Nor does actionable fraud result from a mere failure to perform promises made. Otherwise, any breach of a contract would amount to fraud." Buckley v. Turner Heritage Homes, Inc., 547 S.E.2d 373, 376 (Ga.Ct.App. 2001); accord Goodlett v. Ray Label Corp., 319 S.E.2d 533, 535 (Ga.Ct.App. 1984). A well-recognized exception to this rule is that a promise made without the present intention to perform can create a cause of action for fraud in the inducement.
Otherwise, any breach of a contract would amount to fraud." Buckley v. Turner Heritage Homes, Inc., 547 S.E.2d 373, 376 (Ga.Ct.App. 2001); accord Goodlett v. Ray Label Corp., 319 S.E.2d 533, 535 (Ga.Ct.App. 1984). A well-recognized exception to this rule is that a promise made without the present intention to perform can create a cause of action for fraud in the inducement.
In any event, "[t]he question of intent [to deceive or not to perform] is in all cases the dominion of the fact finder; on appeal, the presumption lies in favor of the verdict where there is any evidence to support it. [Cit.]" Goodlett v. Ray Label Corp., 171 Ga. App. 377, 379(1), 319 S.E.2d 533 (1984) (physical precedent), but later cited in Community Fed. Sav. Loan Assoc. v. Foster Developers, 179 Ga. App. 861, 864(1), 348 S.E.2d 326 (1986).Gunnin, 205 Ga. App. at 633-634, 422 S.E.2d at 895-896.
(Citation omitted.) Goodlett v. Ray Label Corp., 171 Ga. App. 377, 378 (1) ( 319 SE2d 533) (1984). See also Buckley v. Turner Heritage Homes, 248 Ga. App. 793, 795 (3) ( 547 SE2d 373) (2001).
As to the representations that the draw would be credited to PCI's account but was diverted instead to the Beacon account, this was not a future promise but a present misrepresentation of fact. While the promise to use the draw to pay suppliers and subcontractors might be considered to be a future promise by PCI or by the Bank, the misrepresentation that the funds would be paid to PCI's account and the immediate diversion of funds into the Beacon account instead of all paid into the PCI account, was a present misrepresentation of fact by the Bank and not a future promise that it never intended to perform. Goodlett v. Ray Label Corp., 171 Ga. App. 377, 378-379 (1) ( 319 S.E.2d 533) (1984); see also Middlebrooks v. Lonas, 246 Ga. 720, 721 (2) ( 272 S.E.2d 687) (1980). The Bank's actions in diverting only sufficient sums to satisfy the overdraft of each account; in creating the attachment on each account; in failing to advise of the overdrafts, preexising attachment, Campbell's alleged instructions, and Campbell's injury; in urgently contacting Baker in New York on a Saturday; and in having Baker execute the lien waiver forms, are all facts under the totality of the circumstances giving rise to the inference of fraud.
First, questions of a defendant's intent are generally for a factfinder to determine. See Goodlett v. Ray Label Corp., 171 Ga. App. 377, 379 (1) ( 319 S.E.2d 533) (1984). Zuberi signed on behalf of a corporation that simply did not exist, either before or after this transaction.
In any event, "[t]he question of intent [to deceive or not to perform] is in all cases the dominion of the factfinder; on appeal, the presumption lies in favor of the verdict where there is any evidence to support it. [Cit.]" Goodlett v. Ray Label Corp., 171 Ga. App. 377, 379 (1) ( 319 S.E.2d 533) (1984) (physical precedent), but later cited in Community Fed. c. Assn. v. Foster Developers, 179 Ga. App. 861, 864 (1) ( 348 S.E.2d 326) (1986). The trial court did not err in refusing to direct a verdict in favor of the appellant defendants on the bases urged.
[Cit.] Both of these exceptions to the general rule require the promise (or concealment) be made in a manner as to deceive and mislead. `. . . knowledge of the falsehood constitutes an essential element. . . .' OCGA § 51-6-2 (b). `To support an action for deceit, the misrepresentation must be either known at the time to be false, or recklessly made with the intention of deceiving the opposite party.'" Goodlett v. Ray Label Corp., 171 Ga. App. 377, 378 (1) ( 319 S.E.2d 533) (1984). "A promise made without a present intent to perform is a misrepresentation of a material fact. . . sufficient to support a[n] . . . action for fraud.
In Georgia, "actionable fraud cannot be predicated on a promise contained in a contract because the promise is to perform some act in the future, and ‘normally, fraud cannot be predicated on statements which are in the nature of promises as to future events.’ " BTL COM Ltd., Co. v. Vachon, 278 Ga. App. 256, 258, 628 S.E.2d 690, 694 (2006) (quoting Goodlett v. Ray Label Corp., 171 Ga. App. 377, 378, 319 S.E.2d 533, 535 (1984) ). An exception to this general rule, however, "exists where a promise as to future events is made with a present intent not to perform or where the promisor knows that the future event will not take place."
The other cases relied on by BMC simply do not address the legal import of an unenforceable agreement to a fraud claim. See, e.g., Goodlett v. Ray Label Corp., 319 S.E.2d 533 (Ga.Ct.App. 1984), Brock v. King, 629 S.E.2d 829 (Ga.Ct.App. 2006). The fact that Georgia courts reached decisions on other grounds in these cases does not require the conclusion that an unenforceable promise can support a claim of fraud, particularly in light of the weight of case law that says that unenforceable agreements simply cannot form the predicate for a fraud claim.