Rummel v. Edgemont Realty Partners, Ltd.

Decision Date09 July 1993
Docket NumberNo. 13227,13227
Citation859 P.2d 491,116 N.M. 23,1993 NMCA 85
PartiesKenneth RUMMEL, Plaintiff-Appellant and Cross-Appellee, v. EDGEMONT REALTY PARTNERS, LTD., a Foreign Limited Partnership, Defendant-Appellee and Cross-Appellant.
CourtCourt of Appeals of New Mexico


Plaintiff, 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's order granting a motion to dismiss in favor of Edgemont. Edgemont pursues a cross-appeal from the trial court's order awarding Plaintiff attorney's fees incurred in seeking and obtaining a default judgment that was later set aside and in opposing Edgemont's motion to set aside the default judgment. The central issue involved in Plaintiff's appeal is whether the allegations contained in his first amended complaint were sufficient to withstand Edgemont's motion to dismiss under SCRA 1986, 1-012(B)(6) (Repl.1992). The cross-appeal challenges the propriety of the trial court's order awarding Plaintiff attorney's fees for seeking the default judgment and then for defending against Edgemont's motion to vacate it. We affirm the order granting the motion to dismiss and the order awarding attorney's fees to Plaintiff.


The 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.

Plaintiff's 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's 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 "Edgemont Properties & Realty" 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 "security guard [or] an adequate security system at the contract store to protect ... employees"; that Circle K and Edgemont Properties & Realty knew or should have known that the store premises were unreasonably dangerous; and that they "had a duty to provide adequate security devices or warnings on the premises to protect the individuals who worked there."

Plaintiff's first amended complaint additionally alleged that Circle K and Edgemont Properties & Realty's acts and omissions which resulted in his injuries were due to the negligence of Defendants, or were carried out "intentionally, or with reckless disregard of plaintiff's safety"; that Defendants breached a duty to implement reasonable security measures; and that Plaintiff's 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.

Shortly 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 "Edgemont Realty Partners, Ltd.," 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.

The trial court granted the motion to set aside the judgment, but awarded Plaintiff attorney's 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 "be amended by interlineation to insert Edgemont Realty Partners, Ltd. in place of Edgemont Properties & Realty, as the party defendant," and that the "amendment shall relate back to the date of filing the First Amended Complaint."

Following 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's order of dismissal did not apply to Circle K. Edgemont filed a cross-appeal from the order awarding Plaintiff his attorney's fees and costs incurred incident to obtaining the default judgment and resisting Edgemont's motion to set it aside.

Standard of Review

We first consider the applicable standard of review of the trial court's granting of Edgemont's motion to dismiss Plaintiff's 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).

A motion to dismiss pursuant to SCRA 1-012(B)(6) tests the legal sufficiency of the complaint. New Mexico Life Ins. Guar. Ass'n 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).

Sufficiency of the Complaint

Plaintiff argues that the trial court erred in determining that its first amended complaint failed to allege viable negligence claims against Edgemont.

In resolving this issue, we examine the allegations contained in Plaintiff's first amended complaint in light of the standard discussed above. In order for Plaintiff's first amended complaint to withstand Edgemont's motion to dismiss, he is required to show the existence of a duty, Edgemont's negligent breach of its duty, and that Edgemont's 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).

The 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. 7-Eleven, Inc., 505 So.2d 661, 664 (Fla.Dist.Ct.App.1987) (lessor's 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]:

A possessor of land is:

(a) a person who is in occupation of...

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