David Burton, Esq.
Burton & Kilgore
Attorneys for the Appellee
D. C. Offutt, Jr., Esq.
Michael M. Fisher, Esq.
Offutt, Eifert, Fisher & Duffield
Attorneys for the Appellant
JUSTICE NEELY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. A writ of mandamus will not issue unless three
elements coexist-- (1) the existence of a clear right in the
petitioner to the relief sought; (2) the existence of a legal duty
on the part of respondent to do the thing which petitioner seeks to
compel; and (3) the absence of another adequate remedy. Syl. pt.
2, State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170
S.E.2d 367 (1969).
2. The function of a writ of mandamus is to enforce the
performance of official duties arising from the discharge of some
public function, or imposed by statute.
3. Except where public interests are involved, a writ
of mandamus is not an available remedy between private persons to
enforce a purely private right, duty, or contract.
Appellants, William H. Epstein, William D. Elliott, II,
and John D. Muldoon appeal a 13 September 1993 order of the Circuit
Court of Mercer County finding in favor of the Appellee, Roger
Hickman d/b/a Hickman's Rexall Pharmacy. The order granted a writ
of mandamus against the appellants and ordered them to: (1) give
immediate notice to the tenants of their building to move from the
premises, and (2) remove the building from the property. The
appellants ask this Court to dismiss this case as being improperly
brought as a mandamus action or, in the alternative, to reverse and
remand the case for further proceedings. After reviewing the
briefs in this case and hearing oral arguments we hold that a writ
of mandamus was not proper here. Furthermore, we find that most of
the outstanding issues in this case are now moot, except for the
issue of damages.
The subject of this controversy is a sublease of property
located in Princeton, Mercer County, West Virginia. The property
was subleased by Dr. Epstein to Mr. Hickman on 1 May 1987. The
gravamen of the disagreement between Mr. Hickman and Dr. Epstein is
that Dr. Epstein constructed a building that encroached on the
property subleased to Mr. Hickman. After Mr. Hickman notified Dr.
Epstein of the encroachment and asked him to remove his building,
Dr. Epstein refused claiming that the building did not encroach. Based on these conversations, Mr. Hickman filed a petition for a
writ of mandamus against Dr. Epstein to force him to remove the
The parcel in question is owned by the City of Princeton.
In 1986, the City entered into a thirty-year lease of the property
to Dr. Epstein. Nothing in the record indicates that Dr. Epstein
is an official of the City. The lease to Dr. Epstein contains a
restrictive clause stating that the premises can be used only for
medical office space and that Dr. Epstein can only assign or
sublease the property to persons or corporations connected with
medical science. Soon after he acquired the lease, Dr. Epstein
began to erect a medical office facility at the location. While
construction was under way, Mr. Hickman approached Dr. Epstein and
the two worked out an agreement reserving a portion of the property
of roughly 2,000 square feet for construction of a pharmacy. Mr.
Hickman, at that time, owned and operated a nearby pharmacy and was
either looking to expand or preempt possible competition.
At the time of the agreement, Mr. Hickman paid Dr.
Epstein $25,000.00 for the sublease. Mr. Hickman also agreed to
pay one-third of the rent due to the City of Princeton on the
entire parcel leased from the City by Dr. Epstein. The sublease
agreement between Mr. Hickman and Dr. Epstein did not specifically
describe the reserved 2,000 foot portion of the property. Three years after the sublease agreement was entered into, Mr. Hickman
had not started construction of a pharmacy on the property. During
the same period, however, Dr. Epstein's need for space increased.
Therefore, Dr. Epstein began construction of a "wing" to the
existing building. During construction of the new wing, there were
many discussions between the parties concerning Mr. Hickman's
complaint that the new facility encroached upon property subleased
to him. Despite Mr. Hickman's objection, however, Dr. Epstein went
ahead with construction. After completion of the wing, Mr. Hickman
brought a mandamus action to have the building removed from his
The Circuit Court found that the addition in question was
indeed located partially on Mr. Hickman's sublease and, therefore,
issued a writ of mandamus ordering Dr. Epstein to move the
building. This Court granted Dr. Epstein's appeal of the Circuit
Court's order exclusively to determine whether mandamus is
appropriate under these facts. We conclude that it is not.
This case is the result of clever lawyering; Mr.
Hickman's lawyers were able to convince the lower court that
mandamus was appropriate in this case, thus allowing for an
expedited procedure. Although the facts of this case merit
injunctive relief against Dr. Epstein to move his building, a writ
of mandamus is an improper means to obtain this relief. As a result of facts presented to this Court after the appeal was
granted, the issue of mandamus is now moot.See footnote 1
The general rule in West Virginia is that a writ of mandamus will not issue unless three elements coexist-- (1) the existence of a clear right in the petitioner to the relief sought; (2) the existence of a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy at law. Rogers v. Hechler, 176 W. Va. 713, 348 S.E.2d 299, 302 (1986); Hoffman v. Grove, 171 W. Va. 720, 301 S.E.2d 810, 812 (1983); State ex rel. Kucera v. City of Wheeling, 153 W. Va. 538, 170 S.E.2d 367, 369 (1969).
The parties dispute whether all the elements needed for
a mandamus action exist in this case. However, before a court
examines these elements it must first make sure the writ is being sought against a public officer, a person acting or refusing to act
in the performance of a public or quasi-public duty, or pursuant to
a statute authorizing the writ. In this case, Mr. Hickman is not
able to show any of these factors; therefore, it is not necessary
to examine the three elements needed for the writ.
The function of a writ of mandamus is to enforce the
performance of official duties arising from the discharge of some
public function, or imposed by statute. City of Huntington v.
Huntington Wharf & Storage Co., 75 W. Va. 183, 83 S.E. 500, 501
(1914). Except where public interests are involved, a writ of
mandamus is not an available remedy between two private persons to
enforce a purely private right, duty, or contract. See 52 Am. Jur.
2d Mandamus § 104 (1970); Annotation, Mandamus Against
Unincorporated Associations or its Officers, 137 A.L.R. 311 (1942).
The law in West Virginia has been settled for over one hundred
years that a writ of mandamus does not lie against a private person
who is not a public or quasi-public officer. Heath v. Johnson, 36
W. Va. 782, 15 S.E. 980 (1892).
In Heath, the publisher of a textbook sought through a
writ of mandamus to compel a school teacher to use only its
textbook as authorized by state law. After the Circuit Court of
Kanawha County denied the writ, the publisher appealed. This Court
upheld the lower court's ruling stating that although the writ may have been appropriate against the superintendent of schools who was
an officer of the state, it was not appropriate against a teacher.
Syllabus point two of the case states that "[t]he occupation of a
teacher of a free school in this state is not a public office, but
an employment; and such teacher cannot be compelled by mandamus .
. . to use such publisher's books . . . ." Id. at 981. Thus, the
primary reason mandamus did not lie in Heath was that the person
against whom the writ was sought was a private person and not a
public officer. Heath is not the only precedent in this
jurisdiction for the rule that mandamus does not lie "in the case
of a controversy between two natural individuals." Bailey v.
Coleman, 123 W. Va. 510, 16 S.E.2d 918 (1941).
In Bailey, the president of an unincorporated voluntary
association, the "Burial Fund", refused to pay money owed upon the
death of a member of the association. The Circuit Court of Logan
County issued a writ of mandamus to compel the president to pay the
money. On appeal, this Court reversed the lower court and held
that "[i]t is the rule that mandamus does not lie against an
officer of a mere voluntary association." Id. at 919. After
reviewing cases in other jurisdiction to the contrary, this Court
found them neither numerous nor persuasive. Bailey is widely cited
for the proposition that mandamus does not lie against a private
person except to enforce performance of a public or quasi-public duty owed by him or when the case is within a statute authorizing
the remedy. See, eg., 55 C.J.S. Mandamus § 239 (1948 & Supp 1994).
Although neither party in this case cites authority from
other jurisdictions, support for the general rule that in the
absence of a statutory provision to the contrary, mandamus does not
lie against a private person, can be found nationwide. See, eg.,
State v. Indus. Com., 228 N.E.2d 631, 648 (Ohio 1967); Bollotin v.
Workman Serv. Co., 275 P.2d 599, 601 (Cal. 1954); Crawford v.
Tucker, 64 So.2d 411, 415 (Ala. 1952); Carroll v. American Agr.
Chem. Co., 167 S.E. 597 (Ga. 1932). Furthermore, the general rule
that mandamus is not an appropriate remedy for the enforcement of
private contract rights when there is no question of trust or
official duty, has been accepted in virtually every state of the
union including West Virginia. See 52 Am. Jur. 2d Mandamus § 69
n.5 (1970); City of Huntington v. Huntington Wharf & Storage Co.,
75 W. Va. 183, 83 S.E. 500 (1914).
The facts of this case clearly show that both Mr. Hickman
and Dr. Epstein are private persons and that Mr. Hickman is
attempting to enforce a private contract. Moreover, Mr. Hickman
has not shown that Dr. Epstein has a duty by statute, or a public
or quasi-public duty to move the building; therefore, the order of
the Circuit Court of Mercer County ordering the writ of mandamus is
Because the building has already been moved, the only
issue left to be resolved is the question of damages, if any, to
Mr. Hickman. If Mr. Hickman wishes to pursue damages he must bring
a proper action in Circuit Court.
For the reasons set forth above, the judgment of the
Circuit Court of Mercer County is reversed and the case remanded
with directions to dismiss the action.
Reversed and remanded.
Footnote: 1 On 2 March 1994, the same day Dr. Epstein's Petition for Appeal was granted, the parties entered an agreement whereby Dr. Epstein donated the building in question to the Princeton Community Hospital. In return for the gift, the hospital agreed to move the building to another location away from Mr. Hickman's subleased property, thus leaving the area clear for Mr. Hickman to construct his pharmacy. Although removal of the building seems to have been what Mr. Hickman wanted all along, he petitioned the Circuit Court for an injunction to halt the removal. On 23 March 1994, the Circuit Court denied the petition, and sometime in April, 1994, the building was moved from the portion of the property subleased to Mr. Hickman. Because the mandamus order the parties are squabbling over simply ordered Dr. Epstein to move the building off Mr. Hickman's subleased property, this issue is now moot.