Property owner hires property management company to collect rent/make repairs. Property company has "trust account" to take in money and pay for management fees and repairs.
Property company hires clerk. Clerk skims money out of account for personal use. All management fees are current/paid out of account to property management company, management company out zero dollars. Property owner is out about 50k.
Property owner obviously a victim. Management company also wants to be a victim under 32.45. I see beneficiary as the property owner with the fiduciary being the management company (and its employees) NOT the management company being the beneficiary and the employee being the fiduciary to the managment company. Thoughts ??
Since no one else has, I will take a stab.
Although for its bookkeeping convenience the management company established a separate trust account, were not the funds in that account earned (and owned), in part, at all times by the management company? It seems to me that the employee committed a theft from the employer each time funds were improperly disbursed from the account, even if enough funds remained in the account to protect the company against loss (and were so used).
I assume the company is wanting to use the criminal process to avoid the need to collect civilly from its former employee, but I also assume it has been sued by the real estate owner and thus is not out zero dollars in the transaction (or maybe there is some insurer that has suffered).
This approach would seem to avoid any ambiguity about the meaning of "fiduciary" under the facts presented and should work even though "misapply" is broader in meaning than "appropriate."
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