PRESENT: All the Justices 

SAKS FIFTH AVENUE, INC., ET AL. 

OPINION BY 

v. Record No. 051613 JUSTICE G. STEVEN AGEE 

June 8, 2006 

JAMES, LTD. 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Joanne F. Alper, Judge 

Saks Fifth Avenue, Inc., and Douglas Thompson (collectively 

“Defendants”) appeal from the judgment of the Circuit Court of 

Arlington County, which held them jointly and severally liable 

in damages to James, Ltd., Thompson’s former employer, for 

breach of fiduciary duty and violation of Code §§ 18.2-499 and 

-500 (prohibiting conspiracy to injure another’s business).1

 For 

the breach of fiduciary duty and statutory violations, the trial 

court awarded James the sum of $548,611 in compensatory damages, 

which was trebled pursuant to Code § 18.2-500 for a total damage 

award of $1,645,833 plus costs, attorney’s fees, and expenses. 

At issue in this appeal is whether the trial court erred in 

denying Defendants’ motions to strike James’ evidence of damages 

and in adopting James’ calculation of damages. For the reasons 

set forth below, we will reverse the judgment of the trial 

court. 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW 

 1

 Thompson was also adjudged individually liable for breach 

of his contractual duty to James under a covenant not to compete 
2

James, a high-end men’s clothing retailer, initiated the 

underlying suit after Thompson left his employment at James’ 

store in the Tysons Galleria shopping mall to work at a Saks 

Fifth Avenue store located in the same mall. James prides 

itself in serving a niche market of high-end shoppers who 

appreciate its intimate setting, impressive selection of fine 

men’s clothing, and personalized service.2

 In order to retain 

employees with the expertise necessary to excel in serving 

James’ customers, James provides a competitive base salary and 

commissions, plus an array of benefits that are “rare” in the 

retail clothing industry. Many of its employees have worked at 

James for more than fifteen years. 

Thompson began working for James in 1986 at its Fair Oaks 

mall store, immediately after he finished college and with only 

limited retail experience. Two years later, he transferred to 

James’ Tysons Galleria store, where he remained until the fall 

of 2003. Thompson became James’ highest-selling salesman, with 

average annual sales near $1 million during the three years 

prior to his departure. Thompson had between 40 and 50 “core 

customers,” with whom he had a regular and long-standing sales 

 

and subject to an injunction, but the trial court awarded no 

monetary damages for that breach. See note 10, infra. 

2

 A significant portion of James’ business consists of 

selling “made-to-measure” men’s suits, which allows James to 

record customers’ sizes and preferences so that future purchases 
3

relationship. Approximately 30% of Thompson’s sales came from 

one-time, walk-in customers. The rest of his customers 

consisted of seasonal and other infrequent shoppers. 

In 1998, James distributed a “General Employee Guidelines, 

Policies, Practices and Benefits” handbook to all of its 

employees. The handbook provided that all James’ employees, 

including Thompson, were “at-will” employees.3

 A “memorandum of 

understanding on confidentiality” was contained in the handbook, 

which reserved James’ proprietary interest in: “customer names 

and lists, trade books, financial and pricing information, and 

all matters discussed at our meetings. This list is not 

exclusive. Assume that all private business information is 

included.” The handbook also contains a covenant not to 

compete, which states: 

[b]y agreeing to work for JAMES, an employee agrees 

also that upon leaving the employment of JAMES, for 

any reason, he or she will not own, operate or be 

employed by a retail men’s clothing store, or men’s 

clothing sales department of a store, which is located 

within a one (1) mile radius of any JAMES store, for a 

period of three (3) years following termination of 

employment with JAMES. 

 

could be made without returning to the store. Approximately 40% 

of Thompson’s total sales came from “made-to-measure” clothing. 

3

 The handbook specifically states: “THIS IS NOT A CONTRACT 

OF EMPLOYMENT. ALL EMPLOYEES ARE EMPLOYED ‘AT WILL’ AND ARE 

EMPLOYEES OF THE CORPORATION.” It later clarifies that 

“[e]mployees may resign from the company at any time, for any 

reason.” 
4

On May 1, 1998, Thompson signed a document “agree[ing] to all 

provisions, particularly the confidential information/trade 

secret and restrictive covenant terms, and acknowledg[ing] that 

employment is ‘at will.’ ” As specific consideration for 

signing this document, James gave Thompson and other employees 

cash bonuses and clothing allowances. 

Saks is a nationwide retailer that has operated a store in 

Tysons Galleria since 1988; however, the store was less 

profitable than the sales projections of Saks’ corporate 

management. In 2003, Saks’ management initiated several plans 

to foster higher profitability for the Tysons Galleria store. 

Although Saks is principally a higher-end women’s department 

store, one of the profit plans was to attract top salesmen to 

the men’s department who would expand selection and increase 

sales. In the summer of 2003, Saks’ managers contacted Thompson 

and another James employee, Ray Ybarme, to see if they could be 

induced to work for Saks at Tysons Galleria. 

Both Ybarme and Thompson were open to the possibility of 

working for Saks because they knew that James had suffered 

financial setbacks over the previous few years due to the 

“downturn of the high-tech business, the stock market slump, the 

attacks of September 11 and the popularity of ‘business casual’ 
5

dress codes.” During the interview process4

 both Ybarme and 

Thompson expressed concern about the “legal ramifications” of 

the non-competition provisions in the James employee handbook 

because Saks’ Tysons Galleria store was clearly within the onemile limitation. Ybarme gave a copy of the handbook to Saks 

representatives, who discussed the enforceability of the policy 

with Saks’ legal counsel. They advised the Tysons Galleria 

store management that they believed “the non-compete provisions 

in [the employee handbook] are not enforceable by James.” Saks 

provided Thompson a letter from Saks’ General Counsel, which was 

also signed by the Tysons Galleria general manager, agreeing to 

provide “any legal defense and costs necessary to accept and 

continue employment at Saks should [he] be challenged by James 

on the non-compete provision.” 

Saks management was excited about the prospect of hiring 

two individuals of Ybarme’s and Thompson’s experience. Internal 

e-mails discussed the need to “do whatever it takes to get these 

guys,” including stocking the merchandise they recommended in 

order to “keep their client base.” After a few meetings with 

 4

 Although Ybarme and Thompson interviewed and negotiated 

for employment with Saks during the same period of time, they 

did not have any joint meetings with Saks representatives. 
6

Saks’ managers, both Thompson and Ybarme agreed to work at the 

Saks Tysons Galleria store.5

Thompson resigned from James on September 30, 2003 and 

began working at Saks’ Tysons Galleria store on October 9, 2003. 

Thompson took his customer listings when he left James and later 

sent e-mails to some of his former James customers informing 

them that he was now working for Saks in the same shopping mall 

as James.6

 From October 2003 through January 2005, Thompson made 

at least $780,000 in sales at the Saks Tysons Galleria store. 

On December 11, 2003, James filed a bill of complaint 

against the Defendants alleging breach of fiduciary duty, 

intentional interference with contractual relations, intentional 

interference with prospective business and contractual 

relations, violation of Virginia’s Uniform Trade Secrets Act 

(Code § 59.1-336 et seq.), violation of Virginia’s Computer 

Crimes Act (Code § 18.2-152.7), and conspiracy to injure another 

in a business, trade or profession (Code §§ 18.2-499 and –500). 

James also alleged a breach of the terms and conditions of 

 5

 Thompson and Ybarme individually informed one of James’ 

principals, Michael Colen, that they were resigning and going to 

work for Saks. Colen persuaded Ybarme to remain at James, in 

part by increasing his compensation, but Thompson declined to do 

so. 

6

 For many years and with the knowledge and consent of James 

management, Thompson kept some client records organized on his 

personal laptop computer. Thompson thus had access to this 

information, which included customer contact information, after 

leaving James. 
7

James’ employee handbook as to Thompson alone and requested 

specific performance of its covenants. James sought injunctive 

relief, compensatory and punitive damages, and attorneys’ fees 

and costs. 

A bench trial took place in January 2005. Bruce G. 

Dubinsky, a certified public accountant, testified as an expert 

witness in forensic accounting for James regarding the damages 

James claimed were due from the Defendants. After reviewing 

James’ financial statements and sales records, Dubinsky 

calculated that James’ damages were $1,477,895 over the period 

from October 2003 through January 2015. In calculating James’ 

damages, Dubinsky relied on a “but-for” analysis, which he also 

referred to as a “lost volume method.” 

Based on a historical analysis of Thompson’s sales while at 

James, Dubinsky first calculated Thompson’s projected sales on 

the assumption that Thompson had remained at James.7 Then, using 

sales records, Dubinsky calculated the average amounts 

Thompson’s former customers continued to spend at James after 

his departure, terming sales revenues from those customers 

“house sales.” Dubinsky subtracted those “house sales” that 

were not “lost” from the amount of projected sales Thompson 

 7

 To arrive at this number, Dubinsky averaged Thompson’s 

total monthly sales over his last three years at James, which 

Dubinsky characterized as an “extremely conservative” baseline 

in light of Thompson’s actual sales dating back to 1997. 
8

would have made had he remained at James. Dubinsky then 

calculated James’ estimated gross profit lost by multiplying 

Thompson’s projected sales by James’ average gross profit margin 

of 43.63%. Dubinsky subtracted the incremental costs that would 

have been incurred to generate the additional sales, but added 

to damages the incremental increases in other employees’ base 

pay James gave after Thompson left. This calculation generated 

Dubinsky’s determination of James’ net lost profits for the 

first year following Thompson’s departure. Dubinsky then 

projected James’ lost profits through 2015, assuming an annual 

2% growth in revenues, which he then discounted to a total 

present value of $1,477,895. 

On cross-examination, Dubinsky clarified that “[i]t wasn’t 

important to [his] analysis” whether customers that Thompson 

served at James actually followed Thompson to Saks. Dubinsky 

characterized his method of assessing damages as the “but-for” 

method in which James’ damages would be based on “where Mr. 

Thompson’s sales would have been.” In other words, “but for” 

Thompson’s departure to work at Saks, James would have had sales 

equal to the amount “if Mr. Thompson had remained.” Thus, 

Dubinsky did not analyze whether Thompson’s former customers at 

James actually shopped at Saks after Thompson’s departure from 

James, even though Dubinsky had access to a list of Thompson’s 

customers at Saks. 
9

Dubinsky further admitted that his analysis assumed that 

every customer Thompson had served at James who did not purchase 

something at James after Thompson left was “gone due to the 

actions of Mr. Thompson and Saks.” Dubinsky also testified that 

he did not differentiate between “customers who were regulars 

for Mr. Thompson and customers who were either walk-ins or very 

sporadic” customers. Nor did Dubinsky consider customer 

attrition rates in calculating damages because, as Dubinsky 

testified, 

[his] lost profits calculation specifically looks at 

Mr. Thompson’s sales, [and] the historical level of 

sales from Mr. Thompson as well as James . . . is very 

referral-based [and] you don’t see a drop-off every 

year of customers just leaving. . . . [I]n the 

historical pattern of sales here, some customers will 

leave. They may die. They may move away. But other 

customers may be referred. And typically, that has 

been the case. . . . So I considered that and didn’t 

directly, then, quantify one by one . . . . I looked 

from a macro level based on the history of where 

things had been.

 At the close of James’ case, the Defendants moved to strike 

James’ evidence regarding, inter alia, proof of damages.8

 They 

argued James’ calculation of damages was speculative because it 

assumed future business from customers who had no obligation to 

shop at James and had not shopped with Thompson at Saks. In 

 8

 Defendants also moved to strike the evidence of each count 

James alleged in the bill of complaint. The trial court granted 

the motion with respect to the counts regarding the Uniform 

Trade Secrets Act and Computer Crimes Act, but denied the rest 

of the motion. 
10

addition, they asserted that Dubinsky’s calculations “ignore[d] 

James’ burden of proving causation” and that James had not 

proven that “Mr. Thompson’s or Saks’ conduct caused the loss of 

any of James’ customers.” The trial court denied Defendants’ 

motion, stating: 

I believe that there has been sufficient evidence and 

sufficient expert testimony, plus evidence of other 

witnesses from James, to support the damages claimed 

so far. 

 The issue is not so much that the customers left 

James and went to Saks. It’s the fact that they’re 

not at James, and the argument that Mr. Thompson, by 

his actions . . . caused the loss of those individuals 

regardless of where they went, whether they went to 

Saks or Neiman’s or Macy’s or anywhere else, I think 

supports at this point the allowance of the damages 

evidence, and the damages evidence is supported at 

this stage of the proceeding and is not so speculative 

or uncorroborated as to require the striking of all of 

the evidence on damages. 

 The Defendants then presented their evidence, including an 

expert witness, Richard Edelman, who testified that James 

suffered “small and insignificant” damages as a result of 

Defendants’ actions. This was so, he asserted, because a 

comparison of Thompson’s customer lists at each store indicated 

that only 48 of Thompson’s customers at James spent more at Saks 

than at James following Thompson’s departure.9

 His calculation 

 9

 Thompson had previously testified how they had analyzed 

his customer lists from James and Saks. The 48 customers 

identified were those individuals from the original list of 1782 

customers that Thompson had served at least one time at James 

who had not made purchases at the Tysons’ Saks men’s department 
11

of damages was based solely on these sales of former James 

customers that were “lost” to Saks. The trial court “found Dr. 

Edelman’s testimony to be singularly unconvincing.” Defendants 

renewed their motion to strike at the close of all the evidence, 

which the trial court denied. 

 The trial court’s May 6, 2005, final decree incorporates by 

reference its detailed letter opinion dated March 8, 2005, which 

articulated findings of fact and conclusions of law. The trial 

court found in favor of James and against Thompson individually, 

as to the enforceability of the employee handbook’s restrictive 

covenant. The trial court further found in favor of James and 

against the Defendants, jointly and severally, as to the counts 

for breach of fiduciary duty and violation of Code §§ 18.2-499 

and -500.10 The trial court found for the Defendants on the 

remaining counts of intentional interference with contractual 

 

prior to Thompson’s working there and who had spent more on 

purchases at Saks than at James since that time. 

10 Having found Thompson individually liable for breach of 

the restrictive covenant in James’ employee handbook, the trial 

court enjoined Thompson “from working at Saks’ Tysons Galleria 

store for a period of three years beginning one week after the 

date of issue of the March 8, 2005 letter opinion.” We refused 

Thompson’s petition for appeal assigning error to the trial 

court’s enforcement of the restrictive covenant and award of the 

injunction; accordingly, this portion of the trial court’s 

judgment is not before the Court and is not affected by our 

resolution of the issues in the present appeal. 
12

relations, intentional interference with prospective business 

and contractual relations, and conversion of James’ property.11

 Because the analysis of damages for breach of fiduciary 

duty and violation of Code §§ 18.2-499 and -500 was “identical,” 

the trial court addressed them together. The trial court found 

that James had met its burden of proving cognizable damages 

because Dubinsky had “testified that James suffered damages of 

almost $1.5 million in lost profits, and that those damages were 

directly attributable to the resignation of Thompson and loss of 

his long standing, high volume customer sales.” The trial court 

opined “that the damage analysis in this case should be guided 

by the Supreme Court’s ruling in Worrie v. Boze, 198 Va. 533[, 

95 S.E.2d 192] (1956).” Also citing Advanced Marine 

Enterprises, Inc. v. PRC Inc., 256 Va. 106, 501 S.E.2d 148 

(1998), and Famous Knitwear Corp. v. Drug Fair, Inc., 493 F.2d 

251 (4th Cir. 1974), the trial court concluded that these cases 

established that the “but for” method of calculating lost 

profits was appropriate in cases where the plaintiff’s business 

had been profitable prior to the wrongful acts of the 

Defendants. Accordingly, the trial court determined that James 

 11 With respect to the claim of conversion, the trial court 

entered judgment for the Defendants because it found that the 

claim had “been adequately and completely addressed in [the 

trial court’s] rulings on the other claims in the Bill of 

Complaint, and that the damages to be awarded to [James] will 
13

“ha[d] proven a sound factual and legal basis for the award of 

damages against” Defendants. 

 The trial court adopted Dubinsky’s calculation of damages 

and awarded damages to James “for a period of approximately 

three years from the date of Mr. Thompson’s departure, October 

1, 2003.” Based on Dubinsky’s calculations, the trial court 

awarded James the sum of $548,611, which was trebled pursuant to 

Code § 18.2-500 to $1,654,833. In addition, the trial court 

awarded James statutory costs and attorneys’ fees and expenses. 

 We awarded the Defendants this appeal. 

II. ANALYSIS 

A. The Parties’ Arguments 

Defendants contend that James failed to satisfy its burden 

of “proving with reasonable certainty the amount of damages and 

the cause from which they resulted.” This is so, they argue, 

because James’ proof of damages relied solely on Dubinsky’s 

calculation of damages, which was not based on any causal 

connection to Defendants’ wrongful conduct.12

Defendants aver that Dubinsky instead calculated James’ 

damages as if they “stemmed entirely from Thompson’s 

resignation” although Thompson was an at will employee and was 

 

fully and fairly compensate it for the wrongful actions of [the 

Defendants].” 

12 For purposes of this appeal, the trial court’s findings 

of wrongful conduct by the Defendants are not at issue. 
14

legally entitled to resign at any time. Consequently, 

Defendants assert that Thompson’s leaving the employ of James 

cannot be the basis for James’ damages. Defendants cite to 

Dubinsky’s testimony that his calculation of damages was derived 

from the projected sales James lost because Thompson no longer 

worked there. Factors such as “which [James] customers had been 

contacted by Thompson, which ones had shopped at Saks with 

Thompson, or which ones even knew that Thompson had resigned 

from James [were not] ‘important to [his] analysis.’” In 

effect, Defendants say Dubinsky’s calculation of James’ damages 

is merely a projection into future years of the total sales 

James would have achieved on the assumption Thompson had 

remained employed there and produced sales at his historical 

levels. Thus, Defendants contend Dubinsky’s damages calculation 

is not based on any proximate causation by Defendants’ wrongful 

acts. 

Defendants maintain that the trial court’s reliance on 

Worrie to support its decision is erroneous because neither 

Worrie nor any other case “relieve[s] James of its burden to 

prove non-speculative damages proximately caused by Thompson’s 

and Saks’ wrongful conduct; nor do they permit it to rely on 

inadmissible expert testimony.” Defendants distinguish Worrie

by observing that prior to the defendants’ wrongful conduct in 

that case, the plaintiff did not have any competition, and in 
15

effect held a monopoly in the area. Defendants argue these 

“unique facts” allowed the trial court in Worrie to infer that 

the plaintiffs’ decrease in business was proximately caused by 

defendants’ wrongful conduct and to measure damages on the basis 

of projected lost profits. 

James responds that “[Defendants] should not now be heard 

to complain that James was not entitled to recover damages, when 

their intentional and improprietous actions caused injuries and 

those same acts made the proof of damages with any certainty 

difficult, if not impossible.” James contends that Virginia’s 

“long established precedent from cases in which lost profits 

were being sought as damages” permits “evidence of the prior and 

subsequent record of [an established] business [as] an 

intelligent and probable estimate of damages.” Dubinsky’s 

calculations, James argues, were based on this established 

foundation and the trial court acted properly in admitting 

Dubinsky’s testimony and subsequently relying on it to determine 

James’ damages. James claims that there is “no practical way 

that a plaintiff who makes sales to an established patronage and 

who is victimized by the calculated wrongdoing of others could 

prove the future intentions of its customer base.” 

James asserts that Defendants’ arguments are contrary to 

Virginia precedent and it defends the trial court’s reliance on 

Worrie. In further support of its position, James cited at oral 
16

argument and on brief to R.K. Chevrolet, Inc. v. Hayden, 253 Va. 

50, 480 S.E.2d 477 (1997). 

Defendants also assert that Dubinsky’s opinion testimony 

was improperly admitted because his calculations were based on 

several speculative or false assumptions. However, because we 

find the issue of causation is dispositive in this case, we do 

not recite or address the parties’ arguments regarding whether 

Dubinsky's opinion calculating damages was admissible. 

B. Discussion 

We review the trial court’s decision to deny the motion to 

strike in accordance with well-settled principles: 

When the sufficiency of a plaintiff’s evidence is 

challenged by a motion to strike, the trial court 

should resolve any reasonable doubt as to the 

sufficiency of the evidence in plaintiff’s favor and 

should grant the motion only when “it is conclusively 

apparent that plaintiff has proven no cause of action 

against defendant,” or when “it plainly appears that 

the trial court would be compelled to set aside any 

verdict found for the plaintiff as being without 

evidence to support it.” 

Williams v. Vaughan, 214 Va. 307, 309, 199 S.E.2d 515, 517 

(1973) (citations omitted). 

 At trial, James had 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.” Shepherd v. Davis, 265 Va. 108, 125, 574 S.E.2d 

514, 524 (2003) (quoting Carr v. Citizens Bank & Trust Co., 228 
17

Va. 644, 652, 325 S.E.2d 86, 90 (1985)). When an established 

business, such as James, is “injured, interrupted, or destroyed, 

the measure of damages is the diminution in value of the 

business by reason of the wrongful act, measured by the loss of 

the usual profits from the business.” United Constr. Workers v. 

Laburnum Constr. Corp., 194 Va. 872, 891, 75 S.E.2d 694, 707 

(1953) (internal quotation omitted). Thus, 

where the loss of prospective profits is the direct 

and proximate result of the breach . . . and they can 

also be proved with a reasonable degree of certainty, 

such loss is recoverable, but it is equally well 

settled that prospective profits are not recoverable 

in any case if it is uncertain that there would have 

been any profits, or if the alleged profits are so 

contingent, conjectural, or speculative that the 

amount thereof cannot be proved with a reasonable 

degree of certainty. 

Sinclair Refining Co. v. Hamilton & Dotson, 164 Va. 203, 211, 

178 S.E. 777, 780 (1935) (citing Manss-Owens Co. v. H. S. Owens 

& Son, 129 Va. 183, 201-05, 105 S.E. 543, 549-50 (1921)). 

 A plaintiff thus must prove two primary factors relating to 

damages. Shepherd, 265 Va. at 125, 574 S.E.2d at 524. First, a 

plaintiff must show a casual connection between the defendant’s 

wrongful conduct and the damages asserted. Second, a plaintiff 

must prove the amount of those damages by using a proper method 

and factual foundation for calculating damages. See United 

Constr. Workers, 194 Va. at 891, 75 S.E.2d at 707. Our 
18

disposition of the causation factor makes it unnecessary for us 

to address the factor for calculating damages. 

 James bore the burden of proving that its damages were 

“proximately caused by wrongful conduct.” Hop-In Food Stores, 

Inc. v. Serv-N-Save, Inc., 247 Va. 187, 190, 440 S.E.2d 606, 608 

(1994). James alleged, and the trial court found, that Thompson 

violated the terms of a valid non-competition covenant and 

breached his fiduciary duty of good faith and loyalty by 

providing Saks with confidential information and taking 

proprietary client information. Saks, having facilitated 

Thompson’s actions, was also liable to James for Thompson’s 

breach of fiduciary duty and both parties conspired to 

“willfully and maliciously injur[e] another in his reputation, 

trade, business or profession by any means whatever,” in 

violation of Code §§ 18.2-499 and -500. James was thus entitled 

to recover damages that were “the direct and proximate result” 

of that conduct. However, by relying solely on Dubinsky’s 

opinion evidence as to damages, James failed to carry its burden 

of proving that the wrongful conduct of Saks and Thompson 

proximately caused those damages. 

 Dubinsky failed to connect the lost profits he claimed 

James incurred after Thompson’s departure to anything other than 

the mere fact that Thompson was no longer working at James. 

This fact alone cannot be a basis for recovering damages, 
19

however, because Thompson was an at will employee who was free 

to stop working at James at any time. 

 Rather than being connected to Thompson’s employment at 

Saks, solicitation of James’ customers, or removal of James’ 

confidential information, Dubinsky’s calculation of damages 

focuses solely on a “but-for” model of what James’ profits would 

have been had Thompson remained employed there. Under 

Dubinsky’s analysis, James’ damages were the same regardless of 

whether Thompson left to work at the Saks store in the same 

shopping mall or simply retired. Having neglected to show that 

its lost profits corresponded to the Defendants’ wrongful 

conduct, James failed to show the necessary factor of proximate 

causation and thus did not carry its necessary burden of proof 

as to damages. See, e.g., Carr, 228 Va. at 652-53, 325 S.E.2d 

at 90-91 (rejecting trial court’s denial of motion to strike 

where “there was no evidence of the damages solely attributable 

to [the defendant’s wrongful conduct]”); Barnes, 204 Va. at 417-

20, 132 S.E.2d at 397-99 (approving trial court’s denial of 

damages award because plaintiff failed to prove with reasonable 

certainty “that the damages sought resulted from the act 

complained of”). 

 Accordingly, the trial court’s reliance on Worrie, Advanced 

Marine, and Famous Knitware, is inapposite. Those cases concern 

the proper measure of damages and calculating lost profits, but 
20

do not affect a plaintiff’s required burden of proving that 

those damages were caused by a defendant’s wrongful conduct in 

the first place. 

 In Worrie, “[b]ut for the acts of the defendants . . . the 

plaintiffs would have been without competition in Richmond.” 

198 Va. at 543, 95 S.E.2d at 200. Consequently, we found that 

the jury had the right to infer from the evidence that 

[the] decrease in the plaintiffs’ business was a 

proximate result of the competition from the 

defendants’ studio. Since . . . the plaintiffs’ 

business had been profitable prior to the opening of 

the defendants’ studio, and continued to be profitable 

thereafter, the jury had the right to infer that but 

for this competition by the defendants the plaintiffs’ 

profits would have been even greater. 

Id. In a two-competitor market, all the plaintiffs’ lost 

profits were reasonably attributed to the defendants because 

they proximately caused the plaintiffs’ loss of a de facto

monopoly by their wrongful conduct. James failed to make a 

similar showing that its projected lost profits were caused by 

Defendants’ wrongful conduct. 

 Our decisions in Advanced Marine and Famous Knitware are 

unrelated to the issue arising in this case because the factor 

of proximate causation of damages was not at issue in those 

cases. James’ reliance on R.K. Chevrolet is similarly 

unavailing. Had Thompson been party to a contract of employment 

with James that required he work there for the period over which 

Dubinsky projected damages, this case might be more analogous to 
21

R.K. Chevrolet because the failure to fulfill the contractual 

obligation could establish the proximate causation of damages. 

However, no such contractual obligation bound Thompson as an atwill employee so no proximate causation factor can be 

established. 

III. CONCLUSION 

 The record before us shows that James relied only on the 

testimony of its expert witness, Dubinsky, to establish damages. 

Dubinsky’s opinion on damages was solely based on Thompson 

having ceased employment with James, not the wrongful acts of 

the Defendants. Thus, Dubinsky’s opinion did not establish the 

necessary factor of proximate causation between Defendants’ 

conduct and the damages claimed by James. The trial court thus 

erred in denying the motion to strike James’ evidence. 

 Accordingly, we will reverse that part of the trial court’s 

judgment finding Defendants jointly and severally liable in 

damages for breach of fiduciary duty and violation of Code 

§§ 18.2-499 and -500, and will enter final judgment in favor of 

Defendants.13

 13 Other than Dubinsky’s expert testimony, James presented 

no other evidence “to support an award of damages.” See Vasquez 

v. Mabini, 269 Va. 155, 163, 606 S.E.2d 809, 813 (2005). The 

testimony of Defendants’ witness, Edelman, as to de minimis

damages was rejected by the trial court and no error was 

assigned to that finding. Thus, Defendants are entitled to 

final judgment on the issue of damages. See Countryside Corp. 

v. Taylor, 263 Va. 549, 553-54, 561 S.E.2d 680, 682 (2002). 
22

Reversed and final judgment.