COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                       COUNTY OF CUYAHOGA
                            NO. 75299
STATE OF OHIO, ex rel.        :
ARCHIE GRAY                   :
                              :    PETITION FOR WRIT OF
     Relator                  :    MANDAMUS
                              :
     vs.                      :    MOTION NO. 00382
                              :
STUART H. LIPPE, ESQ.         :    JOURNAL ENTRY AND OPINION
                              :
     Respondent               :
JUDGMENT                      :    WRIT DISMISSED.
DATE OF JOURNALIZATION        :    NOVEMBER 12, 1998
APPEARANCES:
For relator       :           ARCHIE GRAY, pro se
                              #210-850
                              Post Office Box 788
                              Mansfield, Ohio  44901
For respondent    :           STUART H. LIPPE, pro se
                              Attorney at Law
                              930 Leader Building
                              526 Superior Avenue
                              Cleveland, Ohio  44114
                               -2-
PATRICIA A. BLACKMON,A.J.:
     Archie Gray, relator, is seeking a writ of mandamus to compel
respondent, Stuart  Lippe, relator's trial  counsel in 1989,  "to
perform the clear  legal duty" of ordering and providing  relator
with untranscribed portions of his trial transcript.   Respondent
filed a motion to dismiss the petition, which this court grants for
the following reason.
     In order to avoid a Civ.R. 12(B)(6) dismissal, a relator must
allege  with  sufficient particularity  the  legal  duty  of  the
respondent that requires performance of the requested act.  State
ex rel.  Boggs v.  Springfield Local  School Dist.  Bd. of  Educ.
(1995), 72 Ohio St.3d 94, 647 N.E.2d 788; State ex rel. Calloway v.
Court of Common Pleas  (Feb. 27, 1997), Cuyahoga App. No.  71699,
unreported. This court cannot create a legal duty; the creation of
a legal duty is a function of the legislature.  Davis v. State ex
rel. Pecsok (1936), 130 Ohio St. 411, 200 N.E. 181, paragraph one
of the syllabus.  So, at a minimum, relator was required to state
which statute requires respondent to provide him with portions of
his trial transcript that were not transcribed.  Relator, however,
has failed to state what legal duty requires respondent to perform
this act.  Dismissal  is thus warranted.   State ex rel. Nash  v.
Villanueva (May  7, 1998), Cuyahoga  App. No. 74225,  unreported;
State ex rel. Shariff v. McDonnell (Aug. 21, 1997), Cuyahoga App.
No. 72705, unreported; see, also, Strodes v. Veskauf (1983), 5 Ohio
                               -3-
St.3d 234, 450 N.E.2d 1155; State ex rel. Huff v. Carson (1983), 3
Ohio St.3d 22, 445 N.E.2d 1104.
     Accordingly, respondent'smotion to dismiss is granted.  Costs
to relator.
JAMES M. PORTER, J., CONCURS
                                   PATRICIA A. BLACKMON
                                   ADMINISTRATIVE JUDGE
.