Con-Tort? — UPDATED

The allegedly overlapping fraud and contract claims in Benge General Contracting v. Hertz Electric were as follows:

• “Appellees’ breach-of-contract counterclaim was based on ‘enforceable agreements’ under which appellees agreed to provide ‘electrical contracting and painting services at several jobsites in North Texas’ in exchange for BGC’s promise to compensate appellees for the services.”
• “Their fraud counterclaim, as stated in appellees’ fourth amended counterclaims, was based on Dennie’s reliance [on] Benge’s allegedly false representation that he would pay for work performed by appellees ‘in exchange for the signing of lien releases.’ Appellees alleged that appellants knew the representations were false when made and omitted facts regarding Benge’s misappropriation of project funds otherwise intended to compensate appellees for work performed.”

The Fifth Court concluded: “Appellants characterize this counterclaim as fraud by omission and argue there is no evidence a special relationship to support such a claim. … The gravamen of appellees’ fraud counterclaim, however, was not that Benge fraudulently omitted information but that he fraudulently induced Dennie to sign lien waivers to obtain a payment he never intended to make; indeed, a payment already owed under the contracts. Thus, appellees stated a claim for fraudulent inducement.” No. 05-19-01506-CV (Sept. 7, 2021) (mem. op.) (later modified slightly on rehearing).