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  • Tom Cummins

How much does free dirt cost?

Vega v. E Trucking & Services LLC (Fairfax Cir. Ct. Dec. 4, 2019)

A company offers “free dirt.” A woman accepts and gives the company permission to come onto her property to deliver the dirt. From here, things get muddy. Woman: I simply planned to use the dirt to stabilize the backyard fence, but when I went out of town, the company came in and disposed of more than 100 dump-truck loads on the property, resulting in more than $250,000 in damages. Company: No, that’s not what happened.

Can the woman sue the company’s owner personally? And can she sue for both breach of contract and fraud?

First, limited liability company owners have exactly that: limited liability. They are not personally liable for the company’s actions. Va. Code § 13.1-1019.

Second, promises of future contract performance (here, delivery of an appropriate amount of dirt) may give rise to a breach of contract claim, but ordinarily not a fraud claim. So the woman’s breach of contract claim can move forward to trial, but her claims against the owner and her fraud claims are dismissed.

Bottom line (for consumers and companies): Even free dirt may cost you.

Question (for lawyers and law students): What’s the consideration that supports the woman’s breach of contract claim?

Bonus point (for all): While promises of future contract performance cannot ordinarily give rise to a fraud claim, there is a limited exception. If the promisor “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.” Colonial Ford Truck Sales, Inc. v. Schneider, 228 Va. 671, 677 (1985).

For more on the alleged facts of the case, check out the Washington Post.


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