Leris v. De Leon

Opinion

Leris v. De Leon, 2026 NCBC 73.

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION

IREDELL COUNTY 26CV002831-480

CARMEN LERIS and CARMEN LERIS TAX & INSURANCE MOORESVILLE LLC,

Plaintiffs,

v. ORDER AND OPINION ON MOTION TO DISMISS

SARA RIVERA DE LEON aka SARA RIVERA and DANIEL DE LEON aka DANIEL EDUARDO DE LEON PEREZ,

Defendants.

Jones, Childers, Donaldson & Webb, PLLC, by Kevin C. Donaldson, for Plaintiffs Carmen Leris and Carmen Leris Tax & Insurance Mooresville LLC.

Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, by Agustin M.

Martinez, for Defendants Sara Rivera De Leon and Daniel De Leon.

Conrad, Chief Judge.

1. In this case, Carmen Leris and Carmen Leris Tax & Insurance Mooresville LLC accuse a former employee, Sara Rivera De Leon, and her husband, Daniel De Leon, of stealing money. Sara and Daniel have moved to dismiss the complaint for failure to state a claim under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. For the following reasons, the Court GRANTS the motion.

2. Background. The briefs use first names to refer to the individual parties and “the Company” to refer to Carmen Leris Tax & Insurance Mooresville LLC. The Court will do the same.

3. Carmen formed the Company in 2020 to provide tax and insurance services. At the time, she was its sole member and manager. In 2021, Carmen hired Sara as an employee of the Company. Roughly two years later, Carmen made Sara a member of the Company after Sara expressed interest in growing the business. From that point on, Sara began overseeing day-to-day operations and receiving a share of profits in addition to her regular wages. (See Compl. ¶¶ 10, 13–18, ECF No. 3.)

4. The events giving rise to this lawsuit began in March 2025. According to the complaint, Carmen discovered irregularities in the Company’s financial records and confronted Sara about them. Weeks later, Sara resigned and abandoned her membership. In the aftermath, Carmen concluded that Sara had been taking money from the Company, allegedly by instructing clients to make payments to an account owned by Daniel rather than through the Company’s usual point-of-sale system. Sara also allegedly paid $3,000 from the Company’s checking account for a personal expense without reimbursing the Company. In addition, the complaint alleges that Sara submitted certain documents to the Internal Revenue Service using a personal “office code” kept apart from the Company’s “ordinary records.” (Compl. ¶¶ 20, 21, 23, 24.)

5. Carmen and the Company filed this suit to recover the money that they believe Sara and Daniel wrongfully took. The complaint asserts claims against Sara for breach of contract, unjust enrichment, negligence and gross negligence, breach of fiduciary duty, fraud, punitive damages, and breach of the implied covenant of good faith and fair dealing. The complaint also asserts claims against Sara and Daniel for conversion and civil conspiracy. (See Compl. ¶¶ 30, 37, 41–43, 49, 54–58, 62, 65, 69, 72, 75.)

6. Sara and Daniel have moved to dismiss the complaint in its entirety. (ECF No. 10.) Their motion is fully briefed, and the Court elects to decide it without a hearing. See BCR 7.4 (“The Court may rule on a motion without a hearing.”).

7. Legal Standard. A Rule 12(b)(6) motion to dismiss “tests the legal sufficiency of the complaint.” Isenhour v. Hutto, 350 N.C. 601, 604 (1999) (citation and quotation marks omitted). In deciding the motion, the Court must treat all well-pleaded allegations as true and view the facts and permissible inferences “in the light most favorable to” the nonmoving party. Sykes v. Health Network Sols., Inc., 372 N.C. 326, 332 (2019) (citation and quotation marks omitted). However, the Court need not accept as true any “conclusions of law or unwarranted deductions of fact.” Wray v. City of Greensboro, 370 N.C. 41, 46 (2017) (citation and quotation marks omitted).

8. Before turning to the claims at issue, the Court notes that Carmen and the Company make arguments throughout their response brief that contradict or go beyond the allegations in the complaint. And apart from a few citations in their statement of facts, Carmen and the Company fail to support their arguments with specific references to the complaint, as required by the Business Court Rules. See BCR 7.5 (“When a motion or brief refers to any supporting material, the motion or brief must include a pinpoint citation to the relevant page of the supporting material whenever possible.”). In the discussion below, the Court evaluates the claims as they appear within the four corners of the complaint, not as reimagined in the response brief.

9. Contract Claims. To plead a claim for breach of contract, a plaintiff need only allege the existence of a valid contract and a breach of its terms. See Poor v. Hill, 138 N.C. App. 19, 26 (2000). The complaint does not clear this low bar. Indeed, the allegations are so vague that it is hard to describe the claim at all, other than to say that Sara supposedly breached undefined contractual obligations rooted in her employment and Company membership. The Court therefore grants the motion to dismiss the claim for breach of contract. See, e.g., PJC Mgmt. Grp., LLC v. MAACO Franchisor SPV LLC, 2026 NCBC LEXIS 92, at *10–11 (N.C. Super. Ct. Apr. 22, 2026) (dismissing breach of contract claim based on “vague, conclusory” allegations); Whalen v. Tuttle, 2024 NCBC LEXIS 146, at *8 (N.C. Super. Ct. Nov. 19, 2024) (same); Glob. Promotions Grp., Inc. v. Danas Inc., 2012 NCBC LEXIS 40, at *17 (N.C. Super. Ct. June 22, 2012) (same). Likewise, the Court dismisses the duplicative claim for breach of the implied covenant of good faith and fair dealing. See Cordaro v. Harrington Bank, FSB, 260 N.C. App. 26, 38–39 (2018) (treating claim for breach of the implied covenant as “part and parcel” of a claim for breach of contract when “based upon the same acts”).

10. Unjust Enrichment. The complaint bases the claim for unjust enrichment on the allegation that “Sara wrongfully, fraudulently, deceitfully and unlawfully took and/or diverted monies from” Carmen and the Company. (Compl. ¶ 37.) As our Supreme Court recently held, though, “a taking and transferring of another’s property without permission is not a willing transfer” and therefore cannot support a claim for unjust enrichment. Rel. Ins., Inc. v. Pilot Risk Mgmt. Consulting, LLC, 929 S.E.2d 893, 916 (N.C. 2026). The Court grants the motion to dismiss this claim.

11. Breach of Fiduciary Duty. The complaint alleges that Sara owed Carmen and the Company a fiduciary duty in her roles as an employee and member. Settled law holds otherwise. In this State, members of an LLC generally do not owe fiduciary duties to each other or to the LLC, see Kaplan v. O.K. Techs., LLC, 196 N.C. App. 469, 473 (2009), and “an employer-employee relationship is not a fiduciary one, even where the employee has significant management authority, absent some allegation that the employee exercised dominance and control over his employer,” Atkore Int’l, Inc. v. Dinkheller, 2025 NCBC LEXIS 42, at *27 (N.C. Super. Ct. Apr. 10, 2025). Carmen and the Company have not pointed to, or alleged facts to support, any exception to these default rules. Because the existence of a fiduciary relationship is an essential element of a claim for breach of fiduciary duty, the Court grants the motion to dismiss this claim.

12. Negligence and Gross Negligence. The combined claim for negligence and gross negligence has two fatal defects. First, the allegation that Sara owed a legal duty is conclusory and appears to be based on the erroneous view that she owed fiduciary duties as an employee and member. “A claim of negligence necessarily fails if there is no legal duty owed to the plaintiff by the defendant.” Bridges v. Parrish, 222 N.C. App. 320, 324 (2012). Second, though framed as negligence, the claim is based on intentional conduct—namely, that Sara stole money from the Company. See

Crowell v. Davis, 2013 N.C. App. LEXIS 325, at *19 (N.C. Ct. App. Apr. 2, 2013) (unpublished) (affirming dismissal of “negligence-based claims” because “Plaintiff has alleged that Defendants acted in an intentional manner and . . . intended the specific consequences which resulted from their actions”). The Court grants the motions to dismiss the claim for negligence and gross negligence.

13. Fraud. Carmen and the Company have not pleaded their fraud claim with particularity. See N.C. R. Civ. P. 9(b). As alleged, Sara made false representations that “she was interested in learning the tax and insurance business” and that “she was interested in continuing to grow the business of the Company.” (Compl. ¶¶ 52, 53.) It is doubtful whether these supposed representations are “definite and specific” enough to support a fraud claim. Ragsdale v. Kennedy, 286 N.C. 130, 139 (1974). Even if they are, the complaint fails to allege when and where Sara made the representations, apart from a nonspecific reference to the year 2023. See, e.g., S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 611 (2008) (affirming dismissal of fraud claim that did not allege time or place of misrepresentation); Bob Timberlake Collection, Inc. v. Edwards, 176 N.C. App. 33, 39 (2006) (same). Moreover, because the alleged representations are promissory in nature, Carmen and the Company must allege facts “from which a court and jury may reasonably infer that the defendant did not intend to carry out [the] representations when they were made.” Whitley v. O’Neal, 5 N.C. App. 136, 139 (1969). No such allegations appear in the complaint. Accordingly, the Court dismisses the claim for fraud.

14. Conversion. The conversion claim is based on the allegation that Sara and Daniel took money from the Company. In general, “money may be the subject of an action for conversion only when it is capable of being identified and described.” Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 365 N.C. 520, 528 (2012) (cleaned up). The complaint alleges that Sara “bypassed” the Company’s point-of-sale payment system, “which resulted in funds being diverted” to a third-party payment account owned by Daniel. (Compl. ¶ 23.) This allegation concerns an unknown number of payments by unknown clients in unknown amounts; it is insufficient to identify and describe the allegedly converted sums. See, e.g., Progress Point One-B Condo. Ass’n v. Progress Point One, 2015 NCBC LEXIS 22, at *9 (N.C. Super. Ct. Mar. 2, 2015) (“Plaintiff has not identified any specific payment it made to Defendant by amount or date, or otherwise sufficiently identified the money alleged to have been converted.”).

15. Separately, the complaint alleges that Sara failed to reimburse the Company after paying $3,000 from its checking account for a personal expense. (See Compl. ¶ 23.) It is not clear that the conversion claim is actually based on this allegation. (See Compl. ¶¶ 68–73.) Even so, it is insufficient to state a claim for relief. Wrongful possession is an essential element of conversion. And “when the defendant lawfully obtains possession or control and then exercises unauthorized dominion or control over the property,” the plaintiff must also allege that it demanded return of the property and that the defendant refused. Stratton v. Royal Bank of Can., 211 N.C. App. 78, 83 (2011) (emphasis omitted). In other words, Carmen and the Company must allege either that Sara obtained the $3,000 unlawfully or that she obtained it lawfully and then improperly refused a demand to return it. They have alleged neither.

16. The Court therefore grants the motion to dismiss the conversion claim.

17. Punitive Damages and Civil Conspiracy. Absent any underlying claims for relief, Carmen and the Company may not maintain a claim for civil conspiracy or pursue punitive damages as a remedy. See, e.g., Funderburk v. JPMorgan Chase Bank, N.A., 241 N.C. App. 415, 425 (2015) (“[A] claim for punitive damages is not a stand-alone claim.”); Toomer v. Garrett, 155 N.C. App. 462, 483 (2002) (“Only where there is an underlying claim for unlawful conduct can a plaintiff state a claim for civil conspiracy by also alleging the agreement of two or more parties to carry out the conduct and injury resulting from that agreement.”).

18. Conclusion. For all these reasons, the Court GRANTS Sara and Daniel’s motion and DISMISSES the complaint in its entirety without prejudice.

SO ORDERED, this the 19th day of August, 2026.

/s/ Adam M. Conrad

Adam M. Conrad

Chief Business Court Judge