State ex rel. McGarvey v. Zeigler

405 N.E.2d 722, 62 Ohio St. 2d 320, 16 Ohio Op. 3d 363, 1980 Ohio LEXIS 750

• Court: Ohio Supreme Court
• Decided: June 11, 1980
• Docket: No. 79-1649
• Status: Published

Opinion

Per Curiam.

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.