority’s analysis on jurisdiction and Ark. R. Civ. P. 60 because there was neither a decision on the motion to vacate nor a notice of appeal that would allow this court to consider the motion to vacate. Further, the parties never raised the issue of Rule 60. I note though, that while Seidenstricker’s arguments made in the motion to vacate are not relevant to that motion given it is not before this court, those arguments are relevant to the issue of an absurd result.
It is not clear from the record whether the circuit court has reconsidered the grant of attorney’s fees.
Arkansas follows the American Rule that attorney’s fees are not chargeable as costs in litigation unless permitted by statute. Davis v. Williamson, 359 Ark. 33, 194 S.W.3d 197 (2004). Fees in this case were granted under Ark. Code Ann. § 16-22-308 (Repl. 1999), which only grants fees to the prevailing party.