IN RE T

R.M.A. 

FRIEND

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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. 
3

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. 
4

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 
5

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. 
6

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 . . . 
7

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. 
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