dissenting.
I would agree with the trial court’s ruling on fraud for the reason that there is no allegation in the complaint of any confidential or special or fiduciary relationship nor any evidence to show that one existed so as to make that an issue in the case. Confidential relations are defined in OCGA § 23-2-58. As recognized by the majority here, such a relationship is a threshold requirement for Capriulo’s claim of fraud.
The complaint alleging fraud merely states that Sysco administered the group health plan and was responsible for notifying prospective employees of the terms of both policies, and that it owed Capriulo the duty to inform him accurately of the terms and conditions thereof. Thus, he alleges nothing more than the relationship be*642tween a prospective employee and a prospective employer, and the majority is holding that such a relationship is a fiduciary one which requires utmost good faith. However, as said in Bulmer v. Southern Bell Tel. &c. Co., 170 Ga. App. 659, 660 (317 SE2d 893) (1984): “Nothing is alleged to show there was any such special relationship between appellant as an applicant for employment and appellee as a prospective employer.”
Fraud, of course, is a special matter which must be pled. “[T]he circumstance constituting fraud . . . shall be stated with particularity.” OCGA § 9-11-9 (b). Fraud is not something which may be presumed. OCGA § 23-2-57. Where the minimum degree of particularity is lacking, however, judgment on the pleadings would not be available but a motion for more definite statement would lie to give the pleader an opportunity to amend and supply the missing ingredients. Tucker v. Chung Studio, 142 Ga. App. 818, 819 (3) (237 SE2d 223) (1977).
But this case does not come to us in that posture. Instead, it is here on summary judgment, after the plaintiff has had ample opportunity to show at least enough evidence to create an issue of fact as to whether there existed a confidential relation between himself and the corporation. The latter is saying, in effect, that even if a confidential relationship had been pleaded, there is no evidence to raise such an issue which the complaint could be amended to embrace.
If the requisite allegations of fraud are contained in the pleadings, the defendant must pierce them by evidence in order to win summary judgment. Foster v. Economy Developers, 146 Ga. App. 282, 284 (5) (246 SE2d 366) (1978). In that case, the evidence was insufficient to survive summary judgment for the defendant. “ ‘Appellees pierced appellant’s pleadings by showing that essential elements of fraud and misrepresentation were lacking, and irrespective of any issues of fact with regard to other essential elements the appellees were entitled to a summary judgment [as to the issue of fraud] as a matter of law. [Cit.]’ [Cit.]” Id. at 285-286. Here what is missing is any evidence of the prerequisite of a confidential relation.
Sawgrass Bldrs. v. Realty Cooperative, 172 Ga. App. 324 (323 SE2d 243) (1984) is another case illustrating that even if fraud is properly pled, the pleader must establish it by evidence which is sufficient to withstand a motion for summary judgment.
The situation here, where a confidential relation is not pled and the defendant builds a record of evidence which it believes entitles it to summary judgment, is akin to that presented in Bailey v. Polote, 152 Ga. App. 255, 256 (2) (262 SE2d 551) (1979). The matters required to be specially pled were absent, but on motion for summary judgment there was evidence in support of them, thus creating issues of fact which precluded summary judgment for the moving party.
The evidence in the instant case, however, does not rise to create *643such issues. The fact that Sysco knew through the substantial knowledge of its agent O’Brien of Capriulo’s condition and need for insurance coverage, would not create a fiduciary relationship. Perhaps a special relationship based on friendship and former employee/employer relationship existed between Capriulo and O’Brien, but that would not create a fiduciary relationship between Capriulo and O’Brien’s new employer. As to Capriulo and Sysco, they were nothing more than arms length bargaining parties in a business transaction. Sysco’s knowledge of the need would not create a fiduciary relationship. Otherwise, every prospective employer would assume this more stringent liability if it knew enough about its prospective employee.
Decided March 19, 1986 Rehearing denied April 4, 1986 Frank J. Klosik, Jr., H. Edward Marks, Jr., for appellants (case no. 71573). James A. Gober, Allen I. Hirsch, Ben Kingree III, for appellees.Although the term “fiduciary or confidential relation” is a very broad one, it does not embrace every relationship. “The mere fact that the defendant had confidence in the party with whom he contracted does not constitute a confidential relationship or a ‘similar relationship of mutual confidence’ within the meaning of Code § 37-707 [now OCGA § 23-2-58] (Dover v. Burns, 186 Ga. 19, 26 (196 SE 785)) so as to require the application of Code § 37-708 [now OCGA § 23-2-59]. Even if we should assume that the proposed contract, which the defendant thought he was entering into, did create a confidential relationship between the parties, this cannot be twisted by fallacious reasoning into a confidential relationship prior thereto. A confidential relationship does not exist prior to the contract or legal relationship creating it, unless it exists for other reasons. [Cit.]” Cole v. Cates, 113 Ga. App. 540, 544 (149 SE2d 165) (1966). There it was recognized even by the dissent that it does not apply to relations of mere friendship. Id. at 548.
In the present case, there must be some relation giving rise to a law-imposed duty, since there could be no contract-imposed duty inasmuch as no contract had yet been entered into. Compare Calhoun v. Kut-Kwik Corp., 172 Ga. App. 511 (323 SE2d 699) (1984). Giving plaintiff the benefit of every reasonable inference, the court’s grant of summary judgment on fraud is correct because of the complete absence of a confidential relationship either by contract or by operation of law. See Feltman v. Nat. Bank of Ga., 146 Ga. App. 434, 436 (2) (246 SE2d 447) (1978).
I agree with the remainder of the opinion.
*644James A. Gober, Allen I. Hirsch, for appellant (case no. 71574). Frank J. Klosik, Jr., H. Edward Marks, Jr., for appellees.