Summary
holding that declaratory judgment was "more suited to resolving the issues presented" where the relator's rights were not clear
Summary of this case from State ex rel. Manley v. WalshOpinion
No. 79-1649
Decided June 11, 1980.
Mandamus — Remedy not available, when — Adequate remedy at law available — Declaratory judgment action.
APPEAL from the Court of Appeals for Franklin County.
In September of 1978, the parties to the instant mandamus action in the Court of Appeals entered into a settlement agreement in a case pending before the State Personnel Board of Review relating to the duties attendant upon relatrix-appellee's position with the Ohio Student Loan Commission.
Appellee alleged and the appellate court found that respondent-appellants were not complying with the settlement agreement. The court therefore issued a writ of mandamus directing appellants to "***comply with the terms of the settlement agreement."
Specifically, the court determined that appellants had violated the agreement in that the "***relatrix no longer reported to the executive director of the commission; but was placed under the supervision of another employee of the department. Thus, her degree of responsibility was changed; and, in effect, she was reduced in rank, even though she had the same rate of pay."
The court found none of the prerequisite factual underpinnings necessary for a predication of bad faith under Sorin v. Bd. of Edn. (1976), 46 Ohio St.2d 177, and declined to award attorney's fees.
Appellants appeal the issuance of the writ. Appellee, in her cross-appeal, appeals the denial of her prayer for attorney's fees.
The cause is now before this court upon appeal and cross-appeal as a matter of right.
Messrs. Lucas, Prendergast, Albright, Gibson, Newman Gee, Mr. James E. Melle and Ms. Sharon V. Fladen, for appellee and cross-appellant. Mr. William J. Brown, attorney general, and Mr. Paul L. Cox, for appellants and cross-appellees.
Appellee has an adequate remedy in the ordinary course of law through a declaratory judgment action under R.C. 2721.01 et seq. However, availability of this remedy was apparently not considered by either the appellee or the appellate court.
This court stated in State, ex rel. Dollison, v. Reddy (1978), 55 Ohio St.2d 59, 60, that "***[t]he availability of a declaratory judgment action does not bar the issuance of a writ of mandamus when the relator otherwise makes a proper showing, although the court may consider the availability of declaratory judgment as one element in exercising its discretion whether the writ should issue." See State, ex rel. Bennett, v. Lime (1978), 55 Ohio St.2d 62.
Further, the right to the relief sought by the relator in mandamus must be clear and the burden of establishing such right is upon the relator. State, ex rel. Libby-Owens-Ford Glass Co., v. Indus. Comm. (1954), 162 Ohio St. 15, 16.
This court concludes that the rights of the relatrix-appellee herein are not so clear as to justify issuance of the extraordinary writ of mandamus and, under the facts and circumstances sub judice, an adequate remedy at law exists which is more suited to resolving the issues presented.
Accordingly, the judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.