                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


WORLDCOM, INCORPORATED,               
                Plaintiff-Appellee,
                v.                              No. 02-1479
KEVIN BOYNE,
               Defendant-Appellant.
                                      
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
                 Gerald Bruce Lee, District Judge.
                         (CA-01-193-A)

                      Argued: May 6, 2003

                     Decided: June 25, 2003

       Before WILKINSON, NIEMEYER, and TRAXLER,
                      Circuit Judges.



Affirmed by unpublished per curiam opinion.


                           COUNSEL

ARGUED: Stephen Michael Sayers, HUNTON & WILLIAMS,
McLean, Virginia, for Appellant. Emmett Francis McGee, Jr., PIPER,
MARBURY, RUDNICK & WOLFE, L.L.P., Baltimore, Maryland,
for Appellee. ON BRIEF: Robert J. Mathias, PIPER, MARBURY,
RUDNICK & WOLFE, L.L.P., Baltimore, Maryland, for Appellee.
2                       WORLDCOM v. BOYNE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Plaintiff WorldCom, Inc. brought this unjust enrichment action
against Kevin Boyne after Boyne breached a commitment to remain
employed with the company for two years, and then refused to repay
the bonus he had received in exchange for that commitment. In his
defense, Boyne alleged that his retention of the benefit was justified
by WorldCom’s own misconduct. Boyne also brought counterclaims
against WorldCom alleging that WorldCom’s actions caused him to
forego thousands of dollars in profits from the sale of company stock.
The district court rejected Boyne’s defense and counterclaims, and we
affirm its judgment.

                                  I.

  Plaintiff WorldCom, Inc. ("WorldCom") is a telecommunications
company that provides local, long-distance, and Internet services.
WorldCom owns over 500 subsidiary companies, including UUNET
Technologies, Inc. ("UUNET"). On March 20, 1995, UUNET hired
defendant Kevin Boyne as UUNET’s Manager of Engineering, and
promoted him to Chief Operations Officer of Internet Technology on
June 15, 2000. As Chief Operations Officer, Boyne received an
annual salary of $230,000.00.

   During the spring of 2000, the technology sector was still thriving.
As a result, Internet-oriented companies such as WorldCom faced
fierce competition in hiring and retaining top industry executives. In
order to retain its own top executives, WorldCom decided to imple-
ment a formal "Retention Program." Under the Program, certain exec-
utives would receive a cash bonus and stock options in return for the
executive’s commitment to remain with the company through July
2002.
                         WORLDCOM v. BOYNE                              3
   On May 15, 2000, Bernard Ebbers, Chief Executive Officer and
President of WorldCom, met with Boyne and approximately 100
other executives of WorldCom subsidiaries to discuss the Retention
Program. Ebbers testified that he told these executives that they
would be "receiving an envelope containing a retention bonus and
stock options, and that the bonuses were conditioned upon the recipi-
ents remaining with the company through July 2002." WorldCom,
Inc. v. Boyne, No. 01-193-A (E.D. Va. Mar. 5, 2002). Ebbers further
testified that he emphasized the fact that any executive who resigned
prior to July 2002 would have to return the cash bonus.

   Against the advice of WorldCom’s legal counsel, Ebbers did not
require the executives to sign a legal document memorializing this
understanding. However each individual retention package envelope
contained a memorandum that made this commitment clear. The
memorandum read, in part: "Cash award in the amount of __ . . . . In
return, I ask for your personal commitment to WorldCom through
July 2002. In accepting this package, you commit to the company
your continued employment through this date." Several of the execu-
tives testified at trial that when they left the meeting, they had a clear
understanding of their repayment obligation.

   At the conclusion of the meeting, Ebbers handed each executive an
envelope containing his or her individual retention package. Boyne’s
envelope contained a check for $900,000, as well as the memorandum
stating that Boyne was being offered $900,000 and certain WorldCom
stock options in exchange for his commitment to remain with the
company through July 2002. Boyne cashed the check a few days later.
Shortly thereafter, several executives who had also cashed their
checks resigned, and Boyne helped the company secure return of their
retention bonuses.

  In June 2000, shortly after Boyne accepted the retention package,
WorldCom realigned some of UUNET’s operations and promoted
Boyne to Chief Operations Officer. Rumors were circulating around
UUNET at the time that WorldCom also planned to fully integrate
UUNET into WorldCom. However Ronald Beaumont, WorldCom’s
President and CEO of Operations Technology, assured several senior
UUNET management team members that WorldCom did not plan to
4                       WORLDCOM v. BOYNE
integrate UUNET. In addition, Ebbers sent a company wide e-mail
expressing the same sentiment.

   By the end of the summer, WorldCom’s intentions began to
change. Beaumont testified that it became evident that UUNET’s
organizational structure was causing inefficiencies that did not make
sound business sense. WorldCom thus decided that it would be in
WorldCom’s best interests to integrate UUNET. On October 27,
2000, Beaumont informed Boyne of this decision. Believing that the
integration would not be good for his career, Boyne submitted his res-
ignation on November 20, 2000, effective December 15, 2000, less
than seven months into his two-year commitment.

   Because Boyne did not fulfill his commitment to the company,
WorldCom demanded that he return the $900,000 bonus, but he
refused. On December 13, to offset the $900,000 WorldCom believed
Boyne owed it, WorldCom suspended Boyne’s right to exercise
75,000 vested stock options. Several days later, WorldCom also
rescinded Boyne’s final paycheck.

   On February 5, 2001, WorldCom filed a complaint against Boyne
in Virginia federal district court. The complaint alleged causes of
action for breach of contract, unjust enrichment, and conversion, all
based on Boyne’s failure to repay the cash award. On March 22, the
court dismissed the conversion claim against Boyne. Boyne then filed
a five-count counterclaim against WorldCom alleging actual fraud,
constructive fraud, conversion, tortious interference in contractual
relations, and breach of contract. These claims were based on allega-
tions that WorldCom deceived Boyne into accepting his retention
package and then illegally withheld his benefits and compensation
when he resigned.

   The parties filed cross-motions for summary judgment. The court
granted summary judgment in favor of Boyne on WorldCom’s breach
of contract claim, and in favor of WorldCom on Boyne’s counter-
claims for fraud, conversion, and tortious interference with contrac-
tual relations.

   After a five-day bench trial on WorldCom’s unjust enrichment
claim and Boyne’s breach of contract claim, the district court issued
                        WORLDCOM v. BOYNE                            5
an opinion rendering both findings of fact and conclusions of law.
First, the court held that Boyne had been unjustly enriched by failing
to return the cash bonus. The court rejected Boyne’s argument that
WorldCom’s unclean hands barred it from equitable relief because
Boyne failed to prove that WorldCom’s allegedly inequitable conduct
bore an "immediate and necessary relation" to its unjust enrichment
claim. The court thus ordered Boyne to repay the full amount of the
retention bonus. As to Boyne’s breach of contract counterclaim, the
court ordered WorldCom to pay Boyne his final paycheck and to
compensate Boyne for his unused vacation time. However, the court
held that Boyne could not recover the value of his "frozen" stock
options because he failed to sufficiently prove damages. Boyne now
appeals.

                                  II.

   Boyne argues initially that WorldCom’s claim for unjust enrich-
ment is barred by the doctrine of unclean hands.1 The doctrine of
unclean hands prevents a plaintiff from obtaining equitable relief if
the plaintiff has been "guilty of any inequitable or wrongful conduct
with respect to the transaction or subject matter sued on." Richards
v. Musselman, 267 S.E.2d 164, 166 n.1 (Va. 1980) (quoting W.
deFuniak, Handbook of Modern Equity § 24 (2d ed. 1956)). A show-
ing that the plaintiff engaged in inequitable conduct does not automat-
ically bar equitable relief. Rather, a defendant raising an unclean
hands defense must demonstrate "a close nexus between a party’s
unethical conduct and the transactions on which that party seeks
relief." In re Uwimana, 274 F.3d 806, 810 (4th Cir. 2001).

   Boyne argues that three separate acts by WorldCom support his
unclean hands defense: 1) WorldCom’s representations that it did not
intend to integrate UUNET; 2) the freezing of Boyne’s 75,000 vested
stock options; and 3) the withdrawal of Boyne’s final paycheck. In
order for this defense to succeed, Boyne must link at least one of the
predicate acts to the event WorldCom complains about: Boyne’s
  1
   Boyne also argues that WorldCom did not have standing to sue for
unjust enrichment because the account on which the retention bonus
check was drawn was held in the name of a WorldCom subsidiary. We
find this argument without merit.
6                        WORLDCOM v. BOYNE
refusal to repay the $900,000 retention bonus after he voluntarily left
the company prior to July 2002. We agree with the district court that
Boyne has failed to establish such a connection.

   Boyne argues that WorldCom knew that it was going to integrate
UUNET long before the integration was announced, and therefore
that its representations to the contrary were false. Boyne further con-
tends that he would not have accepted the retention bonus if not for
WorldCom’s false representations. The district court, however, found
that "WorldCom made no explicit promises to . . . Boyne, prior to
[his] negotiation of the cash award[ ], that WorldCom would not inte-
grate UUNET into WorldCom." WorldCom, No. 01-193-A, at 21. "In
deference to the unchallenged superiority of the district court’s fact-
finding ability," we cannot set aside a district court’s factual findings
unless they are clearly erroneous. Salve Regina College v. Russell,
499 U.S. 225, 233 (1991); Fed. R. Civ. P. 52(a). The district court did
not clearly err in finding that Boyne’s acceptance of the retention
bonus was not secured by any WorldCom statements about integra-
tion.

   Moreover, any integration-related statements that WorldCom made
after Boyne accepted the bonus are irrelevant, because they do not
bear an "immediate and necessary" relation to Boyne’s acceptance of
and subsequent refusal to repay the bonus. Boyne argues that the post-
acceptance misstatements are important because WorldCom’s deci-
sion to integrate caused him to resign, which in turn gave rise to
WorldCom’s unjust enrichment claim. However Boyne concedes that
it was entirely within WorldCom’s right to integrate UUNET into
WorldCom. And more importantly, WorldCom’s decision to integrate
was in no way related to the Retention Program. Nothing in Boyne’s
retention package suggested that the commitment hinged on non-
integration. Thus the fact that Boyne resigned in response to the inte-
gration is irrelevant to WorldCom’s unjust enrichment claim, and
WorldCom’s post-acceptance statements about integration cannot
support an unclean hands defense.

   As to the remaining two predicate acts, the frozen stock options
and the salary reversal, the district court found that WorldCom took
these actions in good faith. Specifically, the district court found that
WorldCom’s actions amounted to an attempt to set off the amount it
                          WORLDCOM v. BOYNE                              7
believed Boyne owed to it, and "[i]t is not an unconscionable act for
an entity to withhold money when it has a good faith belief that one
owes it money." WorldCom, No. 01-193-A, at 20 n.7. This finding of
good faith is also entitled to deference and therefore these acts also
cannot support an unclean hands defense.

   The balance of equities in this case must relate to the $900,000.
Boyne received a cash bonus amounting to more than three times his
yearly salary in exchange for a commitment to remain with the com-
pany for two years. Boyne went back on that commitment, but argues
that he should still retain its benefits because WorldCom made a valid
business decision with which Boyne did not agree. The balance of
equities here obviously weighs in WorldCom’s favor. We therefore
affirm the district court’s judgment ordering Boyne to repay the
award in full.2

                                   III.

   Boyne next asserts three counterclaims: 1) breach of contract; 2)
fraud; and 3) conversion. We address each counterclaim in turn.

                                    A.

   First, Boyne argues that the district court erred in rejecting his
breach of contract counterclaim for failure to prove damages. Boyne
argues that he need not prove the full extent of damages because his
failure to prove damages is a direct result of WorldCom’s wrongdo-
ing. Boyne contends that this court can calculate sufficiently precise
damages based on the price of the frozen shares on December 13,
2000, because he would have exercised his options and sold the
shares on that day had they not been frozen.
  2
   We reject Boyne’s argument that he should only be required to pay
the net amount of the retention bonus. WorldCom paid out $900,000.00
in exchange for Boyne’s commitment to remain with the company.
Boyne breached that commitment. Equity thus requires that Boyne repay
the full amount in order to put the parties in the same position they would
have been if the exchange had not occurred.
8                        WORLDCOM v. BOYNE
   A plaintiff is not required to prove damages with "mathematical
precision," but he must at least prove the "elements of [his] damage
with reasonable certainty." Gwaltney v. Reed, 84 S.E.2d 501, 502 (Va.
1954). In other words, a plaintiff must "furnish evidence of sufficient
facts or circumstances to permit at least an intelligent and probable
estimate thereof." Id. The district court properly held that Boyne has
failed to make such a showing here.

   Boyne’s vested stock options gave him the option to purchase stock
at a set price ("strike price"). In order to profit from the purchase of
those options, Boyne would not only have to exercise the options, but
also to then sell them at a higher price. Therefore in order to prove
damages, Boyne must demonstrate that he would have exercised the
frozen options and that he would have sold them at a price higher than
the strike price. Boyne’s evidence is insufficient to make this show-
ing.

   Boyne’s key evidence of damages is a stipulation between the par-
ties. The stipulation indicates the strike price of the options as well
as the opening and closing price of the stock on December 13. The
parties stipulated that had Boyne both exercised and sold the options
on December 13, he would have made $64,057 profit. The stipulation
is irrelevant to Boyne’s showing of damages, however, unless Boyne
can adduce some evidence demonstrating that he would have both
exercised the options and sold the stock on December 13.

   Boyne testified at trial that he instructed his broker to call him
when it made sense to exercise the options. Boyne’s broker called on
December 13, the day the options were frozen. However, the evidence
is ambiguous at best as to whether Boyne’s broker called to notify
him that the options had been frozen or to tell him to exercise his
options. After hearing the testimony and weighing the evidence, the
district court concluded that the broker had called simply to alert
Boyne to the frozen options, and we must defer to that finding.

  Absent any evidence that Boyne had any intention of exercising the
options or that he would have sold the stock at a profit, we hold that
Boyne has failed to prove sufficiently precise damages to support his
breach of contract claim.
                        WORLDCOM v. BOYNE                            9
                                  B.

   Next, Boyne argues that the district court improperly granted sum-
mary judgment in favor of WorldCom on Boyne’s fraud and construc-
tive fraud claims. The district court held that Boyne failed to prove
that he suffered damages caused by WorldCom’s misrepresentations.
Boyne contends that if not for WorldCom’s misrepresentations
regarding integration, he would have quit his job immediately, exer-
cised his vested stock options, and sold all of his WorldCom stock for
a significant profit. The causal connection between WorldCom’s
actions and Boyne’s claim for damages is too speculative to support
his claim.

   To sustain a claim for actual fraud, a plaintiff must demonstrate by
clear and convincing evidence: 1) a false representation of material
fact; 2) intentionally and knowingly made with the intent to mislead;
3) reliance by the misled party; and 4) damages resulting from such
reliance. Winn v. Aleda Constr. Co., 315 S.E.2d 193, 195 (Va. 1984).
To sustain a claim for constructive fraud, a plaintiff must demonstrate
the same elements, except that the false representation can be made
innocently or negligently. Howarth v. Rockingham Publ’g Co., 20 F.
Supp. 2d 959, 970 (W.D. Va. 1998).

   Assuming arguendo that Boyne can satisfy the first three elements
of his fraud claims, his claims still fail because he cannot prove that
WorldCom’s misrepresentations caused him damage. Boyne’s only
evidence that but for WorldCom’s representations he would have
immediately sold all of his WorldCom stock is his own testimony.
Like the district court, we find such speculation alone insufficient to
demonstrate Boyne’s reliance on the representations or damages suf-
fered as a result of such reliance. We therefore affirm the district
court’s dismissal of Boyne’s fraud claims.

                                  C.

   Finally, we turn to Boyne’s counterclaim for the tort of conversion,
which he based on WorldCom’s act of freezing his stock options.
"Conversion is the wrongful assumption or exercise of the right of
ownership over goods or chattles belonging to another in denial of or
inconsistent with the owner’s rights." Economopoulos v. Kolaitis, 528
10                      WORLDCOM v. BOYNE
S.E.2d 714, 719 (Va. 2000). A plaintiff cannot bring a claim for con-
version unless he has a property interest in and is entitled to immedi-
ate possession of the converted item. Id. Moreover, in order to recover
on a tort, "the duty tortiously or negligently breached must be a com-
mon law duty, not one existing between the parties solely by virtue
of [a] contract." Richmond Metro. Auth. v. McDevitt St. Bovis, Inc.,
507 S.E.2d 344, 347 (Va. 1998) (quoting Foreign Mission Bd. v.
Wade, 409 S.E.2d 144, 148 (Va. 1991)).

   The duty underlying Boyne’s conversion claim arises from World-
Com’s contractual duties under its Stock Option Agreements. Upon
the vesting of Boyne’s stock options, WorldCom was contractually
obligated to deliver shares of stock at a specified price upon exercise
by Boyne. Boyne essentially alleges that WorldCom breached that
obligation by blocking him from exercising his options at the strike
price, despite the fact that they had vested according to schedule.
Because this duty exists solely by nature of WorldCom’s obligations
under the Stock Option Agreements, however, these allegations
amount to a breach of contract claim. Therefore Boyne’s conversion
claim must be dismissed.

                                 IV.

   Boyne entered into an agreement with WorldCom from which he
obtained a substantial financial benefit. Because he breached that
agreement, it would be unjust to allow him to retain its benefits.
Boyne also attempts to recover a significant amount of damages by
speculating that if not for WorldCom’s statements about non-
integration and its freezing of his unexercised stock options, he would
have sold his WorldCom stock for a considerable profit. Such specu-
lation is not sufficient to support his claims for damages. We there-
fore affirm the judgment of the district court.

                                                          AFFIRMED
