STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1935

) BENNETT L. MUSICK t/a BEN MUSICK, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above styled cause in the Conference Room of the Florida Real Estate Commission, 2699 Lee Road, Winter Park, Florida 32789, at 1:30 P.M. on December 10, 1976 before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This matter came on to be heard upon the Administrative Complaint filed by the Florida Real Estate Commission against Ben L. Musick, which Complaint alleged that Ben Musick was guilty of misrepresentation, dishonest dealing, trick, scheme or device and a breach of trust in a business transaction in violation of Subsection 475.25(1)(a) and Section 475.42(1)(j), F.S., by signing for Barbara M. Hawkins without her authorization an affidavit and closing statement which provided that the purchase price would be $20,500 when the contract for sale and purchase of the property called for a total purchase of $20,750.

APPEARANCES

For Petitioner: Randy J. Schwartz, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Thomas F. Lang, Esquire

135 Wall Street Post Office Box 633

Orlando, Florida 32802

Charles T. Wells, Esquire Post 0ffice Box 3109 Orlando, Florida 32802

FINDINGS OF FACT

1. Ben L. Musick is a registered real estate broker, t/a Ben Musick holding License No. 0062987.

   
   

2. In September or October of 1975, Ben Musick was contacted by Barbara Hawkins who requested Musick to represent her in the sale of her home located at 3802 East Esther Street, Orlando, Florida. At that time, Hawkins advised Musick that she had had a recurrence of cancer, was behind on the second mortgage to

   her house, and desired to sell her home. Musick advised Hawkins that he could assist her in selling the home but that if he undertook to list the house in a direct capacity, that by virtue of his membership in the Orlando/Winter Park Multiple Listing Service that he would have to charge her seven percent commission on the sale. Hawkins advised Musick that she did not desire to have the house so listed and did not desire to place a sign on the property. Hawkins was desirous of paying off the money owned on the house, and obtaining as much money as possible on the sale. Musick was unable to give her an approximation of the money she could hope to realize on the sale of the home because Hawkins was unable to tell him the amount she was in arrears on the second mortgage.

   Musick undertook to represent Hawkins and advised her that he would check into the status of the second mortgage and would contact her.

   
   

3. Upon checking with the second mortgagor and with the courthouse, Musick determined that there was a lien against the property for a deficiency judgment from a small loan company. He also determined the amount of money which she was in arrears on the second mortgage. With this information, Musick met with Hawkins on the 12th or 13th of October, 1975 and discussed with Hawkins the fact that the judgment lien of the small loan company would have to be satisfied together with the amounts due and owing on the second mortgage. A firm purchase price was not reached, but it was their understanding that he would attempt to get the very best price for the home and bring any offers to her and see if she would approve.

   
   

4. Musick, having been limited in the manner in which he could advertise Hawkins' property, contacted several friends of his wife and as a result of these contacts showed the home to two couples during the months of October and November.

   
   

5. Mrs. Hawkins entered the hospital at the Naval Station in Orlando around November 10, 1975. After her initial examination, it was determined that she would have to be evacuated by air to a cancer treatment center and arrangements were made to do this. She was to be transferred on November 20 or 21, 1975.

   
   

6. Ben Musick had shown the Hawkins' home to Bobby and Jerry Hill who on November 19 communicated their decision to Musick that they would offer to pay all outstanding obligations on the Hawkins' home and assume the first mortgage on the home. By this time it had come to light that there was due and owing four months payments on the first mortgage and that both mortgage companies were considering foreclosure. Ben Musick communicated the offer made by the Hills to Hawkins on November 19, 1975 by telephone speaking with her at the Naval Hospital. Based upon her acceptance of the offer and having been advised by Hawkins that her husband was present, Musick prepared the contract for sale based upon the estimates of the cost which the Hills would have to pay and the amount of the first mortgage which they would have to assume. Then Musick presented the contract for purchase and sale and the deed to the property to Barbara Hawkins and her husband at the Naval Hospital on November 20. At that time Musick advised Hawkins that upon signing the contract and deed that the property would be effectively transferred although there would be a formal closing at which he would appear and represent her. Hawkins concurred in this and signed the contract for sale and the deed conveying the property from herself and her husband to Bobby and Jerry Hill. She was told prior to signing that she would receive no cash proceeds from the sale pursuant to the offer of the Hills to pay all debts owing on the home and assume the first mortgage. On November 21, 1975, Barbara Hawkins was transferred from the Naval Hospital in Orlando to Keesler Air Force Base Hospital in Biloxi, Mississippi.

7. The Hills had determined to obtain title insurance on the subject property; and, therefore, Musick turned to Lawyers Title Insurance Company to handle the closing in this transaction because they offered to do so for free thereby saving the Hills money in closing the sale of the property. The final closing statement for the sale of the property was prepared by Jody Sellers of Lawyers Title Insurance Company. She prepared the closing statement based upon information obtained by her from the mortgage companies involved. The information provided her was slightly different from the information provided to Ben Musick and the estimates which he had been required to make regarding the cost of title insurance and other closing costs as stated in the contract for sale. However, the offer was premised upon a payment of debts and assumption of mortgage with the understanding that Hawkins would receive no cash proceeds. Because of the difference in Sellers and Musick's figures there was a slight difference ($250) between the purchase price figures arrived at by Sellers and that arrived at by Musick as expressed in the contract for sale.

   
   

8. On November 28, 1975, Ben Musick called Barbara Hawkins at the Air Force Hospital at Keesler Air Force Base, Biloxi, Mississippi, where he advised her that the closing had been approved and was imminent and that she would receive $55 cash from the proceeds of the sale. He further advised her that he would be at the closing and represent her picking up her papers and check. She acknowledged his representation of her at the closing. At closing Jody Sellers requested that Ben Musick execute an affidavit stating that the subject property was free and clear of any mechanics liens, which Ben Musick signed as follows:

   
   

   "Ben Musick, Realtor for Barbara M. Hawkins"

   
   

9. Ben Musick signed the closing statement indicating the receipt of

   $55.31 in behalf of Barbara M. Hawkins in the same manner. Upon her return from Biloxi, Mississippi, around December 10, 1975, Ben Musick delivered the closing papers and the check for $55.31 to Barbara Hawkins.

   
   

   CONCLUSIONS OF LAW

   
   

10. Ben Musick was the real estate broker representing Barbara M. Hawkins in the sale of her home at 3802 East Esther Street, Orlando, Florida, pursuant to an agreement between Barbara Hawkins and Ben Musick. Under that agreement, Ben Musick was to obtain the best possible price for the sale of said home, submit all offers to Barbara Hawkins, who could accept or reject said offers. Pursuant to that agreement, Mrs. Hawkins was presented an offer of Bobby and Jerry Hill which she accepted signing a contract for the sale of said home together with a warranty deed. Because of her illness, Ben Musick as her real estate broker attended the final closing on said property on her behalf and in her behalf signed the affidavit indicating there were no mechanics liens on the home and the closing statement indicating the receipt of $55.31 in her behalf. In this regard there is no evidence that the defendant is guilty of any misrepresentation, dishonest dealing, trick, scheme, or device or breach of trust in his representation of Barbara Hawkins and thereby is not in violation of Section 475.25(1)(a) and Section 475.42(1)(j), Florida Statutes.

    
    

11. The offer of Barbara Hawkins and Jerry Hill was clearly to pay all debts on the Hawkins' home and assume the first mortgage thereon. Their offer did not contemplate in any manner that Hawkins would receive any cash proceeds. The contract drawn by Ben Musick and presented to the Petitioner on November 19, 1976 sought to present the offer of the Hills to Hawkins on a form which requires the use of estimated values to arrive at the total purchase price. The

figures subsequently used by Jody Sellers to prepare the final closing statement were not dependent upon estimates and she used actual values obtained from the various mortgagors. This resulted in an actual purchase price of $20,500.

Although the intent of the parties was carried out, Ben Musick erred in presenting a contract for purchase in the form in which he presented it because the contract for the purchase and sale of the Hawkins' home should have stated the offer by the Hills without the use of any estimates. However, in presenting the contract in the manner which he did, Musick was not guilty of fraud, misrepresentation, concealment, false pretenses, dishonest dealings, trick, scheme or device, or breach of trust in a business transaction in violation of Section 475.25(1)(a), Florida Statutes. While Musick could have presented the Hills' offer in a better form, in failing to do so he was not negligent, and was certainly not culpably negligent. Therefore, Ben Musick is not in violation of the provisions of Section 475.25(1)(a), Florida Statutes.

RECOMMENDATION

The Hearing Officer, based upon the foregoing findings of fact and conclusions of law, recommends that the Florida Real Estate Commission take no action against the license of Bennett L. Musick, t/a Ben Musick, as a registered real estate broker.

DONE and ORDERED this 28th day of December, 1976, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Randy J. Schwartz, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Thomas F. Lang, Esquire Post Office Box 633 Orlando, Florida 32802

Charles T. Wells, Esquire Post Office Box 3109 Orlando, Florida 32802

Docket for Case No: 76-001935

Orders for Case No: 76-001935