COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

HERBERT W. LUX, JR. 

v. Record No. 0366-97-2 MEMORANDUM OPINION*

 PER CURIAM 

JACK KOTVAS, DIRECTOR, JULY 8, 1997 

 DEPARTMENT OF PROFESSIONAL 

 AND OCCUPATIONAL REGULATION 

FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY 

William H. Ledbetter, Jr., Judge 

 (Herbert W. Lux, Jr., pro se, on brief). 

 (James S. Gilmore, III, Attorney General; 

John B. Purcell, Jr., Assistant Attorney 

General, on brief), for appellee. 

 Herbert W. Lux appeals the decision of the circuit court 

affirming the decision of the Department of Professional and 

Occupational Regulation (Department), Board for Contractors 

(Board) to pay a claim pursuant to the Contractor Transaction 

Recovery Act (Act). Code §§ 54.1-1118 through 54.1-1127. Upon 

reviewing the record and briefs of the parties, we conclude that 

this appeal is without merit. Accordingly, we summarily affirm 

the decision of the trial court. Rule 5A:27. 

Standard of Review

 Under the Virginia Administrative Process Act, Code 

§§ 9-6.14:1 through 9-6.14:25, the burden is on the party 

complaining of the Board's action to demonstrate an error of law 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

subject to review. Code § 9-6.14:17; Johnston-Willis, Ltd. v. 

Kenley, 6 Va. App. 231, 241, 369 S.E.2d 1, 6 (1988). We will 

review the facts in the light most favorable to sustaining the 

Board's action, with due consideration of "the presumption of 

official regularity, the experience and specialized competence of 

the [Board], and the purposes of the basic law under which the 

[Board] has acted." Code § 9-6.14:17. See also Bio-Medical 

Applications of Arlington, Inc. v. Kenley, 4 Va. App. 414, 427, 

358 S.E.2d 722, 727 (1987). 

Facts

 Viewed in the light most favorable to sustaining the Board's 

decision, the record proves that in April of 1989, William and 

Delores Owens entered into a contract with Lux, a licensed 

contractor, for the construction of a residence. On January 12, 

1994, Lux was convicted of grand larceny by false pretenses and 

"grand larceny-mechanic's lien fraud" concerning the Owens' 

contract. As part of his sentence, the trial court ordered Lux 

to pay the Owens restitution of $2,500. On September 2, 1994, 

when Lux failed to pay the restitution, the Owens filed a claim 

with the Board under the Act. 

 The Board's Recovery Fund Committee (Committee) recommended 

that the Board approve the Owens' claim. On April 10, 1996, the 

Board authorized payment of the claim. Lux appealed the Board's 

decision to the circuit court, and the circuit court affirmed the 

Board's decision. 
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Timeliness of Filing of Claim Issue

 Lux first contends that the Owens did not comply with the 

requirements of the Act by failing to file a verified claim 

within the mandatory period of six months. Code § 54.1-1120(3). 

 Code § 54.1-1120, in effect at the applicable time, 

provided, in pertinent part: 

 Whenever any person is awarded a 

judgment in a court of competent jurisdiction 

in the Commonwealth of Virginia against any 

individual or entity which involves improper 

or dishonest conduct occurring (i) during a 

period when such individual or entity was a 

regulant and (ii) in connection with a 

transaction involving contracting, the 

claimant may file a verified claim with the 

Director [of the Department of Professional 

and Occupational Regulation] to obtain a 

directive ordering payment from the fund of 

the amount unpaid upon the judgment subject, 

to the following conditions: 

* * * * * * * 

 3. A verified claim shall be filed with the 

Director no later than six months after the 

judgment became final. 

 The sentencing order requiring the payment of restitution 

was entered on March 23, 1994. The Owens filed their initial 

Contractor Recovery Act claim on September 2, 1994, within six 

months after the judgment became final. Although the Board twice 

 requested additional information from the Owens, the record 

indicates that the Board did not question the timeliness of the 

filing of the claim, but merely requested information to 
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supplement the claim. Therefore, the record indicates that the 

claim was filed in compliance with the statutory requirement. 
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Bankruptcy Issue

 Lux next complains that the Board's decision to pay the 

Owens' claim was invalid because the restitution order was void. 

 Lux contends that the restitution order was void because his 

debt to the Owens was discharged when he filed for bankruptcy. 

However, nothing in the Act precluded the payment of a claim from 

the fund where a claimant's unpaid judgment against a contractor 

was uncollectible because the contractor declared bankruptcy. 

Moreover, 11 U.S.C. § 523(a)(4) prevents a discharge in 

bankruptcy for "fraud or defalcation while acting in a fiduciary 

capacity, embezzlement, or larceny." Therefore, Lux's argument 

is without merit. 

Code § 54.1-1120(6) Issue

 Lux contends that the Board erroneously issued the directive 

ordering payment from the fund because the Owens' claim did not 

comply with the requirements listed in Code § 54.1-1120(6)(a) 

through Code § 54.1-1120(6)(d). Code § 54.1-1120(6)(a) provides 

that the verified claim must contain a statement that the 

claimant has "conducted debtor's interrogatories to determine 

whether the judgment debtor has any assets which may be sold or 

applied in satisfaction of the judgment." The other requirements 

listed in Code § 54.1-1120(6)(b) through Code § 54.1-1120(6)(d) 

concern additional information about the debtor's assets. 

However, Lux had filed for bankruptcy prior to December 23, 1994, 

when he amended his debtor schedule listing the Owens as 
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creditors. The record contains a copy of this amended debtor 

schedule. Therefore, the Board was aware of Lux's bankruptcy 

filing. 

 Further, on September 15, 1994, the Department sent the 

Owens a form letter which contained a list of the types of 

information typically requested by the Department concerning 

claims. The form had a line for each item on which an "X" was 

placed to indicate which items of information the Department 

requested from the Owens. In this letter, the Department placed 

on "X" on the line indicating a request for a copy of the 

bankruptcy notice. The form did not contain an "X" on the lines 

indicating requests for information concerning debtor's 

interrogatories. Thus, in light of Lux's bankruptcy filing, it 

was not necessary to provide the Department information regarding 

debtor's interrogatories. Therefore, this argument is without 

merit. 

Notification and Continuance Issues

 Whether to grant Lux's request for a continuance was within 

the discretion of the Board. Cf. GTE Sprint Communications Corp. 

of Virginia v. AT & T Communications of Virginia, Inc., et al., 

230 Va. 295, 306, 337 S.E.2d 702, 709 (1985) (addressing the 

denial of a request for a continuance of a hearing conducted by 

the State Corporation Commission). 

 The record indicates that the Committee scheduled a hearing 

for the Owens' claim for March 18, 1996. On March 7, 1996, Holly 
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Erickson, Assistant Administrator for the Recovery Fund, sent a 

letter to Lux informing Lux of the scheduled hearing. On March 

14, 1996, Lux telephoned Erickson and requested a deferral in 

order to prepare for the hearing. On that same date, Lux sent a 

letter to Erickson requesting a continuance because his wife had 

grand jury duty on March 18, 1996 and he had to "watch" their 

daughter on that date. However, the Committee considered and 

approved the Owens' claim on March 18, 1996. 

 On March 22, 1996, Erickson sent a letter to Lux advising 

him that the Committee recommended payment of the Owens' claim. 

Erickson also informed Lux that the Board would meet on April 10, 

1996 to ratify the Committee's decision. Lux responded by letter 

dated March 27, 1996, stating that he intended to be present at 

the April 10, 1996 meeting and that he planned to address the 

Board. On April 3, 1996, Lux asked for a continuance because he 

had to attend a court hearing on that date. The Board met on 

April 10, denied his request for a continuance, and approved the 

Owens' claim. 

 Clearly, Lux was given adequate notice of each step in the 

process and was given the opportunity to be heard at each 

proceeding. Nothing in the record indicates that the Committee 

or the Board abused its discretion in denying Lux's requests for 

continuances and in conducting the hearings as scheduled. 

 Further, Lux argues that he did not receive notice of the 

Board's decision to pay the Owens' claim. However, the agency 
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record contains the April 11, 1996 letter to the Owens from 

Erickson informing the Owens that their claim was approved. In 

addition, Code § 54.1-1122 provides that when the Board issues a 

directive ordering payment from the fund to the claimant, then 

"[t]he claimant shall be notified in writing of the findings of 

the Board." There is no statutory requirement that the regulant 

must be notified of the payment. Therefore, this argument is 

without merit. 

Final Order Issue

 Lux contends that the Board erred in making 

payment of the Owens' claim without entering 

a final order or case decision pursuant to 

Code § 9-6.14:14. However, the record does 

not indicate that this argument was presented 

to the trial court. The trial court's 

November 13, 1996 opinion letter does not 

address this issue. Further, Lux's written 

statement of facts was filed more than fiftyfive days after entry of the final order and 

is not part of the record on appeal. See

Rule 5A:8(c)(1). In addition, Lux filed no 

transcript of the proceeding before the trial 

court. Therefore, we are unable to determine 

whether this argument was presented to the 

trial court. We have many times pointed out 
 9 

that on appeal the judgment of the lower 

court is presumed to be correct and the 

burden is on the appellant to present to us a 

sufficient record from which we can determine 

whether the lower court has erred in the 

respect complained of. If the appellant 

fails to do this, the judgment will be 

affirmed. 

 

Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961). 

 Accordingly, Rule 5A:18 bars our consideration of this 

question on appeal. Moreover, the record does not reflect any 

reason to invoke the good cause or ends of justice exceptions to 

Rule 5A:18. 

 For the reasons stated, the decision of the circuit court is 

summarily affirmed. 

 Affirmed.