Estel v. Catudal

[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