Most fraud or intentional misrepresentation cases require that the misrepresentation relate to a present or past fact. A promise to take future action generally cannot form the basis for fraud.
There is a difficult-to-prove an exception to this rule. “When a fraud claim is based on a statement of intent, the plaintiff establishes falsity by showing that when the statement was made, the speaker did not intend to perform consistently with the statement.” Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322 S.W.3d 112, 133 (Mo. 2010). “Absent such an inconsistent intent, there is no misrepresentation of fact or state of mind but only a breach of promise or failure to perform.” Id. Accordingly, to be actionable, a plaintiff must prove a present intent not to perform. Trotter’s Corp. v. Ringleader Restaurants, Inc., 929 S.W.2d 935, 940 (Mo. Ct. App. 1996).