Goodyear Tire Rubber Co. v. Washington, 719 So.2d 774, 776 (Ala. 1998). See also Trum v. Melvin Pierce Marine Coating, Inc., 562 So.2d 235, 237 (Ala. 1990) ("[I]n order for a promise to constitute a fraudulent misrepresentation, there must have been at the time the promise was made an intention not to perform, and such a promise must have been made with the intent to deceive."); Clanton v. Bains Oil Co., 417 So.2d 149, 151 (Ala. 1982) ("A promise, to constitute fraud, must be made with the intent not to perform it."). Evidence of consistent, but unfulfilled, promises can in some cases amount to substantial evidence of an intent to deceive.
To be fraudulent, a promise to perform in the future must be made with a present intent not to perform. Cahaba Seafood, Inc. v. Central Bank of the South, 567 So.2d 1304 (Ala. 1990); Koch v. State Farm Fire Cas. Co., 565 So.2d 226 (Ala. 1990); Trum v. Melvin Pierce Marine Coating, Inc., 562 So.2d 235 (Ala. 1990); H.C. Schmieding Produce Co. v. Cagle, 529 So.2d 243 (Ala. 1988); Farmers Merchants Bank v. Climate Masters Electrical Co., 514 So.2d 1003 (Ala. 1987); and Elrod v. Ford, 489 So.2d 534 (Ala. 1986). The evidence submitted by B.K.W., if believed by the jury, shows a pattern of initial promises coupled with later repudiations. That pattern, and T E's denial of the promises, presents at least circumstantial evidence of intent not to perform.