author: Justice MARTINEZ

text:
    LAKE DURANGO WATER COMPANY, INC., Petitioner-Appellant/Cross-Appellee, v. The PUBLIC UTILITIES COMMISSION OF the STATE of COLORADO; and Raymond Gifford, Polly Page, and James Dyer, Commissioners thereof, individually named in their official capacity; Respondents-Appellees, and Durango West Metropolitan District No. 1., Respondent-Appellee/Cross-Appellant.
    No. 02SA100.
    Supreme Court of Colorado, En Banc.
    April 7, 2003.
    As Modified on Denial of Rehearing April 28, 2003.

      Jones & Keller, P.C., Edward T. Lyons, Jr., Alvin J. Meiklejohn, Jr., Denver, CO, Attorneys for Petitioner.
    Ken Salazar, Attorney General, Anthony Marquez, First Assistant Attorney General, Paul C. Gomez, Assistant Attorney General, Denver, CO, Attorneys for Respondents Public Utilities Commission of the State of Colorado; Raymond Gifford, Polly Page, and James Dyer.
    Hill & Robbins, P.C., Ronald L. Wilcox, Jennifer H. Hunt, Denver, CO, Attorneys for Respondent Durango West Metropolitan District No. 1.
   Justice MARTINEZ

delivered the Opinion of the Court.

I. Introduction

This case is before this court for review of the district court's decision affirming an award by the Public Utilities Commission (PUC) of attorney's fees and costs to Duran-go West Metropolitan District No. 1 (the District) for expenses incurred during related proceedings between the District and Lake Durango Water Company (Lake Du-rango). Lake Durango challenges the award on three bases. First, Lake Durango argues that the award is unconstitutional because it is both retrospective legislation and a taking. Second, Lake Durango asserts that recovery of attorney's fees and costs in this case is partially barred by a settlement agreement. Third, Lake Durango states that attorney's fees and costs should be partially barred due to ex parte communications between the PUC and the District. In addition, the District challenges the district court decision that interest in the award does not begin to accrue until the date of the district court judgment.

First, we find an award of attorney's fees by the PUC is not unconstitutional retrospective legislation barred by the Colorado Constitution, and is not an unconstitutional taking barred by the United States Constitution. Second, we conclude that the settlement agreement does not prevent recovery of attorney's fees and costs because Lake Duran-go breached and repudiated that agreement. Third, we determine that Lake Durango's argument that the PUC cannot grant attorney's fees due to ex parte communications is an impermissible collateral attack on a final order. Finally, because the date of the PUC order is equivalent to the date of entry of judgment in a trial court, interest on the award of attorney's fees begins to acerue on the date of the PUC order. Because we disagree with the challenges to the district court decision raised by Lake Durango, and we agree with the challenge to the district court decision raised by the District, we affirm in part and reverse in part.

II. Facts and Procedural History

The District is an entity organized and operated under Colorado statute to provide water and sewer utility service and road maintenance for users within its boundaries. Lake Durango is a Colorado domestic, for-profit water company operating since 1984 to provide water to approximately 786 residential customers located west of Durango, Colorado. 'The District purchased water from Lake Durango to supply 181 households.

The District brought this case before the PUC in order to recover attorney's fees and costs incurred during three related proceedings before the PUC involving the District and Lake Durango. Specifically, the District sought recovery of fees and costs incurred during: (1) Docket No. 95F-446W (the jurisdictional proceeding), in which the PUC determined that Lake Durango was a public utility subject to the jurisdiction, control, and regulation of the PUC; (2) Docket No. 978-182W (the rate proceeding), in which the PUC established rates for Lake Durango; and (8) Docket No. 97A-27T3W (the CPCN proceeding), in which Lake Durango applied for a Certificate of Public Convenience and Necessity when Lake Durango sought to exclude the District from its service area.

The Jurisdictional Proceeding

In September 1995, the District filed a complaint with the PUC after Lake Durango threatened to stop water service. During the resulting jurisdictional proceeding, the PUC found that Lake Durango satisfied the test for a public utility subject to PUC jurisdiction, control, and regulation. As part of that June 1996 decision, Lake Durango was ordered to file either tariffs or contracts with the PUC within sixty days.

The Settlement Agreement

In August 1996, following the jurisdictional proceeding, Lake Durango and the District entered into a settlement agreement. The exact terms of the agreement were listed in a letter composed by the District dated August 16, 1996, which stated:

The proposal is as follows:
e The District will not seek recovery of its attorneys fees and costs incurred to date in the above docket (the jurisdictional case).
e The District will not object to the Company (Lake Durango) seeking and obtaining from the PUC an extension of time to December 31, 1996, to file its tariffs with the PUC, and will cooperate with the Company in obtaining such extension.
@The Company (Lake Durango) will not file exceptions or seek reconsideration of Decision No. R96-631 dated June 25, 1996, (the jurisdictional proceeding) other than, if deemed necessary or appropriate by the Company, to obtain an extension of time to December 81, 1996, to file its tariffs with the PUC.
©The Company will not seek judicial review of PUC Decision No. R96-631 dated June 25, 1996.

These terms were agreed to by Lake Duran-go in writing on August 27, 1996.

In conformity with the terms of the settlement agreement, Lake Durango did not file exceptions, seek reconsideration, or appeal the jurisdictional decision, but it applied for and received an extension to file its tariffs to December 31, 1996. However, on December 30, 1996, Lake Durango moved for an additional extension for filing tariffs, beyond the agreed upon December 81, 1996 date. This extension was granted by the PUC. In a letter dated January 14, 1997, the District notified Lake Durango that it regarded the motion and the additional delay as a breach of the settlement agreement, and that any further motions for delay would be vigorously opposed by the District. In response, Lake Durango stated that it did not breach the agreement because it was physically unprepared to file its tariffs. Furthermore, Lake Durango stated that it would not be filing tariffs at all since it planned to file an application to become a special water district outside the jurisdiction of the PUC.

The Rate Proceeding

On April 14, 1997, nearly a year after the conclusion of the jurisdictional decision, Lake Durango finally filed tariffs with the PUC after failing to form a special water district. The tariff filing, which sought to increase rates 300 to 400 percent, prompted the District to move for a substitution of rates. This motion resulted in the rate proceeding, where the PUC held that Lake Durango's rate increase was excessive. During the rate proceeding Lake Durango was unable to provide reliable financial records. Without reliable financial records, the PUC was unable to identify proper rates based on Lake Du-rango's actual cost of service. Instead, the PUC adopted the rate structure proposed and supported by the District to be used on a temporary basis. Lake Durango did not appeal this PUC decision, nor did it file for new rates by submitting company books and records.

The CPCN Proceeding

In June 1997, Lake Durango applied for a certificate of public convenience and necessity seeking to exclude the District from its service area. After the District was allowed to intervene, Lake Durango moved to withdraw its CPCN application. This motion was granted on February 12, 1998.

The Attorney's Fees Proceeding

On July 23, 1998, the District filed a motion requesting an award for attorney's fees and costs incurred during the three related underlying proceedings, the jurisdictional, the rate, and the CPCN proceedings. The PUC denied fees and costs for the CPCN proceeding because the District did not meet PUC standards for recovery of those fees. However, the PUC ultimately awarded $276,461.45 to the District for attorney's fees and other legal costs for the jurisdictional and the rate proceedings. Lake Durango sought review of the PUC's award of attorney's fees in the district court. In challenging the PUC award, Lake Durango cited both state and federal constitutional arguments, the settlement agreement entered into after the jurisdictional proceeding, and ex parte communications between the District and a PUC staff member occurring in October and November 1996, months prior to the rate proceeding, as reasons why attorney's fees should not be granted. On February 8, 2002, the district court affirmed the PUC decision. Lake Durango sought and obtained a stay by filing a bond in the form of a letter of credit. In establishing the bond, the district court held that interest on the award should begin to acerue from the date of the district court decision affirming the PUC order, not on the date of the PUC order.

III. Analysis

We first determine whether the district court was correct in holding that the PUC did not err when it imposed an award of attorney's fees and costs. Specifically, we consider whether this award of attorney's fees and costs is unconstitutional either as a taking under the United States Constitution or as retrospective legislation barred by the State Constitution. Next, we examine whether this award is partially barred by a settlement agreement between the parties. We then review whether the award should be vacated due to ex parte communications between the District and a PUC staff member prior to the initiation of the rate proceeding. We hold that the award of attorney's fees and costs by the PUC is not unconstitutional retrospective legislation, but rather is a quasi-judicial act. Further, we conclude that this award is not an unconstitutional taking of Lake Durango's property, and it does not abrogate the settlement agreement between the parties because the contract was breached and repudiated by Lake Durango. Finally, we find that Lake Durango's argument that ex parte communications prevent an award of attorney's fees and costs is an impermissible collateral attack on a final judgment.

Additionally, in this case the District argues that interest accrues from the date of the PUC order awarding fees. We agree and hold that interest on the award acerues from the final date of the PUC order because the PUC order is equivalent to the final decision of a trial court, and the district court reviewed this case as an appellate body.

A. Lake Durango's Constitutional Challenges

First, Lake Durango contends that awarding such fees constitutes retrospective legislation barred by the State Constitution. Second, Lake Durango alleges that the fee award violates the Takings Clause of the Fifth Amendment of the United States Constitution by taking Lake Durango's private property, its money and the right to use it, for public use without just compensation. We consider each argument independently.

1. PUC award of attorney's fees and other legal costs does not constitute retrospective legislation.

Lake Durango argues that the PUC's award of attorney's fees and other legal costs violates Colorado Constitution Article II, section 11, which prohibits retrospective legislation. Under section 11, legislation is retrospective and therefore prohibited if it "takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already passed." Colo. Office of Consumer Counsel v. Pub. Serv. Co. of Colo., 877 P.2d 867, 870 (Colo.1994). Thus, for an act by the PUC to be retrospective legislation, it must: (1) be a legislative act; which (2) takes away or impairs a vested right belonging to Lake Durango; that (8) relates to a transaction already finalized. Id. Thus we must determine whether an award by the PUC of attorney's fees and costs to one party in regard to three completed proceedings is a retrospective legislative act. Although the award pertains to proceedings already completed, we determine that it is not a retrospective legislative act and therefore is not retrospective legislation. In addition, we note that the PUC award of attorney's fees does not take away or impair a vested right belonging to Lake Durango.

a. The award is not a legislative act

This court has held that the PUC has the authority to award attorney's fees and costs. Mountain States Tel. & Telegraph Co. v. Public Utils. Comm'n, 195 Colo. 130, 576 P.2d 544, 547 (1978) (Mountain States II). This authority emanates from Article XXV of the Colorado Constitution. Colo. Const. art. XXV.; Mountain States II, 576 P.2d at 547. The power to authorize the award of attorney's fees and other legal costs in cases tried before administrative bodies is generally accepted as a fundamental legislative prerogative. Mountain States II, 576 P.2d at 547. Under the Colorado Constitution, the legislative authority in public utility matters has been delegated to the PUC and the legislature has not by any statutory enactment restricted it in the matter of awarding attorney's fees and other legal costs. Id.

In the area of utility regulation, including rate making, the PUC has broad based authority to do whatever it deems necessary or convenient to accomplish the legislative functions delegated to it. Id. Awarding attorney's fees and costs in cases that come before it is one way the PUC strives to fulfill its legislative function of regulating public utilities.

When the PUC acts to award fees it is functioning in a quasi-judicial manner pursuant to legislative authority granted to it. We have held that if a governmental decision is likely to adversely affect the protected interests of specific individuals, and if the decision is to be reached through the application of pre-existing legal standards or policy considerations to present or past facts presented to the governmental body, that body is acting in a quasi-judicial capacity in making its determination. Cherry Hills Resort Dev. Co. v. Cherry Hills Village, 757 P.2d 622, 627 (Colo.1988).

In the case before us, the PUC, acting pursuant to the legislative authority granted to it by the Colorado Constitution, applied standards that were adopted by the PUC for awarding fees and costs, and were found appropriate by this court in Mountain States II. Mountain States II, 576 P.2d 544. These standards were applied to the facts presented to the PUC by the parties, and from this application the PUC decided to award attorney's fees and other legal costs to the District. Hence, because the fee award is a quasi-judicial act and not legislation, it is not subject to the section 11 prohibition against retrospective legislation.

An award of attorney's fees is determined after the merits portion of a case is resolved. If we were to hold that an award of attorney's fees by the PUC constituted a legislative act, PUC awards of attorney's fees would always be retrospective legislation, and thus always violate the state constitutional prohibition against retrospective legislation. Instead, in Mountain States II, we expressly recognized the ability of the PUC to award attorney's fees and costs. Id. at 547.

b. The award does not impact or take away a vested right

Lake Durango claims a vested right in the finality of the jurisdictional and rate proceedings, and argues that the award proceeding granting attorney's fees disturbs this finality. We disagree. We have previously held that attorney's fees proceedings are separate and distinct from the merits portion of a case and do not impact the finality of a decision. Baldwin v. Bright Mortgage Co., 757 P.2d 1072, 1074 (Colo.1988). The awarding of attorney's fees will not disturb any rights a party may have in the outcome of a prior proceeding.

2. The PUC award of attorney's fees and costs is not an unconstitutional taking of Lake Durango's property.

Lake Durango argues that the award of attorney's fees and costs constituted an unconstitutional taking of Lake Durango's money and the right to use it. Under the Takings Clause of the Fifth Amendment to the United States Constitution, private property shall not be taken for public use, without just compensation. Eastern Enterprises v. Apfel, 524 U.S. 498, 522, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998). Additionally, Article II, section 15 of the Colorado Constitution states that "private property shall not be taken or damaged, for public or private use, without just compensation." Colo. Const. art. II, § 15. However, not every injury to private property is an unconstitutional taking. Eastern, 524 U.S. at 523, 118 S.Ct. 2131. In resolving a "taking" issue, one must evaluate the "justice and fairness" of the governmental action. Id. While there is no set formula as to how this evaluation is to be made, the United States Supreme Court has identified certain factors that are particularly significant. Id. Specifically, the character of the governmental action, its economic impact, and its interference with reasonable economic expectations of the property owner. Id. at 523-24, 118 S.Ct. 2131; Kirk v. Denver Publ'g Co., 818 P.2d 262, 268 (Colo.1991).

Lake Durango argues that the award of attorney's fees and costs in this case is an unconstitutional taking of private money because the nature of the governmental act is retrospective legislation, the economic impact of the award is unreasonable and would devastate the business, and because the award frustrates Lake Durango's reasonable economic expectations by imposing too heavy a financial burden on a business unprepared to protect itself.

The PUC award is not an unconstitutional taking of property from Lake Du-rango. First, the nature of the award was not that of a legislative act imposing severe retroactive liability. Second, the award of attorney's fees and costs did not have an unreasonable economic impact on Lake Duran-go. The liability imposed was not disproportionate to the parties' experience. Both the PUC and the reviewing district court found the amount of fees and costs awarded to the District to be directly proportionate to Lake Durango's own legal expenses accumulated during the proceedings before the PUC. Both parties incurred approximately the same amount of fees and other legal costs. Lastly, the award did not interfere with Lake Durango's economic expectations. Lake Durango could and did anticipate the liability, as demonstrated by both the terms of the settlement agreement and evidence submitted to the PUC showing that Lake Durango understood that an award of attorney's fees against them was at least possible. Thus, no constitutional taking has occurred.

B. Settlement agreement does not bar recovery of attorney's fees and costs for the jurisdictional proceeding

Lake Durango argues that the PUC and the district court improperly determined that it had breached and repudiated the terms of an otherwise enforceable settlement agreement between the parties. This determination was improper, argues Lake Durango, because the PUC misinterpreted the plain meaning of the agreement. (Instead, Lake Durango argues that true terms of the agreement should be upheld, and that the District should be barred from recovery of fees and costs for the jurisdictional proceeding. In analyzing this assertion, we first consider the terms of the agreement, and then consider whether Lake Durango breached or repudiated the agreement.

1. The terms of the settlement agreement

Lake Durango and the District disagree whether the settlement agreement required Lake Durango to file tariffs with the PUC within a specific time period. According to Lake Durango, the District agreed not to seek attorney's fees for the jurisdictional proceeding, and not to object to an application for extension of time to December 31, 1996, for Lake Durango to file tariffs with the PUC. In exchange, Lake Durango agreed not to file exceptions or seek PUC reconsideration of the jurisdictional proceeding, and not to appeal the jurisdictional proceeding decision to the district court. Lake Durango now argues that because it did not file exceptions to or seek judicial review of the jurisdictional proceeding, it is entitled to specific performance of the agreement. Specifically, the District should not be allowed to seek attorney's fees and costs for the jurisdictional proceeding.

In contrast, the District argues that under the terms of the agreement, Lake Durango was required to file tariffs with the PUC by December 31, 1996. According to the District, the settlement agreement was based on the order of the PUC that Lake Durango file tariffs or contracts with the PUC within sixty days of the effective date of the decision in the jurisdictional proceeding. Under the contract, the District argues, the District would not oppose Lake Durango seeking an extension of the time within which Lake Du-rango was obligated to file tariffs with the PUC, and the District would not seek attorney's fees and costs incurred during the jurisdictional proceeding. In exchange, Lake Durango would not appeal the proceeding or file exceptions with the PUC or seek reconsideration of the proceeding.

Whether a written contract is ambiguous and, if not deemed ambiguous, how the unambiguous contractual language should be construed, are questions of law that we review de novo. Kaiser v. Market Square Discount Liquors, 992 P.2d 636, 640 (Colo.App.1999). We need not defer to another court's construction of contractual language, nor to its finding that such language is unambiguous. Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo.1996). In determining whether a provision in a contract is ambiguous, the instrument's language must be examined and construed in harmony with the plain and generally accepted meanings of the words used, and reference must be made to all the agreement's provisions. Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371, 374 (Colo.1990). When a contract is unambiguous, the court must, in the absence of a showing that the contract is voidable on grounds such as mistake, fraud, duress, undue influence, or the like, or unless the result would be an absurdity, give effect to the contract as written. R. Lord, Williston on Contracts, Interpretation and Construction § 80:6 (4th ed.1999); see also, Kaiser, 992 P.2d at 640 (citing USI Properties East, Inc. v. Simpson, 938 P.2d 168 (Colo.1997) (when construing an unambiguous contract, the court may not rewrite its terms but must instead enforce it as written)). The intention of the parties must appear expressly or by clear implication. Charles Ilfeld Co. v. Taylor, 156 Colo. 204, 397 P.2d 748, 750 (1964).

The settlement agreement in this case is not open to more than one interpretation, and therefore is not ambiguous. In the jurisdictional proceeding occurring prior to the creation of this settlement agreement, the PUC ordered Lake Durango to file tariffs with the PUC. There are two separate references in the agreement to the requirement that Lake Durango file tariffs. First, the District agreed not to object to Lake Durango seeking and obtaining an extension of time to December 31, 1996, in which to file its tariffs with the PUC. Second, Lake Du-rango agreed that unless it was necessary to obtain an extension of time to December 31, 1996, in which to file its tariffs, Lake Duran-go would not file exceptions or seek PUC reconsideration of the decision in the jurisdictional proceeding, which required it to file tariffs or contracts with the PUC.

Lake Durango argues that none of this language obligates it to actually file tariffs at all as part of the settlement agreement, regardless of the prior PUC order to do so. However, the plain language of the contract identifies the behavior of each party in relation to when Lake Durango files its tariffs. Therefore it is not necessary that the agreement specifically state that the tariffs must be filed because such clearly implies that the tariffs must be filed.

The language of the agreement does not say "if" Lake Durango files tariffs, the District may not object to an application for an extension of time in which to do so. Rather, the District agreed not to object to an extension of time up to December 31, 1996, within which Lake Durango will file tariffs. Furthermore, the provision that the District would not object to the application for an extension of time for filing tariffs would be meaningless, and really no consideration at all on the part of the District, if it were not understood that Lake Durango would be filing tariffs with the PUC. Therefore, the PUC was correct in identifying as part of the terms of the agreement that Lake Durango would file tariffs with the PUC before December 31, 1996.

2. Breach and repudiation occurred

Once the terms of the agreement have been identified, the fact finder must determine whether the party accused of breaching has performed its obligations under the contract. Whether a party has performed its obligations under a contract or breached is a question of fact. Little Thompson Water Ass'n v. Strawn, 171 Colo. 295, 466 P.2d 915, 917 (1970). Furthermore, whether a breach of a contract is material and therefore excuses further performance by either party is also a question of fact. Kaiser, 992 P.2d at 640 (Colo.App.1999).

The PUC determined that Lake Durango did in fact breach the settlement agreement because it failed to timely file the tariffs. Further, the PUC also held that Lake Du-rango could not rely on the agreement because it repudiated the agreement by informing the District that it would not be filing tariffs at all. This decision was affirmed by the district court. The findings and conclusions of the PUC on disputed questions of fact are final and are not subject to review unless challenged on constitutional grounds. § 40-6-15(2), 11 C.R.S. (2002).

The PUC determined that Lake Durango materially breached the contract not only by seeking another extension of time beyond the December 31, 1996, deadline, but also by filing the tariffs beyond the December 31, 1996, deadline. This determination is final and not subject to review. Therefore, we affirm the PUC decision that Lake Durango materially breached the settlement agreement and is thus not entitled to enforcement of its provisions.

Lake Durango responded to allegations 'by the District that Lake Durango had breached the contract, stating that it had not breached since it was physically unable to perform. This claim is undermined by Lake Durango's repudiation of the terms of the contract.

A repudiation of a contract must consist of a present, positive, unequivocal refusal to perform the contract, not a mere threat to abandon its obligations under the contract. Meinhardt v. Inv. Builders Props. Co., 518 P.2d 1376, 1379 (Colo.App.1973). Lake Durango repudiated the contract. On January 14, 1997, the District notified Lake Durango that it considered Lake Durango's motion for an extension of time beyond the December 31st deadline to be a breach of the settlement agreement. Lake Durango responded that it did not consider the motion a breach of contract because it could not perform, but regardless of whether it was a breach or not, it would not ever file any tariffs with the PUC because it planned to become a special water district outside the jurisdiction of the PUC. As an unequivocal refusal to perform an essential element of the agreement, this statement constitutes repudiation by Lake Durango. We affirm the holding of the PUC that Lake Durango repudiated the settlement agreement. As a result, Lake Durango cannot enforee the provisions of the settlement agreement pertaining to awards of attorney's fees and costs.

C. Loke Durango is barred from collaterally challenging the rate proceeding.

Lake Durango asserts that the method used by the PUC in the rate proceeding to set rates stemmed from allegedly improper ex parte communications between a staff member of the PUC and District representatives. Lake Durango contends that because these communications are prohibited under the Colorado Administrative Procedures Act (APA), the District should not be allowed to recover attorney's fees and costs incurred during the rate proceeding. The District, in response, argues that the communications were not improper under Rule 9 adopted by the PUC, and that the PUC Rule supercedes APA Rules on this matter.

The proceeding before us for review is the award of attorney's fees and costs by the PUC, not the rate proceeding. Lake Duran-go did not appeal the rate proceeding. Because Lake Durango did not learn of the ex parte communication while the rate proceeding was pending, it did not raise the issue of ex parte communications during that proceeding. Therefore, the decision of the PUC in the rate proceeding is a final order. Accordingly, Lake Durango's argument in this attorney's fees proceeding is a collateral attack on a final decision.

Unless an application for review of the acts of the PUC is filed with the district court before the expiration of thirty days from the date of the PUC final decision, judicial review is barred. § 40-6-115(1), 11 C.R.S. (2002); see Archibold v. Public Utils. Comm'n, 933 P.2d 1323, 1323 (Colo.1997). In all collateral actions or proceedings, the decisions of the PUC that have become final shall be conclusive. § 40-6-112(2), 11 CRS. (2002). However, the PUC may rescind, alter, or amend any decision after proper notice and opportunity to be heard. § 40-6-115(1), 11 C.R.S. (2002).

Lake Durango did file a motion to set aside the rate proceeding. The PUC denied Lake Durango's motion to set aside the rate proceeding, in the same order in which it addressed attorney's fees, finding that Lake Durango failed to support its allegations. In requesting the district court to review the attorney's fees decision of the PUC, Lake Durango was unclear whether it was also seeking review of the denial of its motion to set aside the rate proceeding. The district court did not regard the petition for review as addressing the PUC denial of the motion to set aside the rate proceeding. Lake Du-rango has not argued that the district court misconstrued the petition for review. Nor has Lake Durango argued here that whether the decision in the rate proceeding should have been set aside is an issue before us. Since the PUC decision in the rate proceeding is final and Lake Durango's claim is an impermissible collateral attack, we will not address Lake Durango's argument that the PUC and the District engaged in improper ex parte communications. A final judgment entered with proper jurisdiction is not subject to collateral attack. Closed Basin Landowners Ass'n v. Rio Grande Water Conservation Dist., 734 P.2d 627, 637 (Colo.1987).

B. Interest accrues from date of finality of PUC order

The District asks this court to reverse the district court by granting postjudgment interest on the award of attorney's fees and costs from the date of the PUC award, instead of from the date of judgment of the district court. If a judgment for money is appealed by a judgment debtor and the judgment is affirmed, interest shall be payable from the date of entry of judgment in the trial court until satisfaction of the judgment. § 5-12-106(1)(b), 2 C.R.S. (2002). Because the PUC order is equivalent to a judgment by a trial court, interest on the award accrues from the date of entry of the PUC order, not the judgment of the district court.

The PUC order is equivalent to a trial court decision, and in reviewing a PUC order, the district court acts as an appellate body. The findings and conclusions of the PUC on disputed questions of fact are considered final. § 40-6-115(2), 11 C.R.S. (2002). Upon review, the district court enters judgment either affirming, setting aside, or modifying the decision of the PUC. § 40-6-115(8). The review shall not extend further than to determine whether the PUC has regularly pursued its authority, whether the decision violates constitutional rights of the petitioner, and whether the decision is just and reasonable in accordance with the evidence. Id. When there is competent evidence to support the findings of the PUC, the reviewing district court may not substitute its judgment for that of the PUC. Public Serv. Co. v. Public Utils Comm'n, 26 P.3d 1198, 1205 (Colo.2001).

Therefore, because the PUC order is equivalent to a trial court decision with the district court reviewing as an appellate body, interest is payable from the date of entry of the PUC order until satisfaction of the judgment.

IV. Conclusion

We hold that the district court correctly affirmed the PUC award of attorney's fees and costs, but incorrectly determined when interest begins to accrue. In awarding attorney's fees and costs, the PUC did not engage in unconstitutional retrospective legislation or an unconstitutional taking. Furthermore, the PUC did not nullify an otherwise valid settlement agreement in awarding attorney's fees in this case. Breach and repudiation by Lake Durango prevent any enforeement of this agreement. Additionally, allegations of illegal ex parte proceedings cannot be used here to collaterally attack the fees award because the issue should have been raised by Lake Durango in a different proceeding. Finally, interest on the award accrues from the date of the PUC order, not from the date of the district court decision. Thus, the judgment of the district court is affirmed in part and reversed in part. Further, the case is remanded to the district court with directions to correct its judgment on the interest due on the award of attorney's fees and costs.

      . In addition, Lake Durango asserts in a petition for rehearing before us that it "is not asking this court to vacate the decision in the 1997 rate case


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Colorado, Complainant, v. David Burton APKER, Respondent.
    No. 02PDJ088.
    Office of the Presiding Disciplinary Judge of the Supreme Court of Colorado.
    April 7, 2003.
   Opinion by

Presiding Disciplinary Judge ROGER L. KEITHLEY

and Hearing Board Members EDWIN S8. KAHN and DAVID A. HELMER both members of the bar.

REPORT, DECISION AND IMPOSITION OF SANCTION

SANCTION IMPOSED: ATTORNEY DISBARRED

A sanctions hearing pursuant to C.R.C.P. 251.15 was held on March 6, 2003, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") Roger L. Keith-ley and two hearing board members, David A. Helmer and Edwin S. Kahn, both members of the bar. Terry Bernuth, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People"). Respondent David Burton Apker ("Apker") did not appear either in person or by counsel.

The People filed a Complaint in this matter on Oct. 18, 2002. The Citation and Complaint were sent via regular and certified mail to Apker on the same date to Apker's two registered addresses. The People filed a Proof of Service on Oct. 28, 2002, which indicates that Apker signed for receipt of the Citation and Complaint at his registered business address. Apker failed to file an Answer or otherwise respond to the Complaint.

On Dec. 12, 2002, the People moved for default on the claims set forth in the Complaint. On Jan. 8, 2003, the PDJ granted the motion for default as to the facts set forth in the Complaint, which were deemed admitted, and as to the violation of the claims set forth in the Complaint, which were deemed established.

This is a reciprocal discipline matter from the State of Arizona brought pursuant to C.R.C.P. 251.21. The Complaint in this action gave notice to Apker that the Office of Attorney Regulation Counsel would seek substantially different discipline before the Colorado Supreme Court than that imposed in the State of Arizona. See C.R.C.P. 251.21(d).

At the sanctions hearing, exhibits 1 through 3 were offered by the People and admitted into evidence. The Hearing Board considered the People's argument, the facts and violations established by the entry of default, the exhibits admitted, and made the following findings of fact which were established by clear and convincing evidence.

I. FINDINGS OF FACT

David Burton Apker has taken and sub-seribed to the oath of admission, was admitted to the bar of the Colorado Supreme Court on May 17, 1977 and is registered upon the official records of this court, attorney registration number 08105. Apker is subject to the jurisdiction of this court pursuant to C.R.C.P. 251.1(b).

On October 18, 2001, the Arizona Supreme Court entered an Order suspending Apker from the practice of law in that state for a period of six months and one day. Under Arizona law, a suspension for a period of time greater than six months requires a formal reinstatement proceeding. A copy of the Order of Suspension is attached hereto as Exhibit "A."

II. CONCLUSIONS OF LAW AND IMPOSITION OF SANCTION

The Complaint in this action seeks imposition of discipline under the reciprocal discipline provisions of C.R.C.P. 251.21. Pursuant to subsection (d) of that Rule, the Office of Attorney Regulation Counsel seeks substantially different discipline than that imposed by Arizona. C.R.C.P. 251.21(d) provides that the same discipline imposed in the foreign jurisdiction shall be imposed in Colorado unless certain exceptions exist. See People v. Calder, 897 P.2d 831, 832 (1995).

C.R.C.P. 251.21(d) provides in part:
At the conclusion of proceedings brought under this Rule, the Hearing Board shall issue a decision imposing the same discipline as was imposed by the foreign jurisdiction, unless it is determined by the Hearing Board that:
(1) The procedure followed in the foreign jurisdiction did not comport with requirements of due process of law;
(2) The proof upon which the foreign jurisdiction based its determination of miseon-duct is so infirm that the Hearing Board cannot, consistent with its duty, accept as final the determination of the foreign jurisdiction;
(8) The imposition by the Hearing Board of the same discipline as was imposed in the foreign jurisdiction would result in grave injustice; or
(4) The misconduct proved warrants that a substantially different form of discipline be imposed by the Hearing Board.

A final adjudication in another jurisdiction of attorney misconduct constituting grounds for discipline is, for purposes of attorney disciplinary proceedings in Colorado, conclusively established. See C.R.C.P. 251.21(a). The suspension order issued by the Arizona Supreme Court is such a final order.

In order to determine if any of the four factors set forth in C.R.C.P. 251.21(d) are satisfied, the Hearing Board must consider the evidence before it. In this default proceeding, the evidence before the Hearing Board are the findings made by the Arizona Supreme Court.

The Arizona Supreme Court found that Apker failed to notify and deliver trust funds that his client had paid to him. Apker's conduct violated the Arizona Rules of Professional Conduct, ER 1.15(b)(receipt of third party funds), 8.4(b)(committing a criminal act that reflects adversely on the lawyer), ER 8. A(d)(engaging in conduct that is prejudicial to the administration of justice) and SCR43(d) (trust account/guideline authority).

The Arizona Supreme Court also found that Apker, in connection with his failure to deliver funds, committed theft, under A.R.S. § 13-1802.A.2. Pursuant to that statute, a person commits theft:

[I]f, without lawful authority, the person knowingly "[clonverts for an unauthorized term or use services of property of another entrusted to the defendant or placed in the defendant's possession for a limited, authorized term or use."

Theft by an attorney, as theft is defined under Arizona law, constitutes knowing conversion of client property under Colorado law. The knowing conversion of client property almost invariably results in disbarment under Colorado law. See People v. Rishel, 50 P.3d 988 (Colo.O.P.D.J.2002) (holding that the theft of funds warrants the sanction of disbarment, regardless of whether the funds belonged to a third party or to a client). See also People v. Varallo, 913 P.2d 1 (Colo.1996) (knowing conversion of the property of a client without authority from the client results in disbarment); People v. Coyne, 913 P.2d 12 (Colo.1996)(holding that attorney's personal use of funds held in trust for clients warranted disbarment).

Under the analysis set forth in People v. Lujan, 890 P.2d 109 (Colo.1995), the mitigation necessary to reduce the presumptive sanction of disbarment for knowing conversion to some lesser sanction has to be "extraordinary and tragic." Since Apker neither responded to the charges against him nor appeared at this proceeding, no mitigation has been presented.

Accordingly, the Hearing Board concludes that the misconduct found by the Arizona Supreme Court warrants a substantially different form of discipline under Colorado law than that imposed under the law of Arizona. See C.R.C.P. 251.21(d)(4).

III. ORDER

It is therefore ORDERED:

1. DAVID BURTON APKER, attorney registration number 08105 is disbarred from the practice of law in the State of Colorado, effective thirty-one days from the date of this Order, and his name shall be stricken from the roll of attorneys Hi-censed to practice law in this state;
2. Apker is ordered to pay the costs of these proceedings. The People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.

EXHIBIT A

BEFORE THE DISCIPLINARY COMMISSION

OF THE SUPREME COURT OF ARIZONA

IN THE MATTER OF A SUSPENDED MEMBER OF THE STATE BAR OF ARIZONA,

Comm. No. 99-2298

DAVID B. APKER, Attorney No. 004741 Respondent.

Disciplinary Commission Report

This matter was scheduled before the Disciplinary Commission of the Supreme Court of Arizona on April 14, 2001, pursuant to Rule 58(d), Ariz. R.S.Ct., for consideration of the Hearing Officer's report, filed January 19, 2001, recommending an indefinite suspension and payment of Respondent's debt. The State Bar filed an objection and recommended at least a suspension of six (6) months and one (1) day, restitution and costs.

Decision

The eight (8) members of the Commission unanimously apply a clearly erroneous standard to all of the Hearing Officer's findings of fact and conclusions of law, except the violation of ER 84(d) and apply de novo review of the recommendation. The Commission recommends that Respondent, David P. Apker, be suspended for a period of six (6) months and one (1) day, pay restitution in the amount of $4,646.00 to TSG Title Agency, Ince. and pay costs of these disciplinary proceedings.

Discussion of Decision

The Commission found by clear and convincing evidence that Mr. Apker's conduct, which was deemed admitted by default, violated Rule 42 of the Arizona Rules of the Supreme Court, specifically,

ER 1.15(b) (receipt of third party funds), 1 violation
ER 8.4(b) (commit a criminal act that reflects adversely on the lawyer), 1 violation ER 8.4(d) (engage in conduct that is prejudicial to the administration of justice), 1 violation
SCR 48(d) (Guideline l.c)(trust count/guideline authority) 1 violation ac-

Respondent was summarily suspended on April 28, 2000, for non-payment of dues and he remains suspended.

In Count One, Respondent was hired by MCO Properties to hold trustees' sales to foreclose against parcels of realty. Respondent ordered and obtained from TSG Title Agency, Inc., two trustee sale guarantee reports, for which TSG billed Respondent in the amount of $4,646. MCO paid Respondent the money owed to TSG; however, he failed to promptly notify TSG and failed to promptly deliver funds to TSG in violation of 1.15(b) and 84(d), failed to have internal controls to safeguard fund held in trust in violation of Rule 48(d) (Guideline 1.¢c.) and committed theft, in violation of 8.4(b) by using the money to pay himself and other creditors. Count Two addresses the Respondent's prior discipline.

Although not alleged by the State Bar, the Commission notes that Respondent violated Rule 31(c) 3, when he moved and did not notify membership at the State Bar, and he violated ER 8.1(b) and Rules 51(h) and (1) by not responding.

In determining the appropriate sanction, out Supreme Court considers the American Bar Association's Standards for Imposing Lawyer Sanctions (Standards") a suitable guideline. In re Kaplan, 179 Ariz. 175, 877 P.2d 274 (1994). The Supreme Court and the Commission are consistent in utilizing the Standards to determine appropriate sane-tions for attorney discipline. In imposing a sanction after a finding of misconduct, consideration is given to the duty violated, the lawyer's mental state, the actual or potential injury caused by the misconduct and the existence of aggravating and mitigating factors. See Standard 3.0.

A review of Standard 4.0 indicates that suspension is the presumptive sanction for Respondent's particular misconduct. Standard 4.0 addresses Violations of Duties Owed to Clients, with 4.12 specifically providing:

Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.

Respondent knowingly violated his duties owed to the client by failing to deliver funds to the title company causing actual injury. In addition the Supreme Court has stated that a lawyer's failure to respond to the State Bar inquiries borders on contempt for the legal system. In re Galusha, 164 Ariz. 503, 794 P.2d 136 (1990).

The Commission, having concluded that suspension is warranted, reviewed Standards 9.22 and 9.32, aggravating and mitigating factors, respectively. The Hearing Officer found five (5) aggravating factors present in the record, 9.22(a)(prior disciplinary offenses), (b)(selfish motive), (e)(bad faith obstruction of the disciplinary proceedings by intentionally failing to comply with rules or orders of the disciplinary agency), (g)(refusal to acknowledge wrongful nature of conduct), and (i)(substantial experience in the practice of law). The State Bar also argued for (h) (vulnerability of the victim), (J)(indifference in making restitution) and (k) (illegal conduct). The Commission agrees.

The Commission, as well as the Hearing Officer, found one (1) factor present in mitigation, 9.82(m)(remoteness of prior offense).

The Commission considered the proportionality analysis provided and found the following cases instructive. In Matter of Fletcher, SB 99-0090-D (200), the respondent was censured and placed on probation for violating Ers 1.15(b) and 8.1(b). Fletcher failed to pay investigators and consultants and did not timely respond to State Bar inquiries. There was no aggravation or mitigation. In Matter of Jones, 169 Ariz. 19, 816 P.2d 916 (1991), the respondent was disbarred and ordered to pay restitution for violating DR 1-102(A)(8) & (6), DR 9-102(b) and Ers 1.15(b) and (c). Jones failed to remit insurance proceeds, which belonged to a client, failed to safeguard client property and converted funds.

Conclusion

The purpose of discipline is to protect the public and deter similar conduct by other lawyers. Matter of Kersting, 151 Ariz. 171, 726 P.2d 587 (1986). Another purpose is to instill public confidence in the bar's integrity. Matter of Horwitz, 180 Ariz. 20, 29, 881 P.2d 352, 361 (1994). Yet another purpose is to maintain the integrity of the legal system. In re Fioramonti, 176 Ariz. 182, 187, 859 P.2d 1315, 1320 (1993). Therefore, having considered Respondent's misconduct, application of the Standards, including the significant factors present in aggravation and the single factor in mitigation, and a proportionality analysis, the Commission recommends a six (6) month and one (1) day suspension, restitution and costs of these disciplinary proceedings.

Respectfully submitted this 15th day of May, 2001.

SUPREME COURT OF ARIZONA

In the Matter of a Suspended Member of the State Bar of Arizona

Arizona Supreme Court No. SV-01-0126-D DAVID B. APKER, Attorney No. 4741 Respondent.

Disciplinary Commission No. 99-2298

This matter having come on for hearing before the Disciplinary Commission of the Supreme Court of Arizona, it having duly rendered its decision and no discretionary or sua sponte review occurring,

IT IS ORDERED, ADJUDGED AND DECREED that DAVID B. APKER, a suspended member of the State Bar of Arizona, is hereby suspended from the practice of law for a period of six (6) months and one (1) day, effective as of the date of this Judgment and Order, for conduct in violation of his duties and obligations as a lawyer, as disclosed in the Commission report....

IT IS FURTHER ORDERED that DAVID B. APKER shall pay restitution in the amount of $4,646.00 to TSG Title Agency, Ince.

IT IS FURTHER ORDERED that DAVID B. APKER SHALL COMPLY WITH ALL THE PROVISIONS OF Rule 63, Rules of the Supreme Court of Arizona, including, but not limited to, Rule 68(a), which requires that Respondent notify all of his clients, within ten (10) days from the date hereof, of his inability to represent them and that he should promptly inform this Court of his compliance with this Order as provided in Rule 63(d).

IT IS FURTHER ORDERED that DAVID B. APKER shall pay the costs and expenses of these proceedings in the amount of $1,487.41, together with interest at the legal rate from the date of this judgment.

Dated this 18th day of October, 2001.

      . One public seat remained vacant.

      . While great deference is given to the Hearing Officer's report and recommendation, Matter of Pappas, 159 Ariz. 516, 518, 768 P.2d 1161, 1163 (1988), the Commission finds that given a default was entered all ethical rules alleged in the Complaint should be found, unless a Hearing Officer finds that the State Bar Complaint is so lacking in support for the violation or there is clearly an additional violation. The Hearing Officer indicated to Bar counsel his concern regarding theft. Bar counsel briefed this issue in it Post Aggravation/Mitigation Memorandum. The Commission is satisfied that all allegations should be found. Furthermore, the recommendation given by the Hearing Officer does not comply with Rule 52 or the American Bar Association's Standards for Imposing Lawyer Sanction.

      . This will require Respondent to apply for reinstatement, pursuant to Rules 71(d) and 72, which requires proof of rehabilitation.

      . ARS. § 13-1802.A.2 states that a person commits theft, if without lawful authority, the person knowingly "[clonverts for an unauthorized term or use services of property of another entrusted to the defendant or placed in the defendant's possession for a limited, authorized term or use." The facts in this case indicate that Respondent converted his client's property for an unauthorized term or use, and thereby committed theft.

      . Respondent received a private informal reprimand in 1986 for violating ER 3.3(a)(1) and (2) and 8.4(a), (b) and (c).

      . The Hearing Officer inadvertently stated (h), but found (i). Respondent was admitted to the State Bar of Arizona on December 7, 1976.


author: BOUDREAU, Justice. HODGES, J.,

text:
    2003 OK 12
    Jim K. HUMPHRIES, Plaintiff{/Appellant, v. Dean LEWIS d/b/a Dean Lewis Realtors, Defendant/Appellee.
    No. 96,250.
    Supreme Court of Oklahoma.
    Feb. 11, 2008.
    As Corrected Feb. 12, 2003.
    Rehearing Denied April 14, 2003.

      Douglas L. Boyd, Tulsa, for Appellant.
    John W. Anderson, Jr., Tulsa, for Appel-lee.
   BOUDREAU, Justice.

1 Jim K. Humphries (plaintiff) sued Dean Lewis d/b/a Dean Lewis Realtors (defendant) to recover a real estate commission. After the jury found in favor of defendant, the trial court entered judgment on the jury verdict. The judgment was filed October 11, 2000. In the next 30 days, which is the deadline set out in § 696.4(B), defendant neither applied for fees and costs nor sought an extension of time within which to do so. On the forty-second day after judgment, twelve days late, defendant filed an application for fees and costs. Plaintiff opposed the application as untimely under § 696.4(B). Defendant then filed a motion under § 2006(B)(2) , requesting an extension of time within which to apply for fees and costs. The trial court accepted the § 2006(B)(2) motion, conducted a hearing to determine whether defendant's failure to timely apply for fees and costs was

the result of excusable neglect, concluded it was, and awarded fees and costs to defendant in the total sum of $34,129.98 Plaintiff appealed, arguing the trial court erred in its legal conclusion that the deadline in § 696.4(B) is subject to being extended under § 2002(B)(2) and erred in its factual finding that the defendant established excusable ne-gleet. The Court of Civil Appeals affirmed. We previously granted plaintiff's petition for writ of certiorari.

I. Issues

12 There are three issues for resolution. The first involves the interplay between §§ 696.4(B) and 2006(B)(2). Section 696.4(B) sets a 30-day deadline for seeking an extension of time within which to apply for fees and costs. We must decide whether this deadline is absolute or is, instead, subject to being extended under § 2006(B)(2). Second, we must interpret the phrase "excusable neglect" in § 2006(B)(2). Finally, we must decide whether the trial court abused its discretion when it found that defendant's failure to timely act was the result of excusable neglect.

IL Standard of Review

13 The first two issues involve statutory construction. Statutory construction presents a question of law which we review de novo. Arrow Tool & Gauge v. Mead, 2000 OK 86 T6, 16 P.3d 1120, 1123. We claim plenary, independent and non-deferential authority to examine a trial court's legal rulings. Manley v. Brown, 1999 OK 79, " 22 n. 30, 989 P.2d 448, 456 n. 30. The third issue is a question of fact which we review for abuse of discretion. We affirm a trial court's factual findings unless it makes a clearly erroneous conclusion and judgment, against reason and evidence. CNA Ins. Co. v. Krueger, Inc., 1997 OK 142, 949 P.2d 676.

III. Interplay between § 696.(B)(4) and § 2006(B)(2)

14 To resolve the first issue, we consider the interplay between §§ 696.4(B) and 2006(B)(2). Section 696.4 addresses applications for attorney fees, costs and interest after the entry of a judgment, decree or appealable order. Section 2006 addresses computation of time and motions for extension of time under Title 12 of the Oklahoma Statutes.

15 Section 696.4(B) sets one deadline-30 days after the filing of a judgment-for two distinct acts: the act of applying for fees and costs, and the act of moving for an extension of time within which to apply for fees and costs. In other words, it requires that within 30 days after the filing of a judgment, a party must either apply for fees and costs or move for an extension of time to apply for fees and costs. Section 696.4(B) is silent about the consequences of failing to meet the 30-day deadline.

T6 Section 2006(B) governs motions for extensions of time generally. It allows the trial court to grant an extension of time under two scenarios. Subsection (B)(1), which is not at issue in this case, applies when the motion for extension of time is filed before the expiration of the original deadline. Subsection (B)(2) applies when, as in this case, the motion for extension of time is filed after the expiration of the original deadline. Under subsection (B)(2), the party seeking the extension must establish excusable neglect for failing to meet the deadline for which the extension is sought.

T7 Fundamental to statutory construction is to ascertain and give effect to legislative intent. City of Durant v. Cicio, 2002 OK 52, 118, 50 P.3d 218, 221. Where the language of a statute is clear and unambiguous, the language will be given its plain meaning. Id. Whenever it is possible to construe two acts by giving effect to both without doing violence to either, such construction is preferred over one that may produce conflict between them. Grand River Dam Auth. v. State, 1982 OK 60, 645 P.2d 1011, 1019.

18 Again, the first issue is whether the 30-day deadline in § 696.4(B) is absolute or is, instead, subject to being extended under § 2006(B)(2). Keeping in mind the Court's duty to interpret the two statutes so as to give effect to both, if possible, we hold that the deadline is subject to being extended.

1 9 Section 2006(B)(2) provides in pertinent part: "When ... an act is required ... to be done ... within a specified time, the court . may .... upon motion made after the explratlon of the specified period permit the act to be done where the failure to act was the result of excusable neglect." (emphasis added). Most statutes set one deadline for one act. When there is one deadline for one act, it is clear which act is the one that is required to be done within a specified time. Section 696.4(B), however, sets one deadline for two acts, both of which are required to be done within the same specified time. The only way to construe §§ 2006(B)(2) and 696.4(B) together, giving effect to both without doing violence to either, is to apply the "failure to act" language in § 2006(B)(2) to both of the "acts" identified in § 696.4(B). In other words, a party who fails to timely apply for fees and costs and fails to timely request an extension of time under § 696.4(B), and who then files a motion for extension of time under § 2006(B)(2), must show excusable neglect not only for failing to apply for fees and costs within 30 days but also for failing to seek an extension of time within that same period.

{10 This interpretation does not create any conflict between the two statutes-it harmonizes them. Section 696.4(B) does not expressly prohibit a motion for extension of time filed more than 30 days after judgment-it is silent on the issue; and § 2006(B)(2) expressly authorizes motions for extension of time filed after the original deadline has expired. Further, § 2006(B)@) applies to all deadlines set out in Title 12 of the Oklahoma Statutes except the ones enumerated in § 2006(B)(2). Since the 30-day deadline in § 696.4(B) is not one of the enumerated deadlines excluded from § 2006(B)(2), it is subject to being extended under § 2006(B)(2).

1[ 11 This interpretation also comports with the Committee Comment to § 696.4, which expressly states that the time for filing "the motion" [for extension of time] may be enlarged under § 2006(B). Although the Comment is not binding, it does serve to clarify legislative intent and aid the Court in interpreting the statute. Ross v. Kelsey Hayes, Inc., 1991 OK 88, 825 P.2d 1273, 1277-78.

112 Finally, this interpretation does not conflict with our holding in Dewey v. FireFighters Pension and Retirement System, 2001 OK 40, 28 P.3d 539. In Dewey, the party seeking pre-judgment interest filed its application after the expiration § 696.4(B)'s 30-day deadline, and the other side opposed the motion as untimely. In this regard, the Dewey facts are the same as the facts in this case. We said the 30 day deadline in § 696.4(B) is "an indispensable precondition." The difference between Dewey and this case is that in Dewey, there is no suggestion that the party subsequently filed a § 2006(B)(@Z) motion for extension of time. Thus, in Dewey, we simply did not address the question that is presented by the facts of this case.

III. Excusable neglect standard

{13 We have never defined the phrase "excusable neglect" in § 2006(B)(@Q). However, since § 2006(B)(2) tracks Rule 6(b) of the Federal Rules of Civil Procedure, we may properly look to federal decisions as a guide.

T14 The seminal case defining excusable neglect is Pioneer Iv. Servs. Co. v. Brunswick Assocs. Ltd. Partnerships, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1998). In Pioneer, the United States Supreme Court resolved differences among several federal cireuit courts. Some had taken a narrow view, holding that excusable neglect is limited to cireumstances beyond the party's control; others had adopted a more liberal approach. The Court rejected the narrow view and concluded that "Congress plainly contemplated that courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening cireumstances beyond the party's control." Pioneer at 388, 1183 S.Ct. 1489.

15 The Court held that the determination of whether neglect is excusable "is at bottom an equitable one, taking account of all relevant cireumstances surrounding the party's omission. These include ... the danger of prejudice to the [non-movant], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the mov-ant acted in good faith." Id. at 395, 118 S.Ct. 1489. In making this determination, the proper foeus is on both the movant and the movant's counsel. Id. at 897, 118 S.Ct. 1489.

116 We agree with the analysis of Pio-meer. We adopt Pioneer's excusable neglect standard.

V. Application of facts to standard for excusable neglect

$17 At the hearing in this case, defendant's counsel explained why he failed to timely apply for fees and costs. He testified that the operating system on his computer crashed about two weeks before the 30-day deadline expired and that all of his case and billing files were lost. The computer problems also prevented him from restoring files from his backups. During the next two weeks, he spent approximately 25 hours on the telephone with representatives from Microsoft and Dell. He had to completely delete Windows 95, install Windows 98, reinstall all his software and restore all his data from backups. He testified he was not able to recreate his billing records until after the 80-day period expired.

118 Applying the Pioneer factors, we agree with the trial court that these problems constitute excusable neglect for failing to timely file an application for fees and costs with itemized billing records. For a reason beyond the control of defendant's counsel, the billing records simply were not reasonably recoverable within 30 days after judgment. The computer problems do not, however, constitute excusable neglect for failing to timely seek an extension of time. Although the length of the delay was short, with little impact on judicial proceedings and little or no prejudice to plaintiff, the other Pioneer factors weigh heavily against a finding of excusable neglect. Defendant's counsel virtually conceded as much at the hearing before the trial court, when he admitted he could have prepared a motion for extension of time using another computer or a typewriter, or could have hand-written the mo-

tion. We hold that the trial court abused its discretion when it awarded attorney fees and costs to defendant.

VL Conclusion

19 Sections 696.4(B) and 2006(B)(2) can be construed together harmoniously without doing violence to either. A party seeking an extension of time under § 2006(B)@2), after the expiration of the 30-day deadline in § 696.4(B), must establish two things: first, that the failure to apply for fees and costs within 30 days was the result of excusable neglect; second, that the failure to move for an extension of time within 80 days was the result of exeusable neglect.

120 Whether neglect is excusable is at bottom an equitable determination based on all relevant circumstances. Factors to consider include the danger of prejudice to the non-movant, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the mov-ant, and whether the movant acted in good faith,. In making this determination, the proper focus is on both the movant and mov-ant's counsel. Id. at 397, 113 S.Ct. 1489.

121 In this case, although defendant established excusable neglect for his failure to timely apply for fees and costs, he did not establish excusable neglect for his failure to move for an extension of time within 830 days after judgment.

1 22 We vacate the opinion of the Court of Civil and remand with directions to vacate the order awarding attorney fees and costs to defendant.

WATT, C.J., LAVENDER, KAUGER, SUMMERS, WINCHESTER, JJ., concur.

HODGES, HARGRAVE, JJ., dissent.

OPALA, V.C.J., concurs in part and dissents in part.

HODGES, J.,

dissenting.

1 1 I agree with the Court's conclusion that sections 696.4 and 2006 of title 12 can be construed in a manner to avoid conflict. I also agree with the Court's definition of excusable neglect. I dissent to its conclusion that the trial court abused its discretion in allowing the late filings.

T2 The trial court's finding of exeusable neglect for the failure to timely file the application to assess attorney fees and costs will be affirmed absent an abuse of discretion. Okla. Stat. tit. 12, § 2006(B) (2001). The factors that this Court should consider are: (1) prejudice to the opposing party, (2) "the length of delay and its potential impact on [the] judicial proceedings," (8) "the reason for the delay, including whether it was within the reasonable control of the movant," and (4) "whether the movant acted in good faith." See Pioneer Investment Services Co. v. Brunswick Associates Ltd. 507 U.S. 380, 895, 118 S.Ct. 1489, 128 L.Ed.2d 74 (1998).

13 Lewis' attorney, a sole practitioner, stated that his computer failed making it impossible for him to retrieve documents within section 696.4's thirty-day time period. Humphries did not show he was prejudiced by the delay. There is no indication that the delay was the result of a lack of good faith or that the twelve-day delay in filing the application to access attorney fees and costs substantially impacted the proceedings. I do not conclude the fact that Lewis' attorney could have borrowed a computer or written the motion by hand is conclusive that the

trial court abused its discretion. would affirm the trial court. Thus, I

      . 12 0.$.2001 § 696(4)(B). Section 696.4(B) provides in pertinent part: "If attorney's fees, costs or interest have not been included in the judgment, decree or appealable order, a party seeking any of these items must file an application.... The application must set forth the amount requested and include information which supports that amount. The application must be filed within 30 days after the filing of the judgment, decree or appealable order. .... For good cause shown, the court may extend the time for filing the application upon motion filed within the time the application could be filed." Although § 696.4 governs applications for "fees, costs and interest," we will refer only to fees and costs since interest is not at issue in this case. Similarly, although § 696.4(B) refers to applications filed after entry of a "judgment, decree or appealable order," we will refer only to judgment.

      . 12 0.$.2001 § 2006(B)(2). Section 2006(B)(2) provides in pertinent part; "When ... an act is required ... to be done at or within a specified time, the court for cause shown may at any time in its discretion ... upon motion made after the expiration of the specified period, permit the act to be done where the failure to act was the result of excusable neglect."

      . Plaintiff stipulated to the reasonableness and necessity of these fees and costs.

      . For two reasons we do not apply the well-established rule concerning specific and general statutes. The rule is that "where two statutes are in conflict, a special statute will control and act as an exception to a statute of general applicability. However, this rule applies only when the special statute clearly includes the matter in controversy." Tulsa County Deputy Sheriff's FOP v. Board of County Commissioners of Tulsa County, 1988 OK 44, 113, 959 P.2d 979, 981. Here, the two statutes are not in conflict-they are harmonious. And § 696.4(B) does not "clearly include" the matter in controversy-it is silent on the matter in controversy.

      . Section 2006(B)(2), by its own terms, cannot be used to extend the following deadlines: "taking an appeal from a judgment, decree or appealable order, or for seeking a new trial, a judgment notwithstanding the verdict, or to correct, open, modify, vacate or reconsider a judgment, decree, or appealable order, except as provided in the sections governing such proceedings." By its own terms, it can be used to extend all other deadlines in Title 12.

      . The Comment reads in pertinent part: "If costs, attorney's fees and interest are not included in a judgment, decree or appealable order, then § 696.4(B) requires them to be requested within 30 days after its filing. Section 696.4(B) also provides that the court may extend the time for filing a bill of costs or application for attorney's fees or prejudgment interest upon motion filed within 30 days after judgment. In addition the time for filing the motion may be enlarged under Okla.Stat. tit. 12, § 2006(B)." (emphasis added).

      . "Where the text of the Federal Rules has been adopted in the Oklahoma Pleading Code, the construction placed on it by federal and state courts should be presumed to have been adopted as well." Introductory Committee Comment to Oklahoma Pleading Code, 12 O.S. §§ 2001 et seq.

      . The phrase "excusable neglect" is found in numerous federal statutes, including Fed. R.Civ.P. 6(B). The fact that Pioneer is a bankruptcy case is immaterial to the issue in this case because the Court's analysis rested upon the plain meaning of the words excusable and neglect, and there is no reason why their meaning would be any different under Fed.R.Civ.P. 6(B) or our § 2006(B)(2).

      . The circuit court split is detailed in Pioneer at 387 n. 3, 113 S.Ct. 1489.

      . At the hearing defendant's counsel testified as follows:
      "Q. And you did not ask for [an extension] because you had computer problems, is that the bottom line?
      A. The computer problems prevented me from taking action to get one, yes.
      Q. It is your testimony that there was no other way other than using your computer to prepare an application for an extension?
      A. No, that's not my testimony.
      Q. Well, then, why did you not use another method to prepare an application?
      A. You mean like handwriting one?
      Q. Handwriting, having someone type one up, borrowing another computer?
      A. I guess I didn't go through all the possible permutations."