Cynthia L. Martin, Judge.

R.M.A., through his next friend, appeals from the trial court's denial of a petition seeking a writ of mandamus. Because R.M.A's recourse from denial of the petition was to file the writ in a higher court, the appeal is dismissed.

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.

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, 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 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. 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:

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 light of Boresi, we cannot discern a reasoned path that would permit this court to conclude that an appeal will he 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 he 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 have disregarded Rule 94, Boresi, and the cases addressing Boresi that have plainly counseled trial courts and parties about the importance of following the procedures set forth in Rule 94.9

The trial court's denial of the Petition affords R.M.A. no more recourse than would have been available to R.M.A. had the Petition been denied shortly after it was filed. R.M.A. has the right to file the Petition in a higher court. R.M.A. does not, however, have the right to appeal the trial court's denial of the Petition.10

Conclusion

We dismiss R.M.A.'s appeal.

All concur.