BREACH OF PROMISE – FRAUD VS. CONTRACT CLAIM
In a fraud cause of action, “[a] promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time it was made.” Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). Additionally, “the mere failure to perform a contract is not evidence of fraud.” Id. Instead, the non-movant must present evidence that the alleged misrepresentation was made with the intent to deceive and with no intention of performing as represented. Id.ELEMENTS OF FRAUD CAUSE OF ACTION
The elements of fraud are: “(1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.” Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009).
SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00544-CV - 4/18/12
ELEMENTS OF CAUSE OF ACTION FOR BREACH OF CONTRACT
The elements of a breach of contract claim are: (1) the existence of a valid contract between the plaintiff and defendant; (2) the plaintiff’s performance or tender of performance; (3) the defendant’s breach of the contract; and (4) the plaintiff’s damage as a result of that breach. Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 299 (Tex. App.—Dallas 2009, no pet.).