[Cite as Estel v. Catudal, 2014-Ohio-4719.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

CHARLES J. ESTEL                                   JUDGES:
                                                   Hon. William B. Hoffman, P.J.
        Petitioner-Appellee                        Hon. Patricia A. Delaney, J.
                                                   Hon. Craig R. Baldwin, J.
-vs-
                                                   Case No. 14-CA-44
CHANCE CATUDAL

        Respondent-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Licking County Court of
                                               Common Pleas, Case No. 13-CV-1067


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         October 23, 2014


APPEARANCES:


For Respondent-Appellant                       For Petitioner-Appellee

CHANCE CATUDAL, PRO SE                         SCOTT M. SIDNER
2783 Martin Road #353                          112 International Drive
Dublin, Ohio 43017                             Pataskala, Ohio 43062
Licking County, Case No. 14-CA-44                                                     2

Hoffman, P.J.


       {¶1}   Respondent-appellant Chance Catudal appeals the May 8, 2014 Order of

Protection entered by the Licking County Court of Common Pleas. Petitioner-appellee

is Charles J. Estel.

                          STATEMENT OF THE CASE AND FACTS

       {¶2}   Appellee filed a Petition for Civil Stalking Protection Order pursuant to

R.C. 2903.214, on October 21, 2013. Following a brief hearing conducted on the same

day, the magistrate granted an ex parte civil protection order against Appellant. The

magistrate scheduled a full hearing on the petition for October 30, 2013, and ordered

the Clerk of Courts to personally serve Appellant.

       {¶3}   Because personal service on Appellant had not been effectuated, the trial

court continued the October 30, 2013 hearing until November 22, 2013. The trial court

then continued the November 22, 2013 hearing until January 27, 2014, as Appellant still

had not yet been properly served. On December 2, 2013, Appellant filed a motion to

dismiss the protection order. The magistrate denied Appellant’s motion to dismiss via

Order filed December 23, 2013.

       {¶4}   The January 27, 2014 hearing was continued upon Appellee’s request and

due to the lack of service on Appellant. The magistrate again ordered the Clerk of

Courts to personally serve Appellant with copies of the January 28, 2014 order, which

rescheduled the hearing until March 12, 2014; the ex parte civil stalking protection

order; and Appellee’s petition for civil stalking protection order. The process server’s

return was filed February 19, 2014, indicating Appellant had been personally served by

hand on February 11, 2014.
Licking County, Case No. 14-CA-44                                                          3


         {¶5}   On March 7, 2014, Appellant filed a second motion to dismiss, continuing

to assert he had not been properly served. Appellant noted, “The Court ordered the

Franklin County Sherriff [sic] to perfect service; however, a civilian stalked [Appellant] to

a domestic relations hearing on 2/11/14 and just handed over some folder that was

promptly thrown in the garbage.” Respondent’s Second Motion to Dismiss at p.2.

         {¶6}   Appellant failed to appear at the March 12, 2014 hearing.          Appellee

requested the trial court appoint a private process server. Via Order filed March 12,

2014, the magistrate noted Appellant had failed to appear for the hearing; granted

Appellee’s request and appointed Steve A. Campbell of SACS Legal Courier Service,

LLC, as the private process server; and ordered the Clerk of Courts to re-issue service

on Appellant with copies of the March 12, 2014 order; the ex parte civil stalking

protection order; and Appellee’s petition for civil stalking protection order. The March

12, 2013 hearing was continued to May 7, 2014. Appellant was personally served on

March 15, 2014.

         {¶7}   The trial court conducted the final hearing on May 7, 2014. On May 8,

2014, the trial court issued a four-year protection order against Appellant.

         {¶8}   It is from this order Appellant appeals, raising the following assignments of

error:

         {¶9}   "I. THE TRIAL COURT COMMITTED PLAIN ERROR AND ABUSED ITS

DISCRETION IN DETERMINING THAT RESPONDENT HAD BEEN PROPERLY

SERVED.

         {¶10} "II. THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT

PROPERLY SERVING RESPONDENT WITH THE 5/7/14 JUDGMENT ENTRY AND
Licking County, Case No. 14-CA-44                                                        4

THEN CONDUCTING THE ORDER OF PROTECTION HEARING THAT VERY SAME

DAY."

                                                 I

        {¶11} In his first assignment of error, Appellant argues the trial court committed

plain error and abused its discretion in determining Appellant had been properly served.

Specifically, Appellant contends the magistrate was not authorized to appoint a process

server because Appellee never filed a written motion requesting such as required by

Civ. R. 4.1(B).

        {¶12} The Civil Rules do not apply to special statutory proceedings “to the extent

that they would by their nature be clearly inapplicable.” Civ.R. 1(C)(7).        A special

proceeding is one specially created by statute and that prior to 1853 was not denoted as

an action at law or a suit in equity. See, R.C. 2505.02(A)(2); and Polikoff v. Adam

(1993), 67 Ohio St.3d 100, 105 & 107, 616 N.E.2d 213. Where the law confers a right

and authorizes a special application to a court to enforce it, the proceeding is “special”

as opposed to “ordinary”. Id. at 105, quoting Schuster v. Schuster (1907), 84 Minn., 403,

407, 87 NW 1014, 1015.

        {¶13} We find a civil stalking protection order is a special proceeding; therefore,

Appellee was not required to file a written request for the appointment of a private

process server.    The court had authority to appoint a process server to effectuate

service required by R.C. 2903.214.

        {¶14} Appellant’s first assignment of error is overruled.
Licking County, Case No. 14-CA-44                                                         5


                                                II

       {¶15} In his second assignment of error, Appellant maintains the trial court

committed plain error by not properly serving him with the May 7, 2014 Judgment Entry

and then conducting the hearing on Appellee’s petition for civil stalking protection order.

       {¶16} We find a review of the record belies Appellant’s assertion he was not

properly served. The record establishes Appellant was personally served on March 15,

2014, with the March 12, 2014 Order, scheduling the hearing on Appellee’s petition for

May 7, 2014; as well as copies of the petition and the ex parte civil stalking protection

order issued October 21, 2013. Because Appellant was properly served, we find the

trial court did not commit plain error in conducting the hearing on May 7, 2014.

       {¶17} Appellant’s second assignment of error is overruled.

       {¶18} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
