STEPHENS, Judge.

The paramount issue is whether the trial court erred in partially granting Defendant's motion to dismiss based on the general contractor licensing law. For the reasons stated herein, we reverse the order of the trial court.

I. Procedural History and Factual Allegations

On 28 January 2005, Plaintiff Signature Development, LLC ("Plaintiff," "Signature," or "Project Manager") and Defendant Sandler Commercial at Union, L.L.C. ("Defendant," "Sandler," or "Owner") entered into a Development Management Agreement ("Agreement") concerning the development of Sandler's sixteen acres of property in Union County, North Carolina ("Property") into a retail complex ("Project"). The Project, to be known as Cureton Town Center, was to be completed in three phases, with the initial phase consisting of the development of a grocery store parcel and four outparcels ("Initial Phase").

Under the Agreement, Sandler, designated as "Owner," engaged Signature as "Project Manager" for the Initial Phase. As Project Manager, Signature "eithe" directly or through subcontractors, employees or agents approved in writing by Owner, shall act as Owner's agent in the management, construction management, development, marketing and leasing coordination of the Project." The Agreement further provides that as Project Manager, Signature shall perform all project management services "subject to the general direction, control and approval of Owner[.]" In exchange for Signature's project management services, the Agreement provides that Sandler pay Signature certain fees, including an Initial Development Fee, a Base Development Fee, a Leasing Fee, a Sales Fee, and a Participation Fee.

According to Signature, it has satisfied its obligations under the Agreement and the Project is now over 95% leased, with Harris Teeter as its anchor tenant and ground leases to Sun Trust and First Charter. Sandler has paid Signature the Base Development Fee, Leasing Fees, and Sales Fees.1 However, Sandler has failed to pay Signature the Participation Fee, which Signature estimates to be not less than $2,338,806.

On 8 August 2008, pursuant to Chapter 44A of the North Carolina General Statutes, Signature filed in Union County Superior Court a claim of lien on the Property to secure the $2,338,806 debt allegedly owed to Signature by Sandler. On 12 August 2008, Signature filed a complaint against Sandler seeking, inter alia: damages for breach of contract, breach of covenant of good faith and fair dealing, unjust enrichment, fraud, negligent misrepresentation, and unfair and deceptive trade practices; an order for prejudgment attachment pursuant to N.C. Gen. Stat. § 1-440.1, et seq.; an accounting and the imposition of a constructive trust; and perfection of its 8 August 2008 claim of lien.

On 28 August 2008, Signature procured an order of attachment in the amount of $2,338,806 against the Property. Also on that date, Signature filed a notice of lis pendens with regard to the Property.

On 3 September 2008, Signature caused to be issued summonses of garnishee and notices of levy upon individuals and entities believed to be in possession of Sandler's property, primarily retail tenants in the Cureton Town Center, and banks, including Applicant-Appellee Wells Fargo Bank, National Association ("Wells Fargo").2

On 25 September 2008, Wells Fargo filed an Application to Dissolve and/or Modify Order of Attachment ("Application") seeking, inter alia, dissolution or modification of the 28 August 2008 order of attachment. Wells Fargo alleged that it had first and second priority lien rights to the rent payments from the tenants of Cureton Town Center and that Signature was interfering with Wells Fargo's rights in those monies by means of the order of attachment and garnishment summons.

On 7 October 2008, Sandler filed a motion to dismiss pursuant to Rule 12(b)(6). Sandler alleged that Signature's complaint, with the attached Agreement, revealed that Signature was a "general contractor" under N.C. Gen.Stat. § 87-1, that the trial court "may take judicial notice that Signature is not a licensed general contractor," and that under North Carolina law, unlicensed general contractors are barred from recovering monies from a property owner "on any claim[.]" Thus, Sandler moved the trial court to dismiss all Signature's claims, dissolve the order of attachment and release the garnishees, cancel the claim of lien, and order any funds paid into the court by virtue of the order of attachment to be given to Sandler immediately.

Wells Fargo's Application and Sandler's Motion to Dismiss were heard on 27 October 2008. By order entered 28 January 2009, the trial court partially granted Sandler's motion to dismiss, struck Signature's claim of lien, and dissolved the order of attachment. The trial court further ordered Signature to provide an accounting of all amounts received by virtue of the order of attachment and to forward such receipts to Wells Fargo.

From the trial court's order, Signature appeals.3

II. Discussion

A. Grounds for Appellate Review

As a threshold issue, we must determine whether the trial court's order in this case is immediately appealable. An order which does not dispose of all claims as to all parties in an action is interlocutory. Cunningham v. Brown, 51 N.C. App. 264, 267, 276 S.E.2d 718, 722 (1981). Ordinarily, there is no right of appeal from an interlocutory order. CBP Resources, Inc. v. Mountaire Farms, Inc., 134 N.C. App. 169, 170, 517 S.E.2d 151, 153 (1999). However, an interlocutory order may be immediately appealed "(1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C. R. Civ. P. 54(b) or (2) if the trial court's decision deprives the appellant of a substantial right which would be lost absent immediate review." Id. at 171, 517 S.E.2d at 153 (citations and quotation marks omitted).

When an appeal is from an order that is final as to one party, but not all, and the trial court has certified the matter under Rule 54(b), this Court must review the issue. James River Equip., Inc. v. Tharpe's Excavating, Inc., 179 N.C. App. 336, 340, 634 S.E.2d 548, 552, disc. review denied and appeal dismissed, 361 N.C. 167, 639 S.E.2d 650 (2006). However, when an appeal is from an order which is not final as to any party (e.g., one which disposes of some but not all claims against a party), "the trial court's determination that there is `no just reason for delay' of appeal, while accorded deference, cannot bind the appellate courts[.]" Anderson v. Atlantic Cas. Ins. Co., 134 N.C. App. 724, 726, 518 S.E.2d 786, 788 (1999) (internal citation omitted).

In this case, the trial court certified that the order partially granting Sandler's motion to dismiss was a "final judgment as to one or more of Plaintiff's claims, and that there is no just reason for delay, and that it therefore constitutes a final judgment pursuant to Rule 54(b)." However, because the order on appeal disposes of some but not all claims against Sandler, the trial court's Rule 54(b) certification is not binding on this Court, and we must determine whether a substantial right would be affected absent immediate appeal of the interlocutory order.

The "substantial right" test for appealability of interlocutory orders is that "the right itself must be substantial and the deprivation of that substantial right must potentially work injury to [appellant] if not corrected before appeal from final judgment." Goldston v. American Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990). Generally, we must determine if a substantial right is affected "by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered." Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978).

In this case, the trial court found that "as an unlicensed contractor Plaintiff Signature cannot sue for monies owed under provisions 3(a) and (b) of the Development Management Agreement, that it appears that the compensation for these construction/development obligations is described in paragraph 4(a) and (b) of the Agreement, and that Defendant's Motion to Dismiss those claims should be allowed." The trial court further found that "accordingly, the lien placed on the [P]roperty by Plaintiff should be stricken and the related attachment order dissolved. . . ." The same factual issues are involved in the claims based on provisions 3(a), 3(b), 4(a), and 4(b) of the Agreement which were dismissed and in Signature's claims based on the remaining provisions of the Agreement. If the present appeal is not immediately heard, it is possible that different juries could reach different results thereby rendering inconsistent verdicts on the same factual issues. As the right to avoid the possibility of two trials on the same issues is a substantial right, Green v. Duke Power Co., 305 N.C. 603, 608, 290 S.E.2d 593, 596 (1982), the partial grant of Sandler's motion to dismiss affects a substantial right which would be prejudiced if this action was not immediately appealable. Accordingly, we will reach the merits of this appeal.

B. Motion to Dismiss

Signature argues that the trial court erred in partially granting Sandler's motion to dismiss based on the trial court's finding that Signature was an unlicensed general contractor. We agree.

1. Standard of Review

A motion to dismiss under N.C. Gen.Stat. § 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief may be granted tests the legal sufficiency of the complaint. Isenhour v. Hutto, 350 N.C. 601, 604, 517 S.E.2d 121, 124 (1999). In ruling on the motion, "the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted." Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979). Dismissal is proper "(1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint reveals on its face that some fact essential to plaintiff's claim is missing; and (3) when some fact disclosed in the complaint defeats the plaintiff's claim." Schloss Outdoor Advertising Co. v. Charlotte, 50 N.C. App. 150, 152, 272 S.E.2d 920, 922 (1980). Moreover, "[w]hen the complaint states a valid claim but also discloses an unconditional affirmative defense which defeats the asserted claim, . . . the motion will be granted and the action dismissed." Skinner v. E.F. Hutton & Co., 314 N.C. 267, 270, 333 S.E.2d 236, 238 (1985). "A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff could prove no set of facts in support of his claim which would entitle him to relief." Leonard v. Pugh, 86 N.C. App. 207, 209, 356 S.E.2d 812, 814 (1987). On appeal of a trial court's ruling on a 12(b)(6) motion to dismiss, our Court "conducts a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court's ruling on the motion to dismiss was correct." Page v. Lexington Ins. Co., 177 N.C. App. 246, 248, 628 S.E.2d 427, 428 (2006) (citation and quotation marks omitted).

2. Propriety of the Trial Court's Order as to Signature

A "general contractor" is defined by N.C. Gen.Stat. § 87-1 as

N.C. Gen.Stat. § 87-1 (2009). One who undertakes a project as a general contractor in North Carolina is required to comply with the licensing requirements set forth in N.C. Gen.Stat. § 87-10. That statute requires

N.C. Gen.Stat. § 87-10(b) (2009). The express language of N.C. Gen.Stat. § 87-10 indicates that it is designed to ensure competence within the construction industry. Brady v. Fulghum, 309 N.C. 580, 584, 308 S.E.2d 327, 330 (1983). "By requiring this examination, the legislature seeks to guarantee skill, training and ability to accomplish such construction in a safe and workmanlike fashion." Id. (citation and quotation marks omitted).

A general contractor's failure to procure a license constitutes a misdemeanor. N.C. Gen.Stat. § 87-13 (2009). Furthermore, although the statute does not expressly preclude an unlicensed contractor's suit against an owner for breach of contract, the North Carolina Supreme Court held in Bryan Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968), that the contractor may not recover on the contract or in quantum meruit when he has ignored the protective statute. "[T]he reason for this `bright line' `harsh' rule is to protect the public from incompetent builders. . . ." Dellinger v. Michal, 92 N.C. App. 744, 747, 375 S.E.2d 698, 699, disc. review denied, 324 N.C. 432, 379 S.E.2d 240 (1989).

In determining whether a party is a general contractor, we must "determine the extent of [the party's] control over the entire project." Mill-Power Supply Co. v. CVM Assocs., 85 N.C. App. 455, 461, 355 S.E.2d 245, 249 (1987). As this Court noted in Helms v. Dawkins, 32 N.C. App. 453, 232 S.E.2d 710 (1977), overruled on other grounds, Sample Const. Co. v. Morgan, 311 N.C. 717, 722-23, 319 S.E.2d 607, 611 (1984),

Id. at 456, 232 S.E.2d at 712 (internal citations omitted). "Under the Helms `control test,' we ordinarily look to the terms of the contract to determine the degree of control exercised by a particular contractor over the entire project." Mill-Power Supply Co., 85 N.C.App. at 461, 355 S.E.2d at 249. "[A] general contractor is one with control over a construction project." Duke Univ. v. Am. Arbitration Ass'n, 64 N.C. App. 75, 80, 306 S.E.2d 584, 587, disc. review denied, 309 N.C. 819, 310 S.E.2d 349 (1983).

In Miley v. H.C. Barrett & Assocs., No. COA01-720, 2002 WL 1013593, 2002 N.C.App. LEXIS 2167 (May 21, 2002), this Court considered the terms of a contract between plaintiff ("HCB") and defendant ("Owners") to determine if HCB had acted as a general contractor. Although, as an unpublished case, Miley does not establish binding legal precedent, we are persuaded by this Court's reasoning in that case. See State v. Farmer, 158 N.C. App. 699, 705, 582 S.E.2d 352, 356 (2003) ("[A]lthough not controlling law, we are persuaded by an earlier unpublished opinion of this Court in which we addressed a similar set of circumstances. . . ."). The pertinent provisions of the contract in Miley stated:

Id. at *4, 2002 N.C.App. LEXIS 2167 at *10-12. After considering the contractual provisions, this Court concluded that "HCB served as a construction manager under a pure construction management arrangement; HCB was neither a general contractor nor a builder of plaintiffs' home." Id. at *4, 2002 N.C.App. LEXIS 2167 at *13. This conclusion was "reinforced by the fact that HCB acted solely as plaintiffs' agent, had no control over the manner in which the construction project was actually performed, and assumed no responsibility for costs, timeliness, or quality of the project." Id.

In this case, the pertinent aspects of the Agreement between Sandler and Signature are as follows:

The Agreement unambiguously vested control over the entire Project with Sandler. The Agreement further unambiguously provided that Signature's performance of its project management services was "subject to the general direction, control and approval of Owner" and that, similar to HCB, Signature was to "act as Owner's agent in the management, construction management, development, marketing and leasing coordination of the Project." By the terms of the Agreement, Sandler retained control of all costs associated with the Project, including expenses incurred by Signature. While Signature was given authority to enter into contracts for $50,000 or less, subject to certain conditions, Signature did so "on behalf of Owner" and all other contracts had to be approved and executed by Sandler. Sandler also retained control over the approval of "architects, engineers, general contractors, and others" hired for the Project. Additionally, all contracts associated with the project were to be in Sandler's name, and Sandler was to approve all plans and specifications. By the terms of the Agreement, Signature, like HCB, assumed no responsibility for costs, timeliness, or quality of the project. After considering the contractual provisions in the Agreement at issue here, we conclude that Signature was not a general contractor but, rather, served as Sandler's agent under a pure project management arrangement.

Sandler argues further, however, that the terms of the Agreement "clearly show[] that Signature [] controlled the project[.]" In support of this contention, Sandler highlights certain terms of the Agreement which outline Signature's planning, development, and construction management duties. However, Sandler fails to acknowledge that, by the express terms of the Agreement, Signature was only to "act as Owner's agent in the management, construction management, development, marketing and leasing coordination of the Project" and that Signature's performance of its project management duties was "subject to the general direction, control and approval of Owner[.]"

Sandler also argues that Signature's "responsibilities encompass the very definition of a construction manager, who when controlling a construction project, must be properly licensed[,]" and relies on Duke Univ. v. Am. Arbitration Ass'n for its "holding that the construction manager controlled the project and therefore was the `general manager' of the project and needed to be licensed[.]" Sandler's argument misses the mark.

Initially, we note that while N.C. Gen.Stat. § 87-1 requires that a "general contractor" be licensed, it does not govern license requirements of a "project manager" or a "general manager." Indeed, neither party has argued that a "project manager" or a "general manager" must be licensed according to statute. Moreover, Sandler misstates the holding in Duke. In Duke, this Court held that defendant, a contractor who contracted directly with the owner to fabricate and erect the stucco wall panel system of Duke Hospital North and to perform related lath and plastering work, was not a general contractor under N.C. Gen.Stat. § 87-1. This Court based its conclusion on the fact that defendant "did not undertake to build the hospital in its entirety, nor did it undertake to improve an already existing building." Duke, 64 N.C.App. at 78, 306 S.E.2d at 586. Furthermore, "[d]efendant had control solely over construction of the stucco wall panel system and related lath and plastering work; it had no control over the work of other contractors nor over the construction project as a whole." Id. at 79, 306 S.E.2d at 586.

Although this Court noted that "[d]efendant's work was subject to the approval of the construction manager" who had been hired by the owner to supervise the construction project, and that "[t]he supervision of the construction manager over each separate trade contractor was ample protection for [the owner] against the possible incompetency of any of its trade contractors[,]" id. at 80, 306 S.E.2d at 587, contrary to Sandler's contention, whether the manager who was hired to supervise the project had a general contractor's license was not at issue in the case.

Sandler additionally cites the following language from Title 21, chapter 12, section.0208(a) of the North Carolina Administrative Code in support of its contention that Signature is a general contractor:

21 N.C. Admin. Code 12.0208(a) (2009). Sandler contends that Signature's complaint and the terms of the Agreement indicate that Signature was "responsible for superintending or managing the entire construction project." We disagree.

Consistent with prior case law and our analysis in this case, whether a "person, firm, or corporation is responsible for superintending or managing the entire construction project" is determined under "the Helms `control test[.]'" Mill-Power Supply Co., 85 N.C.App. at 461, 355 S.E.2d at 249. As explained supra, the terms of the Agreement do not indicate that Signature held the requisite control over the Project to be classified as a general contractor and, instead, indicate that Signature served solely as Sandler's agent under a pure project management arrangement.

Moreover, our interpretation of N.C. Gen. Stat. § 87-1 and section .0208(a) under the "control test" is fully supported by a recent amendment to section .0208(a) which states:

21 N.C. Admin. Code 12.0208 (Cumm.Supp. Aug. 2010).

This amendment became effective after the complaint in this case was filed and, thus, does not impact the outcome of this case. Nonetheless, the clear intent behind the amendment is to formalize the "control test" and to clearly exclude from the general contractor licensing requirements a party who, like Signature, contracts with the owner to perform the "development-related functions" enumerated in the amendment on a project where, as here, the owner retained a licensed general contractor to perform the general contractor role.4

Taking the allegations of the complaint in the light most favorable to Signature, it appears to this Court that Sandler engaged Signature not to perform the work of a general contractor in the construction of the Project, but to act as Sandler's agent in the day-to-day management of the Project; that Signature satisfactorily completed its duties under the Agreement; and that Sandler has failed to pay Signature the Participation Fee as required by the Agreement. As this Court has noted, "[t]he licensing statutes should not be used as a shield to avoid a just obligation owed to an innocent party." Zickgraf Enters., Inc. v. Yonce, 63 N.C. App. 166, 168, 303 S.E.2d 852, 852 (1983).

Sandler nonetheless claims that "Signature [] is not `innocent' by the plainest meaning of the word [because] Signature [] had the ability and opportunity to obtain a license with the North Carolina Licensing Board of General Contractors, but chose not to." Sandler further opines that "[a]lthough the consequences are harsh, they are consequences which Signature [] brought on itself by not simply obtaining a general contractor's license." We strongly disagree with Sandler's position.

As thoroughly explained, supra, Signature was not a general contractor on the Project and, thus, was not required to obtain a general contractor's license. Moreover, based on the record before this Court, it appears that Sandler's failure to pay Signature the Participation Fee was not the result of Signature's choice not to obtain a general contractor's license, or any incompetent work performed by Signature, but, instead, was a direct result of Sandler's having inadequate financial resources to meet its obligations under the Agreement, a condition which Signature certainly did not bring upon itself. Additionally, while Sandler was well within its rights as the owner to retain full control over the Project, Sandler may not now attempt to claim it is entitled to be "protected" from Signature by N.C. Gen.Stat. § 87-1, especially when the general contractor actually hired by Sandler was ample protection for Sandler against the possible incompetency of any of its contractors.

We thus conclude that under the circumstances of this case, it was inappropriate for the trial court to dismiss Signature's claims on Sandler's Rule 12(b)(6) motion. We reverse the trial court's order on this issue.

Sandler argues that the trial court's order, in fact, dismissed Signature's complaint "in its entirety" because payment of the Participation Fee was based on Signature's services provided pursuant to provisions 3(a) and (b) of the Agreement. However, because we conclude that the trial court erred in dismissing Signature's claims under those provisions, we need not address Sandler's argument. By way of cross-appeal, Sandler alternatively argues that the trial court erred by failing to dismiss Signature's lawsuit "in its entirety" because Signature was an unlicensed general contractor. However, because we conclude that the trial court erred in finding and concluding that Signature was an unlicensed general contractor, and in partially dismissing Signature's claims on this basis, it necessarily follows that the trial court did not err by failing to dismiss Signature's lawsuit "in its entirety" on the basis that Signature was an unlicensed general contractor. Accordingly, we reject Sandler's argument.

C. Claim of Lien

Signature next argues that the trial court erred in striking its claim of lien against the Property. We disagree.

Pursuant to N.C. Gen.Stat. § 44A-8,

N.C. Gen.Stat. § 44A-8 (2009). The primary purpose of the lien statute is "to protect laborers and materialmen who expend their labor and materials upon the buildings of others." Carolina Bldrs. Corp. v. Howard-Veasey Homes, Inc., 72 N.C. App. 224, 233-34, 324 S.E.2d 626, 632 (citation and quotation marks omitted), disc. rev. denied, 313 N.C. 597, 330 S.E.2d 606 (1985). "[A] lien under [N.C. Gen.Stat. §] 44A-8 attaches only for `debts owing for labor done or professional design or surveying services or material furnished.' Nothing is said about lost profit." W.H. Dail Plumbing, Inc. v. Roger Baker & Assocs., Inc., 78 N.C. App. 664, 667, 338 S.E.2d 135, 137 (quoting N.C. Gen.Stat. § 44A-8), disc. review denied, 316 N.C. 731, 345 S.E.2d 398 (1986).

In this case, Signature filed a claim of lien against the Property "in support of its rights to be paid for the work that it did to improve the . . . [P]roperty." The basis of Signature's claim of lien was Sandler's nonpayment of the Participation Fee under provision 4(e) of the Agreement. The Participation Fee provides for payment to Signature of 20% of the "net profits . . . realized and distributed by [Sandler] from the sale, financing, refinancing and/or operation of the Project[.]" (Emphasis added). As a materialman's lien under N.C. Gen.Stat. § 44A-8 attaches to property only for debts owing for labor done or professional design or surveying services or material furnished, and not for lost profits, id., there was no debt owing under provision 4(e) which would support the claim of lien. Accordingly, the trial court did not err in striking Signature's claim of lien against the Property.

D. Attachment

Finally, Signature argues that the trial court erred in dissolving the order of attachment. We agree.

Pursuant to N.C. Gen.Stat. § 1-440.1,

N.C. Gen.Stat. § 1-440.1(a) (2009). "Attachment may be had in any action the purpose of which, in whole or in part, or in the alternative, is to secure a judgment for money. . . ." N.C. Gen.Stat. § 1-440.2 (2009). In actions in which attachment may be had under N.C. Gen.Stat. § 1-440.2, an order of attachment may be issued when the defendant is

N.C. Gen.Stat. § 1-440.3 (2009).

In addition to the grounds for attachment specified in N.C. Gen.Stat. § 1-440.2,

N.C. Gen.Stat. § 44A-15 (2009).

In this case, Signature is seeking a monetary judgment for Sandler's alleged fraud, unjust enrichment, unfair and deceptive trade practices, and breach of contract in connection with Sandler's failure to pay Signature the Participation Fee in accordance with the Agreement. Signature applied for an order of attachment on the Property by filing an Affidavit in Attachment Proceeding. In accordance with N.C. Gen.Stat. § 1-440.3, the affidavit stated as grounds for attachment that Sandler is: (1) "[a] nonresident[;]" (2) "[a] foreign corporation[;]" and (3) "[a] person or domestic corporation which, with intent to defraud his/her or its creditors . . . has removed or is about to remove, property from this state . . . [and] has assigned, disposed of, secreted, or is about to assign, dispose of, or secrete [sic], property."

(Emphasis added).

As discussed supra, the trial court erred in dismissing Signature's claims for breach of contract, breach of covenant of good faith and fair dealing, unjust enrichment, fraud, negligent misrepresentation, and unfair and deceptive trade practices based on Sandler's failure to pay the Participation Fee. However, the trial court did not err in striking Signature's claim of lien. Nonetheless, while the trial court's striking of Signature's claim of lien entered pursuant to N.C. Gen.Stat. § 44A-8 would have mandated the dismissal of a related order of attachment entered pursuant to N.C. Gen.Stat. § 44A-15, Signature's order of attachment in this case was procured under N.C. Gen.Stat. § 1-440.3 and, thus, was not related to the stricken claim of lien.

It is undisputed that Sandler is a limited liability company organized and existing under the laws of the State of Virginia. Accordingly, Sandler is a "[a] foreign corporation" under N.C. Gen.Stat. § 1-440.3. Furthermore, Signature's action based on Sandler's failure to pay the Participation Fee is pending. See N.C. Gen.Stat. § 1-440.2 ("Attachment may be had in any action the purpose of which, in whole or in part, or in the alternative, is to secure a judgment for money. . . ."). Accordingly, the trial court erred in dissolving the Order of Attachment for the reasons it stated and the trial court's order on this issue is reversed.

Wells Fargo asserts, however, that the trial court did not err in dissolving the order of attachment because, as an alternative basis, the trial court could have dissolved the order since the rent proceeds and leases are property of Wells Fargo and were never property of Signature for the purpose of attachment or levy. For the reasons stated below, we remand this issue to the trial court.

Pursuant to N.C. Gen.Stat. § 1-440.43,

N.C. Gen.Stat. § 1-440.43 (2009). The conditions and methods available to the defendant are as follows:

N.C. Gen.Stat. § 1-440.36 (2009) (emphasis added).

In this case, Wells Fargo filed its Application pursuant to N.C. Gen.Stat. §§ 1-440.43 and 1-440.36. The basis for the Application was that the rent proceeds and leases were property of Wells Fargo, and, thus, were never the property of Signature for the purpose of attachment or levy. The Application, along with Sandler's Motion to Dismiss, was heard on 27 October 2008.

In the Order Partially Granting Sandler's Motion to Dismiss entered 28 January 2009, the trial court stated:

The trial court thereupon found and concluded that

The trial court further found and concluded that

We have held that the trial court erred in dissolving the attachment order on this basis. Furthermore, the trial court made no findings of fact pursuant to N.C. Gen.Stat. § 1-440.36(c) concerning the issues raised in Wells Fargo's Application.

Although Wells Fargo asserts that the order of the trial court is "unclear as to what grounds upon which it dissolved the Order of Attachment[,]" we conclude that the trial court unequivocally dissolved the Order of Attachment based on Sandler's Motion to Dismiss and did not rule on Wells Fargo's Application. Accordingly, we remand this matter to the trial court for consideration of Wells Fargo's Application.

In sum, for the foregoing reasons, we hold as follows: (1) the trial court's order dismissing Signature's claims under provisions 3(a) and (b) of the Agreement is reversed and this matter is remanded for further proceedings on Signature's claims; (2) the trial court's order striking Signature's claim of lien is affirmed; (3) the trial court's order dissolving Signature's order of attachment based on Sandler's motion to dismiss is reversed; (4) the matter is remanded for further proceedings on Wells Fargo's Application to dissolve/modify Signature's order of attachment.

REVERSED IN PART, AFFIRMED IN PART, and REMANDED in part.

Judges McGEE and STEELMAN concur.