promissory fraud claim in Alabama

2013To prevail on a promissory fraud claim ..., two additional elements must be satisfied: (5) proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and (6) proof that the defendant had an intent to deceive.” ’ “Michelin North America, 795 So.2d at 678 -79 (quoting Padgett, 535 So.2d at 142 ).” A heavier burden is placed upon a plaintiff in a promissory-fraud ease than in an ordinary fraud case.

2012To prevail on a promissory fraud claim ..., two additional elements must be satisfied: (5) proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and (6) proof that the defendant had an intent to deceive.” ’ “Michelin North America, 795 So.2d at 678 -79 (quoting Padgett, 535 So.2d at 142 ).” Heisz and Aegis argue that the plaintiffs failed to put forth substantial evidence at trial of the fifth element of a promissory-fraud claim: that Heisz and Aegis knew that SPC-Alabama would not fulfill its obligations under the asset-purchase agre

2024A false representation or "broken promise" is necessary to establish promissory fraud but is, alone, insufficient to prove that promissory fraud occurred: "While the mere failure to perform the promised act is not by itself sufficient evidence of fraudulent intent, for purposes of a promissory-fraud claim, 'the factfinder may consider that failure, together with other circumstances, in determining whether, at the time the promise was made, the promisor intended to deceive.' " Ex parte Grand Manor, Inc., 778 So. 2d 173, 182 (Ala. 2000) (quoting Murphy v. Droke, 668 So. 2d 513, 516 (Ala. 1995)).

2024See also Ex parte Grand Manor, 778 So. 2d at 182 ("While the mere failure to perform the promised act is not by itself sufficient evidence of fraudulent intent, for purposes of a promissory- fraud claim, 'the factfinder may consider that failure, together with other circumstances, in determining whether, at the time the promise was made, the promisor intended to deceive.' " (quoting Murphy, 668 So. 2d at 516 )).

2024A false representation or "broken promise" is necessary to establish promissory fraud but is, alone, insufficient to prove that promissory fraud occurred: "While the mere failure to perform the promised act is not by itself sufficient evidence of fraudulent intent, for purposes of a promissory-fraud claim, 'the factfinder may consider that failure, together with other circumstances, in determining whether, at the time the promise was made, the promisor intended to deceive.' " Ex parte Grand Manor, Inc., 778 So. 2d 173, 182 (Ala. 2000) (quoting Murphy v. Droke, 668 So. 2d 513, 516 (Ala. 1995)).

2024See also Ex parte Grand Manor, 778 So. 2d at 182 ("While the mere failure to perform the promised act is not by itself sufficient evidence of fraudulent intent, for purposes of a promissory- fraud claim, 'the factfinder may consider that failure, together with other circumstances, in determining whether, at the time the promise was made, the promisor intended to deceive.' " (quoting Murphy, 668 So. 2d at 516 )).

2013Co., 875 So.2d 1143, 1160 (Ala.2003) (quoting Padgett v. Hughes, 535 So.2d at 142 ).

2009Co., 875 So.2d 1143, 1160 (Ala.2003) (quoting Padgett v. Hughes, 535 So.2d 140, 142 (Ala.1988)).” Carroll has not sought a bonus for the non-hurricane roofing work he performed for LJC, and the evidence conclusively established that he is not entitled to a bonus for that work because the non-hurricane projects on which he worked resulted in a net loss to LJC.

2024To prevail on a promissory fraud claim ..., two additional elements must be satisfied: (5) proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and (6) proof that the defendant had an intent to deceive.' " ' " Heisz v. Galt Indus., Inc., 93 So. 3d 918, 925 (Ala. 2012) (citations omitted).

2013Heisz v. Galt Indus., Inc., 93 So.3d 918 (Ala.2012). “ ‘[A] reckless misrepresentation cannot constitute fraud where the alleged misrepresentation relates to some future event.

2024See also Alabama River Grp., Inc. v. Conecuh Timber, Inc., 261 So. 3d 226, 245 (Ala. 2017) ("To succeed on a claim of promissory fraud, 15 SC-2023-0304 the … plaintiffs must prove two elements in addition to the elements of misrepresentation, namely: 'proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and ... proof that the defendant had an intent to deceive.' " (quoting Ex parte Moulton, 116 So. 3d 1119, 1144 (Ala. 2013))). " 'The burden is on the plaintiff to prove that when the promise was made the defendant intended to deceive.

2024See also Alabama River Grp., Inc. v. Conecuh Timber, Inc., 261 So. 3d 226, 245 (Ala. 2017) ("To succeed on a claim of promissory fraud, 15 SC-2023-0304 the … plaintiffs must prove two elements in addition to the elements of misrepresentation, namely: 'proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and ... proof that the defendant had an intent to deceive.' " (quoting Ex parte Moulton, 116 So. 3d 1119, 1144 (Ala. 2013))). " 'The burden is on the plaintiff to prove that when the promise was made the defendant intended to deceive.

2012If it were, then every breach of contract would be ‘tantamount to fraud.’ ” Gadsden Paper & Supply Co. v. Washburn, 554 So.2d 983, 987 (Ala.1989) (citing and quoting Purcell Co. v. Spriggs Enters., Inc., 431 So.2d 515, 519 (Ala.1983)).

2012If it were, then every breach of contract would be ‘tantamount to fraud.’ ” Gadsden Paper & Supply Co. v. Washburn, 554 So.2d 983, 987 (Ala.1989) (citing and quoting Purcell Co. v. Spriggs Enters., Inc., 431 So.2d 515, 519 (Ala.1983)).

2010Co. v. Hilley, 595 So.2d 873, 876 (Ala.1992) (quoting Padgett v. Hughes, 535 So.2d 140, 142 (Ala.1988)).

2010To prevail on a promissory fraud claim ..., two additional elements must be satisfied: (5) proof that at the time of the misrepresentation, the defendant had the intention not to perform the act promised, and (6) proof that the defendant had an intent to deceive.” ’ “[Ex parte ] Michelin North America, 795 So.2d [674,] 678-79 [(Ala.2001)] (quoting Padgett [v. Hughes,] 535 So.2d [140,] 142 [ (Ala.1988) ]).” Southland Bank v. A & A Drywall Supply Co., 21 So.3d 1196, 1210 (Ala.2008).

2010See Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So.2d 1196, 1207 (Ala.2006) (“When the trial court charged the jury, it did not charge the jury regarding Beiersdoerfer’s promissory-fraud claim.

2010Berry Realty Co., 528 So.2d 314, 316 (Ala.1988).

2009Therefore, we address the merits of the promissory-fraud claim notwithstanding Bruce v. Cole, 854 So.2d 47, 58 (Ala.2003) ("an oral promise that is void by operation of the Statute of Frauds will not support an action against the promisor for promissory fraud”). .

2009Therefore, we address the merits of the promissory-fraud claim notwithstanding Bruce v. Cole, 854 So.2d 47, 58 (Ala.2003) ("an oral promise that is void by operation of the Statute of Frauds will not support an action against the promisor for promissory fraud"). [15] We note that, although the jury was instructed generally on negligence and the liability of principals for the acts of their agents, no specific instruction explaining negligent training or supervision — including a definition of "incompetent" — was given.

2002McLemore v. Ford Motor Co., 628 So.2d 548, 551 (Ala.1993) (if the "underlying cause of action is not viable, the conspiracy claim must also fail"). [4] We have considered the other issues raised by the Holmans, and we find each to be immaterial to the resolution of this case or to be without merit. [5] While the Holmans do not characterize their fraudulent misrepresentation claim as "promissory fraud," they plead all of the essential elements of that species of promissory fraud recognized by US Diagnostic, supra, and the record contains substantial evidence tending to prove those elements.

2000A plaintiff may meet the burden of proving fraudulent intent through circumstantial evidence, but "the circumstances shown by the evidence of record must be such that the jury, as reasonable persons, may fairly *183 and reasonably infer the ultimate fact sought to be proved." Ex parte Lumpkin, 702 So.2d 462, 466 (Ala.1997) (quotation marks and citations omitted).

1995See also Campisi v. Scoles Cadillac, Inc. , 611 So.2d 296 , 300 (Ala. 1992). 2 United relies heavily on Stutts v. Sears, Roebuck Co. , 855 F. Supp. 1574 (N.D.Ala. 1994), also relied upon by the trial court.

1995See also Campisi v. Scoles Cadillac, Inc. , 611 So.2d 296 , 300 (Ala. 1992). 2 United relies heavily on Stutts v. Sears, Roebuck Co. , 855 F. Supp. 1574 (N.D.Ala. 1994), also relied upon by the trial court.

1990I First, we state the scope of review as set forth in Gulf City Body & Trailer Works, Inc. v. Phoenix Properties Trust, Inc., 531 So.2d 870, 872-73 (Ala.1988): “The standard of review of a summary judgment based on a showing by the defendant that plaintiff cannot prove a cause of action is whether it clearly ap pears, with no genuine issue as to any material fact, that there is no evidence as to some essential element of the cause of action.

1988See Russellville Production Credit Ass'n v. Frost , 484 So.2d at 1085-87 .