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Kush v. Mathison

July 20, 2004

GLEN KUSH, RESPONDENT,
v.
NEIL J. MATHISON, JR., APPELLANT.



St. Louis County District Court. File No. C5-03-602226.

Considered and decided by Halbrooks , Presiding Judge; Toussaint, Chief Judge; and Minge , Judge.

SYLLABUS BY THE COURT

A district court may still make a finding of harassment if such conduct has, or is intended to have, a substantial adverse effect on the safety, security or privacy of the average, reasonable individual, even if the intended victim shows resilience to the harasser's ongoing conduct.

The opinion of the court was delivered by: Minge, Judge

Affirmed

OPINION

Appellant challenges the district court's issuance of a harassment restraining order, arguing that the evidence does not support the finding that his conduct constituted harassment. Because the record supports the district court's findings, we affirm.

FACTS

Appellant Neil Mathison and respondent Glen Kush are next-door neighbors. Access to respondent's property is made by use of a written easement that burdens appellant's property. Despite numerous surveys, the parties are unable to agree on the precise location of the lot lines and easement, and an ongoing dispute between them has developed. Appellant has placed numerous "no parking" signs on his fence and property to deter respondent and others from parking on the easement so as to block the gateway that provides an alternate entrance to appellant's property. There is also an ongoing dispute regarding respondent's removal of these signs.

In October 2001, shortly after respondent purchased the property adjacent to appellant's, an incident occurred in which respondent allegedly caused damage to appellant's fence by backing into it with machinery. Later that day, the wind blew that portion of the fence down. When appellant learned of the damage, he called respondent and left him a message. When respondent returned the call, appellant asked him, "What are you going to f---ing do about the wind blowing the fence down" and told him, "You're going to regret the day you ever bought this f---ing place."

Following this incident, appellant placed "no parking" signs around the property and painted lines on the ground to mark the property line. Respondent testified that one such sign, placed in the ground near his garage, interfered with his ability to place his boat inside the garage. Respondent also testified that appellant walks into his yard occasionally to threaten either respondent or respondent's brother.

On July 21, 2003, appellant entered respondent's property uninvited and pounded on respondent's door. Appellant yelled, "Hey, you S.O.B., when are you going to fix the fence and put the signs back up?" The minor daughter of respondent's girlfriend was present at the time. Respondent testified that when he went outside with appellant to look at the fence, appellant proceeded to swear at respondent "at the top of his lungs." Appellant also called respondent a "f---ing idiot."

Respondent filed an affidavit and petition for a harassment restraining order following the July 2003 incident. Appellant subsequently also filed a petition for a harassment restraining order against respondent and the district court held separate evidentiary hearings. The district court granted respondent's ...


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