Present: All the Justices 

BLAIR CONSTRUCTION, INC. 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 961079 April 18, 1997 

RANDY WEATHERFORD, 

T/A W. S. CONSTRUCTION 

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY 

J. Michael Gamble, Judge 

 In this appeal, we consider whether the plaintiff presented 

the necessary clear and convincing evidence to establish a prima 

facie case of constructive fraud. 

 Blair Construction, Inc., a general contractor, filed its 

motion for judgment against Randy Weatherford, t/a W. S. 

Construction, alleging that Weatherford breached its subcontract 

with Blair and that Weatherford had also engaged in acts of 

constructive fraud against Blair. At the conclusion of Blair's 

evidence, the trial court granted Weatherford's motion to strike 

the constructive fraud claim, and the jury returned a verdict in 

favor of Weatherford on the breach of contract claim. Since 

Blair appeals only that portion of the trial court's judgment 

granting Weatherford's motion to strike the constructive fraud 

claim, we will recite the evidence and all reasonable inferences 

deducible therefrom in the light most favorable to Blair. 

 Abbott Laboratories, Ross Products Division, a national 

pharmaceutical manufacturer, decided to construct a warehouse in 

Altavista. Blair was one of the five general contractors from 

whom Abbott solicited proposals. Kenneth V. BeCraft, a Blair 

vice-president and project manager, solicited bids from 

subcontractors to perform various aspects of the construction 
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work, including erection of structural steel elements of the 

building. BeCraft received a bid of $438,400.00 to perform the 

structural steel erection subcontract from Pro-Erectors, Inc., a 

steel erection company. 

 Weatherford, who had not been solicited by BeCraft, called 

him on December 29 or 30, 1993, and informed him that Weatherford 

intended to submit a bid to perform the steel erection work. On 

January 3, 1994, BeCraft received a one-page facsimile from 

Weatherford which contained a bid to perform the steel erection 

work for a base price of $253,000.00. 

 Considering the amount of the bid to be "low," BeCraft spoke 

with Weatherford on the telephone "to make sure . . . the price 

was okay." Weatherford stated "[h]e knew it was [a low] price" 

and "that this would not be an out of town job for his men and it 

. . . would allow him to have a job where they could commute back 

and forth to the job site without having to stay in motels." 

 After informing Weatherford that it was computing and 

submitting its bid to Abbott in reliance upon Weatherford's bid, 

Blair submitted its bid to Abbott Laboratories. Between January 

31, 1994 and April 8, 1994, Weatherford had numerous 

conversations, both in person and on the telephone, with BeCraft, 

and Weatherford indicated no reluctance to perform the steel 

erection work. After Abbott awarded Blair the contract to 

construct the warehouse, Blair mailed its standard confirmation 

form to Weatherford and requested that he acknowledge that he 
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would perform the steel erection work for $260,150.00 by signing 

and returning the form. Weatherford did not return the 

confirmation form. 

 Since a significant quantity of steel was scheduled to 

arrive at the construction site on May 9, 1994, BeCraft scheduled 

a meeting for April 27, 1994 with Weatherford and Everett Grady, 

Abbott's site engineer and project representative, to discuss the 

steel erection work. During this meeting, Weatherford and Grady 

discussed Abbott's contractors' safety guide. Grady responded in 

the negative to Weatherford's inquiry whether Abbott would 

require him to utilize safety precautions in excess of those 

standards required by the Occupational Safety and Health 

Administration (OSHA). Weatherford expressed no further concern 

about this issue at this meeting. 

 However, two days later, Weatherford sent a facsimile to 

BeCraft which stated in part, "[b]ased on the stric[t] safety 

guidelines relating to the above referenced job, we will have 

[an] increase for quote of [January 3, 1994] by $75,000.00. 

These are extra costs that were not taken into consideration on 

the bid day. Thank you!" BeCraft called Weatherford by 

telephone and informed him that BeCraft was "shocked" by the 

request for additional money and told Weatherford that BeCraft 

needed a "better justification" before requesting an additional 

$75,000.00 from Abbott Laboratories. 

 This conversation occurred on a Friday afternoon, and 
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Weatherford agreed to contact BeCraft on the following Monday. 

Weatherford failed to contact BeCraft, as agreed. When Becraft 

was finally able to contact Weatherford, the latter told Becraft 

that he was not going to "do the job." Blair expended 

approximately $602,719.00 in having its own personnel and those 

of other contractors perform this work. 

 We recently stated the following principles which govern our 

resolution of this appeal: 

 "[T]he elements of a cause of action for constructive 

fraud are a showing by clear and convincing evidence 

that a false representation of a material fact was made 

innocently or negligently, and the injured party was 

damaged as a result of his reliance upon the 

misrepresentation. Evaluation Research Corp. v. 

Alequin, 247 Va. 143, 148, 439 S.E.2d 387, 390 (1994); 

accord Nationwide Mut. Ins. Co. v. Hargraves, 242 Va. 

88, 92, 405 S.E.2d 848, 851 (1991); Kitchen v. 

Throckmorton, 223 Va. 164, 171, 286 S.E.2d 673, 676 

(1982). Additionally, '[a] finding of . . . 

constructive fraud requires clear and convincing 

evidence that one has represented as true what is 

really false, in such a way as to induce a reasonable 

person to believe it, with the intent that the person 

will act upon this representation.' Alequin, 247 Va. 

at 148, 439 S.E.2d at 390." Mortarino v. Consultant 

Eng. Services, 251 Va. 289, 295, 467 S.E.2d 778, 782 

(1996). 

 Additionally, "fraud must relate to a present or a preexisting fact, and cannot ordinarily be predicated on unfulfilled 

promises or statements as to future events." Patrick v. Summers, 

235 Va. 452, 454, 369 S.E.2d 162, 164 (1988) (quoting Soble v. 

Herman, 175 Va. 489, 500, 9 S.E.2d 459, 464 (1940)); accord

Mortarino, 251 Va. at 293, 467 S.E.2d at 781. We explained the 

reason for this requirement in Lloyd v. Smith, 150 Va. 132, 145, 
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142 S.E. 363, 365 (1928): 

 "[A]n action based upon fraud must aver the 

misrepresentation of present pre-existing facts, and 

cannot ordinarily be predicated on unfulfilled promises 

or statements as to future events. Were the general 

rule otherwise, every breach of contract could be made 

the basis of an action in tort for fraud." 

 Blair contends that it established a prima facie case of 

constructive fraud. Blair argues that it presented clear and 

convincing evidence that Weatherford "made a false representation 

to Blair -- that being his present intent to construct the Abbott 

building for $260,150.00." Continuing, Blair says that its 

evidence indicates: Weatherford initiated contact with Blair; 

Weatherford submitted an extraordinarily low bid and assured 

Blair that Weatherford would perform for that price; Weatherford 

had extensive discussions with BeCraft about the progress of the 

project and never expressed any hesitancy about performing the 

work; and when Weatherford "knew it would be virtually impossible 

for Blair to find anyone else to perform the job, Weatherford 

demanded $75,000.00 more money." Blair asserts that "[s]urely 

the finder of fact could infer from all this that [Weatherford] 

had no intention of performing his original promise to construct 

this job for $260,150.00 but rather getting the job [and] then 

bleeding Blair for more funds." 

 We disagree with Blair's contentions. We are of opinion 

that Blair ignores the differences between actual fraud and 

constructive fraud, which are two separate and distinct causes of 

action, only one of which was pled in this case. Blair's sole 
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allegation of constructive fraud differs from actual fraud 

because in an action for constructive fraud, "the 

misrepresentation of material fact is not made with the intent to 

mislead, but is made innocently or negligently although resulting 

in damage to the one relying on it." Evaluation Research Corp., 

247 Va. at 148, 439 S.E.2d at 390. Here, Blair pled a cause of 

action for constructive fraud and, thus, at trial Blair was 

required to present clear and convincing evidence to establish 

that Weatherford's statements or actions constituted a 

"misrepresentation of material fact . . . made innocently or 

negligently." Id. The record is devoid of such evidence. 

 Next, Blair says that "misrepresentation of one's present 

state of mind to do or not do an act can constitute a material 

misrepresentation sufficient to support a cause of action for 

constructive fraud." Blair cites Lloyd v. Smith, 150 Va. 132, 

142 S.E. 363 (1928), Sea-Land Service, Inc. v. O'Neal, 224 Va. 

343, 297 S.E.2d 647 (1982), and Colonial Ford Truck Sales, Inc.

v. Schneider, 228 Va. 671, 325 S.E.2d 91 (1985), in support of 

this contention. 

 Blair's reliance upon these cases is misplaced. Once again, 

Blair fails to recognize the distinctions between actual fraud 

and constructive fraud. Each of the cases that Blair cites 

involves actual fraud, not constructive fraud. For example, in 

Colonial Ford, we stated: 

 "While failure to perform an antecedent promise 

may constitute breach of contract, the breach does not 

amount to fraud. But the promisor's intention -- his 
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state of mind -- is a matter of fact. When he makes 

the promise, intending not to perform, his promise is a 

misrepresentation of present fact, and if made to 

induce the promisee to act to his detriment, is 

actionable as an actual fraud. Lloyd v. Smith, 150 Va. 

132, 145-47, 142 S.E. 363, 365-66 (1928); accord SeaLand Service, Inc. v. O'Neal, 224 Va. 343, 351, 297 

S.E.2d 647, 651-52 (1982)." 228 Va. at 677, 325 S.E.2d 

at 94 (emphasis added). 

 The record does not contain clear and convincing evidence 

that would permit a jury to find that Weatherford committed acts 

of constructive fraud when he submitted his bid to Blair. 

Weatherford's bid, along with his subsequent telephone 

conversation with BeCraft in which Weatherford confirmed his low 

bid, do not constitute statements of present facts, but rather 

promises to perform the work in the future for a specific price. 

 For the foregoing reasons, we will affirm the judgment of 

the trial court. 

Affirmed.