IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

BARBARA BARTLETT, et al.,

Appellants,

v.

MISSOURI DEPARTMENT OF 

INSURANCE and JOHN M. HUFF,

Respondents.

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WD79411

OPINION FILED:

November 29, 2016

Appeal from the Circuit Court of Cole County, Missouri

The Honorable Jon E. Beetem, Judge

Before Division Two: Lisa White Hardwick, Presiding Judge, and

Karen King Mitchell and Anthony Rex Gabbert, Judges

This case raises a question as to the procedural requirements for seeking relief in the form 

of a writ of mandamus under Rule 94.1 Here, purported relators Barbara Bartlett and Shawn 

Hernandez, former employees of the Department of Insurance, appeal from the circuit court’s grant 

of summary judgment in favor of the Department on their petition for a writ of mandamus, wherein 

Bartlett and Hernandez sought “payment . . . in lost wages and lost pension as a result of the 2001 

 

1 All rule references are to the Missouri Supreme Court Rules (2016).
2

decision to no longer abide by [§ 374.1152],” a statute they claimed mandated a certain level of 

compensation with which the Department refused to comply. Ultimately, the trial court granted 

the Department’s motion for summary judgment, effectively denying the petition for writ of 

mandamus, and Relators appealed. Though seeking mandamus relief, Appellants utterly failed 

and refused to follow the procedural requirements of Rule 94 regarding mandamus, leaving this 

court without appellate jurisdiction. Accordingly, we dismiss this appeal.

Background

On November 9, 2012, Appellants Bartlett and Hernandez filed a “Petition for Writ of 

Mandamus – Class Action” in Jackson County, Missouri. Appellants, insurance examiners 

employed by the Department, claimed that beginning in 2001, the Department stopped paying

them statutorily mandated salary increases. The petition sought class certification “to recover 

unpaid compensation in the form of lost wages and lost pension owed . . . [by] the Department of 

Insurance . . . from 2001 to the present” based on the language of § 374.115.3 Upon receiving the 

petition, the Jackson County Court Administrator’s Office sent Appellants a notice that their 

pleading could not be filed without further documents and information. The notice specifically 

inquired, “should this case be handled as a Writ or a regular Jackson County case? If handled as 

a Writ of Mandamus, please refer to the Missouri Court Rules.” Appellants responded, “Please 

file the above styled case as a regular Jackson County Case and not as a Writ.”

The Jackson County Circuit Court complied with Appellants’ request, appointed a special 

process server, and served the Department with a “Summons in Civil Case.” Thereafter, the 

 

2 All statutory citations are to the Revised Statutes of Missouri 2000, as updated through the most recent 

Cumulative Supplement.

3 No class certification hearing was ever held, and no class was ever certified. Thus, we do not address 

whether a petition for mandamus could ever be certified as a class action. The class action status of this case is not an 

issue on appeal.
3

Department sought a transfer of venue to Cole County and filed a motion to dismiss. In the 

Department’s motion to dismiss, the Department argued—among other things—that “Plaintiffs 

fail[ed] to satisfy the elements for a writ of mandamus and fail[ed] to satisfy the procedural 

requirements for mandamus under Missouri Supreme Court Rule 94.03.” More specifically, the 

Department argued that Appellants were improperly seeking mandamus to adjudicate their legal 

right to compensation, rather than to execute an existing right, and that they failed to follow the 

procedural requirements of Rule 94.03 insofar as they failed to submit either suggestions in support 

of their petition or exhibits essential to an understanding of the matters set forth therein.

Thereafter, Appellants filed a “First Amended Petition for Writ of Mandamus,” seeking to 

cure the procedural defects identified by the Department by attaching exhibits and accompanying 

suggestions in support.4 The Department filed another motion to dismiss, this time directed at the 

First Amended Petition, again attacking Appellants’ failure to satisfy the procedural requirements 

of Rule 94. The Department again argued that Appellants were seeking to establish a right, rather 

than simply to execute an existing one, and that the amended petition still failed to attach the 

relevant and necessary exhibits, as the exhibits included with the petition failed to establish any 

facts necessary to demonstrate that Appellants had an existing right to relief.

The Jackson County Circuit Court granted the Department’s motion to transfer venue to 

Cole County. In Cole County Circuit Court, Appellants filed a response to the Department’s 

motion to dismiss, and the court held a hearing on the motion. Following the hearing, the Cole 

County Circuit Court entered an order denying the motion to dismiss; found “that the statute at 

 

4

In filing the First Amended Petition, Appellants claimed that the amendment was permitted as a matter of 

right under Rule 55.33(a), “as no responsive pleading has been served.” But, until a preliminary order is issued under 

Rule 94.04, no responsive pleading is required. Rule 94.05. While Rule 55.33 provides for amendments in cases 

where no responsive pleading has been served and where none is permitted, it does not address the situation where a 

responsive pleading is simply not required. In other words, the interplay between Rule 55.33, which applies to civil 

proceedings generally, and Rule 94, which applies to petitions for writ of mandamus, is not clear.
4

issue clearly sets forth the right to be enforced, thus making mandamus an appropriate remedy”; 

limited Appellants’ claims to the five years preceding the petition based upon a statute of 

limitation; and directed the Department to file an answer.

The Department filed a “General Objection and Answer,” wherein it argued that “the Court 

was wholly without jurisdiction to direct Respondents to answer Petitioners’ First Amended 

Petition for Writ of Mandamus” because “the denial of a motion to dismiss is not the operative 

prerequisite to investing the circuit court with the authority to direct Respondents to file an 

Answer.”5 “Rather,” the Department argued, “in response to the proper showing accompanying a 

petition for writ of mandamus, the circuit court is empowered to issue but one type of order; a 

preliminary order in mandamus.” (Citing Rule 94.04.) The Department argued that “[t]he 

Court’s . . . Order does not determine that a preliminary writ should issue, it merely denies 

Respondents’ motion to dismiss.” The Department further argued that mandamus was 

inappropriate because Appellants were seeking to establish a legal right to compensation, rather 

than to execute an existing right.

The parties then engaged in a period of discovery. Then, nearly two years after filing the 

initial petition in Jackson County, Appellants filed a “Motion for Leave to File Relator’s [sic] 

Second Amended Writ,” wherein Appellants sought to amend their petition again, this time to add 

another party. Not surprisingly, the Department objected, again arguing that Appellants had failed 

to comply with Rule 94 and were not entitled to writ relief. Appellants again tried to cure the 

procedural defects identified by the Department by filing an amended motion for leave to file their 

Second Amended Petition, wherein they attached exhibits and accompanying suggestions in 

 

5

“[U]nless 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.” R.M.A. v. Blue Springs R-IV Sch. Dist., 477 

S.W.3d 185, 188 n.6 (Mo. App. W.D. 2015).
5

support, as required by Rule 94. Again, the Department objected, and again it argued that 

Appellants failed to comply with Rule 94. The Department argued:

This case is not a civil tort action and was brought over two years ago as a petition 

for writ of mandamus. A writ of mandamus . . . must show, on the face of the 

petition, a clear and unequivocal right to relief. The Court’s April 2, 2014 order 

stated that Relators “bear the burden of proving facts which entitle them to relief 

under the statute.” Further, Relators concede on the face of their Amended Motion 

that their prior attempts failed to support their claim for writ and failed to supply 

the required material under Rule 94.03. As such, the current incarnation of 

Relators’ claim, brought more than two years after their initial filing, evidences the 

defects inherent in their claim.

The parties continued to engage in discovery, and on March 30, 2015, the parties filed 

competing motions for summary judgment, followed by suggestions in support and opposition, 

and replies, as well as various motions to strike.6 Finally, on December 31, 2015—more than 

three years after the initial petition was filed—the court entered the following “Judgment”:

The Court finds that Relators have failed to establish a basis for mandamus 

in that they cannot establish what they should have been paid, except to the extent 

that it should be more. Mandamus requires a showing of a clearly established right.

Independently, while as this Court has previously found that mandamus is 

the proper cause of action to compel a payment, the doctrine of sovereign immunity 

bars the action under the facts established.[7]

The Court sustains the Respondents’ Motion for Summary Judgment.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that 

Relators’ request for a Writ of Mandamus is denied and judgment is entered in favor 

of Respondents. All other claims for relief, not expressly granted herein, are 

denied. Costs taxed to the Relators.

 

6 Though Rule 94.01 indicates that, “[i]n all particulars not provided for by the foregoing provisions, 

proceedings in mandamus shall be governed by and conform to the rules of civil procedure,” we question whether 

summary judgment is an appropriate vehicle for resolving a petition for writ of mandamus. The two proceedings have 

vastly different purposes. “The purpose of summary judgment . . . is to identify cases (1) in which there is no genuine 

dispute as to the facts and (2) the facts as admitted show a legal right to judgment for the movant.” ITT Commercial

Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 380 (Mo. banc 1993) (emphasis added). “Mandamus[, 

however,] may not be used to establish a legal right; it may only be used to compel performance of a right that already 

exists.” Lemay Fire Prot. Dist. v. St. Louis Cty., 340 S.W.3d 292, 295 (Mo. App. E.D. 2011). “The writ’s purpose is 

to execute, not to adjudicate.” Id.

7 The parties argued below about whether sovereign immunity barred the petition, and they continue that 

argument on appeal. We do not determine that issue, however, because we lack appellate jurisdiction over this case 

due to the lack of a final, appealable judgment.
6

Appellants now appeal from the court’s grant of summary judgment in favor of the Department, 

arguing that sovereign immunity did not apply and that they established a right to mandamus 

below. We take this opportunity to advise litigants and trial courts on the proper procedures 

required when seeking mandamus in the hopes of avoiding future procedural quagmires such as 

the one we are confronted with here.

Analysis

“There is no remedy that a court can provide that is more drastic, no exercise of raw judicial 

power that is more awesome, than that available through the extraordinary writ of mandamus.” 

State ex rel. Kelley v. Mitchell, 595 S.W.2d 261, 266 (Mo. banc 1980). “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). And where a writ petition fails to comply with 

the procedural rules, it is properly subject to dismissal. Molasky v. Westfall, 713 S.W.2d 569, 570 

(Mo. App. E.D. 1986).

“The rules of civil procedure are ‘rules of practice and procedure to promote the orderly 

administration of justice.’” Sitelines, L.L.C. v. Pentstar Corp., 213 S.W.3d 703, 707 (Mo. App. 

E.D. 2007) (quoting Mello v. Williams, 73 S.W.3d 681, 685 (Mo. App. E.D. 2002)). “When 

properly adopted, the rules of court are binding on courts, litigants, and counsel, and it is the court’s 

duty to enforce them.” Id.

Mandamus actions brought in the circuit court are governed by Rule 94.8 “Proceedings in 

mandamus shall be by a civil action in which the person seeking relief is relator and the person 

against whom such relief is sought is respondent.” Rule 94.02.

 

8

In this court and the Missouri Supreme Court, mandamus actions are further governed by Rules 84.22 

through 84.26, inclusive. The application of different rules does not change the high standard that is to be employed 

in evaluating the propriety of a writ of mandamus.
7

Rule 94.03 states:

Application for a writ of mandamus shall be made by filing a petition in 

mandamus in the appropriate court.

The petition in mandamus shall contain a statement of the facts, the relief 

sought, and a statement of the reasons why the writ should issue.

The petition in mandamus shall be accompanied by suggestions in support 

thereof.

The rule further directs that “[a] copy of any order, opinion, record or part thereof, document, or 

other item that may be essential to an understanding of the matters set forth in the petition in 

mandamus shall be attached as exhibits if not set forth therein.” Id.

Here, as the Department repeatedly pointed out over the three-year course of litigation, 

Appellants failed to properly seek a writ in the first instance. The original petition did not designate 

any party as either relators or respondents, instead identifying them as plaintiffs and defendants.

Though containing facts, the petition failed to set them forth in a statement of facts. The petition 

failed to identify the precise relief sought, instead seeking only “payment . . . commensurate with 

the amount that each [class] member is owed in lost wages and lost pension as a result of the 2001 

decision to no longer abide by the governing statute.”

9 Finally, the petition failed to state the 

reasons why a writ, rather than some other form of relief, was required. Furthermore, there were 

no accompanying suggestions in support nor any exhibits attached to the petition. And, completely 

disregarding the application of Rule 94, Appellants advised the Jackson County Circuit Court to 

treat the case “as a regular Jackson County Case and not as a Writ.”10

 

9 As noted above, no class was ever certified; thus, even if the prayer for payment of lost wages and lost 

pension itself were deemed precise, it is wholly unclear to whom such payments would be owed. “[I]n mandamus he 

who seeks mandamus must specify just what he wants, nothing more or less.” State ex rel. Hart v. City of St. Louis, 

204 S.W.2d 234, 240 (Mo. banc 1947) (internal quotations omitted). “Thus, unless we can grant the relief sought, we 

can grant no relief.” Id.

10 It is unclear to us why the Jackson County Circuit Court considered treating the petition as anything other 

than a petition for a writ of mandamus. It was captioned as a petition for a writ of mandamus and it clearly sought 
8

The normal circuit court proceedings in mandamus established in Rule 94 are as 

follows: First, a relator initiates a proceeding by filing a petition for a writ of 

mandamus in the appropriate circuit court. Next, the circuit court considers the 

petition and determines if a preliminary order of mandamus should issue. If the 

circuit court does not grant a preliminary order in mandamus, the petitioning party 

then must file its writ petition in the next higher court. If the circuit court, however, 

“is of the opinion that the preliminary order in [mandamus] should be granted, such 

order shall be issued.” The preliminary order in mandamus directs the respondent 

to file an answer within a specified amount of time . . . . If the court issues a 

preliminary order in mandamus, any final decision is reviewable by appeal.

Boresi, 396 S.W.3d at 364 (Fischer, J., concurring) (quoting Rule 94.04) (footnotes omitted) 

(internal citations omitted).

Appellants’ direction to treat the case as a normal civil case further compounded the 

procedural irregularities insofar as the court then issued a summons, rather than examining the 

petition to determine whether a preliminary order was warranted, as is required by Rule 94.04. As 

noted, supra, a petition for a writ of mandamus seeks an extraordinary remedy. “The purpose of 

requiring a preliminary order at the outset of a writ proceeding is to require some judicial 

evaluation of the claim to determine if the respondent should even be required to answer the 

allegations.” Boresi, 396 S.W.3d at 365 (Fischer, J., concurring). The issuance or denial of a 

preliminary order drives the petitioner’s next steps: “when the circuit court denies a petition for 

writ of mandamus, the petitioner’s proper course of action is not to appeal the denial but to file the 

writ in a higher court.” Stone v. Mo. Dep’t of Corr., 313 S.W.3d 158, 160 (Mo. App. W.D. 2010).

On the other hand, “where a preliminary [order] is granted and the court then determines on the 

merits whether the writ should be made permanent, or quashed, then appeal is the proper remedy.” 

Wheat v. Mo. Bd. of Prob. & Parole, 932 S.W.2d 835, 838 (Mo. App. W.D. 1996). “The practice 

of issuing a summons rather than a preliminary order fails to acknowledge the nature of the 

 

mandamus relief. Thus, it fell within the purview of Rule 94 and should have been treated accordingly. It appears, 

based on the language employed by the court, that the court recognized the deficiencies in the petition.
9

remedy.” Boresi, 396 S.W.3d at 359 n.1. “Additionally, it requires a response from the respondent 

without regard to the merits of the petition.” Id.

11

Allowing a court to issue a summons in lieu of a preliminary order also “leads to confusion 

as to the proper standard of review.” Id. at 365 (Fischer, J., concurring). And this confusion is 

exacerbated when the case continues to proceed as a normal civil case, as it did here, subject to 

amended pleadings and summary judgment motions.12

In Powell v. Department of Corrections, 463 S.W.3d 838 (Mo. App. W.D. 2015), this court 

addressed a similar procedural irregularity and its effect on appellate jurisdiction. In Powell, like 

here, “the circuit court did not issue a preliminary order in mandamus as provided in Rule 94.04. 

Rather, it issued a summons to the [respondent], a procedure not authorized by Rule 94.” Id. at 

840. This court analyzed both the majority opinion and Judge Fischer’s concurrence in Boresi and 

determined that “it is clear that the Supreme Court is directing circuit courts to discontinue the

 

11 In his concurrence, Judge Fischer stressed the purpose of the preliminary order and its distinctions from a 

typical summons. U.S. Dep’t of Veterans Affairs v. Boresi, 396 S.W.3d 356, 359 n.1 (Mo. banc 2013) (Fischer, J., 

concurring). More specifically, he noted that “a preliminary order . . . does more than a summons . . . because the 

preliminary order often prohibits further action until further order of the court.” Id. While this is true of writs of 

prohibition, it is not clear that the same is true for writs of mandamus. Compare Rule 94.05 (“The preliminary order 

[in mandamus] shall order the respondent to file an answer within the time fixed by the order.”) with Rule 97.05 (“The 

preliminary order [in prohibition] shall order the respondent to file an answer within the time fixed by the order and 

may order the respondent to refrain from all action in the premises until further order.”). Nevertheless, as the Boresi

majority pointed out, it is the truly awesome nature of mandamus relief, itself, that requires a preliminary 

determination by the court regarding the merits. Plainly, a summons—unlike a preliminary order—requires no 

determination of the merits of the cause of action; rather, it merely notifies an opposing party that a case has been 

filed. Thus, they are clearly not functional equivalents.

12 In noting the confusion over the governing standard of review, Judge Fischer, in his concurrence in Boresi

pointed out that the standard has been described as either abuse of discretion or the standard for court-tried cases 

delineated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Boresi, 396 S.W.3d at 359 (Fischer, J., concurring). 

We further note that several cases have arisen on appeal from the grant of summary judgment entered in response to 

a petition for a writ of mandamus and that, in those cases, Missouri courts have held that the standard of review is 

de novo. See, e.g., State ex rel. City of Desloge v. St. Francois Cty., 245 S.W.3d 855, 859 (Mo. App. E.D. 2007) (“The 

fact that it was a summary judgment in a writ of mandamus action does not affect our standard of review.”). Thus, as 

the Eastern District has aptly recognized, it appears that “the manner in which the trial court disposed of the writ 

petition determines the proper standard of review.” Prof’l Fire Fighters of E. Mo. v. City of Univ. City, 457 S.W.3d 

23, 27 (Mo. App. E.D. 2014). Yet, in all cases, to be entitled to the extraordinary remedy of mandamus, a petitioner 

must demonstrate “a clear, unequivocal, specific right to a thing claimed.” Boresi, 396 S.W.3d at 359 (quoting State 

ex rel. Office of Pub. Counsel v. Pub. Serv. Comm’n of State, 236 S.W.3d 632, 635 (Mo. banc 2007)). Permitting 

different standards of review, driven by procedurally noncompliant practices, seems both arbitrary and problematic.
10

practice of issuing a summons in lieu of a preliminary order in mandamus or prohibition.” Id. at 

842. “[W]e perceive Boresi to be 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. Thus, we held that, when a “circuit 

court denie[s] [a petitioner’s] writ petition without issuing a preliminary order, [the petitioner’s] 

proper course [i]s to file his writ in a higher court.” Id. at 843. Accordingly, we dismissed the 

appeal. Id.

Following our decision in Powell, we were faced with a similar issue in State ex rel. Tivol 

Plaza, Inc. v. Missouri Commission on Human Rights, WD78477, 2016 WL 1435970 (Mo. App. 

W.D. Apr. 12, 2016).13 In Tivol, after the petition for a writ of mandamus was filed, “the circuit 

court issued summonses rather than issuing a preliminary order in mandamus. The [respondent]

then filed a motion to dismiss alleging that [the] petition failed to state a cause of action. 

Thereafter, the circuit court dismissed [the] petition,” and an appeal was brought from the 

dismissal. Id. at *1. On appeal, before reaching the merits, we noted our “duty to determine, 

sua sponte, whether the circuit court entered a final appealable judgment before substantive review 

of the issues presented on appeal.” Id. at *2 (quoting Banks v. Slay, 410 S.W.3d 767, 768 (Mo. 

App. E.D. 2013)). We then discussed the opinions in Boresi and our subsequent interpretation of 

Boresi in Powell, as well as the Eastern District’s interpretation of Boresi in Banks,

14 and 

 

13 The Missouri Supreme Court granted transfer on August 23, 2016.

14 In Banks, the circuit court issued a summons, rather than a preliminary order on the writ petition. Banks 

v. Slay, 410 S.W.3d 767, 768 (Mo. App. E.D. 2013). After finding the writ petition without merit, the court stated:

Rather than perpetuate a procedural process that is not authorized by Rule 94 and is disfavored by 

the Supreme Court of Missouri, instead of stating that the judgment is affirmed, this court denies 

the writ without prejudice to seeking an original writ in the Supreme Court of Missouri. In the 

future, our circuit courts should follow the procedure set out in Rule 94 rather than issue a summons.

Id. at 771.
11

concluded that “we refuse to perpetuate a procedural process that is not authorized by Rule 94.”

Id. at *2-*4. We held that “courts, litigants, and counsel must be bound by the procedures set forth 

in Rule 94, especially since Boresi put them on notice of the obligation to comply with those 

procedures almost three years ago.” Id. at *4. Though noting that “we have the discretion to hear 

appeals on the merits in cases in which the circuit court issues a summons rather than a preliminary 

order,” we held that it was not “our place to continually excuse [non]compliance with the 

procedural rules written by the Missouri Supreme Court.” Id. “We f[ou]nd this especially true 

given that [the appellant’s] recourse in th[e] case [wa]s simple—[it] merely need[ed] to file its writ 

in a higher court.” Id.

Here, unlike in Powell, Banks, or Tivol, the Supreme Court had not yet issued its opinion 

in Boresi when Appellants’ petition was initially filed in Jackson County Circuit Court. Thus, the 

Jackson County Circuit Court did not have the benefit of the Court’s warning in Boresi that issuing 

a summons in lieu of a preliminary order was improper in mandamus actions. Boresi was, 

however, handed down a mere two months after the case was transferred to Cole County and before 

Cole County took any action regarding the matter. Thus, Boresi was an available authority for the 

Cole County Circuit Court to rely on in ruling the parties’ various arguments and motions, 

including the Department’s challenges to the First Amended Petition’s compliance with Rule 94. 

Furthermore, while the Supreme Court excused the noncompliance with Rule 94 in Boresi, it did 

so “because the parties, who already . . . 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 pr[e]scribed by the rules.” Boresi, 396 S.W.3d at 359 n.1 (emphasis added). Here, on 

the other hand, if fault is to be assigned for the noncompliance with Rule 94, it would lie squarely 

with Appellants, as it was Appellants that directed the Jackson County Circuit Court to file the 
12

matter “as a regular Jackson County Case and not as a Writ.” Had Appellants instead heeded the 

court’s advice to “refer to the Missouri Court Rules” if they wished for the case to be handled as a 

writ, this case might not have dragged on for three years only to reach the conclusion that it was 

handled improperly and cannot be reviewed on appeal. “[I]t is well to enforce the law, ‘but it is 

quite another matter to disrupt settled expectations years after’ an alleged violation.” State ex rel. 

City of Monett v. Lawrence Cty., 407 S.W.3d 635, 641 (Mo. App. S.D. 2013) (quoting Green v. 

Lebanon R-III Sch. Dist., 13 S.W.3d 278, 287 (Mo. banc 2000) (Wolff, J., concurring)). Because 

the circuit court denied Appellants’ writ without issuing a preliminary order, Appellants’ recourse 

is not by appeal—it is to seek the writ in a higher court.

Yet, even if we were to exercise our discretion and overlook the procedural infirmities, we 

would deny the writ because Appellants’ claim is simply not a proper matter for mandamus relief. 

“The purpose of a writ of mandamus is to order performance of a duty already defined by law.” 

Banks, 410 S.W.3d at 769. “The issuance of a writ is justified only when some legal authority 

requires an official to perform a particular act.” Id. “A party seeking a writ of mandamus must 

allege and prove he or she has a clear, unequivocal right to the thing claimed.” Id. “Mandamus 

may be used to enforce existing rights but may not be used to establish new rights.” Id. “It can 

only be used where the duty sought to be performed is definite and arises under conditions imposed 

by law.” Id.

“To determine whether the right to mandamus is clearly established and presently existing, 

the court examines the statute under which the relator claims the right.” Jones v. Carnahan, 965 

S.W.2d 209, 213 (Mo. App. W.D. 1998). “If the statute involves a determination of fact or a 

combination of facts and law, a discretionary act rather than a ministerial act is involved and this 

discretion cannot be coerced by the courts.” Id.
13

Here, the statute under which Appellants seek relief is § 374.115, which provides: 

“Insurance examiners appointed or employed by the director of the department of insurance, 

financial institutions and professional registration shall be compensated according to the applicable 

levels established and published by the National Association of Insurance Commissioners.” 

Appellants claim that, beginning in 2001, the Department ceased complying with the statute by 

refusing to issue them pay increases, despite the fact that the NAIC recommended the same.

“If . . . the amount of a salary is fixed by law, and for that reason no discretion is left as to 

the amount, then mandamus is an appropriate remedy to enforce the payment of a salary to a public 

official against the officer or officers whose duty it is to pay such official.” State ex rel. Koehler 

v. Bulger, 233 S.W. 486, 487 (Mo. banc 1921). “In such cases the salary is a fixed amount, if it 

exists at all, and the sole question is the legal one as to whether or not there is a liability.” Id. But 

“[i]t is one of the fundamental principles of mandamus that the right sought to be enforced by the 

writ must be clear. It is obvious that this cannot be true if the amount which it is sought to compel 

officials to pay depends upon a fact issue to be determined by them.” Perkins v. Burks, 78 S.W.2d 

845, 848 (Mo. 1934). “[W]hen there is a controversy over compensation for services, the amount 

of which must be settled by determining a question of fact which might be disputed, then the act 

of auditing the claim and fixing the amount . . . is a discretionary act which is not subject to be 

decided by mandamus.” Id. “[T]o the extent that legal or factual issues must be adjudicated, 

mandamus is not an appropriate mechanism.” Carmack v. Saunders, 884 S.W.2d 394, 398 (Mo. 

App. W.D. 1994).

The statute at issue here requires numerous determinations of both fact and law, which 

were obviously disputed below.15 For example, Appellants contended that “compensation” was 

 

15 For this reason, it would seem that the grant of summary judgment would have been erroneous, even if the 

procedure were permissible in the mandamus context.
14

equivalent to “salary,” but the Department disagreed, noting that § 374.160.4 suggests that 

“compensation . . . includ[es] standard benefits afforded to state employees.” There are questions 

of fact as to whether the National Association of Insurance Commissioners established a level of 

compensation, what that compensation included, and what the amount of that compensation was. 

“[W]hile a [person] may rightfully have recourse to mandamus to compel the payment of a salary 

fixed by law as to amount, the same is not true of a person who has a claim for . . . compensation

for services . . . where both the validity and the amount of the claim are subject to be put in issue.” 

State ex rel. Becker v. Wehmeyer, 113 S.W.2d 1031, 1033 (Mo. App. 1938). Here, the amount of 

compensation due—if any—was in dispute; therefore, it did not meet the mandamus requirement 

for a clear, unequivocal, and specific right to the thing claimed.

Furthermore, mandamus does not lie “where there is any other adequate remedy.” Kelley, 

595 S.W.2d at 266 (quoting State ex rel. Porter v. Hudson, 126 S.W. 733, 740 (Mo. banc 1910)). 

“[T]he remedial writ ought to be reserved for those cases in which no alternative measure will be 

effective.” Id. “A declaratory judgment action is a particularly appropriate method for 

determining a controversy involving the construction of a statute . . . .” City of Creve Coeur v. 

Creve Coeur Fire Prot. Dist., 355 S.W.2d 857, 859 (Mo. 1962). Indeed, § 527.020 provides that 

“[a]ny person . . . whose rights . . . are affected by a statute . . . may have determined any question 

of construction . . . arising under the . . . statute . . . and obtain a declaration of rights . . . 

thereunder.” We know of no reason why Appellants could not have proceeded under the 

Declaratory Judgment Act. And because “the writ of mandamus is to be used only as a last resort 

on the failure of any adequate alternative remedy,” Kelley, 595 S.W.2d at 267, the writ does not 

lie here.
15

Conclusion

Because the trial court denied Appellants’ petition for a writ of mandamus without issuing 

a preliminary order, review is not available by way of appeal. Accordingly, this appeal is 

dismissed.

Karen King Mitchell, Judge

Lisa White Hardwick, Presiding Judge, and

Anthony Rex Gabbert, Judge, concur.