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