                                             In
                                             I the
                          Misssouri Court
                                    C     off Appeaals
                                     Westeern Disttrict
IN RE THE
      T    MATTER OF:                             )
R.M.A. (a minor child),
                c       BY HIS
                           H NEXT
                                T                 )
FRIENDD: RACHE  ELLE                              )    D78535
                                                      WD
APPLEBERRY,                                       )
                                                  )   OPIINION FIL
                                                                 LED: Deceember 8, 2015
                 App
                   pellants,                      )
                                                  )
v.                                                )
                                                  )
BLUE SPRINGS
     S         R-IV
               R    SCHOOL                        )
DISTRIICT, ET AL.,                                )
                                                  )
                Resp
                   pondents.                      )

              Appea
                  al from thee Circuit Court of Jacckson Coun nty, Missou
                                                                        uri
                         Thee Honorablee Jack R. G
                                                 Grate, Judgee

Before Division One:
                O    Anthon
                          ny Rex Gab
                                   bbert, Presidding Judge,, Victor C. Howard, Juudge
                          and Cynthiia L. Martinn, Judge


       R.M.A.,
       R       thro
                  ough his neext friend, appeals
                                         a       from
                                                    m the trial court's dennial of a pettition

seeking a writ of mandamus.
                  m         Because R.M.A's
                                    R       reccourse from
                                                         m denial of tthe petitionn was

to file th
         he writ in a higher courrt, the appeaal is dismisssed.
                                  Factual and Procedural Background

         On July 23, 2014, R.M.A., through his next friend, filed a petition for a writ of

mandamus ("Petition") with the Circuit Court of Jackson County. The Petition alleged

that the Blue Springs R-IV School District, the Blue Springs School District Board of

Education, the superintendent of Blue Springs R-IV School District, and the assistant

superintendent of Blue Springs R-IV School District, (collectively "Respondents"), had

refused to allow R.M.A., a transgender male, access to the boys restrooms and locker

rooms. The Petition asserted that, pursuant to federal1 and Missouri law,2 R.M.A. has a

right to access the boys restroom and locker rooms and that the Respondents have a clear

and unconditional legal duty to provide R.M.A. with that access. The Petition requested

a writ of mandamus "commanding Respondents to grant [R.M.A.] and all other

transgendered students of the Blue Springs R-IV School District full and equal access to

the appropriate restroom, locker room, and any other facilities segregated by sex as is

consistent with their gender identity."

         The trial court did not initially deny the Petition. Nor did the trial court grant a

preliminary order in mandamus. Rather, without being summoned or otherwise ordered

by the court to do so, the Respondents filed an answer to the Petition on August 22, 2014,

asking that the request for a writ of mandamus be denied and that the Petition be

dismissed with prejudice.



         1
           In particular, the Petition cited the Equal Protection Clause of the Fourteenth Amendment and Title IX of
the Educational Amendments Act of 1972, 20 U.S.C. sections 1681-1688.
         2
           In particular, the Petition cited to the Missouri Constitution article 1, section 2, and section 213.065. All
statutory references are to RSMo 2000 as supplemented unless otherwise indicated.

                                                            2
         The trial court conducted a case management conference on November 5, 2014,

and imposed a briefing schedule. In January 2015, the parties submitted stipulated facts

to the trial court and filed briefs in support of their respective positions on the issues

raised by the Petition.

         The trial court held a hearing on February 11, 2015, to permit the parties to orally

argue their positions based on the stipulated facts. At the conclusion of the hearing, the

trial court stated, "I'm going to decide this based upon these arguments here, the briefs

I've received, and my view of the law."

         The trial court issued its judgment ("Judgment") on March 5, 2015, denying the

Petition. The Judgment concluded that R.M.A. has "no existing, clear, unconditional

legal right which allows . . . R.M.A. to access restrooms or locker rooms consistent with

R.M.A.'s gender identity." The Judgment further concluded that a writ of mandamus was

inappropriate because administrative remedies remained available to R.M.A.3

         R.M.A., through his next friend, appeals.

                                     Authority to Entertain Appeal

         "In every case before considering claims raised on appeal, this Court has a duty to

sua sponte determine whether we have authority to decide the appeal." Collector of

Revenue of City of St. Louis v. Parcels of Land Encumbered with Delinquent Tax Liens,

350 S.W.3d 840, 841 (Mo. App. E.D. 2011). That includes the obligation "to determine,


         3
         The Petition was filed even though R.M.A. was pursuing traditional administrative remedies to remediate
discrimination. During the hearing on the Petition, R.M.A.'s attorney stated that her client had "a pending charge of
discrimination with the Missouri Human Rights or the Missouri Commission of Human Rights." During oral
argument before this court, R.M.A. confirmed that a civil action pursuing relief under the Missouri Human Rights
Act has been filed.

                                                          3
sua sponte, whether the circuit court entered a final appealable judgment." Banks v. Slay,

410 S.W.3d 767, 768 (Mo. App. E.D. 2013).

       "Writs are extraordinary remedies, and their procedures differ from normal civil

actions." U.S. Dep't of Veterans Affairs v. Boresi, 396 S.W.3d 356, 359 n.1 (Mo. banc

2013). Ordinarily, when a writ petition is denied, the appropriate recourse is to file the

denied writ petition in a higher court. Id. at 358 (citing Rules 84.22 to 84.26 and 94.01 et

seq.). However, in limited circumstances, an appeal may be taken from the denial of a

writ petition. Id. Boresi, which reflects the Supreme Court's most recent discussion of

this topic, recognizes two such circumstances. First, "[a]n appeal will lie from the denial

of a writ petition when a lower court has issued a preliminary order in mandamus but

then denies a permanent writ." Id. (emphasis added) (citing State ex rel. Ashby Road

Partners, LLC v. State Tax Comm'n, 297 S.W.3d 80, 83 (Mo. banc 2009) (addressing

writs of prohibition pursuant to Rule 97)). Second, "when the lower court issues a

summons, the functional equivalent of a preliminary order, and then denies a permanent

writ, appellate review is available." Id. at 359 (citing Ashby Rd. Partners, LLC, 297

S.W.3d at 84).

       Here, neither trigger permitting appellate review is present. After the Petition was

filed, the trial court did not grant a preliminary order in mandamus. Nor did the trial

court issue a summons, the functional equivalent of a preliminary order in mandamus.

Rather, the parties and the trial court proceeded as if the Petition initiated an ordinary

civil action, seemingly oblivious to the requirements of Rule 94. And R.M.A. now seeks



                                             4
appellate review of the Judgment's denial of the Petition on the merits, without regard to

Boresi.

       R.M.A.'s confusion over whether the Judgment is a final, appealable judgment

may be fueled by pre-Boresi precedent which suggests that the controlling factor in

determining the right to appeal is whether a writ has been denied on the merits. See, e.g.,

Stone v. Mo. Dep't of Corr., Prob. & Parole Bd., 313 S.W.3d 158, 160 (Mo. App. W.D.

2010) (holding that "when the circuit court denies a petition for writ of mandamus

following an answer or motion directed to the merits of the controversy and, in doing so,

determines a question of fact or law, we treat the court's ruling as final and appealable").

Given Stone and other similar cases, it is perhaps understandable that parties and trial

courts have focused on posturing mandamus proceedings for disposition on the merits,

placing no utility on abiding by the procedures described in Rule 94.

       In announcing when an appeal will be permitted following denial of a permanent

writ, Boresi did not address Stone or other similar cases which hold that an appeal will lie

from a trial court's denial of a writ petition on the merits. However, it is difficult to read

Boresi as endorsing continued reliance on this legal principle in cases where Rule 94 has

not been followed.4

       As noted, Boresi held an appeal "will lie" from the denial of a permanent writ by a

lower court after issuance of a preliminary writ. 396 S.W.3d at 358. And Boresi held an

appeal "is available" when a permanent writ is denied by a lower court after "the lower

court issues a summons, the functional equivalent of a preliminary order." Id. at 359.

       4
           See footnote 7 infra.

                                              5
The phrase "is available" is markedly different from the phrase "will lie," implying that

there is no appeal as a matter of right unless a preliminary writ has been issued before a

permanent writ is denied, and implying that an appeal is only available as a matter of

discretion where a trial court issues a summons that can be viewed as the "functional

equivalent" of a preliminary writ. This supposition is confirmed by a footnote in Boresi:

         [T]he . . . practice of issuing a summons in lieu of a preliminary writ is not
         authorized by Rule 94.5 Writs are extraordinary remedies, and their
         procedures differ from normal civil actions. The practice of issuing a
         summons rather that a preliminary order fails to acknowledge the nature of
         the remedy. Additionally, it requires a response from the respondent
         without regard to the merits of the petition. Nevertheless, this Court is
         exercising its discretion to consider the matter on the merits and issue the
         writ because the parties, who already have litigated the matter fully, were
         not at fault and should not be required to initiate a new writ proceeding due
         to the circuit court's failure to follow the procedure proscribed by the rules.
         This Court is not required to exercise its discretion in like manner in the
         future.

396 S.W.3d at 356 n.1. Plainly, Boresi holds that trial courts and parties are not free to

disregard the plain language of Rule 94. Plainly, Boresi holds that the ability to seek

appellate review from the denial of a permanent writ (as opposed to the right to file a

denied writ in a higher court) is tied to compliance with the provisions of Rule 94.6 In


         5
            The Supreme Court similarly held in Ashby Road Partners, LLC that "[t]he issuance of a summons is not
authorized or anticipated by Rule 97" in lieu of issuance of a preliminary writ in a prohibition proceeding. 297
S.W.3d at 84.
          6
            This is in keeping with the fact that the procedures for writs (which seek extraordinary remedies) differ
from the procedures in civil proceedings. Boresi, 396 S.W.3d at 359 n.1. Rule 94 provides that "[p]roceedings in
mandamus in a circuit court shall be as prescribed in this Rule 94." Rule 94.01. To seek a writ of mandamus from a
circuit court, a relator must file a petition in mandamus containing "a statement of the facts, the relief sought, and a
statement of the reasons why the writ should issue," "accompanied by suggestions in support thereof." Rule 94.03.
The petition must also be accompanied by all documents "essential to an understanding of the matters set forth in the
petition." Id. These pleading requirements are designed to afford the trial court with the information necessary to
assess the preliminary merits of an extraordinary writ request.
          Rule 94.04 provides that "[i]f the court is of the opinion that the preliminary order in mandamus should be
granted, such order shall be issued." If a preliminary order is issued, Rule 94.05 provides that "[t]he preliminary
order shall order the respondent to file an answer within the time fixed by the order," and "[t]he clerk shall . . .

                                                           6
light of Boresi, we cannot discern a reasoned path that would permit this court to

conclude that an appeal will lie as a matter of right merely and solely because a

permanent writ is denied by a lower court on the merits. Instead, we conclude, as is

already stated in Boresi, that an appeal will lie as a matter of right only where a

permanent writ of mandamus is denied by a lower court on the merits after that court has

issued a preliminary writ.7 396 S.W.3d at 358. And if Rule 94 is not followed, then there

is no right of appeal from the denial of a permanent writ of mandamus (even if on the

merits), with the narrow proviso that an appeal may be permitted as a matter of discretion

where a permanent writ of mandamus is denied on the merits after a trial court has issued

a summons that can be fairly characterized as the "functional equivalent" of a preliminary

writ.8 Id. at 359.

         Here, there was no summons issued by the trial court nor any grant of a

preliminary order in mandamus. Rather, the parties and the trial court appear simply to



deliver a copy of the preliminary order, together with a copy of the petition, for service . . . . [which] may be made
as provided in Rule 54." Rule 94.07 requires that "[t]he answer [ordered by Rule 94.05] shall be directed to the
petition in mandamus. . . . [and] may include or be accompanied by one or more motions." In short, unless a trial
court grants a preliminary order in mandamus, Rule 94 does not authorize service of the petition in mandamus on
the respondent. And unless a trial court grants a preliminary order in mandamus, Rule 94 does not authorize the trial
court to order the respondent to file an answer to the petition in mandamus.
           7
             Following Boresi, there remains an open question about whether an appeal is available where a petition in
mandamus is denied after the grant of a preliminary order in mandamus but on other grounds than the merits of the
petition. "Although our research has not uncovered any Missouri Supreme Court cases addressing the issue, both
this Court and the Eastern District have concluded that even when a preliminary order has issued, the final decision
is still not reviewable by appeal if it does not reach the merits of the relator's petition." Powell v. Dep't of Corr., 463
S.W.3d 838, 841 n.3 (Mo. App. W.D. 2015) (citing Merell v. Dir. of Revenue, 82 S.W.3d 227, 230 (Mo. App. W.D.
2002); State ex rel. Stoecker v. Dir. of Revenue, 734 S.W.2d 263, 266 (Mo. App. E.D. 1987)). This open question is
not implicated by the present appeal and is not addressed by our Opinion.
           8
             Powell holds that in the future, "it is highly unlikely that the Missouri Supreme Court will exercise its
discretion to hear an appeal on the merits where a summons, rather than a preliminary order, was issued by the
circuit court." 463 S.W.3d at 842. Powell thus declined to exercise discretion to treat a trial court issued summons
as the functional equivalent of a preliminary order in mandamus, noting its perception that "Boresi [is] guidance that
we generally should decline to exercise our discretion to hear appeals on the merits in writ proceedings where a
summons rather than a preliminary order has been issued by the circuit court." Id.

                                                            7
have dissregarded Rule
                  R    94, Boresi,
                           B       and the cases addressingg Boresi thhat have plainly

                   urts and parrties about the importtance of folllowing thee procedurees set
counseleed trial cou

         R 94.9
forth in Rule

         The
         T trial cou
                   urt's denial of
                                o the Petitiion affords R.M.A. noo more recouurse than w
                                                                                       would

                            A. had the Petition beeen denied shortly aft
have been availablle to R.M.A                                         fter it was ffiled.

R.M.A. has the rig
                 ght to file the
                             t Petition
                                      n in a higheer court. R
                                                            R.M.A. doees not, how
                                                                                wever,

                    ppeal the triaal court's deenial of the Petition.10
have thee right to ap

                                                      Co
                                                       onclusion

         We
         W dismiss R.M.A.'s ap
                             ppeal.



                                                          _____________________________
                                                                                     _________
                                                          Cynthia L. Martin, Juudge


All conccur




         9
          See
          S Powell, 463    3 S.W.3d at 84 42 (holding afteer addressing B
                                                                        Boresi that "it iis clear that thee Supreme Couurt is
directing circuit courts to
                          o discontinue thhe practice of issuing
                                                         i        a summmons in lieu of a preliminary order in mandaamus
or prohibittion"); Banks, 410
                           4 S.W.3d at 771 (holding aftera     discussingg Boresi that "[[i]n the future, our circuit couurts
should folllow the proced dure set out in Rule
                                          R 94").
         10
            We decline to recast R.M.A.'s appeal as thee filing of a dennied writ in thiis court, as arguuably occurredd in
Banks, 4100 S.W.3d at 771. To do so no    ow, two and a half
                                                          h years afterr Boresi was deecided, would "perpetuate a
                                                         a is disfavoreed by the Supreeme Court of M
procedurall process that iss not authorized by Rule 94 and                                                Missouri." Id.

                                                              8
