Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc

In Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 49 (Tex. 1998), a contractor bid on a construction job on the basis of misrepresentations made by the project owner. The misrepresentations resulted in the job costing more than the contractor had anticipated, so that instead of making a profit the contractor suffered a loss. The contractor had bid $ 600,000 on the job, contemplating costs of $ 370,000 and a profit of $ 230,000. Instead, the costs totaled $ 831,000. The trial court rendered judgment for $ 700,000 in damages based on the contractor's testimony that, had he known the truth, he would have bid $ 1.3 million for the job. The Court, however, rejected a computation of damages based on what the contractor otherwise would have charged, noting that such evidence established neither the benefit-of-the- bargain actually made, nor the out-of-pocket loss the contractor actually sustained from the higher than expected costs. Rather, the Court observed, such evidence was "based on an entirely hypothetical, speculative bargain that was never struck and would not have been consummated." It is a leap of faith for the Court to say today that the Formosa Plastics statement that "this doubling of Presidio's bid is entirely speculative because there is no evidence that Presidio would have been awarded the project if it had made a $ 1.3 million bid" means that "if there is evidence of the bargain that would have been struck had the defrauded party known the truth, there can be a recovery for benefit-of-the-bargain damages." The Court concluded that Presidio could bring a fraudulent inducement claim even though its damages consisted only of economic losses related to the performance and subject matter of the parties' contract. Some of our language in that opinion suggests that there is no distinction between a claim for fraud and one for fraudulent inducement. Fraudulent inducement, however, is a particular species of fraud that arises only in the context of a contract and requires the existence of a contract as part of its proof. That is, with a fraudulent inducement claim, the elements of fraud must be established as they relate to an agreement between the parties. Formosa Plastics involved a fraudulent inducement claim based on representations contained in the bid packet upon which Presidio based its contract offer, which resulted in a written contract between the parties. Thus, the case was correctly decided as to fraudulent inducement. Although economic losses may be recoverable under either fraud or fraudulent inducement, Formosa Plastics should not be construed to say that fraud and fraudulent inducement are interchangeable with respect to the measure of damages that would be recoverable.