Present: All the Justices
LEO J. PERK
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 960794
April 18, 1997
VECTOR RESOURCES GROUP, LTD., ET AL.
FROM THE CIRCUIT COURT OF ESSEX COUNTY
Joseph E. Spruill, Jr., Judge
The principal issue in this appeal is whether the trial
court erred in sustaining the defendants' demurrer to the
plaintiff's motion for judgment.
I
On June 21, 1990, Leo J. Perk, a practicing attorney at law,
filed a multi-count motion for judgment against Vector Resources
Group, Ltd. (Vector), Charles Michael Monahan, a Vector employee,
and the law firm known as Sheffield & Bricken, P.C. (the Firm)
(collectively, the Defendants). 1 The Defendants filed demurrers
to the motion for judgment which the trial court sustained,
ruling that none of the counts in the motion for judgment stated
a cause of action against the Defendants. The court also denied
Perk leave to amend his motion for judgment, reasoning that "the
amended claims would establish that venue does not lie in this
Court." We awarded Perk an appeal.
II
As this case was decided on demurrer, we look solely at
Perk's allegations in his motion for judgment to determine
1
Perk also sued Riverside Tappahannock Hospital, Inc., but
Perk's suit against the hospital ultimately settled and was
dismissed. Therefore, Counts I and II of the motion for judgment
are not at issue in this appeal.
whether he stated a cause of action because "[a] demurrer admits
the truth of all material facts that are properly pleaded."
Bowman v. State Bank of Keysville, 229 Va. 534, 536, 331 S.E.2d
797, 798 (1985). The facts admitted as true are (1) those
expressly alleged, (2) those which are by fair intendment
impliedly alleged, and (3) those which may be fairly and justly
inferred from the facts alleged. Id.
Perk entered into an at-will contract with Tidewater
Memorial Hospital, Inc. (Tidewater) to undertake the collection
of Tidewater's more than 3,000 delinquent accounts receivable.
Sometime thereafter, Tidewater was acquired by what is now
Riverside Tappahannock Hospital, Inc. (Riverside). The
collection contract continued with Riverside for a period of time
without change.
On November 10, 1989, however, Riverside terminated the
contract and instructed Perk to forward all payments thereafter
received by him directly to Riverside without any fee deduction.
Riverside also instructed Perk to deliver all the delinquent
accounts to either it or Monahan.
Count III of the motion for judgment alleges that Monahan
acted individually and as agent, servant, and employee of Vector
and that Monahan and Vector "willfully[,] intentionally[,] and
without justification and in reckless disregard of the rights of
the contracting parties persuad[ed] and induc[ed] [Riverside] to
breach the Contract [with Perk]." Count III further alleges that
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Monahan's and Vector's acts were "calculated to cause damage to
[Perk] in his . . . business and profession" and that Monahan's
and Vector's "wrongful acts were the sole proximate cause of the
breach of the Contract by [Riverside]."
Count IV of the motion for judgment alleges that Perk had
"invested substantial amounts of his personal time and money in
creating, designing[,] and developing his own customized computer
programs, computer databases[,] and computer software" and that
Monahan and the Firm "knowingly, willfully, deliberately[,] and
without justification stole and converted [Perk's] . . .
computer programs, computer databases, computer software[,] and
computer data." Count IV further alleges that, "as a direct and
proximate result of the . . . theft and conversion," Perk was
damaged "to the extent of the value of his efforts in creating
[the] computer programs, computer databases, computer software[,]
and computer data, [of] the fair market value of [the] computer
programs, computer databases, computer software[,] and computer
data, and [of] the loss of his profits that [Perk] would have
enjoyed had [Monahan and the Firm] not stolen his . . .
property."
In Count V of the motion for judgment, Perk alleges that the
Firm and Riverside had received numerous complaints from debtors
concerning payments they had made to Perk for which they had not
been given proper credit and that, in response to these
complaints, the Firm and Riverside had told each debtor that the
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payments in question had not been reported to Riverside by Perk.
Count V further alleges that the statements made to the debtors
by the Firm and Riverside were not true; that the Firm and
Riverside knew, or should have known, that the statements were
not true; and that each statement was "defamatory and slanderous
per se," was "calculated to . . . adversely affect [Perk's]
reputation for honesty, and integrity, and adversely reflected on
[Perk's] abilities in his profession."
Count VI alleges that "all of the Defendants combined
together to mutually undertake said acts for the purpose of
willfully and maliciously injuring [Perk] in his reputation and
profession as a practicing attorney at law." Count VI further
alleges that, as "a direct and proximate result of [the
Defendants'] mutual undertaking," Perk "has suffered damage to
his professional reputation, loss of profits, humiliation, and
extreme mental anguish."
III
We now consider whether the allegations in Counts III
through VI of Perk's motion for judgment were sufficient to
withstand the Defendants' demurrer.
A
Count III is a claim of tortious interference with a
contract. The requisite elements for a prima facie showing of a
tortious interference with an at-will contract are:
"(1) the existence of a valid contractual relationship
or business expectancy; (2) knowledge of the
relationship or expectancy on the part of the
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interferor; (3) intentional interference inducing or
causing a breach or termination of the relationship or
expectancy; and (4) resultant damage to the party whose
relationship or expectancy has been disrupted."
Duggin v. Adams, 234 Va. 221, 226, 360 S.E.2d 832, 835 (1987)
(quoting Chaves v. Johnson, 230 Va. 112, 120, 335 S.E.2d 97, 102
(1985)). Where a contract is terminable at will, however, "a
plaintiff, in order to present a prima facie case of tortious
interference, must allege and prove not only an intentional
interference that caused the termination of the at-will contract,
but also that the defendant employed `improper methods.'" Id. at
226-27, 360 S.E.2d at 836 (quoting Hechler Chevrolet v. General
Motors Corp., 230 Va. 396, 402, 337 S.E.2d 744, 748 (1985)).
Methods considered "improper" include those that are illegal or
independently tortious. Id. at 227, 360 S.E.2d at 836.
Obviously, the requisite improper methods must have occurred
prior to the termination of the contract in order to constitute
the cause of the termination. See Hilb, Rogal and Hamilton
Company v. DePew, 247 Va. 240, 246 n.4, 440 S.E.2d 918, 922 n.4
(1994).
In the present case, the improper methods upon which Perk
relies are "the acts of the Defendants . . . as further alleged;"
i.e., the alleged theft by Monahan and the Firm and the alleged
defamation by the Firm. These allegedly illegal or tortious
acts, however, occurred after the termination of the contract and
cannot serve as the basis for Perk's claim of intentional
interference with his contract. Therefore, the trial court
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properly sustained the Defendants' demurrer with respect to Count
III.
B
We next consider Count IV of the motion for judgment. In
this count, Perk alleges the theft or conversion by Monahan and
the Firm of his computer programs, data, and software. Perk also
alleges that he has lost the value of his efforts in creating the
converted items, the fair market value of the items, and future
profits.
Pursuant to Code § 18.2-152.8 of the Virginia Computer
Crimes Act, Code § 18.2-152.1 et seq., "computer data, computer
programs, [and] computer software" are "personal property subject
to embezzlement" for the purposes of Code § 18.2-111. Clearly,
Count IV alleges that Monahan and the Firm stole or converted
such personal property belonging to Perk.
Monahan and the Firm assert, nonetheless, that the items
allegedly converted are "nothing more than lists" of Riverside's
debtors, which belong solely to Riverside; that Perk consented to
the taking of the items; and that the lists were of no value to
Perk once the contract had been terminated. The character of the
items allegedly converted and the question whether these items
had value to Perk aside from his contractual obligations and
professional services to Riverside are, however, matters of proof
which cannot be decided by demurrer.
We conclude, therefore, that Count IV states a cause of
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action. Consequently, we hold that the trial court erred in
sustaining the demurrer as to Count IV.
C
In Count V, Perk alleges that the Firm defamed him by
telling some of Riverside's debtors that certain payments the
debtors had made to Perk had not been reported to Riverside by
Perk. Perk further alleges that the statements were not true and
the Firm knew or should have known that they were untrue. He
also claims that the statements adversely affected his reputation
for honesty and integrity, adversely reflected on his abilities
as a practicing attorney at law, and were "defamatory and
slanderous per se." As a direct result of these statements, Perk
asserts, he suffered "damage to his professional reputation,
humiliation, and extreme mental anguish."
At common law, defamatory words which are actionable per se
are:
(1) Those which impute to a person the commission of
some criminal offense involving moral turpitude, for
which the party, if the charge is true, may be indicted
and punished. (2) Those which impute that a person is
infected with some contagious disease, where if the
charge is true, it would exclude the party from
society. (3) Those which impute to a person unfitness
to perform the duties of an office or employment of
profit, or want of integrity in the discharge of the
duties of such an office or employment. (4) Those
which prejudice such person in his or her profession or
trade.
Carwile v. Richmond Newspapers, 196 Va. 1, 7, 82 S.E.2d 588, 591
(1954). In addition, a defamatory charge need not be made in
direct terms; rather, it may be made "by inference,
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implication[,] or insinuation." Id., 82 S.E.2d at 592. However,
the meaning of the alleged defamatory charge "cannot, by
innuendo, be extended beyond its ordinary and common
acceptation." Id. at 8, 82 S.E.2d at 592. Moreover, innuendo
cannot be employed to "introduce new matter, nor extend the
meaning of the words used, or make that certain which is in fact
uncertain." Id.
We do not think the alleged statements that some payments
had not been reported to Riverside by Perk are defamatory per se.
We also do not think that a defamatory charge can be inferred
from the statements. To infer such would extend the meaning of
the words used beyond their ordinary and common acceptance.
Therefore, we conclude that the alleged statements are not
sufficiently defamatory on their face to permit a fact finder to
decide whether in fact the statements were actually defamatory.
See The Gazette v. Harris, 229 Va. 1, 29, 325 S.E.2d 713, 733
(1985). Consequently, the trial court properly sustained the
demurrer as to Count V.
D
The final count in the motion for judgment, Count VI,
alleges that all the Defendants conspired to injure Perk in his
profession. Perk, however, also repeatedly alleges that a
principal-agent or an employer-employee relationship existed
between the several Defendants, and, therefore, the Defendants
are not separate entities. As we have held, an entity cannot
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conspire with itself. Charles E. Brauer Co. v. NationsBank, 251
Va. 28, 36, 466 S.E.2d 382, 387 (1996); Fox v. Deese, 234 Va.
412, 428, 362 S.E.2d 699, 708 (1987). Thus, a conspiracy among
the Defendants was legally impossible. Therefore, the trial
court properly sustained the demurrer to Count VI.
IV
The final issue for resolution relates to the trial court's
finding regarding venue. In its final order, the trial court,
after stating that none of the counts in the motion for judgment
stated a cause of action against the Defendants, ruled, sua
sponte, that, "if the Court granted leave to amend as to these
defendants, the amended claims would establish that venue does
not lie in this Court." Therefore, the trial court sustained the
demurrer "without leave to amend." We think the trial court
erred.
First, none of the Defendants ever made any objection to
venue lying in Essex County and, thus, waived any venue
irregularity. Code § 8.01-264. Second, we think the trial court
abused its discretion in denying Perk's request for leave to
amend his motion for judgment on the ground that "the amended
2
claims would establish that venue does not lie in this Court."
2
The Defendants assert that "Perk . . . failed to present to
[this Court] any indication that his proposed amendment would
have resulted in anything more than reargument of the same
questions already decided by the trial court." In view of the
basis for the trial court's denying Perk's request for leave to
amend, we think presentation of an indication of what he would
have proposed would have been a futile act, and a litigant is not
required to perform a futile act. See Snead v. Harbaugh, 241 Va.
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Upon remand, therefore, the trial court shall grant leave to Perk
to file an amended motion for judgment.
V
Accordingly, the trial court's judgment will be affirmed in
part, reversed in part, and the case remanded for further
proceedings consistent with this opinion.
Affirmed in part,
reversed in part,
and remanded.
(..continued)
524, 526 n.1, 404 S.E.2d 53, 54 n.1 (1991).
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