Adevca, LLC, D/B/A Croft-American Made Mattresses and Brian Croft v. Hp Retail, LLC

Cite as 2025 Ark. App. 262
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CV-24-232

Opinion Delivered April 23, 2025
ADEVCA, LLC, D/B/A CROFT-AMERICAN
MADE MATTRESSES AND BRIAN CROFT APPEAL FROM THE BENTON COUNTY
APPELLANTS CIRCUIT COURT
[NO. 04CV-23-719]
V.
HONORABLE DOUG SCHRANTZ, JUDGE
HP RETAIL, LLC
APPELLEE AFFIRMED

WAYMOND M. BROWN, Judge

Appellants ADEVCA, LLC, d/b/a Croft-American Made Mattresses and Brian Croft appeal

the Benton County Circuit Court’s December 7, 2023 order denying appellants’ motion to set aside

the default judgment entered in favor of appellee HP Retail, LLC. For reversal, appellants argue that

the circuit court abused its discretion by failing to set aside the default judgment because appellants

demonstrated excusable neglect and a meritorious defense. We affirm.

On March 17, 2023, appellee brought a breach-of-contract action against appellants. The

complaint alleged that, on February 18, 2015, Joplimo Mattress, LLC (“Joplimo”), and appellee

executed a five-year lease agreement for a commercial space in Rogers, Arkansas. The lease provided

the option to renew the lease term for three successive five-year periods. Appellant Croft, by

signature, with no representative-capacity designation, guaranteed the full and complete

performance of the lease covenants and obligations.
On June 1, 2020, appellant ADEVCA and appellee entered into a first amendment to the

lease, which assigned the lease from Joplimo to appellant ADEVCA. The first amendment further

acknowledged that appellant ADEVCA, as tenant, exercised its first renewal option for an additional

five-year term ending July 31, 2025.

Appellee’s breach-of-contract complaint alleged that beginning October 2022, appellant

ADEVCA failed to make rent payments as required under the lease agreement and had since closed

the business and vacated the premises. It further alleged that under the guarantee, Croft was

personally liable for the unpaid and past-due rent amounts. Appellee filed a breach-of-contract claim

seeking money damages for unpaid, past due, and future rent payments.

Appellants were served the summons and complaint on April 5 and filed an answer to the

complaint on May 11 admitting that no rent payments had been made since October 2022 but

denying that appellants were under any obligation or liability to do so. Additionally, appellants

asserted the affirmative defenses of estoppel, waiver, and unclean hands. On May 12, appellee moved

for default judgment, claiming that appellants had failed to file a timely answer. The default-

judgment motion stated that appellant Croft, an “authorized agent by appointment or by law to

receive service on behalf of ADEVCA, LLC d/b/a American Made Mattress,” was served with the

complaint on April 5 and had failed to timely file a responsive pleading. It stated that pursuant to

Arkansas Rule of Civil Procedure 12(a), appellants had until May 5, or thirty days after service, to

file a responsive pleading yet failed to do so until May 11 without seeking leave to file late. Therefore,

pursuant to Rule 55 of the Arkansas Rules of Civil Procedure, appellee is entitled to default

judgment.

2
On May 16, appellants filed a response to appellee’s motion for default judgment asserting

that a default judgment would substantially affect appellants’ rights because “they are not the proper

parties to this action.” Appellants further filed separate motions to dismiss for lack of standing and

failure to state a claim upon which relief can be granted pursuant to Arkansas Rule of Civil Procedure

12(b)(6). Appellee filed a reply to appellants’ response to its motion for default judgment, stating

that appellants’ meritorious-defense claims need not be considered because they “did not even

attempt to demonstrate that their failure to timely answer was due to a mistake, inadvertence,

surprise, excusable neglect, or other just cause under Rule 55.”

On June 8, the circuit court issued a letter opinion stating:

[Appellants] clearly did not file an answer or other response timely. While default judgments
may not be preferred, failure to pay attention to process and to timeliness of responses cannot
be ignored without special circumstances. [Appellants] offer no excuse nor excusable
neglect. Therefore the motion for default is granted.

A formal order granting appellee’s motion for default and denying as moot appellants’ motions to

dismiss was filed on July 10.

Appellants moved to set aside default judgment on July 20, asserting they mistakenly believed

they were served with the summons on April 18, not April 5. Appellants stated that because of the

mistake and excusable neglect in failing to timely answer the complaint and because they have a

meritorious defense to the complaint, the default judgment should be set aside pursuant to Rule

55(c)(1). In response, appellee asserted that a mistaken belief regarding the service date is not enough

to set aside a default judgment. In reply, appellants stated that the late filing of the answer was the

result of a “genuine mistake.” Appellant Croft claimed that he believed he was served with the

complaint on April 18, the same day he attended a hearing in his pending divorce. He further claimed

that, at around the time of service, he “and his employees had been receiving death threats from a

3
previous employee and [he] was working with the police to prevent the suspect from acting on these

threats or making further threats against him, his family or his employees.” Appellant Croft claimed

that his contested divorce hearing, the extensive discovery and document production in the divorce

case, and his fear of the death threats as well as his assisting the police department all contributed to

the mistaken belief that he had been served on April 18 instead of April 5. The circuit court, in an

August 10 letter opinion, denied appellants’ motion to set aside the default judgment. The formal

order denying the motion was filed on August 21. Appellants appealed.

When a party against whom a judgment for affirmative relief is sought fails to plead or

otherwise defend as provided by the Arkansas Rules of Civil Procedure, a default judgment may be

entered against him.1 Default judgments are not favorites of the law and should be avoided when

possible.2 One reason courts are admonished to avoid default judgments when possible is that a

default judgment may be a harsh and drastic result affecting the substantial rights of the parties.3 Our

standard of review depends on the grounds upon which appellants claim that the default judgment

should be set aside.4 When the appellant claims that the default judgment is void, the matter is a

question of law, which we review de novo and give no deference to the circuit court’s ruling. 5 In all

1 See Ark. R. Civ. P. 55(a).
2 Riggs v. Riggs, 2020 Ark. App. 381, 606 S.W.3d 588.
3 Id.
4 Id.
5 Id.

4
other cases where we review a motion to set aside a default judgment, we do not reverse absent an

abuse of discretion.6

Appellants argue that they were entitled to relief from the default judgment pursuant to Rule

55(c) of the Arkansas Rules of Civil Procedure based on excusable neglect. Appellants contend that

the circuit court erred in concluding that their failure to timely file an answer to the complaint was

not the result of excusable neglect. Appellants argue that the “mere six day delay in filing” the answer

was “simply a good faith mistake caused by circumstances completely out of [their] control.”

Appellant Croft asserts that the delay was caused by significant issues in his personal life: he was in

the midst of a contentious divorce and was also receiving death threats. Yet, he still managed to file

with only an “inconsequential delay,” and appellee suffered no prejudice.

Appellants failed to explain how divorce proceedings and an active police investigation led to

the faulty recollection of when they were served. Further, while appellants noted a Missouri circuit

court divorce case number and Missouri police report numbers, no documents regarding either were

attached or provided for the court and are absent from the record. In Nucor v. Kilman,7 the appellant

DiGirolamo argued that increased work obligations based on understaffing, year-end business,

holiday rush, major presentations, and the death of his colleague and friend’s young child constituted

excusable neglect sufficient to set aside the default judgment. Our supreme court affirmed the circuit

court’s finding that being busy is not excusable neglect. We hold that the same is true here.

Although undoubtedly stressful, appellants’ busyness with work responsibilities and personal matters

6 Id.
7 358 Ark. 107, 186 S.W.3d 720 (2004).

5
when the summons was served does not constitute excusable neglect for the failure to tend to business

and timely act on the suit.

In Arkansas, the process for setting aside a default judgment requires two things: (1) a

defaulting defendant must show one of the four enumerated categories in Rule 55(c) that justify

setting the judgment aside; and (2) a defaulting defendant must demonstrate a meritorious defense

to the action.8 Because we affirm the circuit court’s finding that appellants’ excuse for untimely filing

does not constitute excusable neglect, we need not reach appellants’ meritorious-defense argument.

We cannot say the circuit court’s denial of appellants’ motion to set aside the default

judgment constituted an abuse of discretion. Accordingly, we affirm.

Affirmed.

VIRDEN and HIXSON, JJ., agree.

Miller | Butler, by: Chandler Bray and Alicia Canfield, for appellants.

Friday, Eldredge & Clark, LLP, by: Marshall S. Ney, Kael K. Bowling, Alexis E. Bibbs, and Rose E.

McGarrity, for appellee.

8 Tharp v. Smith, 326 Ark. 260, 930 S.W.2d 350 (1996).

6