Cornelius v. Department of Banking, No. 26706.

• Decision Date: 28 March 2006
• Docket Number: No. 26706.
• Citation: 94 Conn.App. 547,893 A.2d 472
• Court: Connecticut Court of Appeals
• Parties: Frederick CORNELIUS v. DEPARTMENT OF BANKING.

Page 472

893 A.2d 472

94 Conn.App. 547

Frederick CORNELIUS v. DEPARTMENT OF BANKING.

No. 26706.

Appellate Court of Connecticut.

Argued February 6, 2006.

Decided March 28, 2006.

Kerry M. Wisser, with whom, on the brief, was Nathan A. Schatz, West Hartford, for the appellant (plaintiff).

Lorrie Lewis Adeyemi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).

FLYNN, C.J., and BISHOP and WEST, Js.

BISHOP, J.

The plaintiff, Frederick Cornelius, doing business as Focus Mortgage, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant, the department of banking, ordering that the license of the plaintiff to do business as a first mortgage broker and lender be revoked and that his license to do business as a secondary mortgage broker not be renewed. On appeal, the plaintiff claims that (1) he was not given adequate notice of the bases of the charges against him and (2) absent proof that he personally engaged in intentional or negligent conduct, the defendant had no reasonable basis to act as it did. We affirm the judgment of the trial court.

The court found the following facts, which are relevant to the plaintiff's appeal. "On July 25, 2001, the plaintiff was licensed by the Connecticut department of banking to engage in the business of making first mortgage loans and the business of acting as a first mortgage broker in Connecticut pursuant to General Statutes § 36a-489. That `first mortgage' license was subsequently renewed. On June 24, 2003, the plaintiff filed a renewal application for a license as a secondary mortgage broker.

"The plaintiff's first and secondary loan brokerage activities are carried out under the trade name of Focus Mortgage, a sole proprietorship, which at all times relevant to these proceedings employed three registered loan originators.

"Prior to June, 2003, Brian Camilleri, a licensed real estate appraiser of Camilleri Appraisal Company, performed approximately 100 real estate appraisals for the plaintiff's loan brokerage business. Both Camilleri and his partner last performed an appraisal for the plaintiff's loan brokerage business in May, 2003.

"The files of Focus Mortgage were found to contain copies of fourteen appraisal reports and, or, inspection reports that purport to be authored by Camilleri, but which Camilleri did not prepare or sign. They contained forged signatures. The commissioner [of banking (commissioner)] found that Focus Mortgage had submitted forged Camilleri appraisal-inspection reports to a lender (Provident Funding Associates, L.P.) in regard to six of its loan transactions. Those forged Camilleri appraisal-inspection reports relied on by the commissioner are found in the record.

"While the evidence showed that the forged appraisals were `submitted' to Provident Funding Associates, L.P., by Focus Mortgage, nothing in the administrative record shows that those documents were created by anyone at Focus Mortgage, and there was no evidence that it was the plaintiff, Frederick Cornelius, who personally created or transmitted any of the forged appraisals. Thus, while the name `Focus Mortgage' appears on certain of the loan documentation connected with the subject appraisal reports, the name of Frederick Cornelius does not. The commissioner's decision concludes that Focus Mortgage submitted the forged appraisals in connection with loans that it had brokered, and the decision expressly states that `the record did not establish whether [the plaintiff] personally forged the appraisals or whether the forgery was done by an employee. . . .

"[T]he commissioner revoked the plaintiff's first mortgage lender-broker license and refused to renew the plaintiff's secondary mortgage broker license. The commissioner properly determined that the plaintiff's submission of false appraisals in support of mortgage loan applications fully supported the finding that the plaintiff could not operate his mortgage broker business soundly and efficiently, in the public interest and consistent with the purposes of the first and secondary mortgage acts as outlined in the General Statutes, chapter 668, part I(A) and (B)."

The court affirmed the defendant's decision and dismissed the plaintiff's appeal. This appeal followed.

We begin by articulating the standard of review for an appeal from the decision of an administrative agency. "Judicial review of [an administrative agency's] action is governed by the [Uniform Administrative Procedure Act, General Statutes § 4-166 et seq.] . . . and the scope of that review is very restricted. . . . With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Judicial review of the conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Although the interpretation of statutes is ultimately a question of law . . . it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . .

"General Statutes § 4-183(j), which describes the scope of judicial review of administrative decisions, provides in relevant part: The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings." (Citation omitted; internal quotation marks omitted.) Lovan C. v. Dept. of Children & Families, 86 Conn.App. 290, 293-94, 860 A.2d 1283 (2004).

I

The plaintiff first claims that he was not given adequate notice of the charges against him. We are not persuaded.

The following additional facts are relevant to the plaintiff's claim. By letter dated December 15, 2003, the defendant notified the plaintiff of the pending charges, pursuant to General Statutes § 4-182(c).¹ In the letter, the defendant stated that Focus Mortgage, acting as a mortgage broker, had submitted appraisals to various lenders to support mortgage loan applications without the knowledge or authorization of the appraiser. The defendant indicated that those actions would form the basis of the issuance of a notice of intent to revoke Focus Mortgage's licenses pursuant to General Statutes § 36a-494. Subsequently, on January 5, 2004, the defendant issued to the plaintiff an order of summary suspension, a notice of intent to revoke his first mortgage lender-broker license and a notice of his right to a hearing. Also on January 5, 2004, the defendant issued to the plaintiff a notice of intent to refuse to renew his secondary mortgage broker license and a notice of his right to a hearing. The statutory reference, pursuant to § 36a-494(a)(1), in the statement of charges read as follows: "The commissioner may . . . revoke . . . any [first mortgage lender/broker] license, in accordance with the provisions of [General Statutes §] 36a-51, for any reason which would be sufficient grounds for the commissioner to deny an application for a license under [General Statutes §§] 36a-485 to 36a-498, inclusive, or if the commissioner finds that the licensee . . . has done any of the following: . . . (B) committed any fraud . . . or misrepresented, concealed, suppressed, intentionally omitted or otherwise intentionally failed to disclose any of the material particulars of any first mortgage loan transaction, including disclosures required by subdivision (6) of subsection (a) of [General Statutes §] 36a-493, or part III of chapter 669 or regulations adopted pursuant thereto, to anyone entitled to such information. . . ."²

The plaintiff claims that because of the ellipsis after the word "licensee," the defendant chose not to rely on the language in the ellipsed section, which provides "or any proprietor, director, officer, member, partner, shareholder, trustee, employee or agent of such licensee" and, therefore, he was not put on notice that the defendant was taking action against his licenses for actions of his employees or agents.³

"[D]ue process requires that the notice given must . . . fairly indicate the legal theory under which such facts are claimed to constitute a violation of the law." (Internal quotation marks omitted.) Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 535, 560 A.2d 403 (1989). "[A]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity [to be heard]." (Internal quotation marks omitted.) Worsham v. Greifenberger, 242 Conn. 432, 440, 698 A.2d 867 (1997), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). "[A]n essential function of notice is to enable the...