No. 93-912.

888 S.W.2d 649 (1994)

319 Ark. 1

McDONALD'S CORPORATION, Appellant, v. Marlin HAWKINS and Marvine Hawkins, his wife, Appellees.

Supreme Court of Arkansas.

Attorney(s) appearing for the Case

Dennis J. Davis, Bryant, for appellant.

Mark S. Cambiano, Morrilton, for appellees.

HOLT, Chief Justice.

The present case is the second appeal in this matter. In McDonald's Corp. v. Hawkins, 315 Ark. 487, 868 S.W.2d 78 (1994), we observed that the chancellor, in his letter opinion, had found in McDonald's favor that Ark.R.Civ.P. 60(b) allows ninety days within which to set aside a judgment for excusable neglect and had then entertained the merits of McDonald's motion to set aside the default judgment. Consequently, we dismissed the appeal on the basis of mootness. Regarding the appeal now before us, it is necessary to affirm the trial court, as will be seen, under the doctrine of the law of the case.

The factual background is set forth in our earlier opinion. A single issue is raised in the present appeal from a decision by the Conway County Chancery Court denying a motion by appellant McDonald's Corporation to set aside a default judgment rendered in favor of appellees Marlin and Marvine Hawkins. McDonald's argues that the chancellor erred in finding, in his order denying the motion, that McDonald's had not met the requirements of Ark.R.Civ.P. 55(c) "justifying its failure to answer the complaint." According to McDonald's, a motion to set aside a default judgment should be granted upon a showing that the movant was served with a defective summons and that movant has a meritorious defense to the action.

As mentioned earlier, in the first appeal in this matter, McDonald's Corp. v. Hawkins, supra, we specifically stated that the chancellor, after having made his findings in his letter opinion, "then proceeded to address the merits of the motion [to set aside the default judgment]." 315 Ark. at 489, 868 S.W.2d at 80. (Emphasis added.) Because the chancellor addressed the merits of the motion to set aside the default judgment, the present matter is controlled by the doctrine of the law of the case.

An argument that could have been raised in the first appeal and is not made until a subsequent appeal is barred by the law of the case. Willis v. Estate of Adams, 304 Ark. 35, 799 S.W.2d 800 (1990); Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989). Moreover, the law of the case doctrine also prevents consideration of an argument that could have been made at the first trial. Willis v. Estate of Adams, supra; see also Widmer v. Widmer, 292 Ark. 384, 729 S.W.2d 422 (1987).

McDonald's was not precluded from raising the issue presently before this court during the previous appeal. Therefore, the doctrine of the law of the case must be invoked. We affirm the trial court.

HAYS, J., not participating in final vote.

GLAZE, J., not participating.


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