[Cite as Ball v. Flowers, 2014-Ohio-653.]
                                STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

JOHN BALL, ET AL.,                               )
                                                 )
        PLAINTIFFS-APPELLEES,                    )
                                                 )             CASE NO. 13 MA 39
V.                                               )
                                                 )                  OPINION
JOYCE FLOWERS,                                   )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Civil Appeal from Court of Common
                                                 Pleas of Mahoning County, Ohio
                                                 Case No. 12CV2580

JUDGMENT:                                        Reversed

APPEARANCES:
For Plaintiffs-Appellees                         Attorney Joseph C. Bishara
                                                 Attorney Elizabeth H. Farbman
                                                 100 Federal Plaza East, Suite 600
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Attorney Marshall D. Buck
                                                 100 Federal Plaza East, Suite 926
                                                 Youngstown, Ohio 44503

                                                 Attorney James H. Davis
                                                 6715 Tippecanoe Road, Suite A103
                                                 Canfield, Ohio 44406




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
                           -2-


Dated: February 21, 2014
[Cite as Ball v. Flowers, 2014-Ohio-653.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Joyce Flowers, appeals from a Mahoning County
Common Pleas Court judgment finding that she violated the terms of a temporary
restraining order.
        {¶2}     Appellant and plaintiffs-appellees, John and Celia Ball, own adjacent
property on Tippecanoe Road in Canfield, Ohio. There has apparently been some
dispute between the parties regarding a certain area of property, known as the
“disputed property,” located on the east side of the Ball property and the north side of
the Flowers property.          The septic system for the Balls’ house is located on the
disputed property.
        {¶3}     On August 16, 2012, appellees filed a complaint against appellant for
adverse possession, to quiet title, and for a permanent injunction. That day, they
also sought, and the trial court granted, a temporary restraining order (TRO)
restraining appellant from interfering with their use and occupation of the disputed
property including interfering with the location, use, and operation of their septic
system. Appellees later filed an amended complaint adding additional claims.
        {¶4}     Appellant was served with the complaint and the TRO on August 21,
2012.
        {¶5}     On August 20, 2012, appellees filed a motion for appellant to show
cause why she should not be held in contempt for violating the TRO. The motion
alleged that on August 18 and 19, parties acting on appellant’s behalf erected a
fence on the north side of the disputed property and that such activity occurred
directly over appellees’ septic system.          It went on to allege that during the
construction of the fence, appellant’s representatives damaged a gas line servicing
appellees’ house, thereby trespassing onto appellees’ property. The motion also
alleged that the TRO was served on appellant’s legal counsel on August 16, by
email, which he responded to that day indicating his receipt.
        {¶6}     The magistrate held a show cause hearing where he heard testimony
from appellee, Celia Ball. Appellant did not appear at the hearing but her counsel
was present on her behalf. The magistrate found appellant in contempt for violating
                                                                                -2-


the terms of the TRO. He fined appellant $250 to be paid to appellees and ordered
appellant to pay appellees’ costs and attorney fees for the contempt action.
       {¶7}   Appellant filed objections to the magistrate’s decision asserting that the
magistrate’s findings did not support a finding that she violated the terms of the TRO.
       {¶8}   The trial court overruled the objections. It found that appellant had
failed to provide it with a transcript or affidavit so that it could independently review
the magistrate’s decision. The court, finding no error of law or other defect with the
magistrate’s decision, overruled the objections and adopted the magistrate’s
decision.
       {¶9}   Appellant filed a timely notice of appeal on March 29, 2013.
       {¶10} Appellant raises a single assignment of error that states:

       THE TRIAL COURT ERRED IN DETERMINING THAT JOYCE FLOWERS
VIOLATED THE TERMS OF THE TEMPORARY RESTRAINING ORDER.

       {¶11} Appellant breaks her assignment of error down into two issues. Her
first issue asks:

              Did the trial court err in determining that Joyce Flowers violated
       the terms of the temporary restraining order when there was no
       determination that she interfered with the Balls’ use or occupation of the
       disputed property or the location, use or operation of the septic system
       located on the disputed property?

       {¶12} Appellant argues that Celia’s testimony failed to establish that appellant
violated the terms of the TRO.      She contends there was no testimony that she
interfered with appellees’ use or occupation of the disputed property or the use or
operation of their septic system.     And appellant states neither the magistrate’s
decision nor the trial court’s judgment made a finding that she interfered with
appellees’ use or occupation of the disputed property or the septic system. She
points out that appellees were not at home during most of the time the gas line was
                                                                                   -3-


ruptured. Appellant goes on to argue that the installation of the fence was not in the
same area as the ruptured gas line. And she contends nothing in the TRO prohibits
her from entering the disputed property and conducting activities that do not interfere
with appellees’ use and occupation or the flow of the septic system drainage. She
seems to allege that as long as she did not interfere with appellees’ septic system,
she did not violate the TRO.
        {¶13} We cannot review the merits of appellant’s first issue for review.
        {¶14} Civ. R. 53(D)(3)(b)(iii) provides that an objection to a magistrate’s
factual finding shall be supported by a transcript of all the evidence submitted to the
magistrate relevant to that finding or an affidavit of that evidence if a transcript is not
available.
        {¶15} When an appellant fails to provide a transcript of the magistrate’s
hearing for the trial court's review, the magistrate's findings of fact are considered
established and may not be attacked on appeal. Madison v. Wilborn, 5th Dist. No.
2011CA00247, 2012-Ohio-2742, ¶20.          See also, Baker v. Yahner, 8th Dist. No.
67026, 67041, 1995 WL 168342, *4 (Apr. 6, 1995). The Ohio Supreme Court has
held:

        When a party objecting to a referee's report has failed to provide the
        trial court with the evidence and documents by which the court could
        make a finding independent of the report, appellate review of the court's
        findings is limited to whether the trial court abused its discretion in
        adopting the referee's report, and the appellate court is precluded from
        considering the transcript of the hearing submitted with the appellate
        record.

Stare ex rel. Duncan v. Chippewa Twp. Trustees, 73 Ohio St.3d 728, 730, 654
N.E.2d 1254 (1995).
        {¶16} Appellant makes factual arguments in this issue for review that can only
be resolved by examining the transcript of the show cause hearing held before the
                                                                                   -4-


magistrate. But appellant did not file the transcript with the trial court. The trial court
specifically stated in its judgment entry that appellant “failed to provide this Court with
a transcript or affidavit to independently review the decision.” Although appellant
filed the transcript with this court after filing her notice of appeal, we cannot consider
the transcript because it was not available for the trial court’s consideration.
         {¶17} As such, we are limited to reviewing whether the trial court abused its
discretion in adopting the magistrate’s decision.
         {¶18} Because the trial court did not have a transcript of the evidence
presented at the show cause hearing, it was limited to reviewing the magistrate’s
decision for errors of law. The trial court conducted this review and found no errors
of law. Appellant does not assert any errors of law here. Instead, her arguments are
factual ones regarding what the evidence at the show cause hearing demonstrated.
         {¶19} Based on the above, we cannot conclude that the trial court abused its
discretion in adopting the magistrate’s decision and finding appellant in contempt for
violating the terms of the TRO. Therefore, appellant’s first issue for review lacks
merit.
         {¶20} Appellant’s second issue for review asks:

                Did the trial court err in determining that Joyce Flowers violated
         the terms of the temporary restraining order when she was not served
         with the TRO until after the disputed activities occurred?

         {¶21} Appellant argues the record fails to establish that she received notice of
the TRO prior to the activities of August 18 and 19. She notes that while the TRO
was filed on August 16, the docket reveals that it was not served on her until August
21, along with the complaint. Appellant argues that she cannot be held to have
knowledge of the TRO before it was served on her. She contends she was not in
contact with her attorney from August 17 to 19, because he was out of town.
Appellant further asserts that service on her attorney did not serve to give her notice
because he had not yet entered an appearance in this case. She notes that the TRO
                                                                                  -5-


was filed at the same time as the complaint.
       {¶22} Civ.R. 65(E) governs the service of temporary restraining orders.
Pursuant to the Rule a restraining order that is granted ex parte shall be served in the
manner provided for service of process under Rule 4 through Rule 4.3 and Rule 4.6.
If the restraining order is granted upon a motion accompanying a pleading the order
may be served with the process and pleading. Civ. R. 65(E).
       {¶23} In this case, the ex parte TRO was granted upon a motion
accompanying appellees’ complaint. A complaint is a pleading. Civ.R. 7(A). Thus,
the TRO in this case could be served with the process and pleading.
       {¶24} Appellees argue, pursuant to Civ.R. 5, that they perfected service of the
TRO on appellant when they emailed appellant’s counsel on August 16.
       {¶25} Civ.R. 5(B)(1) provides that if a party is represented by an attorney,
service must be made on the attorney. According to Civ.R. 5(B)(2)(f), a document is
considered served in numerous ways including "sending it by electronic means to a
facsimile number or e-mail address provided in accordance with Civ.R. 11 by the
attorney or party to be served, in which event service is complete upon transmission,
but is not effective if the serving party learns that it did not reach the person served.”
       {¶26} What appellees overlook, however, is that Civ.R. 5 is titled “Service and
filing of pleadings and other papers subsequent to the original complaint” and Civ.R.
5(A) provides “every order required by its terms to be served, every pleading
subsequent to the original complaint unless the court otherwise orders because of
numerous defendants, every paper relating to discovery required to be served upon a
party unless the court otherwise orders, every written motion other than one which
may be heard ex parte, and every written notice, appearance, demand, offer of
judgment, and similar paper shall be served upon each of the parties.” (Emphasis
added.)
       {¶27} In this case, appellees attempted to serve appellant, through her
attorney, by way of emailing the complaint and TRO contemporaneously. Because
the complaint was not first served on appellant, appellees could not rely on Civ.R. 5’s
                                                                              -6-


methods for serving documents subsequent to the original complaint.
      {¶28} Because appellees attempted to serve appellant with the TRO
contemporaneously with the original complaint, as is permitted by Civ.R. 65(E), they
were required to serve her by one of the methods of service of a complaint.
      {¶29} Upon the filing of a complaint, the clerk shall issue a summons for
service on the defendant. Civ.R. 4(A). The methods of service of the process and
complaint are set out in Civ.R. 4.1. There are three methods: (1) service by the clerk
by certified or express mail or commercial carrier service; (2) personal service; and
(3) residence service. Civ.R. 4.1(A)(B)(C).
       {¶30} Appellees did serve appellant by certified mail. The record reflects that
appellant was served by certified mail on August 21. Thus, this was the actual date
of service on appellant.
       {¶31} Even if appellant had some knowledge that appellees sought or
received a TRO, this knowledge would not be sufficient to require her compliance.
Actual notice of a restraining order requires more than general knowledge that an
order has been issued. State v. Conner, 192 Ohio App.3d 166, 2011-Ohio-146, 948
N.E.2d 497 (6th Dist.), ¶24, citing Midland Steel Prods. Co. v. U.A.W. Local 486, 61
Ohio St.3d 121, 126, 573 N.E.2d 98 (1991). Actual knowledge of an order requires
knowledge of its terms. Id.; See also Civ.R. 65(D).
       {¶32} Thus, because appellant was not served with the TRO and complaint
until August 21, she could not have been in violation of the TRO on August 18, when
she allegedly had a fence erected on the disputed property.
       {¶33} Appellees argue appellant waived the issue of service because her
counsel did not raise it at the show cause hearing. Appellant did, however, raise the
issue in her objections to the magistrate’s decision. In fact, she made the same
argument to the trial court that she now makes here. But the trial court’s judgment
entry did not address her argument. And at the show cause hearing, appellees’
counsel brought up the issue by representing to the court that service of the TRO
was effective pursuant to Civ.R. 65(E) and Civ.R. 5 by emailing the TRO to
                                                                             -7-


appellant’s counsel on August 16. Thus, appellant did not waive the issue of service.
      {¶34} Based on the above, appellant’s second issue for review is meritorious.
Accordingly, appellant’s assignment of error has merit based on her second issue for
review.
      {¶35} For the reasons stated above, the trial court’s judgment finding
appellant in contempt of court is hereby reversed.

Waite, J., concurs.

DeGenaro, P.J., concurs.
