Summary
affirming dismissal of mandamus action based on, inter alia, the presence of an adequate remedy at law via an action for breach of contract
Summary of this case from State ex Rel. Voleck v. Powhatan PointOpinion
No. 91-2175
Submitted June 2, 1992 —
Decided September 2, 1992.
APPEAL from the Court of Appeals for Cuyahoga County, No. 62221.
Appellant, James M. Russell, filed a complaint for a writ of mandamus in the Court of Appeals for Cuyahoga County against appellee, Dell R. Duncan, alleging that appellee, an officer of Commerce Exchange Bank, has a duty to pay him the proceeds of an account appellant had at the bank, plus interest. From appellant's affidavit attached to the complaint, it appears that the Internal Revenue Service levied against the account for payment of taxes, and when appellant attempted to withdraw funds from the account, the bank refused to pay them.
Appellee filed a motion to dismiss, alleging that he was not responsible as an individual or as an employee of the bank to pay the funds and that appellant had an adequate remedy at law. The court of appeals dismissed the complaint sua sponte, stating that appellant had an adequate remedy at law for money damages based on the depositor contract.
The cause is before the court upon an appeal as of right.
James M. Russell, pro se. Chattman, Garfield, Friedlander Paul and James L. Reed, for appellee.
We affirm the judgment of the court of appeals. "Mandamus will not lie to enforce a private right against a private person." State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O.2d 141, 228 N.E.2d 631, paragraph eight of the syllabus. Nor will the writ issue when the relator has an adequate remedy at law. State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81.
The court of appeals correctly held that the relationship between the bank and appellant was that of debtor and creditor, a contractual undertaking. See Speroff v. First-Central Trust Co. (1948), 149 Ohio St. 415, 37 O.O. 98, 79 N.E.2d 119, paragraph one of the syllabus, and Cincinnati Ins. Co. v. First Natl. Bank (1980), 63 Ohio St.2d 220, 223, 17 O.O.3d 136, 138, 407 N.E.2d 519, 522. Therefore, appellant's complaint does not state a cause of action against appellee as a private citizen or as a representative of the bank because an action for damages for breach of contract would be an adequate remedy at law.
Accordingly, we affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.