[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, 

V. 

JOYCE FLOWERS, 

 DEFENDANT-APPELLANT. 

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CASE NO. 13 MA 39 

OPINION 

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 

 

 
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 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 
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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 
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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 
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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 
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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 
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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 
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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.