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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1393


Filed: 19 June 2007

BETTY G. MORGAN, Administrator
of the Estate of Jettie Stratton,


v .                             Cabarrus County
                                No. 04 CVS 2040



NO. 1, INC., d/b/a SYMPHONY

        Third-Party Defendant.

    Appeal by third-party defendant Symphony Diagnostic Services No. 1, Inc., d/b/a Symphony Mobilex from an order entered 24 May 2006 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 9 May 2007.

    Jones, Hewson & Woolard, by Lawrence J. Goldman, for Big Elm Retirement Center, Inc., third-party plaintiff-appellee.

    Carruthers & Bailey, P.A., by Joseph T. Carruthers, for Symphony Diagnostic Services No. 1, Inc. d/b/a Symphony Mobilex, third-party defendant-appellant.

    JACKSON, Judge.

    Jettie Stratton (“Stratton”) was a patient at Big Elm Retirement Center (“Big Elm”) in 2002. On or about 12 August 2002,Stratton was injured when she was lowered unexpectedly to the floor during a transfer from her wheelchair to her bed. She immediately experienced great pain, and the incident was reported to her daughter, Betty Morgan. On 18 August 2002, a physician working for Big Elm ordered x-rays to be done of Stratton's left elbow and her “bilateral lower extremities.” Symphony Diagnostic Services No. 1, Inc., d/b/a Symphony Mobliex (“Symphony”) had a contract with Big Elm to provide portable x-ray and other diagnostic medical tests. Symphony subsequently performed x-rays on Stratton, however Symphony performed bilateral x-rays only of Stratton's lower extremities below her knees. The x-rays found no broken bones. Stratton continued to suffer from extreme pain, and ultimately she was admitted into a nearby hospital. Upon receiving treatment at the hospital, Stratton was diagnosed as suffering from a fractured femur, which had not been diagnosed by Symphony. As a result of the missed diagnosis of a fractured femur, Stratton experienced great pain and mental suffering.
    On 21 July 2004, Betty Morgan (“plaintiff”), as administrator of the estate of Stratton, filed a complaint against Big Elm alleging claims for injuries sustained by Stratton while she was in the care of Big Elm. Big Elm served its Answer and a Motion to Dismiss upon plaintiff on 27 September 2004 via United States mail, and the same was filed with the trial court on 28 September 2004. On 15 November 2004, Big Elm filed a third-party complaint against Symphony alleging claims for breach of contract and negligence, arising out of the facts and circumstances alleged in Morgan'scomplaint. Symphony was served with the third-party complaint through the North Carolina Department of the Secretary of State (“Secretary of State”) on 19 January 2005, and the Secretary of State served the complaint directly on Symphony via certified mail on 28 January 2005. Symphony failed to file any response to Big Elm's complaint. Big Elm, as the third-party plaintiff, filed a Motion for Entry of Default and Default Judgment against third- party defendant Symphony on 9 August 2005. Default was entered against Symphony on 9 August 2005, and a default judgment in the amount of $200,000.00 plus interest was entered on 12 December 2005.
    On 3 April 2006, Symphony filed a motion to set aside the entry of default and default judgment, pursuant to Rule 60(b)(1) and (6). At a hearing on the motion, held 11 May 2006, Symphony orally moved to set aside the default judgment under Rule 60(b)(4). In an order filed 24 May 2006, the trial court found that Big Elm's third-party complaint was not void and denied Symphony's motions. Symphony appeals from the order denying its motion to set aside entry of default and default judgment.
    On appeal, Symphony only presents arguments regarding the trial court's denial of its motion to set aside pursuant to Rule 60(b)(4). Thus, this Court will address the denial of the motion pursuant to Rule 60(b)(4) only, and will not address the denial of Symphony's Rule 60(b)(1) and (6) motions. N.C. R. App. P. 28(b)(6) (2006) (“Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authoritycited, will be taken as abandoned.”). Symphony's arguments on appeal are that the trial court should have granted its Rule 60(b)(4) motion because: (1) the third-party complaint was void due to having been filed beyond the statutory required time frame; (2) the third-party complaint was void and invalid due to Big Elm's failure to obtain leave of court before filing; and (3) the trial court lacked personal jurisdiction over Symphony because the third- party complaint was void.
    Rule 60(b)(4) of our Rules of Civil Procedure provides that “[o]n motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding” when “[t]he judgment is void.” N.C. Gen. Stat. § 1A-1, Rule 60(b)(4) (2005). “A judgment will not be deemed void merely for an error in law, fact, or procedure. A judgment is void only when the issuing court has no jurisdiction over the parties or subject matter in question or has no authority to render the judgment entered.” Burton v. Blanton, 107 N.C. App. 615, 616, 421 S.E.2d 381, 382 (1992) (citing In re Brown, 23 N.C. App. 109, 110, 208 S.E.2d 282, 283 (1974)). A judgment that is proper on its face is not void. Id. at 616, 421 S.E.2d at 383 (citing Drummond v. Cordell, 73 N.C. App. 438, 326 S.E.2d 292 (1985), aff'd, 315 N.C. 385, 337 S.E.2d 850 (1986)). In the instant case, Symphony, as the third-party defendant, had the burden of showing that the judgment was void. Belanger v. Warren, __ N.C. App. __, __, 643 S.E.2d 84, __ (2007) (citation omitted).    It is well-settled that the standard of review for the denial of a Rule 60(b) motion is that of an abuse of discretion. Davis v. Davis, 360 N.C. 518, 523, 631 S.E.2d 114, 118 (2006) (citing Sink v. Easter, 288 N.C. 183, 198, 217 S.E.2d 532, 541 (1975)). “[A] trial judge's extensive power to afford relief [under Rule 60(b)] is accompanied by a corresponding discretion to deny it, and the only question for our determination . . . is whether the court abused its discretion in denying defendant's motion.” Sawyer v. Goodman, 63 N.C. App. 191, 193, 303 S.E.2d 632, 633-34 (1983). “A judge is subject to reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason.” Clark v. Clark, 301 N.C. 123, 129, 271 S.E.2d 58, 63 (1980) (citation omitted).
    “Findings of fact made by the trial court upon a motion to set aside a judgment by default are binding on appeal if supported by any competent evidence.” Kirby v. Asheville Contracting Co., 11 N.C. App. 128, 132, 180 S.E.2d 407, 410 (1971). Findings of fact not assigned as error are deemed to be supported by sufficient evidence, and are binding on appeal. N.C. R. App. P. 28(b)(6) (2006). We review conclusions of law made by the trial court de novo on appeal. Starco, Inc. v. AMG Bonding and Ins. Servs., 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996).
    We note that Symphony has failed to provide this Court with either a transcript or narrative of the hearing below. “'It is the appellant's duty and responsibility to see that the record is in proper form and complete.'” McKyer v. McKyer, __ N.C. App. __, __,642 S.E.2d 527, 532 (2007) (quoting State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644-45 (1983)). “'An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court.'” Id. (quoting State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968)). When an appellant “fail[s] to include a narration of the evidence or a transcript with the record, we presume the findings at bar are supported by competent evidence.” Davis v. Durham Mental Health, 165 N.C. App. 100, 112, 598 S.E.2d 237, 245 (2004). Symphony's motion to set aside the entry of default and default judgment contains no argument that the third-party complaint was void due to its filing which does not comport with the statutory requirements. Symphony apparently made this argument orally before the trial court, at the hearing for which we have no transcript or narrative. Thus, due to Symphony's failure to include in the record on appeal a transcript of the arguments before the trial court, all findings of fact are presumed to be supported by competent evidence. Id.
    Symphony contends the trial court erred in denying its motion to set aside the entry of default and default judgment, pursuant to Rule 60(b)(4) of our Rules of Civil Procedure. Symphony argues the orders were void, in that they were based upon Big Elm's third- party complaint, which Symphony contends was filed outside of the time period required by Rule 14 of our Rules of Civil Procedure.
    Rule 14 of our Rules of Civil Procedure provides the circumstances upon which a defendant may bring in a third-party:        At any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him. Leave to make the service need not be obtained if the third- party complaint is filed not later than 45 days after the answer to the complaint is served. Otherwise, leave must be obtained by motion upon notice to all parties to the action.
N.C. Gen. Stat. § 1A-1, Rule 14(a) (2005). As noted in Clark v. Visiting Health Prof'ls, Inc., 136 N.C. App. 505, 507, 524 S.E.2d 605, 606 (2000),
        The purpose of Rule 14 is to promote judicial efficiency by “providing a mechanism for disposing of multiple claims arising from a single set of facts in one action expeditiously and economically.” Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1442, at 291 (1990). The rationale for giving the trial court discretion to allow filing of the third-party claim after forty-five days is to ensure that the claim does not lead to “delay, confusion of the issues or complication of the trial with new issues.” 1 G. Gray Wilson, North Carolina Civil Procedure § 14-4, at 280 (2d ed. 1995) (citing O'Mara Enter. v. Mellon Bank, 101 F.R.D. 668 (W.D. Pa. 1983)).
    In the instant case, Big Elm served its answer on plaintiff on 27 September 2004, which started the 45-day time clock as provided for by Rule 14(a). Thus, Big Elm had through 12 November 2004 to file its third-party complaint without seeking leave of court. Big Elm served its third-party complaint on plaintiff by mail on 12 November 2004, and filed it with the trial court on 15 November 2004. A third-party alias and pluries summons was issued on 4 January 2005, and Symphony was served through the Secretary ofState on 19 January 2005. Symphony contends that because the third-party complaint was not filed within the required 45 days pursuant to Rule 14(a), leave of court was required for Big Elm to file the complaint, and as Big Elm did not obtain leave of court prior to filing, the complaint is therefore void and invalid.
    In its brief, Symphony contends that finding of fact 12, which states “[t]he third party complaint is not void[,]” is in error and should be reversed. Although the trial court labels this as a finding of fact, it is wholly a conclusion of law. However, as Symphony has not assigned error to any of the trial court's findings of fact or conclusions of law, and has not submitted a transcript or narrative of the hearing to this Court, Symphony's argument may not prevail. Findings that are not assigned as error are deemed binding on appeal, and while the findings in the instant case are binding on us as they have not specifically been assigned as error, N.C. R. App. P. 28(b)(6), we hold this conclusion of law, although couched as a finding of fact, is supported by the evidence and the trial court's other findings.
    Rule 14(a) contains no provision stating that a third-party complaint is void or invalid when filed after 45 days and without leave of court, and Symphony fails to cite to any authority applying Rule 14(a) in this manner. Instead, Symphony argues that cases involving untimely service upon a party are analogous. We do not find the two issues to be analogous. In this case, Big Elm filed its third-party complaint three days after the required forty-five day time frame. Symphony presents no argument that itwas in any way prejudiced by this late filing, nor does it argue that the complaint is in any other way ineffective. Symphony was properly served with the complaint, and does not deny that it had notice of Big Elm's action against it. In fact, Symphony had almost eight months in which it could have responded to the complaint and raised these arguments, yet it failed to do so. Symphony failed to respond to the third-party complaint, and in its first filing with the trial court, it made no argument that the complaint was in any way invalid or void.
    Based upon the record before us, and the trial court's findings of facts, which are deemed binding upon us, we hold the trial court did not err in holding that the third-party complaint was not void, and in entering default and default judgment against Symphony. Symphony makes no argument that the third-party complaint delayed justice, caused confusion, or in any way was unrelated to the matter already before the trial court. Instead, the third-party complaint clearly arose out of the same set of facts alleged in plaintiff's complaint, thus judicial economy was best served by allowing the multiple claims to be addressed in one action. See Clark, 136 N.C. App. at 507, 524 S.E.2d at 606. Therefore, Symphony has failed to show that the trial court abused its discretion in denying its Rule 60(b)(4) motion.
    Finally, Symphony argues that the trial court lacked personal jurisdiction over it because the third-party complaint was void due to its late filing. As we already have held that the trial court's holding that the complaint was valid is correct, we must disagreewith Symphony's argument. Symphony was properly served with a valid third-party complaint, and by all accounts it had actual notice of Big Elm's action against it. Symphony's argument that the trial court lacked personal jurisdiction over it is based solely upon the alleged void complaint, and it makes no other arguments regarding a lack of personal jurisdiction. Thus, Symphony's final assignment is also overruled.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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