COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72848 HENRY J. FANT ACCELERATED DOCKET Plaintiff-appellant JOURNAL ENTRY vs. AND GREATER CLEVELAND REGIONAL TRANSIT AUTHORITY OPINION Defendant-appellees PER CURIAM DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 26, 1998 CHARACTER OF PROCEEDINGS: Civil appeal from Common Pleas Court Case No. CV-332747 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellant: For defendant-appellees: HENRY J. FANT, pro se DOUGLAS A. GONDA P.O. BOX 14833 Senior Counsel - Litigation Cleveland, Ohio 44114 EDWARD J. OPETT Senior Counsel - Administrative Greater Cleveland R.T.A. 614 W. Superior Avenue Cleveland, Ohio 44113 -2- PER CURIAM: Plaintiff-Appellant Henry Fant appeals in this accelerated appeal from an order of the trial court dismissing his action for declaratory judgment. Plaintiff pro se filed a complaint for declaratory judgment against the Board of Trustees, Greater Cleveland Regional Transit Authority ( RTA ); Ronald Tober, general manager of RTA; and Loretta Jordan, RTA Director of Bus Transportation. Paragraph four of plaintiff's complaint alleged that he mailed a certified letter to Jordan which was returned to him as refused (the Jordan Letter ). He did not attach a copy of the Jordan Letter, but attached a photocopy of the green certified mail return postcard, on which the signature by the recipient is illegible. Paragraph five of plaintiff's complaint alleged that he subsequently mailed by ordinary and certified mail two copies of a letter to Tober (the Tober Letter ). He alleged that both copies of the Tober Letter were received, but that he received no response. Attached to his complaint is a copy of the Tober Letter, along with a copy of the green certified mail return postcard the recipient signed. The Tober Letter recites that Fant attached to it a copy of the prior Jordan Letter and that Loretta Jordan refused the certified mail. However, no copy of the Jordan Letter is in fact attached as an exhibit to the complaint. Plaintiff requested a declaration whether or not the defendant may lawfully select whom they may reply to or refuse to -3- accept accountable mail being a public body. In a counterclaim against plaintiff for declaratory judgment, RTA and Tober alleged frivolous conduct in filing this lawsuit. The trial court dismissed plaintiff's complaint with prejudice for failure to state a claim and dismissed the counterclaim without prejudice. Plaintiff's first assignment of error follows: DEFENDANTS, BEING OFFICIALS OF A POLITICAL SUBDIVISION OF THE STATE OF OHIO, MAY NOT LAWFULLY REFUSE SERVICE OF ACCOUNTABLE MAIL ON THE AUTHORITY OF ARTICLE 1, SECTION 16 OF THE CONSTITUTION OF OHIO AND AMENDMENT XIV OF THE UNITED STATES CONSTITUTION. This assignment lacks merit. Plaintiff contends the trial court improperly dismissed his complaint. It is well established, however, that dismissal sua sponte is appropriate when the complaint is frivolous or the claimant obviously cannot prevail on the facts alleged in the complaint. State ex rel Fogler v. Steiner (1995), 74 Ohio St.3d 158, 161 (citing Baker v. Dir., US Parole Comm. (D.C. Cir. 1990), 916 F.2d 725, and English v. Cowell (7th Cir. 1993), 10 F.3d 434). The record in this case shows that no justiciable controversy exists and that plaintiff could not prevail on the facts alleged in his pro se complaint for declaratory judgment. The complaint shows that any controversy which may have existed between the parties, concerning whether RTA must accept his mail, is moot. Plaintiff's complaint alleged merely that he sent one certified letter (the Jordan Letter), which was refused, and that he sent the same letter again (to Tober) and it was received. Plaintiff did not attach to -4- the complaint copy of the Jordan Letter or state that any answer to the Jordan Letter was necessary. In his complaint, plaintiff claims RTA not only must listen by accepting mail, but must also respond. The Tober Letter, however, to which copies of the Jordan Letter were allegedly attached, merely informed Tober that Jordan had not accepted the previous letter. The Tober letter did not request or otherwise indicate that any response was necessary. Without such an allegation, plaintiff's complaint failed to state a claim for relief on the claim RTA must answer him.1 Accordingly, plaintiff's first assignment of error is overruled. Plaintiff's second assignment of error follows: THE TRIAL COURT ERRED BY DISMISSING THE DEFENDANT [SIC] ALLEGED COUNTERCLAIM WITHOUT PREJUDICE. This assignment lacks merit. Plaintiff contends the trial court improperly dismissed the counterclaim against him without prejudice. He contends the counterclaim, which alleged that plaintiff's claim was frivolous, should have been dismissed with prejudice. 1 Fant's additional claim, asserted in his supplemental pleading, that Jordan also did not accept service of the original complaint filed against her in this case does not alter this conclusion. Jordan entered an appearance and responded to Fant's complaint by filing a joint answer with the other defendants in this case. -5- RTA and Tober argue to the contrary that the counterclaim was improperly dismissed even without prejudice and should be reinstated for further proceedings. The record shows, however, they did not file a notice of cross-appeal. As a result, this court is precluded from providing the affirmative relief they now request. App.R. 3(C)(1). We likewise reject Fant's argument that the counterclaim against him should have been dismissed with prejudice. The record shows that Fant did not even seek dismissal of this counterclaim. Moreover, neither Fant nor RTA addressed the merits of the counterclaim.The trial court's sua sponte dismissal likewise did not address the merits of the counterclaim to determine whether Fant's actions were frivolous. Fant nevertheless purports to appeal from the dismissal of the counterclaim against him despite the absence of any prejudice to him from the ruling. Fant has no cognizable right to control when, if ever, this claim is to be litigated against him. Under the circumstances, his arguments are premature at best because no adverse order exists from which he has standing to appeal. Accordingly, plaintiff's second assignment of error is overruled. Judgment affirmed. -6- It is ordered that appellees recover of appellant their costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, CHIEF JUSTICE TERRENCE O'DONNELL, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .