Lake Durango Water Co. v. Public Utilities Commission

67 P.3d 12, 2003 Colo. LEXIS 303, 2003 WL 1792252
CourtSupreme Court of Colorado
DecidedApril 7, 2003
DocketNo. 02SA100
StatusPublished
Cited by45 cases

This text of 67 P.3d 12 (Lake Durango Water Co. v. Public Utilities Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lake Durango Water Co. v. Public Utilities Commission, 67 P.3d 12, 2003 Colo. LEXIS 303, 2003 WL 1792252 (Colo. 2003).

Opinion

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 [16]*16and 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 [17]*17rates 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.

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