from the Circuit Court of Cole County, Missouri The Honorable
Jon E. Beetem, Judge
prescribes the practice, procedure, and pleading for mandamus
proceedings in circuit court, including the requirement that
a circuit court issue a preliminary writ before an answer and
decision on the merits. Here, the circuit court issued
summonses rather than a preliminary writ. But the
"practice of issuing a summons in lieu of a preliminary
writ is not authorized by Rule 94, " and this Court will
not exercise its discretion to treat the summonses as a
preliminary writ in this case. U.S. Dep't of Veterans
Affairs v. Boresi, 396 S.W.3d 356, 359 n.1 (Mo. banc
2013) (warning that this Court "is not required to
exercise its discretion in like manner in the future").
As such, the appeal is dismissed.
November 9, 2012, two former employees of the Missouri
Department of Insurance, Barbara Bartlett and Shawn Hernandez
("Employees"), filed a "Petition for Writ of
Mandamus-Class Action" in Jackson County circuit court.
Employees requested a writ of mandamus directing the
department and its director (collectively,
"Department") to pay Employees for lost wages and
pensions. The circuit court's administrator, uncertain
how to characterize the filing, sent a note asking Employees
if the filing should 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." Employees responded,
instructing: "Please file the above styled case as a
regular Jackson County Case and not as a Writ."
compliance with Employees' instructions, summonses for a
civil case were issued by the circuit court and served. The
case was subsequently transferred to Cole County circuit
court, and the Department filed a motion to dismiss. In its
motion, the Department argued, in part, that Employees
"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."
Employees then filed a "First Amended Petition for Writ
of Mandamus, " styling themselves as relators in the
writ petition and attaching suggestions in support and
exhibits. The circuit court overruled the motion to dismiss,
finding "mandamus an appropriate remedy" and
directing the Department to file an answer.
Department filed a "General Objection and Answer"
asserting "the circuit court is empowered to issue but
one type of order; a preliminary order in mandamus."
After the answer was filed, Employees sought leave to file a
"Second Amended Petition for Writ of Mandamus" and,
in an effort to "file a complete writ" that
"fully complies with Rule 94.03, " they filed
suggestions in support of their petition along with exhibits.
The Department once again objected and argued Employees
failed to comply with Rule 94 and were not entitled to a writ
of mandamus. Specifically, 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. …
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.
parties eventually filed competing motions for summary
judgment. On December 31, 2015 - more than three years after
the initial filing - the circuit court entered the following
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
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 this action under the
The Court sustains the Respondents' Motion for Summary
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.
appealed, and this Court granted transfer after opinion by
the court of appeals. Se ...