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Fondessy v. Simon

Court of Appeals of Ohio, Sixth District

August 9, 2013

Dorothy Fondessy Appellee
v.
Anthony Simon Appellant

Trial Court No. 11-CV-515H

Ernest E. Cottrell, Jr., for appellee.

Wesley M. Miller, Jr., for appellant.

DECISION AND JUDGMENT

PIETRYKOWSKI, J.

(¶ 1} This is an appeal from a civil stalking protection order ("CSPO") issued by the Ottawa County Court of Common Pleas against defendant-appellant, Anthony Simon, for the protection of plaintiff-appellee, Dorothy Fondessy, and her husband Wayne Fondessy. Simon now challenges that order through the following assignments of error:

Assignment of Error I.
The trial court erred as a matter of law when it granted the stalking civil protection order against the appellant.
Assignment of Error II.

The trial court erred, based on the weight of the evidence, when it granted a stalking civil protection order against the appellant.

(¶ 2} On September 27, 2011, Dorothy filed a petition seeking a CSPO against appellant for the protection of herself and her husband Wayne. In describing the nature and extent of the pattern of conduct that caused Dorothy to believe that appellant would cause her and Wayne physical harm or causes or has caused them mental distress, Dorothy attached to the petition written narratives from herself and Wayne regarding the history of appellant's harassing behavior toward them that they asserted caused them mental anguish. They asserted that over the past four years, appellant had engaged in harassing behavior toward them including trespassing, verbal abuse, inappropriate gestures, a death wish and obscenities. Dorothy stated that appellant had deliberately blocked her from mowing her lawn so that he could yell vulgarities at her and constantly yells obscenities and gives obscene gestures toward her and Wayne while they are gardening. The narratives also asserted that Wayne had open heart surgery in 2005, that appellant's behavior was affecting his health, and that the Fondessys were in fear of their lives and well-being. The lower court issued an ex parte civil protection order and scheduled the matter for a full hearing. That hearing proceeded on October 18, 2011, at which the following evidence was presented.

(¶ 3} Dorothy testified that she and Wayne have lived at their home on North Genoa-Clay Center Road in Ottawa County since 1974. When they first built their home, Dorothy's uncle, Charles Simon, was their neighbor to the north. Appellant is Charles Simon's son. When Charles Simon died in 2005, appellant inherited his property and the disputes between the parties began. Initially, there was a property line dispute that was resolved with a survey. Dorothy then described a number of confrontations between the parties over the years.

(¶ 4} In 2006, appellant was upset that the Fondessys' lilac bushes were hanging over a fence that marked the property line. The Fondessys then gave appellant permission to trim the bushes but he used a chain saw to severely cut them, including the parts of the bushes that were on the Fondessys' property.

(¶ 5} The Fondessys' property contains a pond that abuts the parties' property line. Appellant regularly discharged lawn clippings into the pond when mowing his lawn. In late April 2006, Dorothy noticed appellant throwing sticks and debris into the pond. She approached appellant and asked him why he was throwing garbage into the pond. Appellant denied doing so and used vulgarities. Wayne then approached Dorothy and appellant, and appellant said to Wayne "I hope you have another heart attack and die."

(¶ 6} During another encounter, Dorothy testified that she was mowing her lawn at a time when appellant was also mowing his lawn. Appellant approached Dorothy and ran his mower into her mower at the property line. He then asked if she had sold any farmland recently. When Dorothy ...


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