author: COMBS, Chief Judge.

text:
    Daniel Lynn CALDWELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. and Gerald Delong, Appellant, v. Commonwealth of Kentucky, Appellee, and Damon McCormick, Appellant, v. Commonwealth of Kentucky, Appellee.
    Nos. 2003-CA-000356-MR, 2003-CA-001896-MR, 2003-CA-001767-MR.
    Court of Appeals of Kentucky.
    July 30, 2004.
    Discretionary Review Denied by Supreme Court Jan. 12, 2005.

      Dennis Stutsman, pro se.
    Erwin W. Lewis, Rebecca Ballard DiLo-reto, Frankfort, KY, on behalf of Dennis Stutsman.
    Before COMBS, Chief Judge; TAYLOR, Judge; and EMBERTON, Senior Judge.

      . Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION AND ORDER

COMBS, Chief Judge.

On June 8, 2004, this Court conducted a hearing in Appeal Number 2003-CA-000356-MR, Caldwell v. Commonwealth (Caldwell), and in Appeal Number 2003-CA-001896-MR, Delong v. Commonwealth (Delong), as to why counsel for appellant in these cases, Dennis M. Stutsman for the Office of Public Advocacy (OPA), should not be held in contempt for failure to comply with previous orders of this Court and for failure to timely file the brief for appellant in each case. Appeal number 2003-CA-001767-MR, McCormick v. Commonwealth (McCormick) is currently pending before the Court on response to a show cause order almost identical in nature to the show cause order issued in Delong. Therefore, the Court has elected to address and to dispose of the procedural aspects of McCormick as well in this opinion and order.

In addition to Mr. Stutsman’s argument, comments were presented to the court by Erwin W. Lewis, Public Advocate; Rebecca Diloreto, Post-trial Services Division Director of the Office of Public Advocacy; and Margaret Case, Appeals Branch Manager. The focus of the hearing was the persistent disregard by Mr. Stutsman of orders of this Court regarding procedural steps in the appellate process and a flagrant disobedience of a specific order to appear before this panel on April 6, 2004, to explain his failure to file the brief for appellant in Caldwell within the time limitation set out in this Court’s order of March 23, 2004.

In both the written responses to our show cause order and their oral statements at the June 8 hearing, Mr. Stutsman and his supervisors at OPA contended that his repeated failure to comply with orders of this Court had been occasioned by excessive workload and budgetary considerations in the Office as a whole. This Court is both concerned and sympathetic as to the budgetary constraints faced by OPA and the expanded workload necessary to adequately serve an increasing number of indigent criminal defendants and appellants. However, these considerations do not suffice to provide an acceptable explanation for Mr. Stutsman’s longstanding pattern of simply ignoring procedural deadlines and specific orders of this Court.

Despite similarly heavy caseloads, the majority of assistant public advocates render extraordinarily effective assistance to indigent appellants in a timely and efficient manner. Budgetary constraints do not constitute a legitimate excuse for the failure of Mr. Stutsman’s supervisors at OPA to provide even a minimum level of acceptable oversight for those attorneys who routinely fail to comply with the rules of appellate practice. Their conduct with respect to Court orders imperils the reputation of the Office and severely compromises the competency of representation that their clients are entitled to expect.

Central to our consideration is the reasoning of the Supreme Court of Kentucky in Commonwealth v. Wine in assessing the harmful impact of inordinate delay on the functioning of the Court system and the rights of criminal appellants:

This case aptly illustrates the need for enforcement of procedural rules relating to appeals. It commenced in 1978 with an indictment, after considerable delay a trial was had in 1979, and it has now languished on various appeals for five and one-half years. It has encountered delay in trial, delay in preparation of the record on appeal, and delay in the filing of appellate briefs which finally resulted in the dismissal of the appeal....
This case, and others like it, has a tendency to bring our judicial system to its knees....
Although the law is still developing as to what constitutes effective assistance of counsel in the constitutional sense, it cannot be doubted that the failure of counsel to file an appellate brief which results in the dismissal of an appeal constitutes ineffective assistance of counsel. (Emphasis added.)

Although the delay in the cases now before us is not as lengthy as the time-frame addressed in Wine, we nevertheless consider it to be sufficiently egregious to call into question the effectiveness of the assistance provided by Mr. Stutsman — regardless of the quality of the brief that was finally filed. In these cases, we are dealing with the direct appeals of indigent appellants, who have remained incarcerated while delay after delay in the preparation of the appellant’s brief was requested by appointed counsel. A brilliant brief would be a moot issue and little comfort to an appellant whose sentence was served before his appeal could be heard.

As background for our decision regarding sanctions, we shall endeavor to set out in detail Mr. Stutsman’s pattern of practice before this Court over the past several years and to explain why this Court can no longer tolerate his repeated missed deadlines, motions, and responses to show cause orders. The following list is a representative sample of the manner in which Mr. Stutsman has responded to the appellate rules and the orders of this Court:

TURNER v. COMMONWEALTH — Direct Appeal
12/9/99 Circuit court judgment
2/02/01 After many motions and much delay, Mr. Stutsman is substituted as counsel of record for appellant
2/23/01 Order granting motion for 60 days additional time to obtain narrative statement
5/10/01 Returned to staff attorney for failure to comply with order of 2/23/01
6/7/01 Court orders appellant to file response indicating status of narrative statement and when supplemental certification may be completed
6/28/01 No response
10/12/01 Due to failure to respond to order of 6/7/01, Court orders case to continue without narrative statement; brief due 11/12/01
1/16/02 Show cause for dismissal for failure to file brief.
2/6/02 No response.
2/14/02 Untimely response to show cause
3/19/02 Court finds sufficient cause not to dismiss and grants until 3/31/02 to obtain supplemental certification. Brief due 20 days from date supplemental record is made available
2/11/03 No response to court order of 3/19/02
2/25/03 Show cause order for failure to file brief
4/3/03 No response
8/19/03 Court’s own motion; final 60-day extension to file brief. Failure to comply will result in dismissal and imposition of sanctions on counsel. Due 10/20/03
10/20/03 Appellant’s brief filed.
REYNOLDS v. COMMONWEALTH — Direct Appeal
5/24/01 Circuit court judgment
2/8/02 First motion for 60-day extension to file brief
2/26/02 Order granting extension to 4/9/02, including warning language as to farther extensions and sanctions
4/4/02 Motion for 30-day extension
4/24/02 Order granting extension to 5/9/02
7/26/02 Motion for additional time (until 8/1/02) in which to file brief
8/9/02 Motion for additional time; brief tendered
8/16/02 Order entered passing motions for additional time, directing counsel to show cause why he should not be fined $250; provision that he may pay fine by 9/2/02 in lieu of response
9/4/02 No response
9/5/02 Received untimely check for $250
10/22/02 Order granting passed motions for additional time and ordering tendered brief filed
TAYLOR v. COMMONWEALTH — Direct Appeal
5/17/01 Circuit court judgment
9/10/01 Appellant’s brief due
9/26/01 Untimely motion for 60-days’ additional time to file brief
10/17/01 Order granting until 11/11/01 to file brief with warning language
12/21/01 Show cause issued for failure to file brief; response due 1/14/02
1/15/02 No response
2/14/02 Untimely response tendered
3/14/02 Untimely motion for additional time to 3/22/02 filed
4/3/02 Motion for enlargement to 4/8/02 filed
5/16/02 Order entered finding sufficient cause not to dismiss and ordering brief filed by 5/31/02; show cause to counsel on issue of sanctions
5/30/02 Motion for additional time (until 6/4/02) in which to file brief
6/4/02 Timely response to show cause for sanctions
11/19/02 Motion for additional time, brief tendered
2/24/03 Order granting additional time and that brief be filed; finding of sufficient cause not to sanction
Appeal No.2002-CA-000230-MR
DEATLEYv. COMMONWEALTH — Direct Appeal
1/9/02 Circuit court judgment
5/22/02 Order granting first motion for 60-day extension (until 7/6/02) in which to file appellant’s brief
7/8/02 Motion for additional time to file brief
7/18/02 Motion for additional time (until 7/23/02) in which to file brief
8/16/02 Order granting additional time to file brief; due 5 days from order; warning language
11/8/02 Show cause for dismissal for failure to file brief
12/2/02 Response to show cause
2/18/03 Order finding sufficient cause not to dismiss, brief due 30 days from order, no further extensions, warning language
4/7/03 Show cause for sanctions issued for failure to comply with order of 2/18/03; counsel may pay $300 fine by 4/28/03 and must still respond to order
4/25/03 Fine paid, brief tendered
Appeal No.2002-CA-001132-MR
BROOKS v. COMMONWEALTH — Direct Appeal
5/15/02 Circuit Court judgment
10/21/02 Order granting first motion for additional time, brief due 11/27/02, warning language
1/21/03 Commonwealth’s motion to dismiss for failure to file brief
2/3/03 Response to motion and motion for additional time to file brief
8/19/03 Order denying motion to dismiss, granting until 10/17/03 to file brief; warning that failure to file brief as directed may result in dismissal and/or sanctions
10/21/03 Untimely motion for additional time (until 10/24/03) in which to file brief
11/24/03 Counsel ordered to show cause why appeal should not be dismissed and sanctions imposed. Response due 12/1/03
12/2/03 No response
12/3/03 Untimely response, motion for enlargement of time (until 12/19/03) in which to file brief
1/5/04 Motion for additional time (until 1/10/04) filed by Lisa Clare for Dennis Stutsman
1/12/04 Corrected motion for additional time, treated as a motion for additional time (until 1/17/04), filed by Lisa Clare for Dennis Stutsman
1/14/04 Order granting motions for additional time (until 2/1/04). If brief is not filed on that date, Mr. Stutsman is ordered to appear in person on 2/10/04 to show cause why sanctions should not be imposed. Order directed to be served on Erwin Lewis and Rebecca DiLoreto in addition to Stutsman
2/2/04 Appeal perfected
2002-CA-002510-DR
TURNEY v. COMMONWEALTH — Discretionary Review
2/6/03 Order granting discretionary review, brief due 5/28/03
5/27/03 First motion for additional time
6/16/03 Order granting motion for additional time (until 7/1/03) in which to file brief
7/1/03 Motion for additional time (until 7/11/03) in which to file brief
7/16/03 Order granting until 7/28/03, warning language
7/28/03 Motion for additional time (until 7/29/03) in which to file brief
9/2/03 Order entered passing motions for additional time, ordering counsel to show cause why a fine of $300 should not be imposed for failure to timely file brief
9/17/03 Timely response to show cause order and motion for additional time (until 9/25/03) in which to file brief
9/26/03 Appellant’s brief tendered
2003-CA-000356-MR
CALDWELL v. COMMONWEALTH — Direct Appeal
2/4/03 Circuit court judgment, brief due 8/25/03
8/22/03 Motion for 60-days’ additional time (until 10/23/03)
9/8/03 Order granting additional time (until 10/23/03)
11/7/03 Untimely motion for additional time to file brief
11/25/03 Order passing motion for additional time, ordering counsel to show cause why a fine of $300 should not be imposed for failure to timely file brief. Counsel may pay fine in lieu of filing response
12/3/03 Response to show cause and motion for additional time (until 12/30/03) in which to file brief
1/5/04 Motion for additional time (until l/10/04)in which to file brief
1/12/04 Corrected motion for additional time (until 2/10/04) in which to file brief
2/24/04 Motion for additional time (until 3/11/04) in which to file brief
3/23/04 Order granting additional time to file brief. If brief is not filed on or before 3/31/04, appeal will be dismissed and counsel is ordered to appear in person before Court on 4/6/04 to show cause why sanctions should not be .imposed
4/2/04 Motion to reconsider order of 3/23/04 and motion for additional time (until 4/6/04) in which to file brief — signed by Dennis Stutsman
4/5/04 Brief for appellant tendered, signed by Lisa Clare for Dennis Stutsman
4/6/04 Counsel failed to appear as ordered
5/4/04 Order denying motion to reconsider order of 3/24/04. On its own motion, Court reinstates appeal subject to following conditions: 1) motions for additional time are granted and tendered brief is ordered filed; 2) Public Advocate is ordered to remove Mr. Stutsman as counsel of record and to appoint substitute counsel, who shall have 15 days to review brief and record to determine whether supplemental brief is necessary; 3) Mr. Stutsman is ordered to appear on 6/8/04 in order to show cause why he should not be sanctioned and/or referred to Kentucky Bar Association; and 4) Erwin Lewis and Rebecca DiLoretto are required to appear at the show cause hearing.
5/21/04 Supplemental order directing that Delong case will also be addressed at show cause hearing; also directing Mr. Stutsman to provide Court with a detailed listing of all cases in which he continues to be counsel of record for OPA, specifically identifying where each case stands in the appellate process. The Public Advocate and Ms. DiLoreto should be prepared to discuss pending matters in the Caldwell and Delong appeals as well as Mr. Stutsman’s status as counsel for OPA in any other matter pending in this Court
6/2/04 OPA filed a response to order of 5/21/04 and requested that the Public Advocate be allowed to appear through his designees
6/3/04 Order denying OPA’s motion to allow the Public Advocate to appear through his designees
6/7/04 Dennis Stutsman filed response to order of 5/21/04
6/8/04 Show cause hearing
Appeal No.2003-CA-001767-MR
McCORMICK v. COMMONWEALTH — Direct Appeal
7/22/03 Circuit court judgment
9/19/03 Motion to supplement record and for additional time to file brief
10/9/03 Order granting motion to supplement; brief due 60 days from date record made available
10/23/03 Supplemental record checked out; brief due within 60 days
2/6/04 Motion for additional time (until 3/15/04) in which to file brief
2/27/04 Order granting additional time, warning language
4/7/04 Show cause order, failure to file brief
4/29/04 Untimely response to show cause (due 4/7/04); hand-delivered on 4/29/04; motion for additional time (until 5/30/04) in which to file brief
6/2/04 Tendered brief — 2 days late
6/10/04 Notice from Lisa Bridges Clare that she has no knowledge of or involvement in case other than having signed pleadings on behalf of Dennis Stutsman
Appeal No.2003-CA-001896-MR
DELONG v. COMMONWEALTH — Direct Appeal
8/8/03 Circuit court judgment; brief due 12/14/03
12/3/03 Motion for additional time (until 2/20/04) in which to file brief
12/18/03 Order granting additional time
4/7/04 Show cause for dismissal for failure to file brief
4/29/04 Untimely response to show cause (due 4/27)
5/17/04 Tendered brief
5/21/04 Case combined with Caldwell for purposes of June 8 hearing

It is with respect to this deplorable history of Mr. Stutsman’s pattern of practice before the Court of Appeals that we undertake an examination of the written responses to our show cause order and the oral statements of Mr. Stutsman and the representatives of OPA at the June 8 hearing. Although there are several specific areas of concern, we commence our discussion by addressing Mr. Stutsman’s contention there was no contemptuous intent in his repeated failure to adhere to appellate deadlines or to respond to specific orders of this Court. According to Mr. Stutsman, his acts or omissions were merely the product of having “no good options” in the handling of an unmanageable workload. We cannot concede that a reasonably prudent attorney in Mr. Stutsman’s situation would believe that an acceptable course of conduct was simply to ignore court orders. Clearly, there were other appropriate courses of action.

As reflected in the lengthy recitation of procedural steps in some of Mr. Stuts-man’s pending cases, this Court has exhibited extraordinary leniency in our rulings. Mr. Stutsman could have — and should have — approached his superiors and alerted them to the fact that he was unable to handle both his managerial duties and his assigned caseload. This Court has always been receptive to discussions with OPA concerning its caseload, and we have indicated our willingness to make reasonable accommodations — at least to the extent that the procedural rights of indigent appellants were not impaired. Thus, we find no merit in Mr. Stutsman’s contention that he had no good options.

Furthermore, even if it were true that Mr. Stutsman had no subjective contemptuous intent, the totality of his actions in response to orders of this Court cannot be characterized realistically as anything other than contemptuous. By repeatedly injecting unwarranted delay into the appellate process, Mr. Stutsman has abused the efforts of this Court to accommodate the demands on OPA staff when we have granted reasonable extensions of time to complete the briefing process. As with all members of the Bar, we expect OPA attorneys to respect and to comply with this Court’s orders and rules. Most OPA attorneys have served admirably and have endeavored to comply with our rules.

We have grave reason to question Mr. Stutsman’s candor at the June 8 hearing. Mr. Stutsman claimed that he has not attempted to “play games” with this Court. However, that representation simply cannot be reconciled with his course of conduct in these and other appeals. This panel also has serious concerns about Mr. Stutsman’s candor in the filing of what we perceive to be “boilerplate” motions for extension and enlargement, which frequently do not contain current or pertinent information regarding his noncompliance with briefing deadlines and orders of this Court.

A third area which is of concern is the fact that since January 1 of this year, we are aware of only one pleading or motion actually signed by Mr. Stutsman: the motion to reconsider the order of March 23, 2004. As an occasional accommodation, the practice of one lawyer’s signing for another attorney in the office is not unusual where the fact of such agency of the signer is fully disclosed. However, virtually all pleadings and motions filed in an appeal should not be signed consistently and routinely by someone other than the attorney of record.

Accordingly, having considered both the written and oral responses to the show cause order, and being otherwise sufficiently advised, the Court FINDS Dennis M. Stutsman to be IN CONTEMPT OF THIS COURT and hereby ASSESSES a fine of $500.00 to be paid to the Clerk of this Court on or before twenty (20) days from the date of entry of this order.

In addition, the Court REFERS this matter to the Kentucky Bar Association for investigation of what we believe may be violations of SCR 3.130, Rule 1.3, regarding diligence and promptness in representing a client; SCR 3.130, Rule 3.2, regarding reasonable efforts to expedite litigation; and SCR 3.130, Rule 3.3(a), regarding candor in statements of fact to a tribunal. The Court does not make this referral lightly or without serious reflection and deliberation. In so acting, we take particular note of Kentucky Bar Association v. Terrell, Ky., 891 S.W.2d 403 (1995), in which the Supreme Court of Kentucky upheld the imposition of disciplinary sanctions for violations of the rules cited previously which involved representation in a single case. With regard to Mr. Stutsman, we are dealing with a pattern of practice established and continued over a period of years and in numerous cases.

Finally, we reiterate our concern and belief that the lack of appropriate supervision in the Office of Public Advocacy has facilitated some of its attorneys in flagrantly disregarding the rules of appellate procedure and in rendering what may very well be considered ineffective assistance to its clients. The Court hereby ORDERS the Public Advocate to remove Dennis M. Stutsman as counsel of record for OPA in every appeal pending in this Court. The Public Advocate is ORDERED to CERTIFY to this Court, on or before thirty (30) days from the date of entry of this order, that Mr. Stutsman has been removed and to INFORM the Clerk of this Court as to the identity of substitute counsel in each case.

This panel is firmly committed to preventing the abuses of the appellate process that we have outlined in this opinion. Therefore, until such time as the matter of briefing policy can be reviewed and possibly amended by the Court en banc, the Court will require strict adherence to Administrative Order 85-4, which sets out the following criteria concerning motions for extension or enlargement of time to file a brief by a public advocate or assistant attorney general:

(1) the record on appeal must be examined by the attorney filing the motion prior to asking for additional time; and
(2) the initial motion must request an extension for the total briefing time necessary, not to exceed a total of 120 days from the briefs original due date.

From and after the date of entry of this order, compliance with this administrative order will require motions for extension or enlargement outside 120 days from the briefs original due date to be accompanied by an affidavit of necessity, duly signed and notarized by the Public Advocate, specifying in detail why the brief cannot be completed within normal time limitations. Any motion for time outside the limitations set out in the current administrative order which is not accompanied by this affidavit of necessity will be returned as deficient by the Clerk of this Court.

We now turn to rulings on the pending procedural motions in Caldwell, Delong, and McCormick. First, in Caldwell, Appeal Number 2003-CA-000356, the Court GRANTS the motion to accept the brief tendered on April 5, 2004, as the brief for appellant. In order to clarify the briefing time for appellee, the Court ORDERS that the brief for the Commonwealth shall be due on or before sixty (60) days from the date of entry of this order.

In Delong, Appeal Number 2003-CA-001896, the Court FINDS SUFFICIENT CAUSE not to dismiss this appeal and ORDERS the brief tendered on May 17, 2004, FILED on the date of entry of this order. The brief for the Commonwealth shall be due on or before sixty (60) days of the date of entry of this order.

In McCormick, Appeal Number 2003-CA-001767, the Court FINDS SUFFICIENT CAUSE not to dismiss this appeal and hereby ORDERS the brief tendered on June 2, 2003, FILED on the date of entry of this order. The brief for the Commonwealth shall be filed on or before sixty (60) days from the date of entry of this order.

ALL CONCUR.

      . Ky., 694 S.W.2d 689, 694-5 (1985).

      . This outline was prepared by a review of Court of Appeals' step sheets in the listed cases. It is not intended to represent every step in the appellate process; rather, it focuses on those practices pertinent to issue of sanctions. In some cases, there were also many motions for extension and enlargement related to the preparation of the record.

      . Apparently Mr. Stutsman left the employment of the Office of Public Advocacy as of 12/31/03 but agreed to complete certain cases assigned to him.

      . The examination contemplated in this order consists of more than a cursory listing of the contents of the record on appeal. It presupposes an examination sufficient to enable counsel to request an adequate amount of additional time in which to prepare the brief. Compliance with this requirement will be enforced.


source: Caselaw Access Project

author: SHERRI B. SULLIVAN, J.

license: Public Domain

text:
    HTH COMPANIES, INC. and Thermaltech, Inc., Petitioners/Appellants, v. MO. DEPT. OF LABOR AND INDUSTRIAL RELATIONS, et al., Respondents/Respondents.
    No. ED 84234.
    Missouri Court of Appeals, Eastern District, Division One.
    Sept. 21, 2004.
    Application for Transfer to Supreme Court Denied Feb. 9, 2005.
    Application for Transfer Denied April 5, 2005.

      Thomas Alan Sheehan, Prairie Village, KS, for HTH Companies, Inc & Thermal-tech, Inc.
    Michael Eugene Cook Pritchett, John Patrick Madigan Jr., co-counsel, Chief Counsel, Jefferson City, MO, for MO Division of Labor Standards & Labor & Industrial Relations Commission.
    John H. Goffstein, St. Louis, MO, for Inti. Association of Heat Frost, Insulators & Asbestos.
   SHERRI B. SULLIVAN, J.

HTH Companies, Inc. (HTH) and Ther-maltech, Inc. (Thermaltech) (collectively Appellants) appeal from the circuit court’s judgment affirming the decision of the Labor and Industrial Relations Commission (the Commission) setting the prevailing wage rate for asbestos workers in Boone and Cole Counties at $37.15 per hour.

Background

Each year the Division of Labor Standards of the Missouri Department of Labor and Industrial Relations (Division) issues an Annual Wage Order that sets out the prevailing hourly rate of wages in each county for each separate occupational title. Section 290.262.1. The prevailing wage for each occupational title is generally determined by collecting information from throughout the state about how much is actually being paid for the work within those titles in each county. The Division collects reports from contractors, public bodies, and other interested parties that identify the occupational titles of workers that had been engaged in construction projects, the wages and benefits provided to those workers, the number of hours they worked, and the county in which the work was performed. The wage rate and benefits paid most frequently in a county for a particular occupational title becomes the prevailing wage for that occupational title in that county. Branson R-IV School Dist. v. Labor and Indus. Rels. Com’n, 888 S.W.2d 717, 720 (Mo.App. S.D.1994).

Pursuant to the foregoing, in March 2002 the Division filed its Annual Wage Order No. 9 (Order No. 9) with the Missouri Secretary of State. In Order No. 9, the Division had determined the prevailing wage rate for the occupational title of Asbestos Worker in Boone and Cole Counties to be $13.95 per hour. In April 2002, Asbestos Workers Local No. 1 (the union), filed objections to the wage rate set in Order No. 9. HTH and Thermaltech intervened in the proceeding. The Commission held a hearing on the union’s objection in May 2002. In June, the Commission entered its determination that the prevailing wage rate for asbestos workers in Boone and Cole Counties was $37.15 per hour.

HTH and Thermaltech filed a petition for review of the Commission’s order in circuit court. Appellants asserted that the Commission erred in excluding from its consideration Thermaltech’s reports to the Division of hours worked by its asbestos workers. When the union withdrew its objection to the consideration of Thermal-tech’s reports by the Commission, the circuit court remanded the case to the Commission for further proceedings.

The Commission held another hearing in April 2003. In June, the Commission again determined that the prevailing wage rate for asbestos workers in Boone and Cole Counties was $37.15 per hour. In July, Appellants filed a petition for review of the new Commission decision in circuit court, contending that the Commission erred in excluding the hours worked by apprentices in determining the prevailing wage. In January 2004, the circuit court entered its judgment affirming the Commission’s decision. Appellants appeal from that judgment.

Standard of Review

This court reviews the decision of the administrative agency, and not that of the trial court. Bollinger v. Wartman, 24 S.W.3d 731, 733 (Mo.App. E.D.2000). We must determine whether competent and substantial evidence supported the agency’s decision, whether the agency’s decision was arbitrary, capricious, or unreasonable, or whether the agency abused its discretion. Id. The evidence is considered in a light most favorable to the administrative agency’s finding, together with all favorable inferences which support it. Id. The agency’s decision is presumed correct and the burden in challenging such a decision is heavy. Id. Where evidence could support a finding either way, we are bound to uphold the decision of the agency. Id. When reviewing questions of law, however, we exercise unrestricted, independent judgment and must correct erroneous interpretations of law. Burlington Northern R.R. v. Director of Revenue, 785 S.W.2d 272, 273 (Mo.banc 1990).

Discussion

In their first point, Appellants maintain that the Commission acted arbitrarily, capriciously, unreasonably, and outside its jurisdiction when it set the prevailing wage for asbestos workers in Boone and Cole Counties at $37.15 per hour because the Commission excluded hours performed by apprentices that were paid at the higher journeyman wage rate, and Missouri law mandates that the Commission consider not only wage rates established by collective bargaining agreements, but also the rates that are paid generally within the locality.

Missouri law requires the Department of Labor and Industrial Relations to determine once each year the prevailing hourly rate of wages paid to each occupational title of work in each county in Missouri. Section 290.250 ; HTH Companies, Inc. v. Missouri Labor and Industrial Relations Com’n, 995 S.W.2d 503, 506 (Mo.App. W.D. 1999). The “prevailing hourly rate of wages” is defined in Section 290.210(5) as “the wages paid generally, in the locality in which the public works is being performed, to workmen engaged in work of similar character including the basic hourly rate of pay” and any contributions made by the employer for other “fringe benefits.” HTH Companies, Inc., 995 S.W.2d at 506. (Emphasis added). In determining the prevailing rate, Section 290.262(1) requires that the department “shall ascertain and consider the applicable wage rates established by collective bargaining agreements, if any, and the rates that are paid generally within the locality....” Id.

Appellants argue that the hours worked by apprentices should have been included and considered in determining the prevailing wage rate for workmen under the terms of the statute. The Commission excluded the hours worked by apprentices in determining the prevailing wage rate for workmen.

We agree with the Commission. Workmen are defined in the statute as including “laborers, workmen and mechanics.” Section 290.210(8). The statute does not specifically define apprentice. Webster’s Dictionary 66 (2d ed.1997) defines an apprentice as: “a person who works for another in order to learn a trade” and “learner; novice.” An apprentice is also defined as “a person bound by an indenture to work for an employer for a specified period to learn a craft, trade, or profession” or “a learner in any field of employment or business.” Black’s Law Dictionary 97-98 (7th ed.1999). The Missouri Code of State Regulations sets forth the requirements for the payment of apprentice wages for workers employed on public works subject to the Prevailing Wage Law. 8 C.S.R. 30-3.030(2) provides that “Apprentices shall be permitted to work at less than the predetermined rate for the class or type of work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program ...” and they are working with adequate supervision as defined in that program. Once an apprentice achieves full journeymen status, i.e. fully-trained and finished with their apprenticeship status, then they must be paid the full prevailing wage rate. 8 C.S.R. 30-3.030(1). We find that this distinction logically necessitates that apprentices’ wages, specifically lower than the prevailing wage rate of journeymen workers, should not be included in determining what the prevailing wage rate for journeymen workers should be.

It is also interesting to note that the information used by the Division in determining prevailing wages is submitted to the Division on a form called “Contractor’s Report of Construction Wage Rates, Form LS-04 (8-99) Al.” Instructions for completion of the form provide that the hours of work reported should not include hours worked by apprentices.

Finally, we determine that the portion of 8 C.S.R. 30-3.030 requiring payment of full prevailing wages to apprentices in certain instances is not inconsistent with exclusion of apprentice hours worked at that rate because the regulation is meant to curb abuses of apprentice status and has no bearing on the prevailing wage calculation. Point denied.

In their second point, Appellants assert that the Commission erred when it set the prevailing wage for asbestos workers in Boone and Cole Counties at $37.15 per hour because it engaged in improper rule-making activity in violation of the Administrative Procedures Act (APA) in that its blanket refusal to consider hours worked by apprentices constituted a statement of general applicability that implemented, interpreted, or prescribed law or policy and proper notice was not given.

The central question in this point is whether the Commission, in determining prevailing wage rates for asbestos workers in Boone and Cole Counties, improperly based its decision on an interpretation of the statutes that should have been promulgated as a rule pursuant to the APA rule-making requirements. We conclude that the Commission’s determination was not based on a rule. Therefore, no rule-making procedures were required, and the Commission’s determination should be affirmed.

Section 536.010(4) defines a rule as “each agency statement of general applicability that implements, interprets, or prescribes law or policy.” In other words, a rule is “[a]n agency statement of policy or interpretation of law of future effect which acts on unnamed and unspecified persons or facts.” Missourians for Separation of Church and State v. Robertson, 592 S.W.2d 825, 841 (Mo.App.1979). In contrast to a rule, an adjudication is “[a]n agency decision which acts on a specific set of accrued facts and concludes only them.” Id. An adjudication results from a “contested case,” which the APA defines as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” Section 536.010(2).

The instant case involves an adjudication by the Commission. Like in Branson RIV School Dist. v. Labor and Indus. Relations Com’n, 888 S.W.2d 717, 721 (Mo.App. S.D.1994), “[t]he only ‘rules’ implicated in that adjudication are the statutory rules (i.e., the laws) by which the legislature defined the term ‘prevailing hourly rate of wages’ and directed how prevailing wage rates should be determined.” In this case, the Commission reached a decision in a contested case as to whether or not hours worked by apprentices should be included in determining the prevailing wage rate, through a valid interpretation and application of relevant statutes. Id. at 724.

We conclude that the Commission did not engage in improper rulemaking when it determined that apprentice hours should not be used in determining prevailing wages because the determination was made in a decision on a contested case and because it was based on a valid interpretation and application of the relevant statutes. Point denied.

The judgment of the trial court is affirmed.

GEORGE W. DRAPER III, C.J., and BOOKER T. SHAW, J., concur.

      . All statutory references are to RSMo 2000.

      . The occupational title at issue in this case is asbestos worker.

      .The counties at issue in this case are Boone and Cole Counties.

      . All statutory references are to RSMo 2004, unless otherwise noted.


author: GARY M. GAERTNER, SR., Presiding Judge.

text:
    Kevin BUDD, Respondent, v. Ann BUDD, Appellant.
    No. ED 83640.
    Missouri Court of Appeals, Eastern District, Division One.
    Nov. 2, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Jan. 26, 2005.
    Application for Transfer Denied April 5, 2005.
    Ann Budd, Belleville, pro se.
    Charles A. Hurth, III, Union, Daniel A. Brackmann, Washington, for respondent.
   GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Ann Budd (“Wife”), appeals from the judgment of the Circuit Court of St. Louis County finding that venue and jurisdiction were proper in the default judgment entered in favor of Respondent, Kevin Budd (“Husband”).

On October 31, 2002, Husband filed a petition for dissolution of marriage in the Circuit Court of St. Louis County. On April 25, 2003, a default judgment dividing marital property and dissolving the marriage of Husband and Wife was entered against Wife. On May 23, 2003, Wife filed a special and limited appearance requesting that “any and all Court Orders entered prior hereto be vacated and that this case be dismissed.” The trial court conducted a hearing on June 17, 2003. Subsequently, on September 22, 2003, the trial court entered its order and judgment finding that venue and jurisdiction were proper in the default judgment entered against Wife, but setting aside the previous division of marital property.

Before addressing the points on appeal raised by Wife, we must first determine whether we have jurisdiction to hear this appeal.

A party is allowed to file a motion to set aside a default judgment within a reasonable period of time up to one year. Popular Leasing USA v. Universal Art Corp., 57 S.W.3d 875, 877 (Mo.App. E.D.2001). Nonetheless, when such a motion is filed within thirty days of the judgment, it is considered an “authorized after-trial motion” for purposes of appeal and is deemed the equivalent of a motion for new trial. Id. Therefore, the motion extends the trial court’s control over the default judgment from thirty days to ninety days from the date the motion is filed. Id. Once the ninety-day period has ended, any “authorized after-trial motion” not ruled upon is automatically denied. Klaus v. Shelby, 4 S.W.3d 635, 637 (Mo.App. E.D.1999).

In this case, on May 23, 2003, Wife filed her special and limited appearance requesting that “any and all Court Orders entered prior hereto be vacated and that this case be dismissed.” Wife’s filing came within thirty days of the entry of the April 25, 2003 default judgment. Therefore, Wife’s motion is to be treated as an “authorized after-trial motion.” Due to the fact that Wife’s motion was not ruled upon within 90 days from the filing of her motion, the motion was automatically denied. As a result, the trial court did not have jurisdiction to enter its September 22, 2003 order and judgment setting aside the division of marital property.

Applying Rule 81.05(a)(2), the trial court’s judgment became final ninety days from the date Wife filed her “authorized after-trial motion.” Because Wife did not file her notice of appeal within ten days after the date the judgment became final, her appeal was untimely. Rule 81.04(a). When a notice of appeal is untimely filed, this court is without jurisdiction and must dismiss the appeal. Popular Leasing USA, Inc., 57 S.W.3d at 877. Therefore, we dismiss this appeal for lack of jurisdiction.

SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J., concur.


author: PER CURIAM.

text:
    William H. SHY, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. ED 84131.
    Missouri Court of Appeals, Eastern District, Southern Division.
    Nov. 30, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 9, 2005.
    Application for Transfer Denied April 5, 2005.
    Terry J. Flanagan, St. Louis, MO, for appellant.
    Deborah Daniels, Leslie McNamara (co-counsel), Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., GLENN A. NORTON, J. and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

William Shy appeals the judgment denying his motion under Rule 29.15 after an evidentiary hearing.

The judgment of the motion court is based on findings of fact that are not clearly erroneous. No error of law appears. An extended opinion would have no precedential value. We have, however, provided the parties a memorandum setting forth the reasons for our decision. We affirm the judgment under Rule 84.16(b).

      . Shy’s conviction for possession of a controlled substance with intent to distribute was affirmed in State v. Shy, 52 S.W.3d 585 (Mo.App. E.D.2001).


author: BOOKER T. SHAW, Judge.

text:
    BRAVEHEART REAL ESTATE CO., Respondent, v. Gerald E. PETERS, Darlene E. Peters and Darlene E. Peters, Inc., Appellants.
    No. ED 83244.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 9, 2005.
    Application for Transfer Denied April 5, 2005.

      Thomas H. Lake, St. Louis, MO, for appellants.
    Charles F. Dufour, St. Louis, MO, for respondent.
   BOOKER T. SHAW, Judge.

Gerald E. Peters, Darlene E. Peters, and Darlene E. Peters, Inc. (collectively “the Peters”) appeal from the trial court’s judgment granting summary judgment in favor of Braveheart Real Estate Company (“Braveheart”), ordering the sale of real property located in St. Louis County. We dismiss the appeal as moot.

The Peters and Braveheart entered into a sales contract for tracts of adjoining property in St. Louis County in June 2001. The Peters breached the sales agreement by refusing to convey the property to Bra-veheart at the closing scheduled for October 2001. Braveheart filed suit against the Peters alleging several causes of action, including specific performance, breach of contract, tortious interference, declaratory judgment, cancellation of instruments, and breach of constructive trust. The Peters filed motions and appeared pro se at each hearing scheduled regarding the litigation. On April 1, 2002, the trial court granted summary judgment in favor of Braveheart and ordered the Peters to convey the property.

When the Peters failed to convey the property as the trial court ordered, Bra-veheart filed a motion for contempt on April 11, 2002. At the contempt hearing on April 23, 2002, the Peters appeared pro se and asked for a continuance to obtain counsel, which the trial court denied. After the trial court engaged in a lengthy discussion with the Peters about the consequences of a finding of contempt, they agreed to convey the property. Later that day, the Peters conveyed the property to Braveheart in exchange for $565,000.00. The Peters now appeal.

The Peters raise three points on appeal. First, the Peters claim the trial court erred when it denied their motions for continuance for time to obtain legal representation because it violated their due process rights. Second, the Peters argue the trial court’s grant of summary judgment was not appropriate because it is a harsh and drastic remedy. Third, the Peters argue the trial court erred in granting summary judgment because there were genuine issues of material fact that were apparent in the record.

“A threshold question in any appellate review of a controversy is the mootness of the controversy.” State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001) (quoting Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App. W.D.1999)). “Because mootness implicates the justicia-bility of a case, an appellate court may dismiss a case for mootness sua sponte.” Reed, 41 S.W.3d at 473. In deciding whether a case is moot, an appellate court is allowed to consider matters outside the record. Id. Therefore, we initially address whether this case is moot given the fact the judgment has been satisfied and the property conveyed before addressing the merits of the Peters’ points on appeal.

The Southern District recognized the general rule that when a party voluntarily pays a judgment rendered against it, it may not appeal from that judgment. State ex rel Missouri Highway & Transp. Com’n. v. Chadwell, 735 S.W.2d 96, 98 (Mo.App. S.D.1987). See also St. Charles County v. Wegman, 90 S.W.3d 142, 144 (Mo.App. E.D.2002). The Chadwell court explained that when a judgment has been paid, the issue is settled, and the question is moot. Chadwell, 735 S.W.2d at 98. “A cause of action is considered moot when the question presented for decision seeks a judgment upon some matter which, if judgment was rendered, would not have any practical effect upon any then existing controversy.” Id. When there is no existing controversy, an appellate court lacks jurisdiction and should dismiss the appeal. Promotional Consultants, Inc. v. Logsdon, 25 S.W.3d 501, 506 (Mo.App. E.D.2000).

“It has been held that when the object of a proceeding is to secure possession of a particular tract of land, a voluntary surrender of possession may bar the right to appeal, where the property is surrendered before process to enforce the judgment has been issued.” Steen v. Colombo, 799 S.W.2d 169, 175 (Mo.App. S.D.1990). The question of whether the defendant’s surrender of the property in question was voluntary so as to bar an appeal is a question of fact for the trial court. Id. If the defendant’s surrender of the property is voluntary, he or she “effectively concedes the correctness of the judgment, thereby rendering the appeal moot.” Id.

The Peters argues they did not voluntarily satisfy the judgment in this case because they conveyed the property only after the trial court “threatened [them] with imprisonment” during the contempt hearing. We disagree. The trial court entered judgment ordering the Peters to convey the property at issue after granting summary judgment in Braveheart’s favor. When they failed to comply, Braveheart sought a motion for contempt. The trial court held a hearing and spent an extended period of time explaining to the Peters, acting pro se, what the consequences were if he chose to continue to disregard the trial court’s judgment. After weighing the options, the Peters chose to convey the property.

Here, the Peters avoided a finding of contempt by complying with the trial court’s order to convey the property to Braveheart. In similar cases, we have held when a person who is found to be in contempt purges himself or herself of the contempt by complying with the trial court’s order, the case becomes moot and unappealable. Forbes v. Forbes, 133 S.W.3d 508, 512 (Mo.App. E.D.2004); Lieurance v. Lieurance, 111 S.W.3d 445, 446 (Mo.App. E.D.2003); Union Hill Homes Ass’n, Inc. v. RET Development Corp., 83 S.W.3d 87, 92 (Mo.App. W.D.2002).

Additionally, “[i]t is elementary that in case a party to an action accepts the benefits of a judgment in his [or her] favor or acquiesces in a judgment against him [or her] he [or she] thereby waives [the] right to have said judgment reviewed on appeal.” Perkel v. Stringfellow, 19 S.W.3d 141, 149 (Mo.App. S.D.2000). Here, it is clear the Peters complied with the trial court’s judgment and attempted to benefit from his delayed compliance by receiving payment in the amount of $565,000. There is also no question the contract between the parties was valid and proper consideration was made.

Based on the foregoing, we dismiss this appeal for lack of jurisdiction because the controversy is moot.

GARY M. GAERTNER, SR., P.J., and SHERRI B. SULLIVAN, J„ Concur.

      . Braveheart filed a motion for sanctions against the Peters for filing a frivolous and vexatious appeal, and a motion to strike portions of the Peters’ reply brief for failing to comply with Rule 84.04, which were taken with the case. These motions are denied.


text:
    Victor A. COHEN, Appellant, v. Mary H. MOORKAMP and Stone, Leyton & Gershman, P.C., Respondents.
    No. ED 84807.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 9, 2005.
    Application for Transfer Denied April 5, 2005.
    Laurence D. Mass, St. Louis, MO, for appellant.
    Joseph F. Devereux, Jr., Robert L. Dev-ereux, Micheál D. Hart, St. Louis, MO, for respondent.

      Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Victor A. Cohen (“Cohen”) appeals from the trial court’s judgment dismissing his petition for legal malpractice against Mary H. Moorkamp (“Moorkamp”) for failing to state a cause of action. Cohen argues he claims he properly pleaded a cause of action for legal malpractice because: (1) an attorney-client relationship existed between him and Moorkamp; (2) there was a causal connection between Moorkamp’s alleged breach of duty and Cohen’s resulting harm; and (3) there were sufficient facts alleged to support a punitive damages claim.

We have reviewed the briefs of the parties and the legal file. The trial court did not err in finding Cohen’s petition failed to state a claim upon which relief could be granted. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.14(b).


text:
    EBO FINANCIAL SERVICES, INC., Appellant, v. CLEAR CHANNEL BROADCASTING, INC., Respondent.
    No. ED 84472.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 7, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 9, 2005.
    Application for Transfer Denied April 5, 2005.
    Nicholas G. Higgins, Ballwin, MO, for appellant.
    Rebecca R. Jackson, K. Lee Marshall, Laura M. Rehm, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

EBO Financial Services, Inc. (“EBO”) appeals from the trial court’s judgment dismissing its petition for breach of contract and implied warranty against Clear Channel Broadcasting, Inc. (“CCB”) for failing to state a cause of action. EBO raises two points on appeal. First, EBO claims the trial court erred in denying its motion for leave to amend the petition because the denial would cause EBO great hardship, failure to include the omitted information was inadvertent, the motion was timely filed, an amendment would cure any inadequacy, and CCB would suffer no prejudice. Second, EBO argues the trial court erred in its interpretation of the disclaimer of warranties clause in the contract because EBO claims it was deficient under Missouri law.

We have reviewed the briefs of the parties and the legal file. The trial court did not err in dismissing EBO’s petition for failing to state a claim upon which relief could be granted. Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). The trial court did not abuse its discretion in denying EBO’s motion for leave to amend its petition. Manzer v. Sanchez, 985 S.W.2d 936, 939 (Mo.App. E.D.1999). An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for the order affirming the judgment pursuant to Rule 84.14(b).


text:
    ALUMAX FOILS, INC., Appellant, v. Gregory F.X. DALY, Respondent.
    No. ED 84365.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 14, 2004.
    Application for Transfer to Supreme Court Denied Feb. 9, 2005.
    Application for Transfer Denied April 5, 2005.
    Thomas L. Caradonna, Douglas M. Nieder, Lewis, Rice & Fingersh, L.C., St. Louis, MO, for appellant.
    Patricia A. Hageman, City Counselor, Edward J. Hanlon, St. Louis, MO, for respondent.
   Appeal from the Circuit Court of the City of St. Louis; Steven Russell Ohmer, Judge.

Alumax Foils, Inc. appeals from the trial court’s judgment affirming the Missouri State Tax Commission’s dismissal of Alu-max’s appeal of Defendant Gregory F.X. Daly’s, License Collector for the City of St. Louis, assessment of Alumax’s tangible personal property for the 2002 tax year. We affirm.

We have reviewed the briefs of the parties and the record on appeal and no error of law appears. No precedential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    In the Matter of the Care and Treatment of Rickey JONES, Appellant, v. STATE of Missouri, Respondent.
    No. ED 83931.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2004.
    Application for Transfer to Supreme Court Denied Feb. 9, 2005.
    Application for Transfer Denied April 5, 2005.

      Emmett D. Queener, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Sarah E. Ledgerwood, Asst. Attorney General, Jefferson City, MO, for respondent;
    Before PATRICIA L. COHEN, P.J. and KATHIANNE KNAUP CRANE and ROBERT G. DOWD, JR., JJ.
   ORDER

PER CURIAM.

Rickey Jones (Jones) appeals from the judgment and order of civil commitment following a jury trial. The trial court ordered Jones to be committed to secure confinement in the custody of the department of mental health as a sexually violent predator pursuant to Section 632.480 through Section 632.513, RSMo 2000 and RSMo Cum.Supp.2003. Jones argues the trial court erred in submitting to the jury the State’s Instruction No. 8 instead of either of his alternative instructions. Jones contends Instruction No. 8 was an incomplete expression of the consequences of finding Jones to be a sexually violent predator and Jones was thereby prejudiced.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion reciting the detailed facts and restating principles of law would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b).


author: KATHIANNE KNAUP CRANE, Judge.

text:
    Michael GARRONE, Claimant/Respondent, v. The TREASURER OF the STATE OF MISSOURI, as Custodian of the Second Injury Fund, Additional Party/Appellant.
    No. ED 83906.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 14, 2004.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Feb. 9, 2005.
    Application for Transfer Denied April 5, 2005.

      Rebecca K. Wright, Assistant Attorney General, St. Louis, MO, for appellant.
    Robert J. Lenze, Robert J. Lenze, P.C., St. Louis, MO, for respondent.
   KATHIANNE KNAUP CRANE, Judge.

In this worker’s compensation case, the Second Injury Fund (SIF) appeals from the award of the Labor and Industrial Relations Commission (Commission) finding SIF liability for permanent total disability. It considered claimant’s left knee surgery in May, 1999, to be a disability that pre-existed his primary injury, carpal tunnel syndrome, which did not become disabling until December 1, 1999, the date of his carpal tunnel surgery, which was the first date claimant was unable to perform his ordinary work duties as a result of that disease. The SIF asserts that the Commission erred in determining December 1, 1999 to be the date of disability for the carpal tunnel syndrome, and that the Commission was precluded from making that determination because claimant had used an earlier date as the date of the “occupational disease” on both his claim form and his settlement stipulation with employer. It also contends that the permanent and total disability award was against the weight of the evidence because there was overwhelming evidence that claimant was employable in the open labor market. We affirm.

Claimant, Michael Garrone, who was born in 1940, was employed by SuperValu, Inc., (employer) and its predecessor for approximately 30 years, until June, 2000, as a grocery buyer, a position primarily involving computer entry work. On November 13, 1998, he saw his primary care physician, Stephen Sanders, M.D., with complaints of pain and numbness in his arms. Dr. Sanders diagnosed bilateral hand paresthesia consistent with carpal tunnel syndrome. Claimant began using splints. After undergoing a nerve conduction study, claimant reported the disease to employer. On the December 3, 1998 report form, claimant listed the date of injury as November 3,1998.

Employer first sent claimant to Dr. George Dirkers, who saw claimant on December 14, 1998 and diagnosed bilateral carpal tunnel syndrome. He advised him of various treatment options. Claimant continued with splints. Employer then sent claimant to Robert Tucker, M.D., for an evaluation. Dr. Tucker saw claimant on January 12, 1999. He also found claimant’s symptoms consistent with carpal tunnel syndrome and that his work was a significant contributing factor. Dr. Tucker recommended claimant continue splinting, which reduced claimant’s symptoms. As a result, Dr. Tucker did not place any restrictions on claimant.

In the meantime, on April 19, 1999, claimant began treatment for an April 9 injury to his left knee. Over time, that injury resulted in several surgeries, including one in May, 1999.

Claimant’s carpal tunnel symptoms subsequently returned, and, in October, 1999, Dr. Tucker recommended surgery, but advised that claimant could continue his regular job duties until surgery. Dr. Tucker performed the surgery on claimant’s right arm on December 1, 1999 and on claimant’s left arm on December 15, 1999. Claimant was restricted to left hand duty after the first surgery and was restricted from all work after the second surgery. This was the first time claimant missed work from the carpal tunnel disease. On December 28, 1999, Dr. Tucker allowed claimant to return to limited duty using a computer for data entry up to fifteen minutes per hour. On January 11, 2000, claimant was released to full duty. He continued with medical care until May 30, 2000, at which time he was rated. Claimant retired in June, 2000.

On August 16, 2000, claimant made a claim for compensation for injuries to his left and right wrists from repetitive hand activities that caused carpal tunnel syndrome. In Box 3 of the claim form, labeled “DATE OF ACCIDENT/OCCUPATIONAL DISEASE,” he entered “11/3/98.” He made an SIF claim based on previous injuries suffered in an automobile accident in 1965.

On May 15, 2001, claimant entered into a Stipulation for Compromise Settlement with employer. Line 1 of that form recited that “on or about 11/3/98, the above named EMPLOYEE, while in the employment of the above named employer, sustained an accidental injury/occupational disease....” Claimant and employer agreed to a compromise lump sum settlement based on approximate disability of 22.5% of the left hand and 15% of the right hand, with a 10% load factor. The ALJ ordered that the SIF claim would remain open.

After settling with employer, claimant amended his SIF claim for permanent partial disability benefits to a claim for permanent total disability benefits. The ALJ conducted a hearing to determine whether and to what extent the SIF was liable for benefits. The ALJ awarded claimant 29 weeks of permanent partial disability, but denied permanent total disability benefits. The ALJ found, as a subsequent injury, that claimant had injured his left knee in April, 1999, resulting in surgery on May 4, 1999. The ALJ determined that claimant stopped working as a result of the April 1999 left knee injury, and was not permanently disabled from his primary carpal tunnel injury or the 1965 pre-existing injury.

Claimant filed an application for review asserting that the ALJ erred as a matter of law in finding that his carpal tunnel syndrome disability date was the date of diagnosis and not the date it became disabling. He argued that the carpal tunnel syndrome did not become disabling until after his December 1999 surgery, and, as a result, his April 1999 left knee injury was a pre-existing condition.

On review, the Commission modified the decision of the ALJ. The Commission found that December 1, 1999, the date of claimant’s first wrist surgery for carpal tunnel release, was the date of disability from the primary condition and should be used in determining SIF liability. The Commission found that claimant was permanently totally disabled from the carpal tunnel injury combined with the pre-exist-ing 1965 injury and the pre-existing 1999 knee injury. It awarded claimant permanent total disability benefits from January 11, 2000. The SIF appeals.

DISCUSSION

When a workers’ compensation claim is appealed, we review only questions of law. Section 287.495.1 RSMo (2000). We can modify, reverse, remand for rehearing, or set aside awards based on factual determinations only on the grounds prescribed by statute: (1) that the Commission acted without or in excess of its powers; (2) that the award was procured by fraud; (3) that the facts found by the Commission do not support the award; or (4) that there was not sufficient competent evidence in the record to warrant the making of the award. Id. We review the Commission’s award to determine whether the award is “supported by competent and substantial evidence upon the whole record.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222 (Mo. banc 2003).

We review decisions of the Commission which are clearly interpretations or applications of law for correctness without deference to the Commission’s judgment. West v. Posten Const. Co., 804 S.W.2d 743, 744 (Mo. banc 1991); Harr ison v. Harrison Turf Co., 908 S.W.2d 159, 161 (Mo.App.1995). Findings of ultimate facts reached through applications of rules of law, rather than by natural reasoning based on facts alone, are conclusions of law. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 297 (Mo.1965). We defer to the Commission on issues of fact, but review questions of law de novo. Endicott v. Display Technologies, Inc., 77 S.W.3d 612, 615 (Mo. banc 2002). We defer to the Commission when it resolves issues concerning credibility and weight to be given to conflicting evidence. Moriarty v. Treasurer of State of Missouri, 141 S.W.3d 69, 72 (Mo.App.2004).

I. Date Disease Became Compensable Injury

For clarity we first address the SIF’s second point, in which it contends that the Commission erred in finding that claimant sustained a compensable injury on December 1, 1999 because there was overwhelming evidence that claimant experienced some type of disability that was compensable on or about November 3, 1998.

An occupational disease does not become a compensable injury until the disease causes the employee to become disabled by affecting the employee’s ability to perform his ordinary tasks and harming his earning ability. Feltrop v. Eskens Drywall and Insulation, 957 S.W.2d 408, 413 (Mo.App.1997); Coloney v. Accurate Superior Scale Co., 952 S.W.2d 755, 759-60 (Mo.App.1997). An employee can be diagnosed with an occupational disease and experience symptoms of the disease prior to the time that it becomes disabling. See Prater v. Thorngate Ltd., 761 S.W.2d 226, 228-29 (Mo.App.1988); Enyard v. Consolidated Underwriters, 390 S.W.2d 417, 429 (Mo.App.1965); Renfro v. Pittsburgh Plate Glass Co., 235 Mo.App. 226, 130 S.W.2d 165, 171 (1939).

In this case, claimant worked without restriction until his first surgery for carpal tunnel release on December 1, 1999. There was no evidence that claimant’s earning ability was impaired prior to December 1, 1999. Accordingly, claimant did not suffer a compensable injury until that date. The Commission’s finding that claimant’s carpal tunnel syndrome did not become disabling until December 1, 1999, when he was first unable to perform his ordinary work duties, was supported by competent and substantial evidence on the whole record. It did not err in holding as a matter of law that claimant’s prior knee injury was a pre-existing disability to the carpal tunnel syndrome. This point is denied.

II. Stipulation to Scope of Hearing

We next address the SIF’s first point, in which it asserts that the Commission erred in reaching the question of when claimant sustained a compensable injury, because the parties had stipulated that the only issue at the hearing was whether the SIF had liability and did not stipulate that the date of disability was an issue. In its argument under this point, the SIF argues that because 1) the employer’s liability was settled pursuant to a claim form and stipulation that both listed the date of injury as November 3, 1998 and 2) the only issue in dispute was whether the primary and preexisting conditions combined to create SIF liability, the Commission was bound by the November 3 date. This argument has no merit because the date of disability is an essential issue in the determination of SIF liability. Further, this argument confuses the date of exposure to or causation of occupational disease, which claimant and employer agreed was November 3, 1998, with the date of disability or compensable injury, which is the relevant date in determining SIF liability.

We first consider the SIF’s contention that the date of disability could not be addressed because the parties had stipulated that the only contested issue was the SIF’s liability. In its final award allowing compensation, the Commission found that, inherent in the issue of SIF liability “is the date of every alleged disability whether pre, post, or primary.” It further recited:

The Fund is only liable for disabilities that pre-exist the date of the primary injury and in order to determine this liability the bright line date of the primary injury is the first essential date that must be established and this is an inherent issue in every Fund hearing.

When an SIF claim is made for permanent disability compensation, the claimant must provide evidence to support a finding, among other elements, that he or she had a pre-existing permanent “disability.” Messex v. Sachs Elec. Co., 989 S.W.2d 206, 214 (Mo.App.1999). The disability must have existed at the time the work-related injury was sustained. Id. Thus, the existence of any pre-existing disability is necessarily included in the contested issue of SIF liability. In order to determine whether a disability pre-exists a disability from a primary injury, the date of disability from the primary injury must be established. In this case, as discussed in the prior section, the Commission determined this date to be December 1, 1999.

We next address the SIF’s argument that the Commission was bound by the November 3, 1998 date as the date of disability because claimant inserted that date as the date of occupational disease on his claim form and stipulated with employer that he sustained an occupational disease on that date. We disagree that the date inserted on these forms was the date of disability.

Box 3 on the claim form contains is titled “DATE OF ACCIDENT/OCCUPATIONAL DISEASE.” “Accident” is statutorily defined, in part, as an event or series of events that produce “objective symptoms of an injury.” Section 287.020.2 RSMo (2000). By asking for the date of an accident, the form clearly asks for the date of the event or series of events that produced the injury, in other words, a date of causation.

The same box is used for the date of an occupational disease. An “occupational disease” is statutorily defined, in part, as an “identifiable disease” that arises out of and in the course of employment. Section 287.067.1 RSMo (2000). Unlike an accidental injury that occurs on a particular date, an occupational disease develops and manifests itself over a period of time and is not caused by a single event. Bull v. Excel Corp., 985 S.W.2d 411, 416 (Mo.App.1999). Although it is difficult to establish, the date of exposure to an occupational disease forms the basis for a determination of the employer’s and insurer’s liability. Enyard, 390 S.W.2d at 429. This concept is codified in Section 287.063.1 RSMo (2000) (presumption of exposure) and Sections 287.063.2 RSMo (2000) and 287.067.7 RSMo (2004 Supp.) (last exposure). See also, Johnson v. Denton Const. Co., 911 S.W.2d 286, 288 (Mo. banc 1995); Arbeiter v. National Super Markets, Inc., 990 S.W.2d 142, 145-46 (Mo.App.1999); Bull, 985 S.W.2d at 416.

The date of exposure is the date of causation. Arbeiter, 990 S.W.2d at 146. Thus, the critical date to be entered for an occupational disease in Box 3 on the claim form is the date of exposure. II Mo. Workers’ Compensation Law Section 11.4, p. 11-10 (Mo. Bar 3rd Ed.2004).

Likewise, the date to be entered on line 1 of the Stipulation for Compromise Settlement for the date an occupational disease was sustained “while in the employment of’ the employer against whom a claim is made, is the date of exposure. It is not the date of disability.

An employee can suffer an injurious exposure prior to becoming disabled. Enyard, 890 S.W.2d at 429. The injurious exposure does not become a com-pensable injury until it becomes disabling. Id. Because of this distinction, a stipulation to a date of compensable injury is not a stipulation to a date of exposure. Bull, 985 S.W.2d at 416-17. Likewise, a stipulation to a date of exposure is not a stipulation to a date of disability. By entering November 3, 1998 on Box 3 of the claim form and line 1 of the Stipulation for Compromise Settlement, claimant was entering a date of exposure and did not admit or stipulate to the date of disability.

This point is denied.

III. Different Date for SIF Liability

For its third point the SIF contends that the Commission erred because it determined a different date for an occupational disease for SIF liability than the date used in the claim against employer. It argues that the Commission is required to use the same date of injury since the SIF claim arises out of the claim against employer. For the reasons set out in our discussion under points one and two, this argument has no merit. Point three is denied.

IV. Sufficiency of the Evidence

As its fourth point, the SIF maintains that the overwhelming weight of the evidence demonstrates that claimant is not permanently and totally disabled, because he is employable in the open labor market. The SIF argues that claimant voluntarily retired and later worked two part-time, short-term jobs and that the SIF’s vocational expert, June Blaine, had opined that claimant was employable.

“The test for permanent total disability is the worker’s ability to compete in the open labor market in that it measures the worker’s potential for returning to employment.” Sutton v. Vee Jay Cement Contracting Co., 37 S.W.3d 803, 811 (Mo.App.2000). The “pivotal question” is whether an employer can reasonably be expected to hire this employee, given his or her present physical condition, and reasonably expect the employee to successfully perform the work. Id.

Claimant testified that he retired because of the problems he had with his legs and hands. He testified that he obtained two temporary, part-time jobs after his retirement as a result of friendships with those employers, without completing an application. Dr. Volarich reported that, with respect to claimant’s hands and arms, he was required to avoid repetitive gripping, pinching, squeezing, pushing, pulling, twisting, rotatory motions, and similar tasks and avoid impact and vibratory trauma to the hands. He also restricted the weights claimant could handle. With respect to his legs, claimant was to avoid repetitive stooping, squatting, crawling, kneeling, and all impact maneuvers, and he was cautioned to use extra care in navigating steps, uneven surfaces, and ladders.

James Israel, a vocational rehabilitation counselor, testified that claimant was disabled from his usual occupation as a grocery buyer and from related occupations for which he would be qualified by education and experience. He explained that claimant was an older individual who did not have vocational skills that would translate to another occupation within his physical capacity and opined that claimant was unable to perform work within any classi-fieation as defined by the U.S. Department of Labor. He testified that because of claimant’s diminished endurance capacity, it was unlikely claimant could sustain or find any substantial, gainful full-time employment. Mr. Israel added that the cumulative effects of claimant’s physical condition, age of 62, education, work background, and the special work site accommodations required from prospective employers, “placed him at an insurmountable disadvantage” in obtaining employment. Mr. Israel testified that claimant was unable to resume substantial gainful activity as a result of his medical limitations. He concluded that claimant could not compete in the open labor market.

Reconciliation of conflicting evidence is a fact question for the Commission. The Commission’s decision to believe Dr. Volarich, claimant, and Mr. Israel and not believe Ms. Blaine is well within its authority. Johnson, 911 S.W.2d at 288; Chatmon v. St. Charles County Ambulance, 55 S.W.3d 451, 457 (Mo.App.2001). Further, objective medical evidence supported claimant’s testimony. On the whole record, the Commission could reasonably have found claimant to be totally disabled. Point four is denied.

The Commission’s award is affirmed.

PATRICIA L. COHEN, P.J., and ROBERT G. DOWD, JR., J., concur.