Fondessy v. Simon (Slip Opinion)
28 N.E.3d 1202
Ohio2014Background
- Dorothy and Wayne Fondessy sought a civil stalking protection order (CSPO) under R.C. 2903.214 against neighbor Anthony Simon after repeated hostile encounters following Simon’s inheritance of adjacent property.
- Incidents included Simon trimming lilac bushes across the property line, discharging grass clippings and debris into the Fondessys’ pond, blowing leaves onto their property, using profanities and racial epithets, and an alleged wish that Wayne suffer another heart attack.
- Fondessy and Wayne testified the confrontations upset them and caused fear and mental distress; Simon admitted some unpleasant conduct but disputed specific profanity and threats.
- The trial court issued a five-year CSPO ordering Simon to stay 25 feet away and to avoid contact or placing anything on the Fondessys’ property.
- The Sixth District Court of Appeals affirmed, holding R.C. 2903.211(A)(1) requires only that the victim believe the stalker will cause mental distress (not that the victim actually experienced mental distress), and certified a conflict among appellate districts.
- The Ohio Supreme Court dismissed the certification as improvidently granted; Justice Kennedy (joined by French and O’Neill) dissented, arguing the Court should resolve the clear conflict among appellate districts.
Issues and Key Holdings
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C. 2903.211(A)(1) requires actual mental distress or only the victim’s belief that the stalker will cause mental distress | Fondessy: the CSPO is proper because Simon’s conduct caused fear and mental distress | Simon: the evidence was insufficient; the statute should be read to require proof of actual mental distress | Dissent (Kennedy): there is a conflict among appellate districts and the Court should resolve it; several districts hold belief alone suffices and several require actual distress; Kennedy would address merits and resolve the issue rather than dismiss certification |
Key Cases Cited
- Smith v. Wunsch, 162 Ohio App.3d 21 (4th Dist. 2005) (interpreting R.C. 2903.211(A)(1) to require actual mental distress)
- Payne v. State, 178 Ohio App.3d 617 (9th Dist. 2008) (same: requiring actual mental distress)
- Dayton v. Davis, 136 Ohio App.3d 26 (2d Dist. 1999) (holding victim’s belief that stalker would cause mental distress is sufficient)
- Griga v. DiBenedetto, 988 N.E.2d 590 (1st Dist. 2012) (aligning with the view that the victim’s belief suffices)