{ "id": 8352486, "name": "QUANTUM CORPORATE FUNDING, LTD., Plaintiff v. B.H. BRYAN BUILDING COMPANY, INC., Defendant", "name_abbreviation": "Quantum Corporate Funding, Ltd. v. B.H. Bryan Building Co.", "decision_date": "2006-01-17", "docket_number": "No. COA04-1554", "first_page": "483", "last_page": "492", "citations": [ { "type": "official", "cite": "175 N.C. App. 483" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "361", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "year": 2005, "pin_cites": [ { "page": "402", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "357 U.S. 235", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6162253 ], "weight": 3, "year": 1958, "pin_cites": [ { "page": "253" }, { "page": "1298", "parenthetical": "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\"" }, { "page": "1240", "parenthetical": "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\"" } ], "opinion_index": 0, "case_paths": [ "/us/357/0235-01" ] }, { "cite": "208 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "695", "parenthetical": "\"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.\"" } ], "opinion_index": 0 }, { "cite": "285 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569825 ], "year": 1974, "pin_cites": [ { "page": "734", "parenthetical": "\"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.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0730-01" ] }, { "cite": "250 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "296 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565499 ], "year": 1978, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0212-01" ] }, { "cite": "267 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "586" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 655", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551677 ], "year": 1980, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0655-01" ] }, { "cite": "302 A.D.2d 233", "category": "reporters:state", "reporter": "A.D.2d", "case_ids": [ 729924 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "233", "parenthetical": "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" }, { "page": "279", "parenthetical": "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" } ], "opinion_index": 0, "case_paths": [ "/ad2d/302/0233-01" ] }, { "cite": "326 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "18", "parenthetical": "holding that a counteroffer requires the original offeror to either accept or reject the new offer in order to have a binding contract" } ], "opinion_index": 0 }, { "cite": "313 N.C. 98", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724307 ], "year": 1985, "pin_cites": [ { "page": "108", "parenthetical": "holding that a counteroffer requires the original offeror to either accept or reject the new offer in order to have a binding contract" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0098-01" ] }, { "cite": "556 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "595" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 722", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9381298 ], "year": 2001, "pin_cites": [ { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0722-01" ] }, { "cite": "520 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "108", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240842 ], "year": 1999, "pin_cites": [ { "page": "363", "parenthetical": "internal citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0359-01" ] }, { "cite": "429 S.E.2d 435", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525448 ], "year": 1993, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0298-01" ] }, { "cite": "566 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "756" }, { "page": "758" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 659", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9081804 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "663" }, { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0659-01" ] }, { "cite": "468 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "563-64" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 119", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915861 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "120-21" } ], "opinion_index": 0, "case_paths": [ "/nc-app/122/0119-01" ] }, { "cite": "605 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "359 N.C. 176", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3796041 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/359/0176-01" ] }, { "cite": "587 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "915" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957683 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0341-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 55-15-01", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2003, "pin_cites": [ { "page": "(b)" }, { "page": "(b)" }, { "page": "(b)(l)", "parenthetical": "emphasis added" }, { "page": "(b)(l)" } ], "opinion_index": 0 }, { "cite": "585 S.E.2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 458", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491492, 491558, 491817, 491504, 491768, 491801, 491806 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0458-01", "/nc/357/0458-07", "/nc/357/0458-05", "/nc/357/0458-04", "/nc/357/0458-06", "/nc/357/0458-03", "/nc/357/0458-02" ] }, { "cite": "576 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "361-62" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190097 ], "year": 2003, "pin_cites": [ { "page": "189-90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0187-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 55-15-02", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2003, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 870, "char_count": 21687, "ocr_confidence": 0.741, "pagerank": { "raw": 5.513356900447567e-08, "percentile": 0.3445417088023279 }, "sha256": "e0d3bdddf103d720364abdd11313ee48f18aaf8311a4e4353d48da8942ec49a9", "simhash": "1:cc3ffcc4f84f0ec4", "word_count": 3594 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and ELMORE concur." ], "parties": [ "QUANTUM CORPORATE FUNDING, LTD., Plaintiff v. B.H. BRYAN BUILDING COMPANY, INC., Defendant" ], "opinions": [ { "text": "GEER, Judge.\nB.H. Bryan Building Company, Inc. (\u201cBryan Building\u201d) appeals an order of the trial court enforcing a foreign judgment from the State of New York in favor of Quantum Corporate Funding, Ltd. (\u201cQuantum\u201d). 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 dismiss based on Quantum\u2019s 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 law.\nFacts\nDefendant 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. (\u201cCypress\u201d) . as a subcontractor. Cypress subsequently assigned its rights to payment from Bryan Building to plaintiff Quantum.\nOn 22 May 2003 and again on 4 June 2003, Quantum sent letters (called \u201cestoppel certificates\u201d 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 \u201cthat 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) . . . .\u201d The letters also specified that \u201cNew York law, jurisdiction and venue shall apply hereto.\u201d On the 22 May 2003 letter, Bryan Building\u2019s president struck out the amount stated as due ($9,536.90) and wrote in $2,762.40 before signing the letter below the words \u201cAgreed & Accepted.\u201d 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.\nOn 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\u2019s 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 \u2014 the amount claimed by Quantum plus interest and court fees.\nOn 17 March 2004, Quantum sought to enforce the judgment in this State, pursuant to N.C. Gen. Stat. \u00a7 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.\nAfter a hearing, the trial court entered an order on 9 August 2004, denying Bryan Building\u2019s motion to set aside the judgment and motion to dismiss and granting Quantum\u2019s 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\u2019s order on 7 September 2004.\nI\nWe first address Bryan Building\u2019s 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. \u00a7 55-15-02 (2003) prior to filing this action. Bryan Building argues that Quantum\u2019s failure to do so precluded it from maintaining this action and that the trial court was, therefore, required to grant Bryan Building\u2019s motion to dismiss.\nN.C. Gen. Stat. \u00a7 55-15-02(a) provides:\nNo 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.\nThus, this section \u201ccloses the courts of the state to suits maintained by corporations which should have but which have not obtained a certificate of authority.\u201d Id. official commentary.\nBryan 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. \u00a7 55-15-02(a). Section 55-15-02(a)\u2019s certificate of authority requirement applies only to a \u201cforeign corporation transacting business in this State.\u201d (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, 357 N.C. 458, 585 S.E.2d 765 (2003), that we must look to N.C. Gen. Stat. \u00a7 55-15-01(b) (2003) in deciding whether a foreign corporation is transacting business within the meaning of \u00a7 55-15-02.\nN.C. Gen. Stat. \u00a7 55-15-01(b) lists a number of activities that \u201cshall not be considered to be transacting business in this State solely for the purposes of this Chapter.\u201d One such activity is \u201c[m]aintaining or defending any action or suit or any administrative or arbitration proceeding, or effecting the settlement thereof or the settlement of claims or disputes . . . .\u201d N.C. Gen. Stat. \u00a7 55-15-01(b)(l) (emphasis added). Thus, when we read \u00a7\u00a7 55-15-01(b)(l) 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. \u00a7 55-15-01 official commentary (\u201c[A] corporation is not \u2018transacting business\u2019 solely because it resorts to the courts of the state to recover an indebtedness, enforce an obligation,... or pursue appellate remedies.\u201d).\nBryan Building relies upon Kyle & Assocs., Inc. v. Mahan, 161 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 Care, Inc., 122 N.C. App. 119, 468 S.E.2d 562 (1996). Neither case, however, addressed the precise issue presented by this case. In Kyle, 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 Leasecomm, 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.\nBecause the cases did not present the issue, neither opinion was required to consider N.C. Gen. Stat. \u00a7 55-15-01(b)(l) 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 to enforce a foreign judgment, that language constitutes dicta and is not controlling.\nAccordingly, we hold that Quantum\u2019s action of enforcing its foreign judgment was not \u201ctransacting business\u201d in North Carolina within the meaning of N.C. Gen. Stat. \u00a7 55-15-02. Because Bryan Building has not offered any evidence of Quantum\u2019s engaging in any other business activity in this State, the trial court did not err in denying Bryan Building\u2019s motion to dismiss.\nII\nWe cannot, however, so readily decide Bryan Building\u2019s contention that the trial court erred in denying its motion to set aside the judgment and in granting Quantum\u2019s 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, \u201chas 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.\u201d N.C. Gen. Stat. \u00a7 lC-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. \u00a7 lC-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 \u201centitled to full faith and credit.\u201d HCA Health Servs. of Tex., Inc. v. Reddix, 151 N.C. App. 659, 663, 566 S.E.2d 754, 756 (2002).\nThe judgment creditor initially has the burden of proving that the judgment is entitled to full faith and credit, but \u201c \u2018[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.\u2019 \u201d 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. \u00a7\u00a7 1C-1800 to 1808 (2003). Id.\nIn 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. \u00a7 lC-1804(a)(2) (\u201cA foreign judgment is not conclusive if . . . [t]he foreign court did not have personal jurisdiction over the defendant. . . .\u201d). A foreign judgment is not denied enforcement for a lack of personal jurisdiction if \u201cdefendant, 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._\u201d N.C. Gen. Stat. \u00a7 lC-1805(a)(3).\nIn 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 consented to jurisdiction in New York within the meaning of N.C. Gen. Stat. \u00a7 lC-1805(a)(3), and (2) Bryan Building\u2019s 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.\nAs an initial matter, we address Bryan Building\u2019s challenge to the trial court\u2019s order settling the record on appeal and requiring that the estoppel certificates be included in the record on appeal. \u201cA trial court\u2019s 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 certiorari.\u201d 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\u2019s assignment of error regarding the record on appeal. Id. We note, however, that there is no dispute that the estoppel certificates were submitted to the trial judge in support of Quantum\u2019s motion and in opposition to Bryan Building\u2019s motions.\nTurning 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\u2019 motions. Rule 52(a)(2) of the Rules of Civil Procedure provides \u201c[f] hidings 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).\u201d When, as here, Rule 41(b) does not apply and no request for findings of fact was made, this Court presumes that the trial judge made those findings of fact necessary to support its judgment. Corbin Russwin, Inc. v. Alexander\u2019s Hardware, Inc., 147 N.C. App. 722, 723, 556 S.E.2d 592, 595 (2001). On appeal, this Court \u201cthen determines whether there is competent evidence to support the presumed findings of fact.\u201d Id.\nBryan Building first argues that the record contains no evidence to support a finding of personal jurisdiction. We agree with Quantum that the trial court\u2019s 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 evidence.\nQuantum recognizes that Bryan Building\u2019s alteration of those certificates constituted a counteroffer and then states with no citation to the record: \u201cUpon receipt of the signed Estoppel Certificates sent by Bryan to Quantum in New York, Quantum accepted Bryan\u2019s counter offers.\u201d We have found no evidence in the record supporting Quantum\u2019s 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 Constr. Corp., 302 A.D.2d 233, 233, 754 N.Y.S.2d 278, 279 (App. Div. 1st Dep\u2019t 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).\nQuantum, 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, \u201cthe 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.\u201d Gregory v. Perdue, Inc., 47 N.C. App. 655, 657, 267 S.E.2d 584, 586 (1980). Phrased differently, \u201cin 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.\u201d O\u2019Grady v. First Union Nat\u2019l 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, 285 N.C. 730, 734, 208 S.E.2d 692, 695 (1974) (\u201cIf any portion of the proposed terms is not settled, or no mode agreed on by which they may be settled, there is no agreement.\u201d). Thus, there must have been acceptance of Bryan Building\u2019s counteroffer for an agreement regarding jurisdiction to exist.\nAlternatively, however, Quantum claims that personal jurisdiction existed in New York simply because Bryan Building sent a 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 \u201cact 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\u201d). It cites no authority \u2014 -nor have we found any \u2014 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\u2019s order enforcing the foreign judgment thus must depend on a finding that the estoppel certificates constituted a contract between the parties.\nWe 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\u2019s 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\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (per curiam) (\u201cIt is not the role of the appellate courts, however, to create an appeal for an appellant\u201d in part because \u201can appellee [may be] left without notice of the basis upon which an appellate court might rule.\u201d). We have no transcript of the hearing or findings of fact to indicate what may or may not have been argued or conceded.\nWe 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. \u00a7 22B-3 (2003), which provides:\nExcept 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 dispute arises.\nThis 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.\nIf 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\u2019s general objection regarding the sufficiency of the evidence. Further, we have no basis 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 \u2014 a theory that we have rejected.\nUnder the circumstances of this case and given the arguments and record on appeal (including the lack of any transcript from the hearing), \u201cwe 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.\u201d 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 \u201cpresumed findings\u201d is not sufficient to permit a fair review of the court\u2019s order, we find ourselves in an identical situation to that of HCA.\nVacated and remanded.\nJudges CALABRIA and ELMORE concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "The Law Office of James P. Laurie III, PLLC, by James P. Laurie III, for plaintiff-appellee.", "Bisele, Ashbum, Greene & Chapman, PA, by Douglas G. Bisele, for defendant-appellant." ], "corrections": "", "head_matter": "QUANTUM CORPORATE FUNDING, LTD., Plaintiff v. B.H. BRYAN BUILDING COMPANY, INC., Defendant\nNo. COA04-1554\n(Filed 17 January 2006)\n1. Corporations\u2014 access to courts \u2014 no certificate of authority \u2014 no other activity other than filing suit\nThe courts of North Carolina are open .to a foreign corporation, without a certificate of authority, whose sole action in North Carolina is the filing of a lawsuit. Here, the trial court did not err by denying defendant\u2019s motion to dismiss plaintiff\u2019s action to enforce a New York judgment where defendant offered no evidence of plaintiff engaging in any other business activity in North Carolina.\n2. Civil Procedure\u2014 order denying motion \u2014 no findings \u2014 presumed findings not sufficient\nAn order denying a motion to set aside a New York judgment, and granting plaintiffs motion to enforce the judgment, was remanded for further proceedings where the device of \u201cpresumed findings\u201d was not sufficient to permit a fair review of the court\u2019s order.\nAppeal 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.\nThe Law Office of James P. Laurie III, PLLC, by James P. Laurie III, for plaintiff-appellee.\nBisele, Ashbum, Greene & Chapman, PA, by Douglas G. Bisele, for defendant-appellant." }, "file_name": "0483-01", "first_page_order": 517, "last_page_order": 526 }