concurring in the result.
I fully concur in this Court’s resolution of plaintiffs claims against defendants Willier and Manuel. I do not believe, however, that plaintiff “destroyed his right to appeal” the trial court’s summary judgment order dismissing plaintiff’s fraud claim against Carnation. I, nevertheless, concur in the result reached by this Court since, in my view, the trial court properly granted summary judgment for defendant Carnation.
I
Considering the record before us, plaintiff could not have immediately appealed from the 12 January 1981 order granting Carnation’s motion for summary judgment on the fraud count. That order adjudicated fewer than all of the claims and did not terminate the action. It was interlocutory and not immediately ap-pealable. N.C. Gen. Stat. § 1A-1, Rule 54(b) (1969). When plaintiff went to trial approximately one year later on the remaining four *391counts, his attorney apparently decided, either because things were not going well on those counts or for other tactical reasons, to take a voluntary dismissal pursuant to N.C. Gen. Stat. § 1A-1, Rule 41 (1969) as to those four counts in an effort to make count five, dismissed a year earlier, immediately appealable since it contained the only remaining claim. The practical effect of plaintiffs voluntary dismissal was to render the 1981 partial summary judgment a full summary judgment, leaving nothing else to be determined in the case. The 1981 order granting summary judgment on the fraud count is therefore appealable under N.C. Gen. Stat. § 7A-27(b) (1981).
I am aware that the record shows that plaintiff gave notice of voluntary dismissal pursuant to Rule 41 of the North Carolina Rules of Civil Procedure “without prejudice of his claims against Carnation Company.” Considering the facts that the Rule 41 voluntary dismissal was taken during the course of the 1982 trial on the four remaining counts, and considering further the following entry on page 1 of the Record, which was certified by the Clerk of Superior Court, plaintiff was clearly not taking a voluntary dismissal on the fraud count, which the court had already dismissed by way of summary judgment in 1981:
Order entered January 1, 1981, dismissing counts five, six, and seven of the Complaint from which plaintiff excepted in open court. Upon voluntary dismissal of the remaining counts of the Complaint, plaintiff gave Notice of Appeal in open Court to the North Carolina Court of Appeals.
Pipeliner Local Union No. 798 v. Ellerd, 503 F. 2d 1193 (10th Cir. 1974) is therefore inapposite.1
If plaintiff had not taken a voluntary dismissal in 1982, he could have, within ten days following a judgment on the remain*392ing four counts, appealed the 1981 summary judgment order dismissing count five of his Complaint. Plaintiff’s action disposing of the remaining four counts by a Rule 41 voluntary dismissal is not qualitatively different from the trial court’s disposition of those four counts as it affects the appealability of count five. To hold otherwise would give plaintiff an inchoate right of appeal only — a right without a remedy on the facts of this case. Procedurally, then, I agree with plaintiff. Plaintiff did not, by taking a Rule 41 voluntary dismissal, destroy his right to appeal.
II
With regard to the substance of his claim, plaintiff contends that Carnation, in 1968 through 1970, misrepresented its intent not to establish any other semen distributors in Virginia. The trial court correctly concluded, however, that the essential elements of fraud did not exist.
The essential elements of actionable fraud are as follows: (1) material misrepresentation of a past or existing fact; (2) the representation must be definite and specific; (3) made with knowledge of its falsity or in culpable ignorance of its truth; (4) that the misrepresentation was made with intention that it should be acted upon; (5) that the recipient of the misrepresentation reasonably relied upon it and acted upon it; and (6) that there resulted in [sic] damage to the injured party. [Citations omitted.]
Rosenthal v. Perkins, 42 N.C. App. 449, 451-52, 257 S.E. 2d 63, 65 (1979). Further, “[a]s a general rule, a mere promissory representation will not be sufficient to support an action for fraud. [Citations omitted.] A promissory misrepresentation may constitute actionable fraud when it is made with intent to deceive the prom-isee, and the promisor,- at the time of making it, has no intent to comply.” [Citations omitted.] Johnson v. Insurance Co., 300 N.C. 247, 255, 266 S.E. 2d 610, 616 (1980).
Even assuming that Carnation told plaintiff that plaintiff would be granted an exclusive distributorship in Virginia, the representation regarding future conditions and facts cannot form the basis for an action in fraud. In order for a misrepresentation to constitute the basis for fraud, it must be shown that the representation was untrue at the time it was made or at the time *393it was acted upon. Childress v. Nordman, 238 N.C. 708, 78 S.E. 2d 757 (1953).
Simply put, I find no genuine issue as to any material fact with regard to plaintiffs contentions under count five. The trial court therefore properly granted summary judgment to defendant Carnation, and I vote to affirm on this basis.
. In Pipeliner, the plaintiffs Complaint was dismissed for failure to state a claim. At a subsequent trial on one of the defendant’s counterclaim, plaintiff “did, in open court, explicitly and unqualifiedly stipulate that all actions ‘as to all parties with the exception of the parties to the counterclaim’ were dismissed with prejudice, each party to pay his own costs.” (Emphasis added.) Plaintiff later tried to appeal the earlier order of dismissal for failure to state a claim, and the Pipeliners Court said, “Appellants cannot now be heard on their contention that the Trial Court erred in entering its order . . . dismissing Union’s Complaint on the ground that it ‘does not state a claim . . . upon which relief can be granted’ in light of their subsequent voluntary dismissal of their respective complaints and causes of action.”