COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons 

Argued at Salem, Virginia 

JOHN M. SURPRENANT 

 OPINION BY 

v. Record No. 2522-98-3 JUDGE DONALD W. LEMONS 

 JULY 6, 1999 

BOARD FOR CONTRACTORS AND 

 WAYNE J. TORRE 

FROM THE CIRCUIT COURT OF ROANOKE COUNTY 

Roy B. Willett, Judge 

 Brian R. Jones (Jones & Glenn, P.L.C., on 

briefs), for appellant. 

Terry N. Grimes (King, Fulghum, Snead, 

Nixon & Grimes, P.C., on brief), for appellee 

Wayne J. Torre. 

 John B. Purcell, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General; 

John C. Wilkinson, Jr., Assistant Attorney 

General, on brief), for appellee Board for 

Contractors. 

 John M. Surprenant appeals the decision of the trial court 

affirming an award by the Board for Contractors ("Board") under 

the Virginia Contractor Transaction Recovery Act (VCTRA). 

Finding no reversible error, we affirm the ruling of the trial 

court. 

I. BACKGROUND 

 On October 1, 1987, John Surprenant received a contractor's 

license from the Board under the name "U-Nique Builders." 

Sometime prior to October 3, 1991, Surprenant incorporated his 
trade name as "Unique Builders, Inc." ("Unique"). Surprenant 

did not notify the Board that his business had been incorporated 

or that it would be contracting with the license he obtained on 

October 1, 1987. Surprenant also holds a state contractor's 

license under the trade name, "J.M.S. Builders/Developers," 

which expires on October 21, 1999. 

 On October 7, 1991, Wayne J. Torre (Torre) and Unique 

entered into a contract for the construction of a home for Torre 

in Roanoke County, Virginia. Construction of the home ended in 

1993. On June 10, 1993, Torre filed in the Circuit Court for 

Roanoke County a motion for judgment against Surprenant in his 

individual capacity and against Unique alleging breach of 

contract. Unique filed a counterclaim, also alleging breach of 

contract. A bench trial occurred in February, 1995. 

 On May 22, 1995, the court in the underlying litigation1

found in favor of Torre against Unique and awarded damages in 

the amount of $25,164. The judgment was later modified and 

increased to $54,184 with interest from February 22, 1995 until 

paid. Although damages were not awarded against Surprenant 

individually, in its order dated May 22, 1995, the court in the 

underlying litigation stated that it "found that the defendants 

 1

 This opinion refers to circuit court rulings in two 

different matters. The circuit court that decided the breach of 

contract litigation will be referred to as the "court in the 

underlying litigation." The circuit court that decided the 

appeal from the agency will be referred to as "the trial court." 

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made certain misrepresentations as further described ore tenus

by the court." The ore tenus description of the court in the 

underlying litigation characterized the misrepresentations as 

"material" and "asked counsel to submit briefs concerning the 

applicability of the Virginia Consumer Protection Act to the 

facts of this case." 

 In its final order dated September 25, 1995, the court in 

the underlying litigation found that "the facts adduced at trial 

fall within the Virginia Consumer Protection Act by Unique 

Builders, Inc." Following the judgment, Unique ceased doing 

business. Surprenant assumed responsibility for all projects 

under construction contracted under Unique's name. 

 On October 2, 1995, Torre filed a claim for $54,184 with 

the Contractor Transaction Recovery Fund (the "Fund"). On 

August 28, 1997, the Board sent Torre notice of an informal 

fact-finding conference which, pursuant to Code § 9-6.14:11 of 

the Virginia Administrative Process Act ("VAPA"), was held 

before the Board's Recovery Fund Committee ("Committee") on 

September 10, 1997. The Committee found evidence that the 

contractor breached the contract; however, the Committee 

recommended that the claim be denied, because it found no 

evidence of "improper or dishonest conduct." 

 On October 8, 1997, the Board unanimously accepted the 

Committee's report and pursuant to a letter sent by the Board on 

October 10, 1997, all parties were notified of the Board's 

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decision to deny the claim. On November 19, 1997, Torre's 

counsel sent a letter to the Board stating his intention to 

appeal the final order upon its issuance. 

 The Committee reconsidered Torre's claim at a second 

informal fact-finding conference on December 10, 1997. Prior to 

the hearing, Torre's counsel requested a continuance, which the 

Board denied. The fact-finding conference was held without 

Torre or his counsel present. The Committee again voted to deny 

the claim. 

 The Committee notified the parties that the Committee would 

present its summary of the December 10, 1997 report to the Board 

on January 14, 1998, and recommend that the claim be denied. 

The Board informed both Surprenant and Torre by certified letter 

that they could appear before the Board and respond to the 

summary. The letter sent to Surprenant was returned to the 

Board unopened on January 14, 1998. The hearing was held on 

January 14, 1998, and counsel for Torre appeared. The Board 

concluded that Torre had stated a valid claim for recovery and 

awarded him $10,000 from the Fund. 

 The Board entered its final order on January 28, 1998. On 

February 1, 1998, the Board received Surprenant's notice of 

appeal. On September 3, 1998, a hearing was held in the County 

of Roanoke Circuit Court. On October 1, 1998, the trial court 

affirmed the Board’s final order and dismissed Surprenant's 

appeal. Surprenant appeals the dismissal 

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II. STANDARD OF REVIEW 

 Pursuant to Code § 54.1-1114, our review of this case is 

governed by the VAPA, codified at Code §§ 9-6.14:1 et seq. Our 

scope of review is limited to those facts which appear in the 

agency record. See Code § 9-6.14:17. In reviewing an agency 

decision, the trial court must determine: 

 1. Whether the agency acted in accordance 

 with law; 

 2. Whether the agency made a procedural 

 error which was not harmless error; and 

 3. Whether the agency had sufficient 

 evidential support for its findings of 

 fact. 

Johnston-Willis v. Kenley, 6 Va. App. 231, 242, 369 S.E.2d 1, 7 

(1988). 

 Based upon the standard of review, 

[e]rrors of law fall into two categories: 

first, whether the agency decision-maker 

acted within the scope of his authority, and 

second, whether the decision itself was 

supported by the evidence. Where the agency 

has the statutory authorization to make the 

kind of decision it did and it did so within 

the statutory limits of its discretion and 

with the intent of the statute in mind, it 

has not committed an error of law in the 

first category. The second category of 

error is limited to a determination whether 

there is substantial evidence in the agency 

record to support the decision. 

Id. (citation omitted). 

 When considering whether substantial evidence in the agency 

record supports the decision, "the reviewing court may reject 

the agency's findings of fact only if, considering the record as 

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a whole, a reasonable mind would necessarily come to a different 

conclusion." Id. (citation omitted). 

III. "IMPROPER AND DISHONEST CONDUCT" 

 The Board's final order states that based "on the finding 

of the court that Surprenant violated the Virginia Consumer 

Protection Act, the Board concludes that the acts of Surprenant 

fall within the statutory definition of improper and dishonest 

conduct." Surprenant argues that this finding is erroneous on 

the ground that because the court in the underlying litigation 

specifically held that neither Surprenant nor Unique committed 

common law fraud, his actions did not meet the statutory 

definition of "improper or dishonest conduct." 

 Code § 54.1-1118 defines "improper or dishonest" conduct 

for purposes of the VCTRA as follows: 

Improper or dishonest conduct includes only 

the wrongful taking or conversion of money, 

property or other things of value which 

involves fraud, material misrepresentation 

or conduct constituting gross negligence, 

continued incompetence or intentional 

violation of the Uniform Statewide Building 

Code. The term improper or dishonest 

conduct does not include mere breach of 

contract. 

 "A primary rule of statutory construction is that courts 

must look first to the language of the statute. If a statute is 

clear and unambiguous, a court will give the statute its plain 

meaning." Va. Employment Comm'n v. Davenport, 29 Va. App. 26, 

29-30, 509 S.E.2d 522, 524 (1999) (citations omitted). By use 

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of the disjunctive "or" in the language of the statute, the 

legislature evidenced its intention to hold a regulant liable 

under the VCTRA for conduct including but not limited to fraud. 

Improper or dishonest conduct under the VCTRA may involve either 

"fraud" or a "material misrepresentation" or "actions of gross 

negligence" or "continued incompetence" or an "intentional 

violation of the Uniform Statewide Building Code." 

 In addition, although the court in the underlying 

litigation did not include a finding of "improper or dishonest 

conduct" under the VCTRA, in its judgment, Torre was not 

estopped from recovering under the Act. Code § 54.1-1120(A)(7) 

states: 

A claimant shall not be denied recovery from 

the Fund due to the fact the order for the 

judgment filed with the verified claim does 

not contain a specific finding of "improper 

or dishonest conduct." Any language in the 

order which supports the conclusion that the 

court found that the conduct of the regulant 

involved improper or dishonest conduct may 

be used by the Board to determine 

eligibility for recovery from the Fund. 

 Here, the court in the underlying litigation found that 

Surprenant made a material misrepresentation in his contract 

with Torre and violated the Virginia Consumer Protection Act. 

Pursuant to Code § 54.1-1120(A)(7), the factual findings of the 

court in the underlying litigation provide a basis for the Board 

to find improper or dishonest conduct as defined in Code 

§ 54.1-1118. 

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IV. FACT-FINDING PROCEEDINGS OF THE BOARD 

 Surprenant argues that the Board erred in holding more than 

one informal fact-finding conference on this matter. Surprenant 

also argues that the trial court erred in affirming the Board's 

decision because it was based on evidence presented after the 

informal fact-finding conference, in violation of the VAPA and 

the Board's own regulations. In addition, Surprenant argues 

that the trial court erred in affirming the Board's decision 

which relied upon Torre's affidavit. 

A. Number of Fact-finding Conferences

 The Board's review of claims brought under the VCTRA is 

governed by the VAPA. See Code § 54.1-1114. Code § 9-6.14:11 

of the VAPA states: 

Agencies shall ascertain the fact basis for 

their decisions of cases through informal 

conference or consultation proceedings 

unless the named party and the agency 

consent to waive such a conference or 

proceeding to go directly to a formal 

hearing. 

 

 The Committee met on September 10, 1997 and recommended 

that the Board deny Torre's claim. The Board heard the case on 

October 8, 1997, and adopted the reasons of the Committee and 

voted to deny the claim. On December 10, 1997, upon request of 

the Board's legal counsel, the case was reconsidered before the 

Committee in a second fact-finding conference. Nothing in the 

VAPA limits the number of fact-finding conferences to one. We 

cannot say the Committee improperly held two fact-finding 

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conferences. Moreover, Surprenant did not object to the second 

fact-finding conference on December 10, 1997; he participated in 

it. 

B. January 14, 1998 Meeting

 On January 14, 1998, the Board met to consider the 

Committee’s recommendation. Both parties received notice of the 

meeting. Counsel for Torre appeared before the Board and 

submitted documents. Surprenant did not appear. In its final 

order, the Board stated: 

On January 14, 1998, the Board reviewed this 

claim. In attendance was Terry N. Grimes, 

Esquire, counsel for Torre, who made a 

presentation and submitted documents. Based 

on information presented and on the findings 

of the court that Surprenant violated the 

Virginia Consumer Protection Act, the Board 

concludes that the acts of Surprenant fall 

within the statutory definition of improper 

and dishonest conduct. 

 

 Surprenant argues that the Board violated the VAPA by 

considering evidence presented by Torre's counsel at that 

meeting, stating, "evidence is to be submitted only during the 

Informal Fact Finding Conference." The VAPA mandates as 

follows: "[a]gencies shall ascertain the fact basis for their 

decisions of cases through informal conference or consultations 

proceedings unless the named party and the agency consent to 

waive such a conference or proceeding to go directly to a formal 

hearing. . . ." Code § 9-6.14:11. Following the informal 

fact-finding conferences, the board or commission meets to 

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render a decision, where "persons who participated in the prior 

proceeding shall be provided an opportunity to respond at the 

board or commission meeting to any summaries prepared by or for 

the board or commission." Code § 9-6.14:11(C). 

 Surprenant never objected to the presentation by Torre's 

counsel nor the introduction of documents at the meeting on 

January 14, 1998. Pursuant to the certified letter sent to his 

home, Surprenant had notice of his opportunity to appear before 

the Board. Surprenant neither filed any objections to Torre's 

presentation of evidence before the Board nor requested a 

rehearing on this basis. Surprenant may not raise matters on 

appeal that he did not bring before the agency. See Pence 

Holdings, Inc. v. Auto Center, Inc., 19 Va. App. 703, 454 S.E.2d 

732 (1995). 

C. Torre's Affidavit

 Surprenant argues that the trial court erred in affirming 

the Board’s decision that relied in whole or in part on Torre's 

affidavit. Surprenant contends that "every allegation of 

wrongful or dishonest conduct set forth in Torre's affidavit had 

been litigated and resolved against [Torre]" and could not 

constitute a basis upon which the Board found a claim in Torre's 

favor. Surprenant maintains that the findings of the court in 

the underlying litigation that no cause of action for 

misrepresentation existed against Surprenant or Unique precludes 

the Board's relitigation of the same issue in a different forum. 

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 Pursuant to the requirements of the VCTRA, Torre, the 

claimant, was required to file an affidavit setting forth the 

elements of his statutory claim. See Code § 54.1-1120(A)(1). 

The Board did not base its decision on Torre's affidavit. The 

Board relied upon "information presented [at the January 14, 

1998 hearing] and on the findings of the court that Surprenant 

violated the Virginia Consumer Protection Act." 

 Pursuant to Code § 54.1-1120(A)(7), the Board can find 

grounds of improper or dishonest conduct by a regulant in the 

language of any order that supports its finding. Here, the 

basis of the Board's decision was not Torre's affidavit but the 

orders of May 22 and September 25, 1995 from the court in the 

underlying litigation. The language contained in the orders was 

sufficient to support the Board's decision, and the trial court 

did not err in affirming the Board's decision. 

V. JUDGMENT AGAINST "REGULANT" 

 The VCTRA provides a limited means of recovery for a claim 

against a regulant that remains unsatisfied. A regulant is 

defined as "any individual, person, firm, corporation, 

association, partnership, joint venture or any other legal 

entity licensed by the Board for Contractors." Code 

§ 54.1-1118. The money judgment in the underlying litigation 

was against Unique. Surprenant argues that Unique never held a 

license from the Board and therefore could not be considered a 

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regulant. Surprenant contends that he was the only regulant 

recognized by the Board. 

 A review of the record reveals that Surprenant did not 

raise this issue before the Board. Surprenant's argument before 

the Board was confined to whether he had committed acts of 

"improper or dishonest" conduct for purposes of the VCTRA. 

Surprenant never maintained before the Board that he could not 

be held responsible as a regulant under the Act based upon a 

judgment against Unique. In Pence Holdings, 19 Va. App. at 707, 

454 S.E.2d at 734, we stated, "an appellant, under the 

provisions of the APA, may not raise issues on appeal from an 

administrative agency to the circuit court that it did not 

submit to the agency for the agency's consideration." Having 

failed to raise the issue before the administrative agency, he 

was precluded from raising the issue before the trial court. We 

also decline to consider it on appeal. 

VI. CONCLUSION 

 The order of the trial court affirming the award of the 

Board is affirmed. 

Affirmed.

 

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