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 

 

 1Perk 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 - 

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 
- 3 - 

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 
- 4 - 

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 
- 5 - 

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 
- 6 - 

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 
- 7 - 

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, 
- 8 - 

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 
- 9 - 

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

 

 

 2The 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. 
- 10 - 

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).