COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71446 STATE OF OHIO, EX REL. : T. J. WENTZEL, ET AL. : ORIGINAL ACTION : : JOURNAL ENTRY Relators : : AND vs. : : OPINION RAYMOND PIANKA, JUDGE : CLEVELAND MUNICIPAL : HOUSING COURT : : Respondent : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 22, 1996 CHARACTER OF PROCEEDING: WRIT OF PROHIBITION JUDGMENT: WRIT DISMISSED. DATE OF JOURNALIZATION: APPEARANCES: For Relators: GEORGE K. SIMAKIS 4186 Pearl Road Cleveland, Ohio 44109 For Respondent: SHARON SOBOL JORDAN Director of Law City of Cleveland Room 106 - City Hall 601 Lakeside Avenue Cleveland, Ohio 44114 - 2 - O'DONNELL, J. Relators aver that they are the defendants in Resar v. Wentzel, Cleveland Municipal Court Case No. 96 CVG 20271, an action in forcible entry and detainer which is assigned to respondent judge. Relators further aver that, on October 15, 1996, respondent denied their motion to dismiss and entered judgment in Case No. 96 CVG 20271. Attached to the complaint is a copy of an eviction notice requiring that relators be out of their residence before October 23, 1996. Relators contend that respondent lacks jurisdiction to hear Case No. 96 CVG 20271 because they filed an action against their landlord, Wentzel v. Resar, Cuyahoga County Court of Common Pleas Case No. CV-315357, on September 17, 1996--eight days before their landlord commenced Case No. 96 CVG 20271. In the complaint and amended complaint filed in Case No. CV-315357, relators aver that the landlord breached the terms of the lease and request declaratory and injunctive relief as well as compensatory and punitive damages. In this action, relators request that this court prohibit respondent from proceeding in Case No. 96 CVG 20271. In State ex rel. Charron-Krofta v. Corrigan (Oct. 12, 1995), Cuyahoga App. No. 69434, unreported, this court denied a request for relief in prohibition to prevent the housing court judge of the Cleveland Municipal Court from further action in a forcible - 3 - entry and detainer action and to void the judgment ordering eviction. In Charron-Krofta, the relator/tenant asserted that the municipal court lacked jurisdiction in the eviction action because the relator had filed an action in the court of common pleas seeking a declaration as to the terms and conditions of the lease. After an extensive review of the case law, we found "no patent and unambiguous lack of jurisdiction to warrant dispensing with relator's adequate remedy of appeal ***." Charron-Krofta, supra, at 9. The facts averred in the complaint in this action require the same result. That is, in light of Charron-Krofta, we cannot conclude that respondent patently and unambiguously lacks jurisdiction over Case No. 96 CVG 20271. While sua sponte dismissal of a complaint without notice is generally inappropriate, it is proper where the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint. See State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn. (1995), 72 Ohio St.3d 106, 108, 647 N.E.2d 799, 801, citing Baker v. Dir., U.S. Parole Comm. (C.A.D.C.1990), 916 F.2d 725, and English v. Cowell (C.A.7, 1993), 10 F.3d 434. State ex rel. Peeples v. Anderson (1995), 73 Ohio St.3d 559, 560, 653 N.E.2d 371. Obviously, relators cannot prevail in this action. Accordingly, relators' complaint in prohibition is dismissed sua sponte. Relators to pay costs. By separate entry, we have denied relators' application for alternative writ. Writ dismissed. SPELLACY, C.J., and SWEENEY, J., CONCUR - 4 - JUDGE TERRENCE O'DONNELL .