UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1208

PETR BOCEK, M.D., PHD,

Plaintiff - Appellant,

v.

JGA ASSOCIATES, LLC; JOSEPH P. AMATO,

Defendants – Appellees,

and

ALLERGY CARE CENTERS, VIRGINIA, INC.; A2 MEDICAL GROUP, 

INC.,

Defendant,

LENA BOCEK,

Movant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Claude M. Hilton, Senior 

District Judge. (1:11-cv-00546-CMH-JFA)

Argued: March 24, 2015 Decided: June 18, 2015

Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit 

Judges.

Reversed and remanded by unpublished opinion. Chief Judge 

Traxler wrote the opinion in which Judge Niemeyer joined. Judge 

Wilkinson wrote a separate concurring opinion.
ARGUED: S. Micah Salb, LIPPMAN, SEMSKER & SALB, LLC, Bethesda, 

Maryland, for Appellant. Kristen Michelle Kanaskie, SHER, 

CUMMINGS AND ELLIS, PLLC, Arlington, Virginia, for Appellees. 

ON BRIEF: Mary E. Kuntz, Ph.D., LIPPMAN, SEMSKER & SALB, LLC, 

Bethesda, Maryland, for Appellant. David E. Sher, Mark D. 

Cummings, SHER, CUMMINGS AND ELLIS, PLLC, Arlington, Virginia, 

for Appellees.

Unpublished opinions are not binding precedent in this circuit.

2
TRAXLER, Chief Judge:

Petr Bocek brought this action against business consultant 

Joseph Amato and two companies associated with Amato after the 

defendants purchased a medical practice for themselves rather 

than for Bocek. Following a bench trial, the district court 

granted judgment in favor of the defendants, and Bocek appeals. 

We reverse and remand for a new trial.

I.

Plaintiff Petr Bocek is a medical doctor specializing in 

the treatment of allergies. Defendant Joseph Amato is the 

manager and sole member of defendant JGA Associates, LLC, a 

business consulting firm.

Bocek contacted Amato seeking assistance with the formation 

and financing of a new allergy care medical practice. On 

November 10, 2010, the parties entered into a contract (the 

“Consulting Agreement”) through which JGA agreed “to review and 

report on the feasibility of the proposed allergy medicine 

practice and prepare a business proposal for funding a start-up 

medical practice” and “render such other services as may be 

agreed upon by [Bocek] and [JGA].” J.A. 221. The agreement 

provided that JGA would have “the right to act [as] an agent 

representing [Bocek] to Interested Parties during the term of 

this Agreement.” J.A. 221. (Amato clarified that “Interested 

Parties” in that context referred to prospective lenders.) The 

3
agreement also provided that JGA would be compensated through 

“development fees” (hourly billing for consulting services) and 

a “completion fee” of two percent of the face amount of any 

business loan that JGA arranged. 

On November 15, five days after signing the Consulting 

Agreement, Bocek asked Amato about the feasibility of buying an 

existing medical practice rather than starting a new practice. 

Bocek told Amato that Allergy Care Centers (“ACC”), where Bocek 

had previously worked, was being offered for sale by the 

administrator of the estate of ACC’s owner, who had died two 

years earlier. Bocek noted that the Estate was burdened with 

taxes and that the practice was profitable, and he suggested 

that reductions in offices and staff could make it even more so. 

Amato responded positively, explaining that “[t]he acquisition 

of an existing operating practice is always more attractive if 

the price and the historic financial performance make sense.” 

J.A. 225. 

Bocek informed Amato in an email on December 1 that ACC was 

currently owned by the estate of Charles M. Valentine (the 

“Estate”) and that Peter Klenk was the lawyer handling the 

Estate. The email stated that Bocek was unsure how to confirm 

that ACC was for sale and, if it was, what price the estate was 

asking, but that Bocek would want an independent appraisal 

regardless. Bocek also told Amato that his acquisition of ACC 

4
might be complicated because he had been fired from ACC and was 

in the process of negotiating a severance package, and Bocek 

asked Amato to pursue the purchase of ACC without revealing 

Bocek’s identity as the buyer. 

By that afternoon, Amato had communicated with Klenk and 

informed Bocek that ACC was in fact on the market. Amato told 

Bocek that he would assemble a checklist of information that he 

would need to review and he would include any special requests 

from Bocek when he communicated again with Klenk. Amato also 

told Bocek that the purchase would “be considered an asset-only 

transaction.” J.A. 237. On December 15, JGA sent Bocek an 

email containing a historical financial analysis, a preliminary 

business valuation report, as well as an excel document he had 

created regarding ACC’s accounting summaries. Bocek spoke to 

Amato the next day regarding these documents.

The evidence regarding the conversations between Bocek and 

Amato is somewhat in dispute. Nevertheless, it appears that 

Bocek was concerned that he might not have the cash available to 

make a sufficient down payment. Amato testified that for that 

reason, and because Bocek wanted to keep his name out of the 

transaction with the Estate, he was exploring a number of 

different ways to structure the deal, including a mezzanine 

lending structure. Under that structure, a lender would have 

some rights to convert its loan to an ownership or equity 

5
interest in the practice if the loan were not timely repaid in 

full. 

On December 23, Amato sent Bocek an email informing him 

that JGA had “put in a closed bid to purchase ACC on Monday . . 

. to attempt to secure a position in the possible acquisition of 

ACC,” that the law firm Klenk had hired was considering the 

offer, and that they “could begin a formal due diligence process 

with ACC.” J.A. 265. Amato added that “there are still many 

questions both our firm and you may have regarding the 

transaction.” J.A. 265. For that reason, Amato stated that he 

“intend[ed] to move forward based on a few specific parameters.” 

J.A. 265. As is relevant here, Amato stated that “[JGA] (or an 

alternate holding company) intends to initially purchase the 

practice with the direct intention of selling the practice (or 

the holding company) to” Bocek. J.A. 265. 

In response, on December 27 Bocek sent Amato an email 

confirming that he understood that he would “be the owner of ACC 

from the day of purchase.” J.A. 267. However, he expressed 

uncertainty regarding how the purchase would be structured and 

who would provide the down payment. The next day Amato emailed 

Bocek, once again confirming that JGA’s goal was to make Bocek 

the owner of ACC from the day of purchase. In the end, however, 

although Amato and Bocek discussed several options regarding how 

the deal would be structured, they never resolved that issue. 

6
On January 22, 2011, Amato sent Bocek an invoice for his 

services. The invoice reflected Bocek’s prior payment of 

$3,800.00 and sought an additional $4,574.40 “for expanded hours 

and third-party costs associated with the project development 

and acquisition negotiations for the purchase of the Allergy 

Care Center business operation on behalf of JGA Associates and 

Dr. Petr Bocek.” J.A. 291. On January 31, Bocek sent an email 

to JGA indicating that his lawyers would be in contact with JGA 

to put in place a new written contract since the Consulting 

Agreement was created under the assumption that Bocek would be 

developing and obtaining financing for a new practice rather 

than acquiring an existing one.

On February 3, Amato sent the Estate a Letter of Intent 

(“LOI”) through which “JGA Associates, LLC, or its assigns” 

offered to purchase ACC’s assets for $1,000,000. J.A. 301. The 

LOI obligated the parties to negotiate in good faith, but it was 

otherwise not binding; until the execution of a mutually 

agreeable asset purchase agreement, either side could walk away 

from the transaction without penalty. The Estate accepted the 

offer and returned an executed copy of the LOI to Amato late in 

the afternoon on February 8.

Earlier that same day (February 8), Amato had visited one 

of the ACC offices to meet with Terri Crook, ACC’s practice 

manager. During the meeting, Crook told Amato that Bocek had 

7
been fired after he sexually harassed employees and used another 

doctor’s prescription pad to forge prescriptions for himself. 

This was the first Amato had heard of these issues; although 

Bocek had told Amato that he had been fired, he had never 

provided any details about what happened, and Amato had never 

asked. After meeting with Crook, Amato stalled and put off 

Bocek’s various inquiries until he could verify what he had 

learned.

On February 15, the Estate filed a petition in a 

Pennsylvania “Orphan’s Court” seeking approval for the sale of 

ACC. Bocek was then unaware that the sale was moving forward −

Amato had not informed Bocek that he submitted the LOI to the 

Estate on February 3 or that the LOI had been accepted.

On February 17, after reviewing documents that confirmed 

Crook’s information, Amato sent a letter notifying Bocek of his 

intent to terminate their contractual relationship in 10 days, 

in accordance with the terms of the Consulting Agreement. Amato 

explained the termination in general terms, stating that during 

the due-diligence process, “it became apparent . . . that your 

involvement in any potential transaction would . . . sour the 

deal. It also became evident that we could not move forward 

with your participation in any potential transaction without the 

possibility of serious repercussions thereafter.” J.A. 317.

8
Counsel for Bocek responded on February 22. Among other 

things, counsel noted that Amato, as Bocek’s agent, had a 

continuing duty of loyalty to Bocek and that Amato would be 

breaching his contractual and fiduciary duties “if [he] were to 

turn the acquisition of ACC into a deal which is of benefit to 

[him].” J.A. 629. Nevertheless, on March 2, Amato incorporated 

a new company, A2 Medical Group, Inc. (“A2”), to serve as the 

purchaser of ACC’s assets. Brian August, Jeffrey Renzulli, and 

Amato were named as directors of A2, with Amato and Brian August 

each owning 49 percent of A2’s shares and Carolyn August owning 

two percent. JGA at some point assigned its interests in the 

transaction to A2, and the Estate and A2 executed an asset 

purchase agreement on May 13. Ten days later, the Orphan’s 

Court approved the sale, and the sale closed on June 22.

Bocek testified that after Amato terminated the agreement, 

Bocek simply wanted Amato to give Bocek the due diligence 

documents and analysis that Amato had developed for him, and 

that Bocek was prepared to purchase ACC himself. Bocek never 

made an offer, however. 

After unsuccessfully seeking an injunction to prohibit 

Amato and JGA from buying ACC, Bocek filed an Amended Complaint 

asserting four causes of action against Amato, JGA, and A2: (1) 

fraudulent conveyance and constructive trust; (2) breach of 

fiduciary duties; (3) breach of contract; and (4) breach of 

9
fiduciary duties as joint venturers. The district court granted 

summary judgment in favor of the defendants and dismissed the 

case. 

It is the breach-of-fiduciary-duties claim that is at issue 

in this appeal. In his Amended Complaint, Bocek alleged that 

Amato and JGA, as his agents, owed him various fiduciary duties, 

including a duty of loyalty. Bocek alleged that he brought the 

ACC business opportunity to JGA during the existence of the 

agency relation, and that JGA was acting on behalf of Bocek when 

it began negotiating with the Estate and conducting due 

diligence. Bocek alleged that the defendants breached their 

fiduciary duties by, inter alia, using information obtained on 

Bocek’s behalf to pursue the acquisition of ACC for themselves, 

refusing to return the due diligence materials to him, and, of 

course, buying ACC for their own benefit rather than for Bocek's 

benefit.

Regarding this claim, the district court held that because 

the fiduciary duties at issue arose from the Consulting 

Agreement, not independently of it, Bocek was precluded as a 

matter of law from recovering in tort for the 

breach. See Augusta Mut. Ins. Co. v. Mason, 645 S.E.2d 290, 293

(Va. 2007) (where single act can support a claim for breach of 

contract and a claim for breach of a duty arising in tort, “in 

order to recover in tort, the duty tortiously or negligently 

10
breached must be a common law duty, not one existing between the 

parties solely by virtue of the contract” (internal quotation

marks omitted)); see also Station #2, LLC v. Lynch, 695 S.E.2d 

537, 540 (Va. 2010) (“[A]n omission or non-performance of a duty 

may sound both in contract and in tort, but only where the 

omission or non-performance of the contractual duty also 

violates a common law duty.”). 

On appeal, we affirmed regarding the breach-of-contract, 

fraudulent-conveyance, and joint-venture claims. See Bocek v. 

JGA Assocs., LLC, 537 F. App’x 169, 179 (4th Cir. 2013). 

However, we reversed concerning the claim for breach of 

fiduciary duties, with Chief Judge Traxler and Judge Niemeyer 

articulating slightly differing rationales for their decisions, 

and with Judge Wilkinson dissenting. See id. at 176-77 

(Traxler, C.J.); id. at 179-80 (Niemeyer, J., concurring in part 

and concurring in the judgment); id. at 180-82 (Wilkinson, J., 

concurring and dissenting). 

Chief Judge Traxler observed that 

Bocek alleged that he brought the ACC business 

opportunity to JGA during the existence of the agency 

relation, and that JGA was acting on behalf of Bocek 

when it began negotiating with the Estate and 

conducting due diligence. Bocek alleged that the 

defendants breached their fiduciary duties by, inter 

alia, using information obtained on Bocek’s behalf to 

pursue the acquisition of ACC for themselves, refusing

to return the due diligence materials to him, and, of 

course, buying ACC for their own benefit rather than 

for Bocek’s benefit.

11
Id. at 176 (Traxler, C.J.). Chief Judge Traxler reasoned that 

if these factual allegations were proven at trial, the 

defendants’ conduct would constitute a clear breach of fiduciary 

duty. See id. (Traxler, C.J.). Chief Judge Traxler concluded 

that Augusta Mutual, on which the district court had relied, did 

not bar recovery on a breach-of-fiduciary-duty theory. He 

further concluded that even if the fiduciary duty arose from 

contract, “recovery in tort is permitted in cases [such as this 

one] where the tort was committed after the termination of the 

parties’ contract.” Id. at 177 (Traxler, C.J.).

In a separate opinion, Judge Niemeyer explained that the 

actions Bocek alleged, if proven at trial, would “give rise to a 

classic claim for breach of the duty of loyalty inherent in the 

agency agreement that existed between Bocek and JGA.” Id. at 

179 (Niemeyer, J., concurring in part and concurring in the 

judgment). Judge Niemeyer also concluded that “[t]he fact that 

JGA terminated the agency agreement before taking advantage of 

the opportunity that came to it while it was an agent provides 

no defense.” Id. at 179-80 (Niemeyer, J., concurring in part 

and concurring in the judgment).1

1 In dissent, Judge Wilkinson reasoned that the 

defendants’ duty to refrain from using Bocek’s information arose 

contractually, and thus that the defendants’ use of the 

information they acquired from Bocek and on his behalf did not 

give rise to a viable tort claim. See Bocek v. JGA Assocs., 

12

 

(Continued)
On remand, following a bench trial, the district court 

granted judgment to the defendants. For reasons that we will 

discuss, the district court ruled that Bocek did not prove that 

the defendants had an agency relationship with him such that 

fiduciary obligations would arise and that, even if they had 

breached fiduciary duties owed to Bocek, Bocek failed to prove 

damages from any breach. 

II.

On appeal, Bocek challenges both the ruling that Amato was 

not acting as Bocek’s agent with regard to the possible purchase 

of ACC and the ruling that Bocek failed to prove any damages 

even if he did prove that the defendants breached fiduciary 

duties they owed to him. We consider these rulings seriatim.

A.

We begin by addressing the district court’s analysis of the 

agency issue. The district court stated that “[i]n seeking to 

demonstrate an agency relationship, Bocek seemingly attempts to 

implicate two different ‘agreements’: (1) the written 

Consulting Agreement; and (2) an oral straw-purchase agreement 

for the purchase of Allergy Care Centers.” J.A. 654. The court 

determined that the written agreement did not demonstrate that 

LLC, 537 F. App’x 169, 180-82 (4th Cir. 2013) (Wilkinson, J., 

concurring and dissenting).

13

 
the defendants agreed to act as Bocek’s agent to purchase the 

ACC because that agreement provided for JGA’s services in 

conjunction with a new, not an existing, medical practice. And, 

regarding a possible oral agency agreement, the district court 

noted that there was no meeting of the minds between the parties 

such as would be necessary to create a binding contract for the 

defendants to make a straw purchase of ACC. The district court 

observed that while the parties had discussed a number of 

options of how such a purchase might be accomplished, they had 

not agreed upon any particular method, and thus they had formed 

only a nonbinding agreement to agree regarding a straw purchase. 

For both of these reasons, the district court concluded that 

“Bocek did not carry his burden to establish an agency 

relationship between himself and JGA or Amato, and therefore he 

fail[ed] to establish that JGA or Amato owed him a fiduciary 

obligation.” J.A. 660.

On appeal, Bocek does not specifically challenge either 

premise of the district court’s conclusion that he failed to 

establish the agency relationship. Rather, Bocek’s position is 

that the district court erred in concluding that, in attempting 

to demonstrate the agency relationship, he relied only on the 

existence of the written agreement and on a binding oral 

contract for Amato to purchase ACC on Bocek’s behalf. Bocek 

maintains that the parties’ conduct after they entered into the 

14
written agreement clearly demonstrated the existence of the 

agency relationship.2 And Bocek claims that he was not required 

to show the formation of an oral agency contract in order to 

show that Amato actually became Bocek’s agent regarding the 

possible purchase. Rather, Bocek maintains he needed only to 

show that the parties each consented to Amato’s acting on 

Bocek’s behalf and under his control with regard to the efforts 

to purchase ACC. Bocek contends that he clearly made that 

showing based on the undisputed facts proven at trial. We agree 

with Bocek on all of these points.

On consideration of an appeal following a bench trial, we 

review the district court’s factual findings for clear error and 

its legal conclusions de novo. See Universal Furniture Int’l, 

Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 427 (4th Cir.

2010) (per curiam). A factual finding is clearly erroneous 

“when although there is evidence to support it, the reviewing 

court on the entire evidence is left with the definite and firm 

2 Indeed, the proposed conclusions of law Bocek 

submitted to the district court following the trial included the 

legal conclusion that “The Defendants were Bocek’s agents for 

purposes of acquiring ACC. Extensive email exchanges between 

Dr. Bocek and Mr. Amato establish that Amato undertook steps 

toward the purchase of ACC on behalf of, and at the direction 

of, Bocek. JGA’s billing for these services to Dr. Bocek 

confirm the relationship.” Plaintiff’s Proposed Findings of 

Fact and Conclusions of Law 13-14, Docket No. 206, Civil Action 

No. 1:11-cv-00546 (E.D. Va. Dec. 16, 2013).

15

 
conviction that a mistake has been committed.” United States v. 

United States Gypsum Co., 333 U.S. 364, 395 (1948).

In Virginia, “[a]gency is a fiduciary relationship 

resulting from one person’s manifestation of consent to another 

person that the other shall act on his behalf and subject to his 

control, and the other person’s manifestation of consent so to 

act.” Reistroffer v. Person, 439 S.E.2d 376, 378 (Va. 1994). 

Such a fiduciary relationship is found when “special confidence 

has been reposed in one who in equity and good conscience is 

bound to act in good faith and with due regard for the interests 

of the one reposing the confidence.” H-B Ltd. P’ship v. Wimmer, 

257 S.E.2d 770, 773 (Va. 1979). Regarding the right to control, 

“direct evidence is not indispensable – indeed frequently is not 

available – but instead circumstances may be relied on, such as 

the relation of the parties to each other and their conduct with 

reference to the subject matter of the contract.” Acordia of 

Va. Ins. Agency v. Genito Glenn, L.P., 560 S.E.2d 246, 250 (Va. 

2002) (alteration and internal quotation marks 

omitted); see Royal Indem. Co. v. Hook, 157 S.E. 414, 419 (Va. 

1931) (“Frequently [agency] is established and has, of 

necessity, to be established by circumstantial evidence.”). 

“Agency may be inferred from the conduct of the parties and from 

the surrounding facts and circumstances.” Drake v. Livesay, 341 

S.E.2d 186, 189 (Va. 1986). “Whether an agency relationship 

16
exists is a question to be resolved by the fact finder unless 

the existence of the relationship is shown by undisputed facts 

or by unambiguous written documents.” Acordia of Va. Ins. 

Agency, 560 S.E.2d at 250 (alteration and internal quotation 

marks omitted); see also Schwartz v. Brownlee, 482 S.E.2d 827, 

829 (Va. 1997) (explaining that “[w]hen there is no substantial 

conflict in the facts and circumstances disclosed by the 

evidence, it becomes a question of law to be decided by the 

court whether one party was the agent of another” (alterations 

and internal quotation marks omitted)). 

There can be no doubt as to the existence of an agency 

relationship after the point that the parties entered into the 

Consulting Agreement. At that point, Bocek was paying JGA for 

Amato’s services. Amato himself conceded that he understood 

that, at least initially, “what [he was] to be doing, [he would 

be] doing it for Dr. Bocek” and “acting subject to his 

instructions and his directions.” J.A. 88. And, the agreement 

plainly established JGA’s authority to act as his agent with 

regard to the lenders from whom Bocek sought financing.

It is certainly true, as the district court observed, that 

the parties entered into the Consulting Agreement with the 

intention that JGA would provide services relating to the 

formation of a new medical practice. However, five days after 

entering into that agreement, Bocek raised the possibility that 

17
he might purchase ACC or that Amato might advise him or assist 

him in so doing. Amato immediately undertook to help Bocek 

determine the feasibility of the idea, including communicating 

with the trustee responsible for the sale and obtaining 

information about ACC’s assets on Bocek’s behalf. The only 

conclusion to be drawn from the record is that the parties both 

assented to JGA’s acting as Bocek’s agent in their dealings with 

the Estate selling ACC just as they had contemplated JGA 

representing Bocek to possible lenders. 

Indeed, Amato himself testified that, at least initially, 

he was “doing the due diligence work regarding ACC at Dr. 

Bocek’s request” pursuant to their agreement “to help [Bocek] 

with the medical practice.” J.A. 104-05. See also J.A. 221 

(language in Consulting Agreement stating that JGA, in addition 

to the services specified in the agreement, would “render such 

other services as may be agreed upon by” Bocek and JGA). And it 

is undisputed that Amato reported to Bocek regularly regarding 

his progress and billed Bocek for work regarding the possible 

purchase of ACC. It is also undisputed – and unsurprising –

that Bocek continued to provide instruction to Amato regarding 

the work that Amato was performing on his behalf. That 

instruction included Bocek’s directive that Amato not disclose 

his identity in the course of Amato’s communications with ACC. 

18
When the defendants shifted toward actually negotiating for 

the purchase of ACC, the parties’ communications and conduct 

continued to point unmistakably toward the conclusion that 

Amato’s actions with regard to that purchase were made in the 

context of the parties’ established plan for Amato to act on 

Bocek’s behalf to obtain the practice for Bocek. Although 

possible issues regarding Bocek’s ability to come up with 

sufficient capital complicated the question of how the deal 

would be structured, the parties’ communications and conduct 

unmistakably demonstrated that their work, including Amato’s 

placing of a closed bid to purchase ACC, continued to be part of 

the defendants’ efforts on Bocek’s behalf to obtain the practice 

for Bocek, as the parties’ emails of December 23, 27, and 28, 

2010, plainly reflect. 

The only reasonable inference that can be drawn from all of 

these facts, none of which are in dispute, is that Amato and 

Bocek, by their conduct and communications with each other, both 

assented to Amato’s acting on Bocek’s behalf and subject to his 

control in helping Bocek evaluate the feasibility of purchasing 

ACC and in working toward actually obtaining the practice for 

Bocek. And this fact, in turn, establishes the legal conclusion 

that Amato was acting as Bocek’s agent. 

The district court’s analysis notwithstanding, there was no 

reason that Bocek was required to show that an agency 

19
relationship was established by a separate contract in order to 

show that the parties both assented by their conduct to Amato’s 

acting as Bocek’s agent regarding Bocek’s possible 

purchase. Cf. Bloxom v. Rose, 144 S.E. 642, 644 (Va. 1928) 

(concluding that evidence was sufficient to support finding of 

agency even though facts did not suggest that the parties had 

agreed to any specific contractual terms). That the parties 

never reached a meeting of the minds as to the manner in which 

ACC would ultimately be transferred to Bocek simply does not 

bear on the question of whether the parties had both assented to 

the agency relationship.

Moreover, the undisputed facts proven at trial clearly 

demonstrate that this situation is one in which “special 

confidence has been reposed in one who in equity and good 

conscience is bound to act in good faith and with due regard for 

the interests of the one reposing the confidence.” H-B Ltd. 

P’ship, 257 S.E.2d at 773. Bocek paid JGA – and JGA accepted 

payment – for Amato’s expertise and assistance in determining 

the worth of a business opportunity that Bocek had identified 

for Amato for that purpose. Under such facts, the law precludes 

Amato in equity and good conscience from appropriating the 

opportunity for himself once he determined that it in fact 

carried with it the very potential for substantial profit that 

Bocek had hoped it would. See Bocek, 537 F. App’x at 176-

20
77; id. at 180 (Niemeyer, J., concurring in part and concurring 

in the judgment) (“The law would be a buffoon if it allowed JGA 

to take Bocek’s opportunity simply by ending the agency 

relationship and proceeding thereafter in furtherance of its own 

interest.”). 

The defendants take the position that at some point after 

their initial work regarding the ACC purchase, they ceased

acting on Bocek’s behalf. However, as we explained in our prior 

opinion, once the defendants’ duty of loyalty toward Bocek 

arose, they could not extinguish it simply by terminating the 

agency relationship. See Bocek, 537 F. App’x at 177 (Traxler, 

C.J.); id. at 179-80 (Niemeyer, J., concurring in part and 

concurring in the judgment).

For all of these reasons, we hold as a matter of law that 

Bocek proved that the defendants breached their fiduciary 

obligations to Bocek by appropriating the ACC opportunity for 

themselves.3

 In so doing, we certainly acknowledge the district 

3 In the prior appeal, Bocek appealed the grant of 

summary judgment against him, and we determined that the facts 

alleged, if proven at trial, would establish that the defendants 

breached their fiduciary obligations to Bocek. We were not 

called upon to decide whether the evidence was sufficiently onesided that Bocek would have been entitled to summary judgment on 

that issue had he sought it. See Appellees’ brief at 27 (noting 

“the dissimilar postures between the First Appeal and the 

instant appeal” in that the facts that Bocek claims he proved at 

trial were “mere allegations” in the prior appeal). 

21

 
court’s role as the trier of fact as well as the deference we 

must afford the district court’s factual findings. But the 

material facts regarding the parties’ conduct are undisputed 

(and the facts regarding the parties’ secret, subjective 

intentions are immaterial to the agency issue). Whether those 

undisputed facts establish the agency relationship is a legal 

question for us to decide, see Acordia of Va. Ins. Agency, 560 

S.E.2d at 250, and for the reasons we have explained, we 

conclude that they did establish the agency relationship.

B.

Bocek also argues that the district court erred in 

concluding that even assuming that the defendants’ appropriation 

for themselves of the ACC opportunity constituted a breach of 

their fiduciary obligations to Bocek, Bocek failed to prove any 

damages from the breach. We agree.

In Bocek’s Amended Complaint regarding this cause of action 

he requested, among other remedies, money damages in the amounts 

of “the difference between the purchase amount set forth in the 

Asset Purchase Agreement and the true value of ACC’s assets on 

[the] date of the Asset Purchase Agreement or, in the 

alternative, at the time that JGA transferred or assigned its 

rights in the Asset Purchase Agreement to A2.” Verified Amended 

Complaint 33, Docket No. 66, Civil Action No. 1:11-cv-00546 

(E.D. Va. July 22, 2011). He also requested the “profits that 

22
Bocek would have derived as the owner of ACC’s assets . . . for 

such period of time in the future as can be calculated to a 

reasonable degree of probability.” Id. 

To recover damages for lost profits, a plaintiff “ha[s] the 

burden of proving with reasonable certainty the amount of 

damages and the cause from which they resulted; speculation and 

conjecture cannot form the basis of the recovery.” Banks v. 

Mario Indus. of Va., Inc., 650 S.E.2d 687, 696 (Va. 2007) 

(internal quotation marks omitted). 

Bocek testified that when he left ACC, he was earning a 

salary of $450,000 per year and that the practice would have 

paid him at least that amount in annual salary had he returned 

as an owner. He also testified that that salary was within the 

range that a doctor with Bocek’s research experience and years 

of practice would be expected to earn. He testified that having 

started a new medical practice in 2011 when he was not able to 

purchase ACC’s assets, he had not yet been able to turn a 

profit, but that he hoped to break even with the new business by 

2015 and proceed from there. 

Bocek also presented the report of Certified Public 

Accountant Joseph S. Estabrook, who serves as a consultant in 

the areas of business valuation, litigation, and dispute 

resolution. Examining ACC’s financial documents through May 

2011, Estabrook conducted a detailed analysis and projected the 

23
practice’s net income would steadily increase from $478,271 in 

2012 to $559,509 in 2016. Based on this and other factors, 

Estabrook determined that ACC’s fair market value as of June 22, 

2011, was $2,232,000.4 

On the other hand, Amato testified that although ACC had 

been profitable in the past, under A2’s ownership, the practice 

was not profitable in the tax years 2011 and 2012. He testified 

that on A2’s 2011 tax return, “after taking into consideration . 

. . interest, taxes, depreciation, and amortization,” A2 

reported a loss of about $2,000. J.A. 67. Amato also testified 

that near the end of 2011 an insurance audit revealed that the 

billing practices of the prior management were inconsistent with 

what the insurance companies required. He testified that “there 

was going to be a drop of as much as 40 percent of top-line 

revenue because [A2] sought to bring in proper billing as 

opposed to what was done previously.” J.A. 68. And, he 

testified that A2 reported a loss of about $152,000 on its 2012 

tax return.

4 Although A2 actually purchased ACC’s assets for 

$1,000,000, Estabrook opined that “due to the financial 

difficulties experienced by the Valentine Estate, coupled with 

the fact that the Estate apparently did not employ traditional 

marketing and sales efforts to maximize the sales price of the 

practice, the offers and ultimate sales price for the practice 

was substantially and artificially depressed.” J.A. 365.

24

 
Addressing the damages issue, the district court concluded 

(1) that the direct and proximate cause of Bocek’s failure to 

collect an income or prospective profits was Bocek’s termination 

from ACC and the conduct that precipitated it, and (2) that A2 

had not earned any profits since purchasing ACC that Bocek would 

have earned had he purchased the business. Regarding the second 

point, the district court referenced the tax losses A2 reported 

for 2011 and 2012. 

We conclude that neither of these reasons supported the 

conclusion that Bocek had failed to prove damages. First of 

all, whether Bocek was to blame for being terminated from his 

position at ACC simply has no bearing whatsoever on his 

entitlement to damages. Regardless of whether he harmed himself 

financially by taking actions that brought about his termination 

at ACC, any such conduct occurred prior to his dealings with 

JGA. Bocek sought to prove that purchasing ACC’s assets was an 

opportunity for him to turn his financial fortunes around and 

that the defendants harmed him by appropriating that opportunity 

for themselves. 

Additionally, the fact that A2 reported losses on its 2011 

and 2012 tax returns also does not show that Bocek would not 

have profited in those years from his purchase of ACC’s assets. 

First, even assuming arguendo that the practice’s revenues did 

not exceed its expenses in those years, there was no evidence 

25
that the practice was not able to pay its expenses, including 

doctor salaries. And one would certainly expect that the 

reintroduction of Bocek to the practice would have reduced the 

practice’s salary expenses for other physicians, increased its 

ability to generate revenue, or both. In this regard, Bocek 

testified that when he was working with ACC, he “carried 40 

percent of the load of the practice because [he] was the only 

board-certified allergist and the only full-time doctor.” J.A. 

175. Accordingly, the fact that A2 reported tax losses without 

Bocek does not undercut Bocek’s claim that had he been back at 

ACC practicing medicine, the practice would have generated the 

revenue necessary to at least provide him with the income to 

which he was accustomed.5

In light of these problems with the district court’s 

analysis, we conclude that its finding that Bocek failed to 

prove damages from the defendants’ alleged breach of their 

fiduciary obligations was clearly erroneous and cannot serve as 

a basis for affirming the judgment in the defendants’ 

5 Moreover, Amato himself conceded that the calculation 

of A2’s tax losses included “paper losses” such as amortization 

and depreciation that offset revenue that the business 

generated. And, Amato conceded that he drew $75,000 from A2 as 

salary in 2011.

26

 
favor.6

 See Wileman v. Frank, 979 F.2d 30, 38 (4th Cir. 1992) 

(“In the unusual case where the district court[’s] . . . 

reasoning from the evidence adduced is so flawed as to 

constitute clear error, we, as a court of appeals, have a 

responsibility to correct that error.). We therefore reverse 

the judgment in favor of the defendants and remand for entry of 

judgment in favor of Bocek on the issue of liability and for a 

new trial on the issue of what, if any, remedies Bocek is 

entitled to as a result of the defendants’ breach.7 

6 The defendants maintain that Bocek’s damages theories 

that involve him returning to practice at ACC do not account for 

the facts that (1) “he was prohibited from trespassing on the 

four ACC locations in Maryland – pursuant to non-trespassing 

orders issued by the Montgomery County, Maryland Department of 

Police,” and (2) the entity that owned ACC could face liability 

if it hired him with knowledge of his prior history. Appellees’ 

Brief at 32. However, there was no basis for concluding that if 

Bocek owned or partly owned the practice, he still would have 

been prohibited from entering ACC’s premises. There is likewise 

no evidence suggesting that fear of negligent hiring liability 

would have affected Bocek’s decisions regarding what role he 

would assume.

7 We offer no view regarding Bocek’s entitlement to any 

remedy he has requested, including the imposition of a 

constructive trust.

We note that Bocek requests that this case be assigned to a 

different district court judge on remand. We have previously 

reviewed such requests by employing a three-factor test:

(1) whether the original judge would reasonably be 

expected upon remand to have substantial difficulty in 

putting out of his or her mind previously expressed 

views or findings determined to be erroneous or based 

on evidence that must be rejected, 

27

 

(Continued)
III.

For the foregoing reasons, we reverse the judgment in favor 

of the defendants and remand for entry of judgment in favor of 

Bocek on the issue of liability and for a new trial on the issue 

of what, if any, remedies Bocek is entitled to in light of the 

defendants’ breach of their fiduciary obligations to him.

REVERSED AND REMANDED

(2) whether reassignment is advisable to preserve the 

appearance of justice, and 

(3) whether reassignment would entail waste and 

duplication out of proportion to any gain in 

preserving the appearance of fairness.

United States v. Guglielmi, 929 F.2d 1001, 1007 (4th Cir. 1991) 

(quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977)). 

Having considered these factors, we conclude that reassignment 

would not be appropriate here. 

28

 
WILKINSON, Circuit Judge, concurring:

The reasoning in my earlier dissent, Bocek v. JGA Assocs., 

LLC, 537 F. App’x 169, 180-82 (4th Cir. 2013) (Wilkinson, J., 

concurring and dissenting), now being precluded by the law of 

the case, I concur in the majority’s opinion. 

29