{ "id": 727690, "name": "Kenneth RUMMEL, Plaintiff-Appellant and Cross-Appellee, v. EDGEMONT REALTY PARTNERS, LTD., a Foreign Limited Partnership, Defendant-Appellee and Cross-Appellant", "name_abbreviation": "Rummel v. Edgemont Realty Partners, Ltd.", "decision_date": "1993-07-09", "docket_number": "No. 13227", "first_page": "23", "last_page": "29", "citations": [ { "type": "official", "cite": "116 N.M. 23" }, { "type": "parallel", "cite": "859 P.2d 491" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "98 N.M. 100", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582546 ], "weight": 2, "pin_cites": [ { "page": "108" }, { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0100-01" ] }, { "cite": "107 N.M. 227", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597139 ], "weight": 2, "pin_cites": [ { "page": "230" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0227-01" ] }, { "cite": "105 N.M. 746", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1598947 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "748" }, { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/nm/105/0746-01" ] }, { "cite": "21 A.L.R.2d 863", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1952, "opinion_index": 0 }, { "cite": "616 P.2d 1223", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1980, "pin_cites": [ { "page": "1228", "parenthetical": "en banc" } ], "opinion_index": 0 }, { "cite": "94 Wash.2d 298", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 1164038 ], "year": 1980, "pin_cites": [ { "parenthetical": "en banc" } ], "opinion_index": 0, "case_paths": [ "/wash-2d/94/0298-01" ] }, { "cite": "663 P.2d 1197", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1983, "opinion_index": 0 }, { "cite": "99 N.M. 740", "category": "reporters:state", "reporter": "N.M.", "year": 1983, "opinion_index": 0 }, { "cite": "100 N.M. 39", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588599 ], "weight": 2, "pin_cites": [ { "page": "47" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0039-01" ] }, { "cite": "101 N.M. 587", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586379 ], "weight": 2, "pin_cites": [ { "page": "589-90" }, { "page": "279-80" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0587-01" ] }, { "cite": "84 N.M. 473", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2764435 ], "weight": 2, "pin_cites": [ { "page": "480" }, { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0473-01" ] }, { "cite": "109 N.M. 193", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590247 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "196" }, { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0193-01" ] }, { "cite": "100 N.M. 538", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588586 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "540" }, { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0538-01" ] }, { "cite": "811 P.2d 575", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1991, "opinion_index": 0 }, { "cite": "112 N.M. 77", "category": "reporters:state", "reporter": "N.M.", "year": 1991, "opinion_index": 0 }, { "cite": "112 N.M. 172", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720276 ], "weight": 2, "pin_cites": [ { "page": "175" }, { "page": "1323" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0172-01" ] }, { "cite": "523 A.2d 518", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7912657 ], "opinion_index": 0, "case_paths": [ "/a2d/523/0518-01" ] }, { "cite": "604 P.2d 821", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1979, "opinion_index": 0 }, { "cite": "93 N.M. 683", "category": "reporters:state", "reporter": "N.M.", "year": 1979, "opinion_index": 0 }, { "cite": "93 N.M. 408", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568705 ], "weight": 2, "pin_cites": [ { "page": "410" }, { "page": "1200" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0408-01" ] }, { "cite": "576 A.2d 688", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7386166 ], "pin_cites": [ { "page": "694-97" } ], "opinion_index": 0, "case_paths": [ "/a2d/576/0688-01" ] }, { "cite": "232 Cal.Rptr. 171", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1986, "pin_cites": [ { "page": "172, 174", "parenthetical": "nonpossessory landlord with no immediate control over premises owed no duty to injured pedestrian" } ], "opinion_index": 0 }, { "cite": "187 Cal.App.3d 772", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2200883 ], "year": 1986, "pin_cites": [ { "parenthetical": "nonpossessory landlord with no immediate control over premises owed no duty to injured pedestrian" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/187/0772-01" ] }, { "cite": "21 Ariz.L.Rev. 727", "category": "journals:journal", "reporter": "Ariz. L. Rev.", "year": 1979, "opinion_index": 0 }, { "cite": "125 N.E.2d 544", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1955, "pin_cites": [ { "page": "546" }, { "page": "546" } ], "opinion_index": 0 }, { "cite": "5 Ill.App.2d 327", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5134090 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-app-2d/5/0327-01" ] }, { "cite": "249 Cal.Rptr. 688", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1988, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "202 Cal.App.3d 1448", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 6044841 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/cal-app-3d/202/1448-01" ] }, { "cite": "10 A.L.R.3d 619", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1966, "opinion_index": 0 }, { "cite": "418 N.W.2d 381", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "383" }, { "page": "383" } ], "opinion_index": 0 }, { "cite": "429 Mich. 495", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1993203 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/mich/429/0495-01" ] }, { "cite": "685 P.2d 1193", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "pin_cites": [ { "page": "1196" }, { "page": "1197" } ], "opinion_index": 0 }, { "cite": "205 Cal.Rptr. 842", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 2, "pin_cites": [ { "page": "845" }, { "page": "846" } ], "opinion_index": 0 }, { "cite": "36 Cal.3d 799", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 4467502 ], "opinion_index": 0, "case_paths": [ "/cal-3d/36/0799-01" ] }, { "cite": "439 F.2d 477", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 755185 ], "weight": 2, "pin_cites": [ { "page": "481" }, { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/f2d/439/0477-01" ] }, { "cite": "732 P.2d 455", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 11302310 ], "weight": 3, "pin_cites": [ { "page": "458" }, { "page": "457" }, { "page": "457" } ], "opinion_index": 0, "case_paths": [ "/p2d/732/0455-01" ] }, { "cite": "505 So.2d 661", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7582998 ], "weight": 2, "pin_cites": [ { "page": "664" }, { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/so2d/505/0661-01" ] }, { "cite": "90 N.M. 471", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871211 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "474", "parenthetical": "recognizing general rule that landlord out of possession and retaining no control or right of control over premises not liable for defects not caused by him" }, { "page": "345", "parenthetical": "recognizing general rule that landlord out of possession and retaining no control or right of control over premises not liable for defects not caused by him" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0471-01" ] }, { "cite": "110 N.M. 59", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716977 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "62" }, { "page": "39" }, { "page": "63" }, { "page": "40", "parenthetical": "landlord under no affirmative duty to inspect or maintain areas where control has been relinquished, but is responsible for maintaining in reasonably safe condition areas reserved for common use of tenants" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0059-01" ] }, { "cite": "113 N.M. 153", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723313 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "159" }, { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0153-01" ] }, { "cite": "759 P.2d 200", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1988, "opinion_index": 0 }, { "cite": "107 N.M. 413", "category": "reporters:state", "reporter": "N.M.", "year": 1988, "opinion_index": 0 }, { "cite": "107 N.M. 568", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597075 ], "weight": 2, "pin_cites": [ { "page": "572" }, { "page": "450" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0568-01" ] }, { "cite": "99 N.M. 497", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584626 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "499" }, { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0497-01" ] }, { "cite": "92 N.M. 192", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557173 ], "weight": 2, "pin_cites": [ { "page": "194" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nm/92/0192-01" ] }, { "cite": "111 N.M. 750", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715083 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "753" }, { "page": "1281" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0750-01" ] }, { "cite": "109 N.M. 374", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590264 ], "weight": 2, "pin_cites": [ { "page": "378" }, { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/nm/109/0374-01" ] } ], "analysis": { "cardinality": 1048, "char_count": 22095, "ocr_confidence": 0.747, "pagerank": { "raw": 1.5604719895119296e-07, "percentile": 0.676831931128031 }, "sha256": "699cb15a46edb831467868d278ddcf188e8bbf49810db82bea5c89e4b873cb0a", "simhash": "1:1fd87e87484594f2", "word_count": 3540 }, "last_updated": "2023-07-14T22:33:33.360967+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BIVINS and PICKARD, JJ\u201e concur." ], "parties": [ "Kenneth RUMMEL, Plaintiff-Appellant and Cross-Appellee, v. EDGEMONT REALTY PARTNERS, LTD., a Foreign Limited Partnership, Defendant-Appellee and Cross-Appellant." ], "opinions": [ { "text": "OPINION\nDONNELLY, Judge.\nPlaintiff, Kenneth Rummel, and Defendant, Edgemont Realty Partners, Ltd. (Edgemont), each appeal from separate orders entered by the trial court. Plaintiff appeals from the trial court\u2019s order granting a motion to dismiss in favor of Edgemont. Edgemont pursues a cross-appeal from the trial court\u2019s order awarding Plaintiff attorney\u2019s fees incurred in seeking and obtaining a default judgment that was later set aside and in opposing Edgemont\u2019s motion to set aside the default judgment. The central issue involved in Plaintiff\u2019s appeal is whether the allegations contained in his first amended complaint were sufficient to withstand Edgemont\u2019s motion to dismiss under SCRA 1986, 1-012(B)(6) (Repl.1992). The cross-appeal challenges the propriety of the trial court\u2019s order awarding Plaintiff attorney\u2019s fees for seeking the default judgment and then for defending against Edgemont\u2019s motion to vacate it. We affirm the order granting the motion to dismiss and the order awarding attorney\u2019s fees to Plaintiff.\nFACTS\nThe events giving rise to this action arose out of an incident at a Circle K convenience store in Albuquerque. On May 6, 1987, Plaintiff, a store employee, while working alone on the night shift, confronted three males who he suspected of shoplifting. The unknown individuals physically attacked and injured Plaintiff while he was attempting to summon the police. Plaintiff alleged that he suffered severe permanent injuries as a result of the attack.\nPlaintiff\u2019s initial complaint named only Circle K as a defendant and sought damages resulting from personal injuries alleged to have been sustained by him as a result of Circle K\u2019s negligent failure to provide adequate security for its store employees. After initiation of discovery proceedings, Plaintiff was granted leave to file a first amended complaint naming \u201cEdgemont Properties & Realty\u201d as an additional defendant. The first amended complaint alleged, among other things, that Edgemont Properties & Realty owned the land and building which housed the Circle K store wherein Plaintiff was employed; that Circle K leased the premises from Edgemont Properties & Realty; that Circle K and Edgemont Properties & Realty failed to provide a \u201csecurity guard [or] an adequate security system at the contract store to protect ... employees\u201d; that Circle K and Edgemont Properties & Realty knew or should have known that the store premises were unreasonably dangerous; and that they \u201chad a duty to provide adequate security devices or warnings on the premises to protect the individuals who worked there.\u201d\nPlaintiff\u2019s first amended complaint additionally alleged that Circle K and Edgemont Properties & Realty\u2019s acts and omissions which resulted in his injuries were due to the negligence of Defendants, or were carried out \u201cintentionally, or with reckless disregard of plaintiff\u2019s safety\u201d; that Defendants breached a duty to implement reasonable security measures; and that Plaintiff\u2019s injuries were reasonably foreseeable. The first amended complaint also contained a second claim, which alleged that the failure of Defendants to implement appropriate safety procedures led to the injuries sustained by Plaintiff and constituted outrageous conduct.\nShortly after Plaintiff filed his first amended complaint, Circle K filed for bankruptcy. Proceedings as to Circle K were then stayed. Edgemont, acting under the belief that Circle K was handling its defense, failed to answer the amended complaint. A default judgment was entered against it on October 15, 1990. Edgemont then moved to set aside the judgment, alleging that Circle K was contractually obligated to defend it and had failed to take appropriate action. It also alleged, among other things, that the real owner of the property in question was \u201cEdgemont Realty Partners, Ltd.,\u201d a limited partnership, and that Plaintiff had mistakenly sued the corporation, rather than the partnership. Edgemont filed a motion and second supplemental motion requesting the trial court to set aside the default judgment.\nThe trial court granted the motion to set aside the judgment, but awarded Plaintiff attorney\u2019s fees and costs incurred incident to securing the default judgment and opposing the motion to vacate the judgment. The order setting aside the default judgment also stated that the first amended complaint could \u201cbe amended by interlineation to insert Edgemont Realty Partners, Ltd. in place of Edgemont Properties & Realty, as the party defendant,\u201d and that the \u201camendment shall relate back to the date of filing the First Amended Complaint.\u201d\nFollowing the granting of its motion to set aside the default judgment, Edgemont moved to dismiss the amended complaint for failure to state a claim upon which relief could be granted pursuant to SCRA 1-012(B)(6). Edgemont argued that under its lease back arrangement it did not retain control of the premises where Plaintiff was assaulted and that it had no legal duty to protect Plaintiff from criminal attack by unknown third parties. The trial court granted the motion to dismiss. Plaintiff appeals from that ruling. The trial court\u2019s order of dismissal did not apply to Circle K. Edgemont filed a cross-appeal from the order awarding Plaintiff his attorney\u2019s fees and costs incurred incident to obtaining the default judgment and resisting Edgemont\u2019s motion to set it aside.\nDISMISSAL OF PLAINTIFF\u2019S COMPLAINT\nStandard of Review\nWe first consider the applicable standard of review of the trial court\u2019s granting of Edgemont\u2019s motion to dismiss Plaintiff\u2019s first amended complaint. Although the record reflects that Edgemont filed several affidavits incident to its motion to set aside the default judgment, we are satisfied from reviewing the order of dismissal and the matters presented at the hearing on the motion to dismiss that the trial court based its dismissal on the matters alleged in the first amended complaint, and not upon matters outside of the pleadings. See SCRA 1-012(B)(6); cf. DiMatteo v. County of Dona Ana, 109 N.M. 374, 378, 785 P.2d 285, 289 (Ct.App.1989) (where court in ruling upon motion to dismiss considers matters outside the pleadings, order is reviewed as an order granting summary judgment).\nA motion to dismiss pursuant to SCRA 1-012(B)(6) tests the legal sufficiency of the complaint. New Mexico Life Ins. Guar. Ass\u2019n v. Quinn & Co., 111 N.M. 750, 753, 809 P.2d 1278, 1281 (1991). In reviewing an order granting a motion to dismiss, we accept as true all facts properly pleaded. Id. A complaint is subject to dismissal under SCRA 1-012(B)(6) only if under no state of facts provable thereunder would a plaintiff be entitled to relief. Dismissal under the rule is a drastic remedy and is infrequently granted. McCasland v. Prather, 92 N.M. 192, 194, 585 P.2d 336, 338 (Ct.App.1978). Under this standard of review only the law applicable to such claim is tested, not the facts which support it. Environmental Improvement Div. v. Aguayo, 99 N.M. 497, 499, 660 P.2d 587, 589 (1983).\nSufficiency of the Complaint\nPlaintiff argues that the trial court erred in determining that its first amended complaint failed to allege viable negligence claims against Edgemont.\nIn resolving this issue, we examine the allegations contained in Plaintiff\u2019s first amended complaint in light of the standard discussed above. In order for Plaintiffs first amended complaint to withstand Edgemont\u2019s motion to dismiss, he is required to show the existence of a duty, Edgemont\u2019s negligent breach of its duty, and that Edgemont\u2019s negligence proximately resulted in injuries to Plaintiff. State Farm Mut. Auto. Ins. Co. v. Maidment, 107 N.M. 568, 572, 761 P.2d 446, 450 (Ct.App.), cert. denied, 107 N.M. 413, 759 P.2d 200 (1988). Determination of whether Edgemont owed a duty to Plaintiff is a question of law to be decided by the court. See Klopp v. Wackenhut Corp., 113 N.M. 153, 159, 824 P.2d 293, 299 (1992); Calkins v. Cox Estates, 110 N.M. 59, 62, 792 P.2d 36, 39 (1990).\nThe general issue we must address is whether Plaintiff has sufficiently alleged that Edgemont was in possession of the premises or that it retained control over the store building where the attack occurred. See Calkins, 110 N.M. at 63, 792 P.2d at 40 (landlord under no affirmative duty to inspect or maintain areas where control has been relinquished, but is responsible for maintaining in reasonably safe condition areas reserved for common use of tenants); see also Mitchell v. C & H Transp. Co., 90 N.M. 471, 474, 565 P.2d 342, 345 (1977) (recognizing general rule that landlord out of possession and retaining no control or right of control over premises not liable for defects not caused by him); Bovis v. 7Eleven, Inc., 505 So.2d 661, 664 (Fla.Dist.Ct.App.1987) (lessor\u2019s liability, if any, is not based on ownership but on right of possession or control); Lay v. Dworman, 732 P.2d 455, 458 (Okla.1986) (recognizing duty of landlord to use ordinary care to maintain in safe condition common portions of leased premises over which it has retained control). Thus, the narrow legal question presented here is whether a nonpossessory landowner owes a duty of care to protect an employee of Circle K from the criminal acts of a third party. In determining this question, we utilize the following definition of possession, as defined by Restatement (Second) of Torts Section 328 E, at 170 (1965) [hereinafter Restatement]:\nA possessor of land is:\n(a) a person who is in occupation of the land with intent to control it[,] or\n(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or\n(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).\nAs a general rule, absent a showing that a party has a special relationship with another, the party has no duty to protect the other from harm caused by. criminal acts of third persons. See Restatement, supra, \u00a7 315; see also Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477, 481 (D.C.Cir.1970); Peterson v. San Francisco Community College Dist., 36 Cal.3d 799, 205 Cal.Rptr. 842, 845, 685 P.2d 1193, 1196 (Cal.1984) (en banc); Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381, 383 (1988); Lay, 732 P.2d at 457; see generally E.L. Kellett, Annotation, Comment Note. \u2014 Private Person\u2019s Duty and Liability For Failure to Protect Another Against Criminal Attack by Third Person, 10 A.L.R.3d 619 (1966). Exceptions to the general rule have been recognized, however, where a special relationship is shown to exist, giving rise to a duty of a landowner in possession or a business occupant to protect against a third person\u2019s criminal conduct. See Restatement, supra, \u00a7 315; see also Peterson, 205 Cal.Rptr. at 846, 685 P.2d at 1197; Leger v. Stockton Unified Sch. Dist., 202 Cal.App.3d 1448, 249 Cal.Rptr. 688, 693 (1988); Fortney v. Hotel Rancroft, 5 Ill.App.2d 327, 125 N.E.2d 544, 546 (1955).\nWithin the ambit of commonly recognized special exceptions to the general rule noted above are cases recognizing a duty on the part of innkeepers to their guests, Fortney, 125 N.E.2d at 546, business establishments toward their customers, Williams, 418 N.W.2d at 383, and, under certain situations, landlords toward their tenants, Kline, 439 F.2d at 481; Lay, 732 P.2d at 457. See also Restatement, supra, \u00a7 314A; see generally Michael J. Bazyler, The Duty to Provide Adequate Protection: Landowners\u2019 Liability For Failure to Protect Patrons From Criminal Attack, 21 Ariz.L.Rev. 727 (1979); W. Page Keeton et al., Prosser and Keeton on the Law of Torts ch. 9, \u00a7 56, at 383 (5th ed. 1984); Joseph A. Page, The Law of Premises Liability \u00a7 11.3, at 293-95 (2d ed. 1988).\nCourts in other states that have considered analogous situations to that posed here have held that a lessor who has surrendered possession or has retained only the right to approve modifications made to the premises by a lessee is not liable to a lessee or its employees for acts of third parties. See Leakes v. Shamoun, 187 Cal.App.3d 772, 232 Cal.Rptr. 171, 172, 174 (1986) (nonpossessory landlord with no immediate control over premises owed no duty to injured pedestrian); Craig v. A.A.R. Realty Corp., 576 A.2d 688, 694-97 (Del.Super.Ct.1989) (no duty on part of lessor who has surrendered possession of premises to protect business invitee of lessee from criminal attack); see also NMSA 1978, \u00a7 47-8-20(A)(3) (Cum.Supp.1992); Torres v. Piggly Wiggly Shop Rite Foods, Inc., 93 N.M. 408, 410, 600 P.2d 1198, 1200 (Ct.App.) (landlord who has fully parted with possession of premises and retains no right of control is not chargeable with defects not caused by him), cert. denied, 93 N.M. 683, 604 P.2d 821 (1979). In this connection, none of the cases Plaintiff relies on has involved landowners who have so completely parted with possession and control. See, e.g., Jardel Co. v. Hughes, 523 A.2d 518 (Del.1987). Indeed, Jardel was expressly distinguished on this ground in Craig.\nPlaintiffs first amended complaint alleged that \u201c[t]he Circle K corporation was responsible for supervising and creating and enforcing policies and procedures for security, employment conditions and employee protection.\u201d The complaint also alleged that Edgemont \u201cowned the land and property housing the Circle K Contract Store\u201d; that \u201cCircle K, Inc. or Edgemont ... designed the layout, and phone placement in the store\u201d; and that the \u201ccontract store manager could make no changes in the fixtures or layout without the express approval of the defendants.\u201d The complaint, however, does not allege that Edgemont retained possession over any part of the premises, or that it refused a request of the lessee for permission to install additional telephones or security devices. Although the allegations set forth in the first amended complaint provide some indication of Edgemonfs retention of the right to authorize or approve changes in the store premises, absent an allegation that Edgemont rejected or refused to authorize the installation of reasonable security features on the premises, that Edgemont had possession of the premises where Plaintiff was assaulted, or that Edgemont retained control over all or a portion of the premises so as to give rise to the existence of a special relationship and duty on the part of Edgemont toward Plaintiff, we conclude that the trial court properly granted the motion to dismiss. The allegations set forth in the amended complaint do not sufficiently allege the type of possession or control that give rise to a duty on the part of Edgemont.\nPlaintiff contends that the case should not have been dismissed on the pleadings because Edgemont exercised control of the premises prior to leasing the store to Circle K. Plaintiffs theory appears to be that Edgemont, as owner, is liable for delivering dangerous premises to its lessee. See Bovis, 505 So.2d at 664. We disagree because the complaint contains no such allegation. Moreover, the documents submitted to the trial court in connection with the motion to set aside the default indicate that Edgemont never had possession of the premises and had merely purchased this Circle K store, along with some others, and immediately leased them back to Circle K; the transaction was in the nature of a financing arrangement. Thus, for the reasons discussed herein, we conclude that Plaintiff has failed to allege matters giving rise to a duty on the part of Edgemont toward Plaintiff.\nPlaintiff also sought to recover damages from Circle K and Edgemont, alleging that their acts and omissions in failing to provide adequate security on the store premises constituted outrageous conduct. In Hakkila v. Hakkila, 112 N.M. 172, 175, 812 P.2d 1320, 1323 (Ct.App.), cert. denied, 112 N.M. 77, 811 P.2d 575 (1991), this Court discussed the tort of outrageous conduct, or intentional infliction of emotional distress, as recognized in Ramirez v. Armstrong, 100 N.M. 538, 540, 673 P.2d 822, 824 (1983), and in Restatement, supra, Section 46. A party may be deemed to have committed such tort where he or she \u201cby extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another,\u201d and if bodily harm results therefrom. Restatement, supra, Section 46.\nIn order for Plaintiff to recover for outrageous conduct against Edgemont, he must show that the intentional or reckless acts or omissions of the partnership caused emotional distress to him by reason of Edgemont\u2019s \u201cextreme and outrageous conduct.\u201d Id. Restatement, supra, Section 46, Comment d is instructive as to the showing required to establish such tort. The comment provides in part:\nLiability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, \u201cOutrageous!\u201d\nSimilarly, in Sanders v. Lutz, 109 N.M. 193, 784 P.2d 12 (1989), our Supreme Court characterized the \u201cextreme and outrageous conduct\u201d required to prove such tort as including conduct which is \u201c \u2018beyond all possible bounds of decency, and [which is] regarded as atrocious, and utterly intolerable [in] a civilized community.' \u201d Id. at 196, 784 P.2d at 15 (quoting Mantz v. Follingstad, 84 N.M. 473, 480, 505 P.2d 68, 75 (Ct.App.1972)).\nAbsent any showing that a special relationship existed between Edgemont and Plaintiff giving rise to a legal duty by Edgemont to protect Plaintiff from the criminal acts of third parties, we conclude that the trial court properly determined that the amended complaint failed to properly assert a claim of \u201cextreme and outrageous conduct.\u201d\nAWARD OF COSTS AND ATTORNEY\u2019S FEES\nLastly, we address Edgemont\u2019s cross-appeal which argues that the trial court erred in granting Plaintiff\u2019s motion for attorney\u2019s fees and costs incurred by reason of his obtaining a default judgment and his resistance to Edgemont\u2019s motion to set it aside. We find Edgemont\u2019s challenge to the award of attorney\u2019s fees unpersuasive.\nSCRA 1986, 1-055(C) (Repl.1992) provides that \u201c[f]or good cause shown,\u201d a default judgment may be set aside pursuant to the provisions of SCRA 1986, 1-060(B) (Repl.1992). The latter rule states that a court may provide relief from a judgment \u201cupon such terms as are just.\u201d The decision of a trial court imposing conditions incident to granting relief under SCRA 1-060(B) will be set aside for an abuse of discretion where the decision is arbitrary or unreasonable. See Kutz v. Independent Publishing Co., 101 N.M. 587, 589-90, 686 P.2d 277, 279-80 (Ct.App.1984).\nIn Kutz, this Court recognized that the trial court is invested with \u201cbroad discretion\u201d in determining conditions to be imposed upon a party requesting that a judgment be vacated, and that such conditions may include a provision directing that the granting of such motion may be conditioned upon the moving party paying costs and attorney\u2019s fees. Id.; see also Chase v. Contractors\u2019 Equip. & Supply Co., 100 N.M. 39, 47, 665 P.2d 301, 309 (Ct.App.) (authorizing award of attorney\u2019s fees), cert. denied, 99 N.M. 740, 663 P.2d 1197 (1983); Graves v. P.J. Taggares Co., 94 Wash.2d 298, 616 P.2d 1223, 1228 (1980) (en banc) (as condition of vacating default judgment, court may require moving party to pay the plaintiff\u2019s added expenses and attorney\u2019s fees); see generally C.T. Drechsler, Annotation, Conditioning the Setting Aside of Judgment \u00f3r Grant of New Trial on Payment of Opposing Attorney\u2019s Fees, 21 A.L.R.2d 863 (1952).\nEdgemont contends that the trial court abused its discretion because Plaintiffs counsel did not contact Edgemont\u2019s counsel prior to seeking the default judgment. Essentially, Edgemont\u2019s complaint is that this Court would be encouraging sloppy practice and ambush tactics to allow the recovery of attorney\u2019s fees under the circumstances here. We disagree. Notice is required only when a party has appeared in the action. Rodriguez v. Conant, 105 N.M. 746, 748, 737 P.2d 527, 529 (1987). Edgemont did not appear, and therefore Plaintiff was entitled to the default judgment without contacting Edgemont\u2019s counsel. While the absence of contact could have been a reason for the trial court to have denied a request for attorney\u2019s fees in the exercise of its discretion, we cannot say that the trial court acted beyond the bounds of all reason in allowing attorney\u2019s fees as a condition of setting aside the default judgment that was properly granted. See In re Estate of Greig, 107 N.M. 227, 230, 755 P.2d 71, 74 (Ct.App.1988) (abuse of discretion is a decision that is beyond the bounds of all reason).\nPlaintiff requests attorney\u2019s fees and costs in connection with defending the cross-appeal. Inasmuch as Plaintiff\u2019s costs were incurred in connection with the appeal on which Plaintiff did not prevail, Plaintiff is not entitled to costs. See SCRA 1986, 12-403(A) (Repl.1992). An award of appellate attorney\u2019s fees must be authorized by law. Albner v. Nolle, 98 N.M. 100, 108, 645 P.2d 456, 464 (Ct.App.1982). Plaintiff has cited no authority allowing the award of appellate attorney\u2019s fees under the circumstances of this case, and therefore we deny the request.\nCONCLUSION\nWe affirm the decision of the trial court to grant the motion to dismiss and the order awarding attorney\u2019s fees and costs.\nIT IS SO ORDERED.\nBIVINS and PICKARD, JJ\u201e concur.", "type": "majority", "author": "DONNELLY, Judge." } ], "attorneys": [ "Randi McGinn, Albuquerque, for plaintiff-appellant, cross-appellee.", "Victor R. Marshall and Alexis H. Johnson, Victor R. Marshall & Associates, P.C., Albuquerque, for defendant-appellee, cross-appellant." ], "corrections": "", "head_matter": "859 P.2d 491\nKenneth RUMMEL, Plaintiff-Appellant and Cross-Appellee, v. EDGEMONT REALTY PARTNERS, LTD., a Foreign Limited Partnership, Defendant-Appellee and Cross-Appellant.\nNo. 13227.\nCourt of Appeals of New Mexico.\nJuly 9, 1993.\nCertiorari Denied Aug. 19, 1993.\nRandi McGinn, Albuquerque, for plaintiff-appellant, cross-appellee.\nVictor R. Marshall and Alexis H. Johnson, Victor R. Marshall & Associates, P.C., Albuquerque, for defendant-appellee, cross-appellant." }, "file_name": "0023-01", "first_page_order": 57, "last_page_order": 63 }