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PERK v. VECTOR RESOURCES GROUP (59878)


PERK v. VECTOR RESOURCES
GROUP, LTD., ET AL.


April 18, 1997

Record No. 960794

 

LEO J. PERK

v.

VECTOR RESOURCES GROUP, LTD., ET AL.

Joseph E. Spruill, Jr., Judge

Present: All the Justices

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.

FROM THE CIRCUIT COURT OF ESSEX COUNTY


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 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 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
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 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 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
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,
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
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 claims
would establish that venue does not lie in this Court."[2] 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.

 

FOOTNOTES:

[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.

[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.
524, 526 n.1, 404 S.E.2d 53, 54 n.1 (1991).

 

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