Present:   All the Justices

THE ST. JOE COMPANY
                                                   OPINION BY
v.    Record No. 102342                    JUSTICE S. BERNARD GOODWYN
                                                  March 2, 2012
NORFOLK REDEVELOPMENT
AND HOUSING AUTHORITY

           FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                     John R. Doyle, III, Judge

     In this appeal, we consider whether the circuit court

erred in imposing a constructive trust on funds removed from a

debtor’s operating account, by a secured creditor with a

perfected interest in the account, when those funds were

entrusted to the debtor in its capacity as the agent of a third

party.

                              Background

     Norfolk Redevelopment and Housing Authority (NRHA) filed a

complaint against the St. Joe Company (St. Joe) and Advantis

Real Estate Services Company (Advantis) in the Circuit Court of

the City of Norfolk alleging unjust enrichment and seeking

imposition of a constructive trust and recovery of funds

supplied by NRHA to its agent, Advantis, for the payment of

contractors who had performed services for NRHA.       St. Joe held

a perfected secured interest in Advantis’s operating account

and exercised its rights as a secured creditor over that

account to have funds from Advantis’s account, including those
entrusted to Advantis as NRHA’s agent, transferred to a St. Joe

account. 1

     NRHA and St. Joe filed an agreed stipulation of facts with

the circuit court and submitted cross-motions for summary

judgment on the constructive trust and unjust enrichment

counts. Following oral argument, the circuit court issued a

letter opinion and entered a final order granting NRHA’s motion

for summary judgment on both counts.    St. Joe appeals.

                               Facts

     NRHA entered into a property management agreement with

Advantis, under which Advantis would serve as NRHA’s agent with

regard to repair and architecture contracts for the improvement

of an NRHA office building in Norfolk, Virginia.    Under the

management agreement, when payments became due to a contractor,

NRHA was to provide the necessary funds for Advantis to hold in

trust for transmission to the contractor on behalf of NRHA.

Pursuant to the management agreement, Advantis entered into

agreements with a roof repair contractor and an architectural

firm for the repair of NRHA’s building.

     In June 2008, St. Joe became a secured creditor of

Advantis, entering into a deposit account control agreement

with Advantis and Wachovia Bank.     NRHA was not a party to this

agreement.

     1
         Advantis is not a party to this appeal.

                                 2
     On May 30, 2009, Advantis sent NRHA an invoice of

$119,221.44 for work performed on the office building:

$112,473.06 was due the roofing contractor and $6,478.38 was

due Advantis as a management fee.      On the same date, Advantis

submitted to NRHA an invoice in the sum of $3,041.14, of which

$2,869.00 was due the architectural contractor and $172.14 was

due Advantis.

     On or about June 11 and 18, 2009, NRHA delivered checks

and corresponding invoices to Advantis: (1) in the amount of

$119,221.44 for the purpose of paying Advantis and the roof

repair contractor, and (2) in the amount of $3,041.14 to pay

Advantis and the architectural contractor.      The check stubs

identified the invoice to which each check was applicable.

Advantis deposited these checks into its Wachovia master

operating account, which was governed by the deposit account

control agreement with St. Joe.       On July 17 and 20, 2009, NRHA

issued cure notices, demanding that Advantis transmit the

payments to the contractors.

     Advantis did not transmit the payments to the contractors

before St. Joe seized control of the Wachovia account, and

under the terms of the deposit account control agreement,

instructed Wachovia to wire the balance of the Advantis account

to a BB&T account held by St. Joe.      NRHA sent a letter to St.

Joe demanding the return of the money which was supposed to


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have been paid to NRHA’s contractors.   St. Joe declined to

return the money to NRHA.   At all relevant times, the balance

of the operating account exceeded $115,342.06, the amount of

the fees due the contractors.

                             Analysis

     St. Joe argues that the circuit court erred in determining

that the funds in Advantis’s account remained the property of

NRHA and subject to its control.    It also argues that the

circuit court erred in imposing a constructive trust absent any

evidence that St. Joe exercised control over the funds in the

account by fraud, abuse of confidence, or other questionable

means.   St. Joe further maintains that regardless of the

propriety of imposing a constructive trust, NRHA cannot prevail

because it is unable to adequately trace the funds into St.

Joe’s possession.

     NRHA responds that the circuit court correctly found that

the funds remained its property until used for their intended

purpose.   NRHA also asserts that because Advantis did not own

the funds, the circuit court properly found that a constructive

trust existed and that the funds could be traced into St. Joe’s

possession.   We agree with NRHA.

     In an appeal from a circuit court’s decision to grant or

deny summary judgment, this Court reviews the application of




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law to undisputed facts de novo.    E.g., Johnson v. Hart, 279

Va. 617, 623, 692 S.E.2d 239, 242 (2010).

     In the Commonwealth, it is well established that

     [w]here money or property is intrusted [sic] to an
     agent for a particular purpose, it is impressed by
     the law with a trust in favor of the principal until
     it has been devoted to such purpose; and, if it be
     wrongfully diverted by the agent, such trust follows
     the fund or property in the hands of a third person
     and the principal is ordinarily entitled to pursue
     and recover it as long as it can be traced and
     identified, if no superior equities have intervened.
     This applies whether it is the identical property put
     into the hands of the agent or other property
     purchased by the agent with the proceeds, and even
     when it has been mixed with the mass of other
     property, if not so as to be incapable of being
     distinguished.

Baldwin v. Adkerson, 156 Va. 447, 463-64, 158 S.E. 864, 869

(1931) (citations omitted).   Correspondingly, a trustee does

not become the owner of entrusted funds unless the trustee is

granted unrestricted use thereof.    Broaddus v. Gresham, 181 Va.

725, 732, 26 S.E.2d 33, 36 (1943) (noting that money paid to

another may create a trust or debt, depending upon the

intention of the payor) (citation omitted).

     The stipulated evidence established that Advantis acted as

NRHA’s agent in contracting with and paying the contractors.

Likewise, NRHA delivered the funds for the express purpose of

paying the contractors.   NRHA never granted Advantis

unrestricted use of the funds and in fact issued cure notices

demanding that the money be used to pay the contractors.   NRHA


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provided the funds for a specified purpose.   Although St. Joe

notes that the funds intended for payment of the contractors

were placed in the master operating account and not in the

trust account contemplated by the contract between NRHA and

Advantis for rent collections, 2 the failure on the part of

Advantis to put the funds intended for payment of the

contractors into a trust account does not preclude a finding

that the funds were held for transmission to the contractors.

     “Constructive trusts are those which the law creates,

independently of the intention of the parties, to prevent fraud

or injustice.”   Leonard v. Counts, 221 Va. 582, 588, 272 S.E.2d

190, 195 (1980).   Consequently, constructive trusts “occur not

only where property has been acquired by fraud or improper


     2
          The contract between NRHA and Advantis (Manager)
provided as follows:

          The Manager shall deposit all rents and other
     funds collected from the operation of each Property
     or Properties, including any and all advance rents,
     in a bank approved by Owner in a separate or combined
     account or accounts at the direction of Owner . . .
     for the Property in the name of: Advantis Real Estate
     Services Company as Agent for Norfolk Redevelopment &
     Housing Authority.

          The bank shall be informed in writing that the
     account and funds therein are held in trust for and
     owned by the Owner. Out of each account, Manager
     shall pay the operating expenses of the Property and
     any other payments relative to the Property as
     required by the terms of this Agreement. If more
     than one account is required to operate the Property,
     each account must have a unique name.

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means, but also where it has been fairly and properly acquired,

but it is contrary to the principles of equity that it should

be retained, at least for the acquirer’s own benefit.”    Jones

v. Harrison, 250 Va. 64, 70, 458 S.E.2d 766, 770 (1995)

(citations and internal quotation marks omitted).   A circuit

court may impose a constructive trust, thereby preventing a

failure of justice, “even when property has been acquired

fairly and without any improper means.”   E.g., Faulknier v.

Shafer, 264 Va. 210, 215, 217, 563 S.E.2d 755, 758, 759 (2002).

Contrary to St. Joe’s assertion, no allegation of fraud or

abusive conduct is required for the imposition of a

constructive trust upon the funds in the Advantis account.

See, e.g., Richardson v. Richardson, 242 Va. 242, 245-47, 409

S.E.2d 148, 150-51 (1991) (imposing constructive trust to

prevent unjust enrichment, despite absence of wrongdoing on

part of the gratuitous transferee).

     This Court has stated:

     When property is given or devised to a defendant in
     breach of a donor’s or testator’s contract with a
     plaintiff, equity will impose a constructive trust
     upon that property in the hands of the recipient even
     though (1) the transfer is not the result of breach
     of a fiduciary duty or an actual or constructive
     fraud practiced upon the plaintiff, and (2) the donee
     or devisee had no knowledge of the wrongdoing or
     breach of contract.

Faulknier, 264 Va. at 215, 563 S.E.2d at 758 (quoting Jones,

250 Va. at 69, 458 S.E.2d at 769).


                               7
     The scenario described in Faulknier and Jones is analogous

to the facts in the instant case.   NRHA provided funds to

Advantis for the payment of the contractors, but Advantis did

not pay them in accord with the management agreement.   Although

not “given or devised” to St. Joe, the funds arrived “in the

hands of” the company, despite its apparent lack of knowledge

that Advantis was to pay the contractors with the funds.     The

property was acquired legally by St. Joe, but allowing the

company to retain the funds would be contrary to the principles

of equity.

     “[I]n order to be entitled to the benefit of a

constructive trust, a claimant’s money must be ‘distinctly

traced’ into the chose in action, fund, or other property which

is to be made the subject of the trust.”   Crestar Bank v.

Williams, 250 Va. 198, 204, 462 S.E.2d 333, 335 (1995).      For

commingled funds, such tracing may be sufficiently accomplished

under the lowest intermediate balance rule by a showing that

the amount in the destination account exceeded the value of the

constructive trust.   Old Republic Nat’l Title Ins. Co. v.

Tyler, 155 F.3d 718, 724 (4th Cir. 1998). (“In cases where the

trust property has been commingled, courts resolve the issue

with reference to the so-called ‘lowest intermediate balance’

rule, . . . which is grounded in the fiction that, when faced

with the need to withdraw funds from a commingled account, the


                                8
trustee withdraws non-trust funds first, thus maintaining as

much of the trust’s funds as possible.   Hence, pursuant to the

lowest intermediate balance rule, if the amount on deposit in

the commingled fund has at all times equaled or exceeded the

amount of the trust, the trust’s funds will be returned in

their full amount.”); see Federal Reserve Bank of Richmond v.

Peters, 139 Va. 45, 69, 123 S.E. 379, 386 (1924) (“This money

passed from the agent’s hands to the hands of the receiver

impressed with a trust, and is sufficiently identified, since

it appears that an amount equal to the amount held [in trust]

was in its hands . . . until its failure.”).   In the instant

case, the parties stipulated that the balance of the Wachovia

account did not fall below the amount of the funds designated

for payment to the contractors.

     Furthermore, St. Joe stipulated that it “has maintained

possession of the $115,343.06 that is the subject of this case

during the pendency of this litigation.”   Even absent

application of the lowest intermediate balance rule, St. Joe’s

stipulation effectively ends the inquiry, as it has admitted

possession of the very funds at issue.

     We therefore hold that imposition of a constructive trust

was proper and necessary to prevent a failure of justice, and

unjust enrichment.




                                  9
                           Conclusion

     Accordingly, for the reasons stated, we will affirm the

judgment of the circuit court.

                                                       Affirmed.




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