STATE OF MISSOURI EX REL REBECCA VARNEY v. CITY OF EDGAR SPRINGS MISSOURI ET AL (2026)

The City of Edgar Springs, Missouri, in addition to Wesley Williams, Ron Clift, Ted Brookshire, Dan Newman, Tom Robinson, Kaitlyn Hope, and Melissa Klott in their respective official capacities as officers for Edgar Springs (collectively, the “City”), appeal the issuance of a permanent writ of mandamus (the “Writ Judgment”) by the Circuit Court of Phelps County, Missouri, (the “trial court”) broadly directing the City, pursuant to § 513.410,¹ to make payments from particular funds in the City's financial accounts to Rebecca Varney (“Varney”) for the satisfaction of a judgment debt the City owes to Varney. The City raises six points on appeal, each alleging the trial court's Writ Judgment erroneously declared and/or applied the law. Because we conclude that Varney did not comply with the express requirements of § 513.410 and did not establish a basis for writ relief under the common law, we vacate the Writ Judgment and remand the case to the trial court for further proceedings consistent with this opinion.

Factual Background and Procedural History

The City is a municipality and political subdivision of the State. On December 26, 2023, Varney obtained a monetary judgment against the City in the amount of $79,716.22 for various violations of her constitutional and statutory rights. The City initially filed an appeal of the judgment in this Court on January 8, 2024, but ultimately submitted a voluntary dismissal of said appeal on March 14, 2024. Accordingly, we entered our Order and Mandate dismissing the City's appeal and the trial court's December 26, 2023 judgment became final. The City does not contest that it owes Varney the money as set forth in the judgment.

A few days after our mandate issued, counsel for Varney sent email correspondence to the City's attorneys inquiring as to the City's plan to satisfy the judgment. On April 10, 2024, Varney further propounded post-judgment interrogatories to the City broadly seeking discovery of real property, personal property, and financial accounts possessed, owned, or otherwise controlled by the City. On May 10, 2024, the City served its objections to Varney's interrogatories, asserting in the relevant portion that “[p]roperty owned by a municipality is exempt from execution under Missouri law.” No execution on the judgment has been attempted.

Varney thereafter filed a Motion to Enforce Judgment on May 13, 2024. On June 13, 2024, Varney withdrew the Motion to Enforce Judgment and filed a Petition for Writ of Mandamus (the “Writ Petition”) requesting a preliminary order directing the City to answer the Writ Petition. The Writ Petition further requested relief in the form of an order directing the City to “use funds currently held in the City's financial accounts” to fully satisfy the December 26, 2023 judgment. Alternatively, the Writ Petition requested an order directing the City to “pay as much of the judgment as possible from the funds currently [held] in the City's financial accounts” and then implement a tax levy to raise additional funds sufficient to cover the remaining balance. The trial court issued its Preliminary Order in Mandamus directing the City to file responsive pleadings to the Writ Petition and setting the case for hearing on July 18, 2024. The City filed its Answer and Motion to Dismiss on July 8, 2024. The trial court heard arguments from the parties on July 18, 2024, taking the City's Motion to Dismiss under advisement and ordering the City to produce to Varney information regarding the City's financial accounts and billing information for the City's attorneys.

The parties thereafter presented evidence to the trial court at a hearing on July 26, 2024. Of note, the City produced its 2024 budget showing total anticipated revenues of $179,778.69 (including $10,262 in projected property tax revenue) against total anticipated expenditures of $174.341.91. The City also introduced financial records showing funds held in its various financial accounts as of June 2024. Notably, there was $20,666.74 in the City's general use account and $37,219.48 in the City's police use account. The City presented additional financial records and testimony from its City Treasurer showing that the funds in its general and police use accounts are used for paying for various expenses such as payroll, equipment repair, utilities, and insurance. The City Treasurer further testified that the City typically has only approximately $5,000 in surplus revenue at the end of each year and has sometimes ended the year at a deficit. All of this evidence was submitted at the hearing without objection.

The trial court entered the Writ Judgment on September 4, 2024. The Writ Judgment concluded that § 513.410 “specifically authorizes the relief Varney has requested” – i.e., an order compelling the City to “immediately [ ] pay as much of the [December 26, 2023 judgment] debt as possible in light of appropriate funds currently held in the City's financial accounts” and, “within constitutional limits,” to “levy and collect taxes in an amount sufficient to satisfy [any remaining] debt.” Accordingly, pursuant to § 513.410, the trial court ordered the City to pay Varney “all funds currently [held] in [the City's] financial accounts designated for ‘general’ and ‘police’ use” less certain amounts to be set aside to pay the salaries of the City's attorneys and police force. The trial court further ordered that any future general revenue collected in excess of a certain threshold was to be paid to Varney and not used for the payment of any other expenses until the judgment debt owed to Varney is fully satisfied. Finally, the trial court ordered the City to “take all steps necessary” to propose an increased property tax levy to the City's voters via a ballot measure at the November 2024 election.² This timely appeal by the City follows.³

Standard of Review

The parties disagree on the proper standard of review on appeal. The City asserts that the trial court's grant of a writ in this case should be reviewed under the traditional standard set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). While Varney acknowledges that standard, she nevertheless asserts that we should review the trial court's decision for an abuse of discretion. We agree with the City.

In King-Willmann v. Webster Groves Sch. Dist., 361 S.W.3d 414 (Mo. banc 2012), a student petitioner sought a writ of mandamus to compel a school district to enroll her. Id. at 416. Following the school district's answer and initial motion practice, the trial court granted the requested mandamus relief. Id. The school district appealed, and the Supreme Court of Missouri ultimately ordered the case transferred. Id. at 416 n.2. Discussing the standard of review, the Supreme Court explained that “[p]roceedings in mandamus are governed by and conform to the rules of civil procedure and the existing rules of general law on the subject.” Id. at 416 (citing Rule 94.01). Accordingly, in light of the trial court's grant of mandamus (thereby resolving the controversy on the merits), the Supreme Court pronounced the applicable standard of review as follows – “the judgment of the trial court will be sustained unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.” Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)); see also Beauchamp v. Monarch Fire Prot. Dist., 471 S.W.3d 805, 809 (Mo. App. E.D. 2015) (citing King-Willmann 361 S.W.3d at 809-10 and applying the same standard of review to a trial court's grant of mandamus); Prof'l Fire Fighters of E. Missouri v. City of Univ. City, 457 S.W.3d 23, 27-28 (Mo. App. E.D. 2014) (further discussing the standard of review in King-Willmann).

Here, we are presented with substantially the same procedural circumstances – the trial court granted Varney's request for mandamus relief against the City and entered the Judgment, resolving the underlying controversy on the merits. Varney, despite citing authority applying the legal standard as set forth in King-Willmann,⁴ urges that we instead review the Judgment for abuse of discretion, primarily relying upon State ex rel. Robison v. Lindley-Myers, 551 S.W.3d 468, 471 (Mo. banc 2018).⁵ However, the Supreme Court of Missouri in Robison applied the abuse of discretion standard to review the denial, and not the grant, of mandamus relief.⁶ 551 S.W.3d at 470-71. Consequently, it is inapt. Thus, because the trial court in this case resolved the underlying controversy on the merits by granting mandamus relief, we will affirm the Writ Judgment “unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.”

Analysis

On appeal, the City challenges the portions of the Writ Judgment that order the City to: 1) pay Varney “all funds” currently in its general and police use accounts less certain amounts derived from the provisions of § 513.410; and 2) refrain from using any future general revenue collected in excess of a certain threshold for the payment of any expenses other than Varney's judgment until the judgment debt is fully satisfied. For ease of analysis, we will discuss the City's points out of order. As set forth above, the trial court substantially relied upon § 513.410 as the legal basis for the relief it granted to Varney under the Writ Judgment. On appeal, the City's fourth point relied on alleges that the trial court erroneously applied the law in granting Varney relief under § 513.410 because not all of the statute's prerequisites were fulfilled – namely, there was no return showing an unsatisfied execution. The City's second point on appeal additionally alleges the trial court erroneously applied the law in granting Varney writ relief because she failed to establish a basis for such relief under the common law. We agree with the City on both points.⁷

Relief under § 513.410, RSMo

The question of whether the trial court erroneously declared or applied the law is reviewed de novo. Singleton v. Singleton, 659 S.W.3d 336, 341 (Mo. banc 2023); State ex rel. White Family P'ship v. Roldan, 271 S.W.3d 569, 572 (Mo. banc 2008) (“Where [the] issuance of the writ depends on the interpretation of a statute, this Court reviews the statute's meaning de novo.”). Where the interpretation of a statute is at issue on appeal, the “primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute.” Roldan, 271 S.W.3d at 572.

Here, the full text of § 513.410 is as follows:

Whenever an execution, issued out of any court of record in this state, against any incorporated town or city, shall be returned unsatisfied, in whole or in part, for want of property whereon to levy, such court at the return term or any subsequent term thereof shall, by writ of mandamus, order and compel the chief officer, trustees, council and all other proper officers of such city or town, to levy, assess and collect the annual taxes in such town or city from year to year, as occasion may require, within the constitutional limits, and order the same, when collected by the proper officer or officers, to be paid to the execution creditor, his agent or assigns, except such amount as may be necessary to pay the reasonable salary allowed by law to the mayor, council, assessor, marshal, constable, attorney and a reasonable police force of any such town or city.

(Emphasis added.) To invoke the remedies contemplated by the statute, the express language of § 513.410 requires that an execution be “issued ․ against [an] incorporated town or city” and then “be returned unsatisfied ․ for want of property whereon to levy” before the trial court can issue the writ of mandamus prescribed by the statute. We find no such return on execution in the record. Accordingly, the trial court erroneously applied the law when it proceeded to enter the Writ Judgment granting relief under § 513.410 absent an unsatisfied execution.

Varney concedes the execution requirement of § 513.410 was not fulfilled, but nonetheless contends compliance with the statute should be excused in this case because seeking execution against the City would have been futile.⁸ We disagree. The requirement of an unsatisfied return on execution as a prerequisite for relief under § 513.410 is clearly stated in the provision's language. “When statutes are without ambiguity, courts should regard laws as meaning what they say; the [legislature] is presumed to have intended exactly what it states directly and unambiguously.” Matter of Estate of Thomas, 743 S.W.2d 74, 76 (Mo. banc 1988) (citations, quotations, and original substitution omitted). While Missouri law does broadly prohibit execution against the property of Missouri municipalities, the legislature is presumed to have been aware of this law when it enacted § 513.410, including the requirement for an unsatisfied return on execution, in 1939. Burns v. Elk River Ambulance, Inc., 55 S.W.3d 466, 486 (Mo. App. S.D. 2001) (courts must “presume the legislature is aware of the state of the law at the time it enacts a statute.”); see also e.g., State ex rel. Hufft v. Knight, 121 S.W.2d 762, 764 (Mo. App. 1938) (“Since an execution may not be run against the property of a ․ political sub-division of the State[,] the only other procedure available to a judgment creditor to enable him to collect his judgment is for a court of competent jurisdiction to issue its writ of mandamus[.]”). We must presume this inclusion was not “unnecessary or superfluous.”⁹ State ex rel. Swoboda v. Missouri Comm'n on Human Rights, 651 S.W.3d 800, 806 (Mo. banc 2022). Accordingly, “giv[ing] effect to legislative intent as reflected in the plain language of the statute,” we hold that § 513.410 requires that an execution be issued and returned unsatisfied before the trial court can grant mandamus relief under the statute.

Varney's reliance on the decisions in Missouri Real Estate Appraisers Comm'n v. Funk, 492 S.W.3d 586 (Mo. banc 2016), and Van Den Berk v. Missouri Comm'n on Human Rights, 26 S.W.3d 406 (Mo. App. E.D. 2000), is misplaced. In Funk, the Supreme Court of Missouri addressed whether a claimant had been correctly awarded attorney's fees after prevailing against the Missouri Real Estate Appraisers Commission (the “Commission”) in a civil action before the Administrative Hearing Commission (the “AHC”). 492 S.W.3d at 592. Disposing of this issue involved, inter alia, resolving the question of whether claimant had timely applied for the subject attorney's fees. Id. at 593. The Commission asserted that the applicable statute, § 536.087, required claimant to initially apply for attorney's fees within 30 days of the original AHC decision in his favor, even if those fees were $0, in order for him to later seek the attorney's fees incurred during the litigation of the case before the circuit and appellate courts. Id. at 594. The Supreme Court rejected this contention. It concluded that, while a portion of § 536.087 “on its face” could be read to support the Commission's interpretation of the law, the intent of the statute (read as a whole) was to allow “the prevailing party [to] seek attorney's fees in the forum in which the party first prevailed and incurred those attorney's fees.” Id. Consequently, because claimant did not incur any attorney's fees in the original AHC proceedings, the Supreme Court held that § 536.087 did not require him to apply for non-existent fees before the AHC. Id.

Funk is further distinguishable because, contrary to Varney's characterizations on appeal, the Supreme Court in Funk did not “excuse[ ]” compliance with the applicable statute's requirements. Rather, it concluded that the claimant in Funk had not failed to comply with the statute at issue because the statute (construed as a whole) did not require him to seek non-existent attorney's fees in the first forum he prevailed in. Id. at 594. No such potential for ambiguity exists here. Based on the plain language of § 513.410 and the legislature's presumed knowledge of the prohibition on executions against the property of municipalities when it enacted § 513.410 in 1939, the statute unquestionably requires that an execution be returned unsatisfied before a trial court can issue the prescribed writ of mandamus. Again, we presume the inclusion of this requirement in § 513.410 was not “unnecessary or superfluous.” Swoboda, 651 S.W.3d at 806.

Varney's reliance on Van Den Berk is similarly unavailing. Varney misconstrues the referenced portion of the court of appeals’ decision in that case as excusing the requirement for evidence of an offer to rent in a “refusal to rent” claim where said offer would be futile. In the cited analysis, the court in Van Den Berk explained that the type of evidence needed to establish a prima facie case of discrimination depends upon whether the case involves a “refusal to rent” or a “refusal to negotiate” claim – the former requires evidence of a bona fide offer to rent to establish, but the latter does not because an offer in such circumstances is logically futile. 26 S.W.3d at 412. Thus, the court concluded, the Missouri Commission on Human Rights had established a prima facie case of discrimination against the defendant landlord based on her “refusal to negotiate.” Id. at 413. The analysis in Van Den Berk does not lead us to believe that compliance with § 513.410’s requirement for an unsatisfied return on execution can be excused.

Point IV is granted. While the parties have presented numerous arguments concerning the scope and applicability of § 513.410 on appeal, we take no position on those arguments as the initial requirement for triggering relief under the statute has not yet been established. In the event that an execution against the City is returned unsatisfied, the parties will have the opportunity to present such arguments to the trial court on remand.

Relief under the Common Law

While the trial court primarily relied upon § 513.410 in granting relief in this case, its Writ Judgment also nominally invoked general principles of mandamus under the common law. On appeal, both parties present argument on whether relief under the Writ Judgment was warranted under common law mandamus. Because we are to affirm the Writ Judgment “if it is correct on any ground supported by the record, regardless of whether the trial court relied on that ground,” we also examine whether mandamus relief in this case was warranted under the common law. Curtis v. Missouri Democratic Party, 548 S.W.3d 909, 918 (Mo. banc 2018) (quotations and citation omitted). Whether the trial court erroneously applied the law is again a question that we review de novo. Singleton, 659 S.W.3d at 341.

“Mandamus is a discretionary writ, and there is no right to have the writ issued.” BG Olive & Graeser, LLC v. City of Creve Coeur, 658 S.W.3d 44, 47 (Mo. banc 2022). As explained by the Supreme Court of Missouri in Furlong Companies, Inc. v. City of Kansas City:

The purpose of the extraordinary writ of mandamus is to compel the performance of a ministerial duty that one charged with the duty has refused to perform. The writ can only be issued to compel a party to act when it was his duty to act without it. It confers upon the party against whom it may be issued no new authority, and from its very nature can confer none. A litigant asking relief by mandamus must allege and prove that he has a clear, unequivocal, specific right to a thing claimed. He must show himself possessed of a clear and legal right to the remedy. Mandamus does not issue except in cases where the ministerial duty sought to be coerced is definite, arising under conditions admitted or proved and imposed by law.

189 S.W.3d 157, 165–66 (Mo. banc 2006). A “ministerial duty” is a clerical duty which calls for the performance of an act “upon a given state of facts in a prescribed manner in obedience to the mandate of legal authority, and without regard to [the public official's] judgment or opinion concerning the propriety or impropriety of the act to be performed.” State ex rel. Alsup v. Kanatzar, 588 S.W.3d 187, 191 (Mo. banc 2019) (emphasis added). Accordingly, “[f]or a court to issue a writ of mandamus, there must be an existing, clear, [and] unconditional[ ] legal right in relator, and a corresponding present, imperative, [and] unconditional duty upon the part of respondent, and a default by respondent therein.” BG Olive & Graeser, LLC v. City of Creve Coeur, 658 S.W.3d 44, 47 (Mo. banc 2022). “Mandamus should not be used to control or direct the exercise of discretionary powers.” Id.

Here, it is undisputed that Varney has obtained a final judgment against the City awarding her a monetary sum that the City has not fully satisfied.¹⁰ The City does not deny it owes the judgment debt or that mandamus is the proper means of enforcing such judgment. Varney therefore has an “existing, clear, [and] unconditional[ ] legal right” to seek enforcement of her judgment against the City in mandamus proceedings. See State ex rel. Hufft v. Knight, 121 S.W.2d 762, 764 (“Mandamus is a proper remedy to enforce a judgment against a municipal or public corporation and it has been generally used for such purpose in this state.”). Accordingly, we next examine the question of whether there is “a corresponding present, imperative, [and] unconditional duty” on the part of the City to perform the specific acts ordered by the Writ Judgment.

As discussed above, the challenged portions of the Writ Judgment: 1) order the City to pay Varney any funds currently in its general and police use accounts less certain amounts exempted by § 513.410; and 2) prohibit the City from using any future general revenue collected in excess of a certain amount to pay anything other than Varney's judgment until the debt is satisfied. On this record, we find that such orders and requirements go beyond a mere “unconditional” or “ministerial” duty and do not justify mandamus relief under the common law.

The record before the trial court demonstrated that: 1) the City did not have sufficient general funds to satisfy the judgment debt owed to Varney; and 2) that the general funds the City did have were likely needed to “defray [its] ordinary and current expenses,” State ex rel. Gourley v. Kansas City, 58 Mo. App. 124, 129 (Mo. App. K.C.D. 1894). Varney does not direct us to, and we have not located, any common law authority that would permit a court to make the specific calculations, judgments and determinations with respect to the allocation of the City's present and future general funds in the particular manner ordered here.

Varney contends that the City owes a “moral and legal duty” to pay its debts, relying upon State ex rel. Hufft v. Knight, 121 S.W.2d at 764. The duty of a city to pay its debts as pronounced by the court in Hufft is, however, only a general one, see id., and the City here does not contest that it must pay the debt to Varney. The City, however, also owes a “moral and legal duty” to pay the debts arising from its other “ordinary and current” expenses, and Varney presents no common law authority establishing that her judgment should take precedence over the City's other debts.¹¹ Moreover, the trial court's writ of mandamus in this case went well beyond merely ordering the City to fulfill its general duty to pay the judgment debt at issue – the Writ Judgment orders the City to make certain payments to Varney out of particular funds and further places specific restrictions upon the City's future spending largely without any consideration for the City's other “ordinary and current expenses.” Finally, we note that Hufft only addressed the use of mandamus to compel a state school district to increase its tax levy, within constitutional limits, to raise additional funds to pay a judgment debt, and indeed prescribed this as the “only” avenue for a creditor to collect on a judgment debt against a Missouri political subdivision. 121 S.W.2d at 764. Thus, the Hufft decision does not provide a common law justification for the trial court's specific grant of mandamus relief in this case.

Varney further argues that the particular relief granted under the Writ Judgment is authorized under State ex rel. Gourley v. Kansas City, 58 Mo. App. 124. This reliance is misplaced. At the outset, Gourley is readily distinguishable on its facts. There, the relator had obtained a judgment against Kansas City for $300. Id. at 127. Kansas City, despite having $800,000 in its treasury at the time (of which approximately $705,000 consisted of property taxes collected three months into the fiscal year), claimed there were no funds whatsoever available to pay relator's judgment. Id. at 127-28. Under these facts, the Gourley court concluded the relator had made a prima facie showing there was money in the city treasury available to pay the judgment, and Kansas City consequently bore the burden of showing the money was not actually available. Id. at 128-29. Because the city failed to produce any evidence that all its funds were actually needed for its “ordinary and current expenses” and the deputy city treasurer testified there was in fact money in the treasury that could be used to pay the judgment, the court of appeals affirmed the circuit court's grant of mandamus ordering Kansas City to pay the underlying judgment. Id. at 132-33. We note that, even in Gourley, the challenged writ of mandamus appears to have only generally commanded Kansas City “to pay the judgment out of the funds in the treasury of the city which can be legally appropriated for that purpose,” as opposed to specifically dictating what accounts the city was to pay the judgment debt from and how the city was to decide what funds would be paid toward such debt in the future. Id. at 129.

In contrast to the facts in Gourley, where there was no question that Kansas City had ample resources available at its disposal to pay a comparatively small judgment debt, the record here establishes that Varney's judgment debt substantially exceeds the City's available general funds and projected tax revenue. Significantly, the Gourley court specifically recognized that, even where a valid judgment debt exists and there is a facial showing of sufficient general municipal funds in the city treasury, denial of mandamus relief is “justif[ied]” if the municipal funds are needed to “defray the ordinary and current expenses” of a city. Id. at 129. The Supreme Court of Missouri has echoed similar principles in subsequent decisions involving the finances of other political subdivisions of the State. See Gill v. Buchanan Cnty., 142 S.W.2d 665, 669 (Mo. 1940);¹² and State ex rel. Hopper v. Cottengim, 72 S.W. 498, 499 (Mo. 1903).¹³ Here, unlike the municipal debtor in Gourley, the City produced evidence – admitted without objection – showing its general funds are in fact likely needed for its “ordinary and current expenses.”

Varney nonetheless contends, again citing Gourley, that the City failed to sufficiently show that the City's general funds were not available to pay her judgment in that no City ordinance detailing the allocation of the City's funds was admitted into evidence. However, the Gourley court's requirement of an ordinance to demonstrate the allocation of city funds arose from the fact that an ordinance was the instrument specifically required to make “allocations” required by Kansas City's charter. See id. at 130-32. There is no indication in the record that the City operates under a similar charter here, and thus such argument is inapplicable.

Point II is granted. In making such finding, we hold only that on this record Varney has not established a “present, imperative, [and] unconditional duty” under the common law for the City to utilize its limited funds, now and in the future, in the specific manner ordered by the trial court. As discussed above, on remand the parties may address the scope and applicability of § 531.410 in the event an execution against the City is returned unsatisfied.

Conclusion

The Judgment of the trial court is vacated. The matter is remanded to the trial court for further proceedings consistent with this opinion.

FOOTNOTES

1.   All statutory references are to RSMo 2016, including changes effective January 1, 2017, unless otherwise indicated.

2.   The City placed the court-ordered tax levy proposal on the November 2024 election ballot (where it was ultimately defeated) and does not challenge this portion of the Writ Judgment on appeal.

3.   Where the trial court “issues a preliminary order in mandamus, any final decision is reviewable by appeal.” Beach by & Through Walton v. Zellers, 701 S.W.3d 857, 860 (Mo. banc 2024) (quoting U.S. Dept. of Veterans Affairs v. Boresi, 396 S.W.3d 356, 363 (Mo. banc 2013) (Fischer, J., concurring)). Accordingly, jurisdiction in this Court is proper.

4.   See Sweetgum Properties, LLC v. St. Louis Cnty. Bd. of Equalization, 702 S.W.3d 283, 286 (Mo. App. E.D. 2024) (“Where the trial court considers and rules on the merits of the controversy, we will affirm the denial of a writ unless it is not supported by substantial evidence, it is against the weight of the evidence, or the court erroneously declares or applies the law.”) (emphasis added).

5.   Varney also directs us to the opinion of Judge Powell in Lampley v. Missouri Comm'n on Human Rights, 570 S.W.3d 16 (Mo. banc 2019). However, as Varney herself acknowledges, Judge Powell's opinion in Lampley was the dissenting opinion and addressed the standard of review for a trial court's denial of a writ. Id. at 38 n.7 (“[T]he standard of review when a writ is denied is derived from the discretionary nature of writs in general, not the means by which a particular denial occurs.”) (emphasis added).

6.   In any event, we note that “the [trial] court abuses its discretion when it fails to follow applicable statutes.” State ex rel. Feltz v. Bob Sight Ford, Inc., 341 S.W.3d 863, 865 (Mo. App. W.D. 2011).

7.   Because our resolution of the City's points II and IV is dispositive in this appeal, we need not address any of the City's four remaining points relied on.

8.   Varney also nominally argues that that this Court can ignore § 513.410’s explicit execution requirement based on the doctrine of equitable estoppel. Varney, however, provides no specific authority for the proposition that compliance with the express terms of § 513.410 can be excused or otherwise waived via equitable estoppel and we have located no such authority.

9.   While it may facially appear futile to seek execution against public entities whose property generally cannot be executed upon, execution may nonetheless serve or facilitate other legitimate purposes such as providing the municipality with formal notice that enforcement of a judgment is forthcoming or an opportunity to satisfy the judgment debt at the time of the execution.

10.   “It is not the law that in rendering a judgment for a plaintiff the court or the law guarantees a method or means of collecting the same.” State ex rel. Emerson v. City of Mound City, 73 S.W.2d 1017, 1023 (Mo. banc 1934). “In giving relator a judgment against the defendant city the court determined its liability, but the collection of the same is a different proposition.” Id.

11.   The existence of § 513.410, however, may create a separate statutory preference for the payment of amounts owed to a judgment debtor over the payment of other expenses and obligations of a municipality. On this record, we hold only that there is no basis in the common law for giving such a preference to Varney's debt.

12.   “[A] county can only be compelled to make payment out of tax revenue when there is a surplus in any year after all necessary charges have been met, or by a levy when it is not necessary to levy the full amount authorized by constitutional limitations to meet essential expenses, or, if it cannot thus create a surplus or raise funds by levy, to pay otherwise when a bond issue is authorized by the required majority of its citizens, willing to approve it by their votes.”

13.   “The judgment of the relator was a general judgment against the county. His only right was to have funds belonging to the general revenue fund of the county, not otherwise appropriated, applied to the payment of his judgment.”

MATTHEW P. HAMNER, J. – OPINION AUTHOR

DON E. BURRELL, Sr. J. – CONCURS JACK A. L. GOODMAN, J. – CONCURS