Present: All the Justices 

RICHMOND METROPOLITAN AUTHORITY 

v. Record No. 980081 OPINION BY JUSTICE CYNTHIA D. KINSER 

 November 6, 1998 

McDEVITT STREET BOVIS, INC. 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Theodore J. Markow, Judge 

 This appeal involves claims for actual and 

constructive fraud arising out of a construction contract. 

Because any duty breached in this case exists solely by 

reason of the contract between the parties, we will affirm 

the judgment of the circuit court dismissing the causes of 

action for fraud. 

I. 

On August 31, 1984, Richmond Metropolitan Authority 

(RMA) entered into an “Agreement for Design-Build 

Construction, New Parker Field Stadium” (Design-Build 

Contract) with McDevitt Street Bovis, Inc., (McDevitt) for 

construction of the Diamond Baseball Stadium (the Diamond) 

in Richmond. The Diamond’s design criteria included 32 

pre-cast/post-tensioned concrete structural members known 

as “bents” for its cantilevered roof and upper concourse 

seating. Each bent was to have had hollow conduits 

containing steel tendons/bars. After insertion and 

tensioning of the steel tendons/bars, the design criteria 
required the injection of grout into each conduit. The 

grout was to be injected through protruding grout tubes. 

When the grout had set, the tubes were to be cut off flush 

with the surface of the bents and sealed. The purpose of 

the grout was to strengthen the bents, prevent corrosion of 

the steel tendons/bars, and enhance the structural 

integrity of the Diamond. 

McDevitt built the Diamond during the winter of 1984-

1985. In order to receive progress payments during the 

construction, McDevitt submitted “APPLICATION AND 

CERTIFICATE FOR PAYMENT” forms to RMA. Each such 

application contained a sworn statement by McDevitt that 

“[t]he undersigned Contractor certifies that to the best of 

the Contractor’s knowledge, information and belief the Work 

covered by this Application for Payment has been completed 

in accordance with the Contract Documents . . . .” 

McDevitt presented other documents to RMA, including “asbuilt” drawings, an Application for Final Payment, and an 

Affidavit of Payment and Certificate of Substantial 

Completion, in which McDevitt represented that it had 

constructed the Diamond in accordance with the design 

criteria set forth in the Design-Build Contract. 

Around February 1996, RMA discovered that many of the 

conduits contained no grout or insufficient grout and that, 

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as a result, the steel tendons/bars in the conduits had 

corroded. According to RMA, McDevitt had sealed the empty 

tube openings with grout, thus giving the false impression 

that the conduits were filled with grout. RMA also learned 

that three conduits contained no steel tendons/bars. As a 

result of McDevitt’s failure to construct the Diamond in 

accordance with the design criteria, RMA claims that the 

Diamond fails to meet applicable building code requirements 

and that the durability and strength of the structure are 

impaired. 

On February 10, 1997, RMA filed suit against McDevitt.1

In its motion for judgment, RMA alleged that McDevitt 

breached the Design-Build Contract (Count I) and committed 

actual and constructive fraud (Counts II and III, 

respectively). RMA based its allegations of fraud on 

McDevitt’s misrepresentations in the construction documents 

submitted to RMA and on McDevitt’s physical concealment of 

its noncompliance with the design criteria. 

McDevitt filed a plea in bar asserting that the 

statute of limitations contained in Code § 8.01-246(2)2 bars 

 1

 RMA also named an engineering firm hired to monitor 

construction of the Diamond as a defendant in the suit. 

RMA subsequently nonsuited the counts against that firm. 

2

 Code § 8.01-246(2) establishes a five-year statute of 

limitations for an action on any written contract. 

3
Count I and that the statute of repose, Code § 8.01-250,3

precludes all three counts. On May 6, 1997, the circuit 

court sustained McDevitt’s plea as to Count I of the motion 

for judgment and dismissed it. The court, however, 

overruled the plea in bar as to Counts II and III. 

Thereafter, McDevitt moved for summary judgment on 

RMA’s claims for actual and constructive fraud.4 On October 

27, 1997, the court entered an order sustaining the motion 

and granting judgment for McDevitt. In a letter opinion, 

the court explained that “[t]he particular instances of 

misrepresentation are duties and obligations specifically 

required by the contract,” and that nothing “establishes 

____________________ 

3

 Code § 8.01-250 provides, in part, as follows: 

No action to recover for any injury to property, 

real or personal, or for bodily injury or wrongful 

death, arising out of the defective and unsafe 

condition of an improvement to real property, nor 

any action for contribution or indemnity for damages 

sustained as a result of such injury, shall be 

brought against any person performing or furnishing 

the design, planning, surveying, supervision of 

construction, or construction of such improvement to 

real property more than five years after the 

performance of furnishing of such services and 

construction. 

4

 For purposes of the motion for summary judgment, 

McDevitt asked the court to accept as true the allegations 

in RMA’s motion for judgment and its answers to McDevitt’s 

interrogatories. 

4
that the duty breached is separate and independent from the 

contract.” The court further stated: 

McDevitt promised to inject the grout, promised to 

submit accurate certificates for progress payments, 

promised to submit an accurate certificate of final 

completion and “as built” drawings, and promised to 

fill the grout tubes before cutting them off and 

sealing the tubes. McDevitt’s failure to perform each 

and every one of these promises was a breach of its 

contract, not fraud . . . . 

RMA appeals the circuit court’s judgment with regard to 

Counts II and III.5 McDevitt assigns cross-error to the 

circuit court’s ruling that Counts II and III are not timebarred by Code § 8.01-250. 

II. 

RMA asserts that McDevitt’s misrepresentations that 

the Diamond was constructed in accordance with the criteria 

in the Design-Build Contract and its physical concealment 

of its noncompliance with the design criteria give rise to 

common law actions for constructive and actual fraud. 

Conceding that mere failure to inject grout into the 

conduits would constitute only a breach of contract, RMA 

asserts that McDevitt’s false applications under oath to 

induce payments and its sealing the empty tube openings 

 5

 RMA does not assign error to the circuit court’s 

dismissal of its breach of contract claim. 

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with grout are separate and independent wrongs that go 

beyond McDevitt’s contractual duties. We do not agree. 

A plaintiff asserting a cause of action for actual 

fraud bears the burden of proving by clear and convincing 

evidence the following elements: “(1) a false 

representation, (2) of a material fact, (3) made 

intentionally and knowingly, (4) with intent to mislead, 

(5) reliance by the party misled, and (6) resulting damage 

to the party misled.” Evaluation Research Corp. v. 

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

(citing Bryant v. Peckinpaugh, 241 Va. 172, 175, 400 S.E.2d 

201, 203 (1993)). Constructive fraud requires proof, also 

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 . . . reliance upon the misrepresentation.” Mortarino 

v. Consultant Eng’g Serv., 251 Va. 289, 295, 467 S.E.2d 

778, 782 (1996) (citing Alequin, 247 Va. at 148, 439 S.E.2d 

at 390). 

In determining whether a cause of action sounds in 

contract or tort, the source of the duty violated must be 

ascertained. In Oleyar v. Kerr, Trustee, 217 Va. 88, 90, 

225 S.E.2d 398, 399-400 (1976) (quoting Burks Pleading and 

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Practice § 234 at 406 (4th ed. 1952)), we distinguished 

between actions for tort and contract: 

If the cause of complaint be for an act of omission or 

non-feasance which, without proof of a contract to do 

what was left undone, would not give rise to any cause 

of action (because no duty apart from contract to do 

what is complained of exists) then the action is 

founded upon contract, and not upon tort. If, on the 

other hand, the relation of the plaintiff and the 

defendants be such that a duty arises from that 

relationship, irrespective of the contract, to take 

due care, and the defendants are negligent, then the 

action is one of tort. 

We have acknowledged that a party can, in certain 

circumstances, show both a breach of contract and a 

tortious breach of duty. Foreign Mission Bd. v. Wade, 242 

Va. 234, 241, 409 S.E.2d 144, 148 (1991). However, “the 

duty tortiously or negligently breached must be a common 

law duty, not one existing between the parties solely by 

virtue of the contract.” Id. (citing Spence v. Norfolk & 

W. R.R. Co., 92 Va. 102, 116, 22 S.E.2d 815, 818 (1895)). 

In Foreign Mission Bd., the plaintiffs alleged that 

the defendant had failed to use ordinary care to protect 

them from continued sexual abuse. There was an oral 

contract between the parties; however, the plaintiffs 

brought suit not only for breach of contract but also for 

negligence. We affirmed the trial court’s dismissal of the 

negligence count because the plaintiffs sought to 

“establish a tort action based solely on the negligent 

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breach of a contractual duty with no corresponding common 

law duty.” 242 Va. at 241, 409 S.E.2d at 148. 

With the principles enunciated in Oleyar and Foreign 

Mission Bd. in mind, we first address RMA’s claim for 

constructive fraud. The essence of constructive fraud is 

negligent misrepresentation. See Mortarino, 251 Va. at 

295, 467 S.E.2d at 782. In the present case, RMA’s 

allegations of constructive fraud are nothing more than 

allegations of negligent performance of contractual duties 

and are, therefore, not actionable in tort. A tort action 

cannot be based solely on a negligent breach of contract. 

Turning to the claim for actual fraud, we agree with 

the circuit court that each particular misrepresentation by 

McDevitt related to a duty or an obligation that was 

specifically required by the Design-Build Contract. 

McDevitt contracted to inject grout into the conduits, to 

fill the grout tubes before cutting them off and sealing 

them, to submit accurate applications for payments, and to 

present an accurate certificate of substantial completion 

and “as-built” drawings. McDevitt may have breached each 

one of these contractual duties, but its actions do not 

give rise to a cause of action for actual fraud, albeit 

McDevitt misrepresented its compliance with the design 

criteria. 

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Even on the concealment issue, RMA conceded during 

oral argument that the Design-Build Contract required that 

the ends of the grout tubes be cut off and sealed. Thus, 

this step was part of the construction process and not an 

action undertaken by McDevitt solely to hide its failure to 

inject grout into the conduits. In short, RMA has alleged 

only McDevitt’s breach of contractual obligations “because 

no duty apart from contract to do what is complained of 

exists.” Oleyar, 217 Va. at 90, 225 S.E.2d at 399. The 

source of any duty breached in this case is solely from the 

Design-Build Contract between the parties. 

Citing the decision of the United States Court of 

Appeals for the Fourth Circuit in Flip Mortgage Corp. v. 

McElhone, 841 F.2d 531 (4th Cir. 1988), RMA, nonetheless, 

contends that McDevitt’s submission of applications for 

payment containing misrepresentations constitutes 

actionable fraud. In Flip, allegations of fraud were 

based, in part, on the submission of false revenue reports 

almost from the beginning of the contractual relationship. 

Id. at 537. The Court of Appeals based its finding of 

actionable fraud, arising out of a contractual 

relationship, upon the fact that there was fraud in the 

inducement. The court viewed the false revenue reports as 

circumstantial evidence of the intent never to abide by the 

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terms of the contract. Id. The court concluded that Flip 

Mortgage had alleged a cause of action for fraud based on 

the principles enunciated by this Court in Colonial Ford 

Truck Sales v. Schneider, 228 Va. 671, 325 S.E.2d 91 

(1985). In Colonial Ford, we held that “the promisor’s 

intention . . . [w]hen he makes the promise, intending not 

to perform . . . is a misrepresentation of present fact 

. . . [that] is actionable as an actual fraud.” Id. at 

677, 325 S.E.2d at 94. 

The present case is not one of fraud in the 

inducement. Nothing in the record suggests that McDevitt 

did not intend to fulfill its contractual duties at the 

time it entered into the Design-Build Contract with RMA. 

Therefore, RMA’s reliance on Flip is misplaced. We are 

likewise not persuaded by the rationale of the court in 

Vanguard Military Equip. Corp. v. David B. Finestone Co., 

Inc., 979 F. Supp. 401 (E.D. Va. 1997), a case relied upon 

by RMA. 

In ruling as we do today, we safeguard against turning 

every breach of contract into an actionable claim for 

fraud. The appropriate remedy in this case is a cause of 

action for breach of contract, which unfortunately is timebarred. 

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For these reasons, we will affirm the judgment of the 

circuit court.6

Affirmed. 

 6

 In light of our decision, we do not reach the 

parties’ other arguments or the assignments of cross-error. 

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