Appeal by defendant from order entered 9 August 2004 by Judge
Mark E. Klass in Iredell County Superior Court. Heard in the Court
of Appeals 8 June 2005.
The Law Office of James P. Laurie III, PLLC, by James P.
Laurie III, for plaintiff-appellee.
Eisele, Ashburn, Greene & Chapman, PA, by Douglas G. Eisele,
B.H. Bryan Building Company, Inc. ("Bryan Building") appeals
an order of the trial court enforcing a foreign judgment from the
State of New York in favor of Quantum Corporate Funding, Ltd.
("Quantum"). Bryan Building argues on appeal that the trial court
erred by (1) refusing to set aside the foreign judgment due to a
lack of personal jurisdiction and (2) denying its motion to dismissbased on Quantum's failure to obtain a certificate of authority to
do business in this State. We hold that the trial court properly
denied the motion to dismiss, but because we are unable to
determine, given the record in this case, whether the trial court
properly concluded that the New York judgment should be given full
faith and credit, we remand for findings of fact and conclusions of
Defendant Bryan Building was the general contractor on a
project at the Mitchell Community College in Mooresville, North
Carolina. As part of the project, defendant hired Cypress
Alliance, Inc. ("Cypress") as a subcontractor. Cypress
subsequently assigned its rights to payment from Bryan Building to
On 22 May 2003 and again on 4 June 2003, Quantum sent letters
(called "estoppel certificates" by the parties) to Bryan Building,
stating that Quantum was the assignee of payment for Cypress,
setting out the amount that Cypress contended was due, and asking
that Bryan Building acknowledge "that the above invoice Amount(s)
are correct and owing; that the work and or merchandise has been
ordered from and completed by the captioned Client, and accepted by
us; [and] that there are not now, nor will there be, any claims[,]
setoffs, or defenses beyond 20% of the Invoice Amount(s) . . . ."
The letters also specified that "New York law, jurisdiction and
venue shall apply hereto." On the 22 May 2003 letter, Bryan
Building's president struck out the amount stated as due($9,536.90) and wrote in $2,762.40 before signing the letter below
the words "Agreed & Accepted." Likewise, on the 4 June 2003
letter, he struck out the $12,001.08 amount indicated as due and
substituted $9,000.00 before signing the letter.
On 28 August 2003, Quantum filed suit against Bryan Building
in the Civil Court of New York seeking recovery from Bryan Building
in the amount of $11,762.40. Quantum served Bryan Building by
serving New York's Secretary of State on 23 September 2003. On 6
January 2004, the Civil Court of New York entered a default
judgment in favor of Quantum for $12,360.34 _ the amount claimed by
Quantum plus interest and court fees.
On 17 March 2004, Quantum sought to enforce the judgment in
this State, pursuant to N.C. Gen. Stat. § 1C-1703 (2003), by filing
a properly authenticated copy of the judgment. Bryan Building
filed a verified Notice of Defenses to Enforcement of Foreign
Judgment on 23 April 2004; a Motion to Set Aside Judgment and
Execution on 22 June 2004; and a motion to dismiss on 9 July 2004,
arguing that Quantum was not licensed to transact business in this
State and, therefore, was not entitled to bring a civil action in
the courts of this State. In response, Quantum filed a motion to
enforce the foreign judgment on 9 July 2004.
After a hearing, the trial court entered an order on 9 August
2004, denying Bryan Building's motion to set aside the judgment and
motion to dismiss and granting Quantum's motion to enforce the
judgment. The court directed that Quantum could proceed with
enforcement and execution of the foreign judgment in the amount of$12,360.34. Bryan Building filed a notice of appeal from the trial
court's order on 7 September 2004.
 We first address Bryan Building's contention that the
trial court erred in denying its motion to dismiss. The parties do
not dispute that Quantum did not obtain a license to transact
business in this State under N.C. Gen. Stat. § 55-15-02 (2003)
prior to filing this action. Bryan Building argues that Quantum's
failure to do so precluded it from maintaining this action and that
the trial court was, therefore, required to grant Bryan Building's
motion to dismiss.
N.C. Gen. Stat. § 55-15-02(a) provides:
No foreign corporation transacting business in
this State without permission obtained through
a certificate of authority under this Chapter
or through domestication under prior acts
shall be permitted to maintain any action or
proceeding in any court of this State unless
the foreign corporation has obtained a
certificate of authority prior to trial.
Thus, this section "closes the courts of the state to suits
maintained by corporations which should have but which have not
obtained a certificate of authority." Id.
Bryan Building does not argue that Quantum conducted business
in this state other than by filing suit to enforce its foreign
judgment. This appeal, therefore, presents the question whether
filing a lawsuit, without more, brings a foreign corporation within
the scope of N.C. Gen. Stat. § 55-15-02(a). Section 55-15-02(a)'scertificate of authority requirement applies only to a "foreign
corporation transacting business in this State
." (Emphasis added.)
This Court held in Harold Lang Jewelers, Inc. v. Johnson
, 156 N.C.
App. 187, 189-90, 576 S.E.2d 360, 361-62, disc. review denied
N.C. 458, 585 S.E.2d 765 (2003) that we must look to N.C. Gen.
Stat. § 55-15-01(b) (2003) in deciding whether a foreign
corporation is transacting business within the meaning of § 55-15-
N.C. Gen. Stat. § 55-15-01(b) lists a number of activities
that "shall not be considered to be transacting business in this
State solely for the purposes of this Chapter." One such activity
]aintaining or defending any action or suit
administrative or arbitration proceeding, or effecting the
settlement thereof or the settlement of claims or disputes . . . ."
N.C. Gen. Stat. § 55-15-01(b)(1) (emphasis added). Thus, when we
read §§ 55-15-01(b)(1) and 55-15-02 together, as we must, it leads
to the conclusion that a foreign corporation need not obtain a
certificate of authority in order to maintain an action or lawsuit
so long as the company is not otherwise transacting business in
this State. The courts of this State are open to a foreign
corporation, without a certificate of authority, whose sole action
in this State is the filing of a lawsuit. See
N.C. Gen. Stat. §
55-15-01 official commentary ("[A] corporation is not 'transacting
business' solely because it resorts to the courts of the state to
recover an indebtedness, enforce an obligation, . . . or pursue
appellate remedies."). Bryan Building relies upon Kyle & Assocs., Inc. v. Mahan
N.C. App. 341, 587 S.E.2d 914 (2003), aff'd per curiam
, 359 N.C.
176, 605 S.E.2d 142 (2004) and Leasecomm Corp. v. Renaissance Auto
, 122 N.C. App. 119, 468 S.E.2d 562 (1996). Neither
case, however, addressed the precise issue presented by this case.
, the foreign corporation had obtained a certificate of
authority prior to enforcement of its foreign judgment in North
Carolina, but had not obtained the certificate prior to obtaining
that judgment in South Carolina. 161 N.C. App. at 343, 587 S.E.2d
at 915. Because this Court only held that the plaintiff was not
required to obtain a certificate of authority prior to trial in the
foreign jurisdiction, this Court was not required to address
whether a company not otherwise transacting business in North
Carolina was required to obtain a certificate of authority prior to
seeking enforcement of a foreign judgment. Similarly, in
, this Court was not required to address the issue posed
by this case since there was no dispute that the foreign
corporation in Leasecomm
was conducting business apart from filing
suit to enforce a foreign judgment. 122 N.C. App. at 120-21, 468
S.E.2d at 563-64.
Because the cases did not present the issue, neither opinion
was required to consider N.C. Gen. Stat. § 55-15-01(b)(1) and
neither did so. To the extent that either case suggests that a
foreign corporation not otherwise transacting business in North
Carolina must obtain a certificate of authority prior to suing toenforce a foreign judgment, that language constitutes dicta
Accordingly, we hold that Quantum's action of enforcing its
foreign judgment was not "transacting business" in North Carolina
within the meaning of N.C. Gen. Stat. § 55-15-02. Because Bryan
Building has not offered any evidence of Quantum's engaging in any
other business activity in this State, the trial court did not err
in denying Bryan Building's motion to dismiss.
 We cannot, however, so readily decide Bryan Building's
contention that the trial court erred in denying its motion to set
aside the judgment and in granting Quantum's motion to enforce the
judgment. The Uniform Enforcement of Foreign Judgments Act
provides that a judgment from another state, filed in accordance
with the Act, "has the same effect and is subject to the same
defenses as a judgment of this State and shall be enforced or
satisfied in like manner." N.C. Gen. Stat. § 1C-1703(c). Once the
foreign judgment has been filed and the judgment debtor has notice
of the filing, then the judgment debtor has 30 days to file a
motion for relief or notice of defenses. N.C. Gen. Stat. § 1C-
1705(a) (2003). If the judgment debtor contests the foreign
judgment, as Bryan Building did, then the judgment creditor may
move for enforcement of the judgment, and the trial court should
hold a hearing to determine if the judgment is "entitled to full
faith and credit." HCA Health Servs. of Tex., Inc. v. Reddix
N.C. App. 659, 663, 566 S.E.2d 754, 756 (2002). The judgment creditor initially has the burden of proving that
the judgment is entitled to full faith and credit, but "'[t]he
introduction into evidence of a copy of the foreign judgment,
authenticated pursuant to Rule 44 of the Rules of Civil Procedure,
establishes a presumption that the judgment is entitled to full
faith and credit.'" Id.
(quoting Lust v. Fountain of Life, Inc.
110 N.C. App. 298, 301, 429 S.E.2d 435, 437 (1993)). The judgment
debtor may rebut this presumption by establishing any of the
available defenses set forth in the North Carolina Foreign Money
Judgments Recognition Act, N.C. Gen. Stat. §§ 1C-1800 to 1808
In this case, Quantum met its burden by filing the properly
authenticated judgment. In order to rebut the presumption that the
judgment was entitled to full faith and credit, Bryan Building
relied upon the defense that New York lacked personal jurisdiction
over it. See
N.C. Gen. Stat. § 1C-1804(a)(2) ("A foreign judgment
is not conclusive if . . . [t]he foreign court did not have
personal jurisdiction over the defendant . . . ."). A foreign
judgment is not denied enforcement for a lack of personal
jurisdiction if "defendant, prior to the commencement of the
proceedings, had agreed to submit to the jurisdiction of the
foreign court with respect to the subject matter involved . . . ."
N.C. Gen. Stat. § 1C-1805(a)(3).
In support of its argument that personal jurisdiction existed
in New York, Quantum points to the estoppel certificates, arguing
that (1) the certificates establish that Bryan Building consentedto jurisdiction in New York within the meaning of N.C. Gen. Stat.
§ 1C-1805(a)(3), and (2) Bryan Building's forwarding of a
counteroffer to a business in New York established sufficient
minimum contacts within the state of New York to establish personal
jurisdiction. Quantum does not assert any additional basis for
jurisdiction apart from the estoppel certificates.
As an initial matter, we address Bryan Building's challenge to
the trial court's order settling the record on appeal and requiring
that the estoppel certificates be included in the record on appeal.
"A trial court's order settling the record on appeal is final and
will not be reviewed on appeal. Review of an order settling the
record on appeal is available, if at all, only by way of
." Penland v. Harris
, 135 N.C. App. 359, 363, 520 S.E.2d
105, 108 (1999) (internal citation omitted). Because Bryan
Building has not filed a petition for writ of certiorari, we do not
consider defendant's assignment of error regarding the record on
We note, however, that there is no dispute that the
estoppel certificates were submitted to the trial judge in support
of Quantum's motion and in opposition to Bryan Building's motions.
Turning to the merits, we must first point out that the trial
court did not make any findings of fact or conclusions of law in
deciding the parties' motions. Rule 52(a)(2) of the Rules of Civil
Procedure provides "[f]indings of fact and conclusions of law are
necessary on decisions of any motion or order ex mero motu only
when requested by a party and as provided by Rule 41(b)." When, as
here, Rule 41(b) does not apply and no request for findings of factwas made, this Court presumes that the trial judge made those
findings of fact necessary to support its judgment. Corbin
Russwin, Inc. v. Alexander's Hardware, Inc.
, 147 N.C. App. 722,
723, 556 S.E.2d 592, 595 (2001). On appeal, this Court "then
determines whether there is competent evidence to support the
presumed findings of fact." Id.
Bryan Building first argues that the record contains no
evidence to support a finding of personal jurisdiction. We agree
with Quantum that the trial court's order would be supported by a
presumed finding that Quantum and Bryan Building entered into a
contract, in the form of the estoppel certificates, which included
a term providing for jurisdiction in New York. The question on
appeal is whether such a presumed finding is supported by competent
Quantum recognizes that Bryan Building's alteration of those
certificates constituted a counteroffer and then states with no
citation to the record: "Upon receipt of the signed Estoppel
Certificates sent by Bryan to Quantum in New York, Quantum accepted
Bryan's counter offers." We have found no evidence in the record
supporting Quantum's assertion that it accepted the counteroffers.
In the absence of acceptance of the counteroffers, there is no
contract. See Normile v. Miller
, 313 N.C. 98, 108, 326 S.E.2d 11,
18 (1985) (holding that a counteroffer requires the original
offeror to either accept or reject the new offer in order to have
a binding contract); see also Metro. Steel Indus., Inc. v. Citnalta
, 302 A.D.2d 233, 233, 754 N.Y.S.2d 278, 279 (App.Div. 1st Dep't 2003) (holding that no contract existed where one
party made an offer, and the other party returned it with changes,
and the original offeror never formally accepted the counteroffer).
Quantum, however, argues that Bryan Building did in fact agree
to jurisdiction in New York because when it altered the amount owed
to Quantum, it did not alter the clause dealing with jurisdiction,
thus in effect agreeing to this provision. This argument is
misplaced. In order for a contract to arise, "the parties must
assent to the same thing in the same sense, and their minds must
meet as to all the terms. If any portion of the proposed terms is
not settled, or no mode agreed on by which they may be settled,
there is no agreement." Gregory v. Perdue, Inc.
, 47 N.C. App. 655,
657, 267 S.E.2d 584, 586 (1980). Phrased differently, "in order
that there may be a valid and enforceable contract between parties,
there must be a meeting of the minds of the contracting parties
upon all essential terms and conditions of the contract." O'Grady
v. First Union Nat'l Bank
, 296 N.C. 212, 221, 250 S.E.2d 587, 594
(1978). A party cannot seek to enforce one essential term when it
has not agreed to other essential terms. See Boyce v. McMahan
N.C. 730, 734, 208 S.E.2d 692, 695 (1974) ("If any portion of the
proposed terms is not settled, or no mode agreed on by which they
may be settled, there is no agreement."). Thus, there must have
been acceptance of Bryan Building's counteroffer for an agreement
regarding jurisdiction to exist.
Alternatively, however, Quantum claims that personal
jurisdiction existed in New York simply because Bryan Building senta counteroffer to Quantum in the State of New York, thus availing
itself of the privilege of transacting business in that state.
Quantum cites only Hanson v. Denckla
, 357 U.S. 235, 253, 2 L. Ed.
2d 1283, 1298, 78 S. Ct. 1228, 1240 (1958) (holding that personal
jurisdiction over a party exists when that party does some "act by
which the defendant purposefully avails itself of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws"). It cites no authority _
nor have we found any _ suggesting that a counteroffer mailed to
another state, without any other activity in that state, is
sufficient to support a finding of minimum contacts. The trial
court's order enforcing the foreign judgment thus must depend on a
finding that the estoppel certificates constituted a contract
between the parties.
We are left with the following conundrum. On the one hand,
Bryan Building argues generally that the record contains no
evidence to support a finding of personal jurisdiction in New York.
Because we can find no evidence in the record before us that
Quantum accepted Bryan Building's counteroffer, we have to agree
with this general proposition. On the other hand, Bryan Building
has not made any specific argument regarding whether its
counteroffer was accepted. If we simply reverse the trial court
without requiring further proceedings, we risk creating an appeal
for Bryan Building on an issue that may not have been in dispute
below. See Viar v. N.C. Dep't of Transp.
, 359 N.C. 400, 402, 610
S.E.2d 360, 361 (2005) (per curiam) ("It is not the role of theappellate courts, however, to create an appeal for an appellant" in
part because "an appellee [may be] left without notice of the basis
upon which an appellate court might rule."). We have no transcript
of the hearing or findings of fact to indicate what may or may not
have been argued or conceded.
We note that in connection with its challenge to the order
settling the record on appeal, Bryan Building argued that the
estoppel certificates should have been excluded as unenforceable
under N.C. Gen. Stat. § 22B-3 (2003), which provides:
Except as otherwise provided in this
section, any provision in a contract entered
into in North Carolina that requires the
prosecution of any action or the arbitration
of any dispute that arises from the contract
to be instituted or heard in another state is
against public policy and is void and
unenforceable. This prohibition shall not
apply to non-consumer loan transactions or to
any action or arbitration of a dispute that is
commenced in another state pursuant to a forum
selection provision with the consent of all
parties to the contract at the time that the
This argument presumes not only that there was a contract, but that
it was entered into in North Carolina. Given the state of the
record, any finding of fact one way or another regarding where the
contract was entered into is not supported by evidence.
If we reverse the order for lack of evidence to support a
presumed finding, Bryan Building unfairly prevails based on an
argument that it did not specifically make, but if we uphold the
order, Quantum prevails despite an apparent lack of evidence to
support the order and despite Bryan Building's general objection
regarding the sufficiency of the evidence. Further, we have nobasis for determining what factual or legal theory the trial court
may have embraced in finding personal jurisdiction. It may have
concluded that a counteroffer, standing alone, is sufficient _ a
theory that we have rejected.
Under the circumstances of this case and given the arguments
and record on appeal (including the lack of any transcript from the
hearing), "we must vacate the order and remand for further
proceedings, including an evidentiary hearing if necessary, and a
new order with appropriate findings of fact and conclusions of
law." HCA Health Servs., 151 N.C. App. at 667, 566 S.E.2d at 758 .
We recognize that in HCA, the parties requested findings of fact,
but because, in this case, the device of "presumed findings" is not
sufficient to permit a fair review of the court's order, we find
ourselves in an identical situation to that of HCA.
Vacated and remanded.
Judges CALABRIA and ELMORE concur.
*** Converted from WordPerfect ***