
    Dorothy WASSER, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, etc., Appellee.
    No. 97-1735.
    District Court of Appeal of Florida, Fifth District.
    Sept. 25, 1998.
    Dorothy Wasser, Huntington Station, New York, pro se.
    Robert A. Butterworth Attorney General, Tallahassee and Andrea D. Perkins, Assistant Attorney General, Orlando, for Appellee.
   COBB, Judge.

Dorothy Wasser appeals from an order of the Florida Real Estate Commission which denied her request for payment from the Florida Real Estate Recovery Fund for losses caused by a real estate licensee, Jones. This case was heard pursuant to section 120.57(2), Florida Statutes, which provides “Additional Procedures Applicable to Hearings Not Involving Disputed Issues of Material Fact.” No transcript is included in the record on appeal and it appears that no evidentiary hearing was held.

This ease is controlled by Gauthier v. Florida Real Estate Commission, 654 So.2d 580 (Fla. 5th DCA), rev. denied, 661 So.2d 824 (Fla.1995). As in Gauthier, the injury to the claimant (in this case Wasser) did not result from any actions or misconduct by the broker (Jones) acting as a broker in violation of any provision of Chapter 475.

Rather, the instant situation is directly-covered by section 475.483(2)(c), Florida Statutes (1997), which bars recovery out of the recovery fund if the subject claim “is based upon a real estate transaction in which the licensed broker or salesperson was the owner of or controlled the property involved in the transaction; in which the licensee was dealing for the licensees own account; or in which the licensee was not acting as a broker or salesperson.” That is precisely the situation here, as it was in Gauthier. Here, Jones was sued as a purchaser (ergo, owner), not as a real estate broker or salesman. Wasser’s claim is that her purchaser, Jones, failed to pay her and failed to obtain for her a golf equity membership as part of the sales price.

AFFIRMED.

ANTOON, J., concurs.

W. SHARP, J., dissents with opinion.

W. SHARP, Judge,

dissenting.

I respectfully dissent because in my view there is a disputed material fact question as to whether Jones was acting as a broker in this transaction. The case was heard below pursuant to section 120.57(2), Florida Statutes “Additional Procedures Applicable to Hearings Not Involving Disputed Issues of Material Fact,” a kind of summary judgment proceeding. Thus I would remand the cause for an evidentiary hearing.

Based on the documents of record, a reasonable interpretation of them is that Jones initiated this transaction in his capacity as a broker/lieensee. He listed Wasser’s home with his real estate agency, Arvida Realty Sales, Ltd., Champion Group. He produced buyers (his son and the son’s girlfriend) and produced a contract in November 1995 with a closing set for January 1996. Jones told Wasser he would guarantee the financing, but on advice of counsel he decided he would purchase the home in his own name, although it was for the benefit of his son and girlfriend. Thus, the contract shows Jones as the nominal buyer.

Pursuant to the contract, Wasser paid to Jones a $1,000 “escrow” deposit, and a down payment of $35,000 towards the total purchase price, which included a golf membership. These funds were arguably not paid to Jones as a buyer, but rather as a broker, to be placed in escrow, pending a closing. However, Jones did not place the funds in escrow nor did he put them into the real estate company’s trust accounts. Rather, these were the funds that Jones has now (after defaulting on the purchase contract) refused to return to Wasser. This is not simply a matter of having “defaulted” on the purchase contract.

The fact that Jones later interposed himself as a buyer to accommodate his relatives who were the real purchasers in this transaction fits this court’s broader concept of what constituted a transaction for purposes of recovery from the Fund. See Riggs v. Department of Professional Regulation, Florida Real Estate Commission, 530 So.2d 980 (Fla. 5th DCA 1988). See also Dullea v. Department of Business Regulation, Florida Real Estate Commission, 599 So.2d 207 (Fla. 2d DCA 1992). The default here was not simply failure to pay and complete the real estate contract. Jones has absconded with the $1,000 “escrow deposit” and the $35,000 down payment on the purchase (related to the golf membership). In taking these funds and not holding them in escrow or in trust until closing, Jones clearly violated his fiduciary duties as a broker. 
      
      . Section 475.482(1), Florida Statutes (1997), provides for the “reimbursement” of any claimant adjudged by a court of competent civil jurisdiction in this state to have suffered monetary damages by reason of any act committed, as part of any real estate brokerage transaction involving real property in this state, by any broker ... who:
      (a) Was, at the time the alleged act was committed, the holder of a current, valid, active real estate license issued under this part;
      (b) Was neither the seller, buyer, landlord, or tenant in the transaction nor an officer or a director of a corporation or a member of a partnership which was the seller, buyer, landlord, or tenant in the transaction; and
      (c)Was acting solely in the capacity of a real estate licensee in the transaction;
      Additionally, under section 475.483(1), Florida Statutes (1997),
      (1) Any person is eligible to seek recovery from the Real Estate Recovery Fund if:
      (a) Such person has received a final judgment in a court of competent civil jurisdiction in this state against an individual broker or salesperson in any action wherein the cause of action was based on a real estate brokerage transaction.
      
      (Emphasis added).
     