review is available in writ cases where a summons was issued. The majority agrees that the "practice of issuing a summons in lieu of a preliminary writ is not authorized by Rule 94." Id. at 359 n.1. It explains that "[t]he practice of issuing a summons rather than a preliminary order fails to acknowledge the nature of the remedy" and "requires a response from the respondent without regard to the merits of the petition." Id. The majority, nonetheless, said that it was "exercising its discretion to consider the matter on the merits . . . because the parties . . . 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." Id. Most tellingly, however, the majority concludes by stating that "[t]his Court is not required to exercise its discretion in like manner in the future." Id. Reading the majority's comments and the concurring opinion together, it is clear
Rule 97.05, however, which deals with preliminary orders in prohibition, expressly provides that the preliminary order in prohibition may direct "the respondent to refrain from all action in the premises until further order." 3 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. See Merrell v. Dir. of Revenue, 82 S.W.3d 227, 230 (Mo. App. W.D. 2002) (holding that an appeal did not lie where the trial court did not reach the merits of the relator's petition after issuing a preliminary order of prohibition because it dismissed the writ proceeding upon the basis that it lacked jurisdiction to issue the preliminary order); State ex rel. Stoecker v. Dir. of Revenue, 734 S.W.2d 263, 266 (Mo. App. E.D. 1987) (holding that "[n]o appeal lies from the dismissal of a writ proceeding in which [a preliminary order in prohibition] has issued where dismissal is based upon a determination of lack of jurisdiction to issue the [preliminary order]" and not based upon a decision on the merits).
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that the Supreme Court is directing circuit courts to discontinue the practice of issuing a summons in lieu of a preliminary order in mandamus or prohibition. It is likewise clear 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. As the Court of Appeals is constitutionally bound to follow the most recent controlling decisions of the Missouri Supreme Court, Mo. Const. art. V, § 2; Doe v. Catholic Diocese of Kansas City-St. Joseph, 432 S.W.3d 213, 219 (Mo. App. W.D. 2014), we 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. 4
In this case, it is unfortunate that the Circuit Court of Cole County issued a summons rather than following the procedure set forth in Rule 94. We encourage all circuit courts to follow the writ procedures set forth in Rule 94 (writs of mandamus) and Rule 97 (writs of prohibition), especially with respect to the issuance of preliminary orders. "Writs are extraordinary remedies, and their procedures differ from normal civil actions." Boresi, 396 S.W.3d at 359 n.1. Such orders serve an important function in
4 In the briefing, it is suggested that we have the authority to review this case under the principle 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." Stone, 313 S.W.3d at 160 (citing Delay v. Mo. Bd. of Prob. & Parole, 174 S.W.3d 662, 664 (Mo. App. W.D. 2005) and Dade v. Mo. Bd. of Prob. & Parole, 194 S.W.3d 382, 383 (Mo. App. W.D. 2006)). Stone, however, and the cases upon which it relies do not indicate whether they involve a situation in which the circuit court issued a summons instead of a preliminary order in mandamus. In fact, our research indicates only two cases in which this Court has applied this principle to expressly find that we had the authority to review the case despite the fact that the circuit court issued a summons or order to show cause instead of a preliminary writ order. See Wheat, 932 S.W.2d at 838; Williams v. Gammon, 912 S.W.2d 80, 83 (Mo. App. W.D. 1995). In any event, these cases were decided prior to the Supreme Court's guidance in Boresi that courts should no longer entertain appeals from mandamus or prohibition proceedings in which the circuit court disregards the rules and issues a summons rather than a preliminary order.
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the writ process that cannot be achieved through the issuance of a summons. 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. Additionally, a preliminary order in mandamus or prohibition does more than a summons, which satisfies notice to a person that an action has been filed so that the person may appear and defend against the action, because the preliminary order often prohibits further action until further order of the court.
Id. at 365 (Fischer, J., concurring). For the foregoing reasons, we decline to hear the instant appeal on the merits. Because the circuit court denied Appellant's writ petition without issuing a preliminary order, Appellant's proper course was to file his writ in a higher court. The appeal is dismissed.
________________________________ Joseph M. Ellis, Judge All concur.