Ling v. Yokoyama, 21891.

• Decision Date: 28 June 1999
• Docket Number: No. 21891.,21891.
• Citation: 980 P.2d 1005,91 Haw. 131
• Parties: MI SUK LING, Petitioner-Appellant, v. HAA CHUN YOKOYAMA, also known as Hwa' Chun Yokoyama, Respondent-Appellee.
• Court: Hawaii Court of Appeals

980 P.2d 1005

91 Haw. 131

91 Hawai`i 131

MI SUK LING, Petitioner-Appellant, v. HAA CHUN YOKOYAMA, also known as Hwa' Chun Yokoyama, Respondent-Appellee.

No. 21891.

Intermediate Court of Appeals of Hawai`i.

June 28, 1999.

Herman H.M. Ling, on the briefs, for petitioner-appellant.

Mark S. Kawata, on the briefs, for respondent-appellee.

WATANABE, ACOBA, and LIM, JJ.

Opinion of the Court by ACOBA, J.

We hold that Hawai`i Revised Statutes (HRS) § 604-10.5 (1993 and Supp.1998) requires that the hearing on the merits of a petition to enjoin harassment must be held within fifteen days of the filing of the petition. Therefore, we conclude the district court of the second circuit (the court) erred in granting a request to continue the hearing on the harassment petition brought by Petitioner-Appellant Mi Suk Ling (Petitioner) against Respondent-Appellee Haa Chun Yokoyama (Respondent) to a date beyond the fifteen-day period. However, we hold, further, that no prejudice redounded to Petitioner because, inter alia, the court extended a temporary restraining order prohibiting Respondent from harassing Petitioner for the period of the continuance.

I.

On July 6, 1998, Petitioner filed a "Petition for Ex Parte Temporary Restraining Order and for Injunction Against Harassment" (petition) with the court against Respondent pursuant to HRS § 604-10.5. Based on this petition, the court found that a temporary restraining order (TRO) "should be granted and was necessary to prevent acts of harassment." It therefore issued, ex parte, a TRO against Respondent prohibiting Respondent from engaging in certain acts¹ "pending the hearing on the Order to Show Cause." The TRO was effective upon its signing and filing and "remained in effect for fifteen days." Under the order, Respondent was directed to appear "at the hearing on the Order to Show Cause on Monday, July 13, 1998 at 9:30 a.m. ... to give any reason(s) why the orders should not continue to be effective."

On July 9, 1998, Respondent filed a petition in kind against Petitioner. In response to Respondent's petition, the court issued a TRO against Petitioner for fifteen days, ordering that Petitioner be enjoined and restrained from specific acts of harassment against Respondent. Petitioner was ordered to appear for a hearing on this petition, also at 9:30 a.m. on July 13.

At the July 13 hearing, Respondent's attorney requested a continuance because he had not had a full opportunity to investigate the case and needed time to prepare a response to Petitioner's petition. Petitioner objected to the continuance on the grounds that a hearing on her petition was required to be held within fifteen days of its filing, her witnesses were present for trial, and she had incurred expenses to be present at the July 13 hearing.

The court granted Respondent's request for a continuance and continued the matter to July 27, 1998. In response to Petitioner's objections, the court ordered Respondent to pay the witness fees incurred by Petitioner and extended Petitioner's TRO against Respondent to July 27, 1998.

A hearing on the merits of the petition was convened on July 27, 1998 and on July 29, 1998. The court thereafter entered an August 10, 1998 written order dismissing Petitioner's petition because it "did not find enough basis" to issue a restraining order.

On appeal, Petitioner's sole contention is that the court erred in continuing the hearing on her petition beyond the fifteen-day time period prescribed by HRS § 604-10.5(f) (Supp.1998).

II.

A.

Ordinarily, "the granting or denial of a continuance is a matter that is addressed to the sound discretion of the trial court and is not subject to reversal on appeal absent a showing of abuse." Sanders v. Point After, Inc., 2 Haw.App. 65, 70, 626 P.2d 193, 197 (1981) (citing Yamashiro v. Costa, 26 Haw. 54 (1921); Irwin v. Lyman, 29 Haw. 434 (1926); In re Adoption of Jane Doe, 42 Haw. 250 (1957)). Petitioner contends, however, that the word "shall" in HRS § 604-10.5(f) indicates that the fifteen-day time period prescribed is mandatory, and that the court erred in continuing the hearing on her petition beyond the fifteen-day period. HRS § 604-10.5 (Supp.1998) states, in relevant part:

(a) For the purpose of this section:

...

"Harassment" means:

(1) Physical harm, bodily injury, assault, or the threat of imminent physical harm, bodily injury, or assault; or

(2) An intentional or knowing course of conduct directed at an individual that seriously alarms or disturbs consistently or continually bothers the individual, and that serves no legitimate purpose; provided that such course of conduct would cause a reasonable person to suffer emotional distress.

(b) The district courts shall have power to enjoin or prohibit or temporarily restrain harassment.

....

(f) A hearing on the petition to enjoin harassment shall be held within fifteen days after it is filed. The parties named in the petition may file responses explaining, excusing, justifying, or denying the alleged act or acts of harassment. The court shall receive such evidence as is relevant at the hearing, and may make independent inquiry.

If the court finds by clear and convincing evidence that harassment as defined in paragraph (1) of that definition exists, it may enjoin for no more than three years further harassment of the petitioner, or that harassment as defined in paragraph (2) of that definition exists, it shall enjoin for no more than three years further harassment of the petitioner; provided that this paragraph shall not prohibit the court from issuing other injunctions against the named parties even if the time to which the injunction applies exceeds a total of three years.²

(Emphases added.)

The term "shall" is not defined in the statute. Where a term is not statutorily defined, our objective is to construe the term according to the legislature's intent, and we may rely upon "extrinsic aids" to determine such intent. State v. Mundell, 8 Haw.App. 610, 616, 822 P.2d 23, 27, reconsideration denied, 8 Haw.App. 661, 868 P.2d 466, cert. denied, 72 Haw. 619, 841 P.2d 1075 (1991). Accord Estate of Doe v. Paul Revere Ins. Group, 86 Hawai`i 262, 270, 948 P.2d 1103, 1111 (1997). Legal and lay dictionaries are extrinsic aids which may be helpful in discerning the meaning of statutory terms. State v. Chen, 77 Hawai`i 329, 337, 884 P.2d 392, 400 (App.), cert. denied, 77 Hawai`i 489, 889 P.2d 66 (1994).

According to Black's Law Dictionary 1233 (5th ed.1979), "shall," "as used in statutes, contracts, or the like, . . . is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term `shall' is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation." We note, further, that in HRS § 604-10.5(f), the word "shall" in the subject phrase immediately precedes the word "may" in the sentence which follows. In such a context, the Hawai`i Supreme Court has advised that "where both mandatory and directory verbs are used in the same statute, especially where `shall' and `may' are used in close juxtaposition, we infer that the legislature realized the difference in meaning and intended that the verbs used should carry with them their ordinary meanings." In re Tax Appeal of Frank F. Fasi, Mayor, City and County of Honolulu, 63 Haw. 624, 626-627, 634 P.2d 98, 101 (1981). Nothing in HRS § 604-10.5 indicates that "shall" should be given anything other than its ordinary meaning. Accordingly, we agree with Petitioner that the term "shall" mandates the petition hearing be held within the fifteen-day time period.

Respondent's argument that HRS § 604-10.5(f) "merely requires that the court set a hearing within fifteen days" of the petition's filing is not persuasive. (Emphasis added.) The statutory language plainly states that the hearing be held within the prescribed time. Thus, Respondent's assertion that the court satisfied the requirement by setting the date for the hearing, rather than by holding the hearing within fifteen days of the time of filing, is incorrect.

B.

While we conclude the statute mandates a hearing on the petition be held within fifteen days, the scope of the term "held" is not defined in the statute. In such an instance, we may "`read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.'" Frank v. Hawaii Planing Mill Found., 88 Hawai`i 140, 144, 963 P.2d 349, 353 (1998) (quoting Gray v. Administrative Dir. of the Court, 84 Hawai`i 138, 148, 931 P.2d 580, 590 (1997)).

HRS chapter 604 was enacted "to prevent harassment that cannot be effectively controlled by criminal processes and penalties" because there was "no civil statute that could be used to interrupt a course or pattern of intimidation that stops short of assault or threats." Sen. Stand. Comm. Rep. No. 493-86, in 1986 Senate Journal, at 1005. In apparent consonance with this purpose, HRS § 604-10.5(d) (1993) and (f) authorize the court to issue a temporary restraining order against named persons on allegations made by a petitioner under penalty of perjury.

The fifteen-day hearing requirement appears to coincide with the fifteen-day TRO period. HRS § 604-10.5(e) (1993) provides, in relevant part, that "upon petition to a district court under this section, the court may temporarily restrain for a period of fifteen days, persons named in the petition from harassing the petitioner if the alleged harassment has caused the petitioner substantial emotional distress." Thus, the TRO provision ensures that the petitioner will have the benefit of a court order prohibiting harassment pending the hearing on the petition. Also in our view, the hearing contemplated under HRS § 604-10.5(f) is one on the merits of the petition because HRS § 604-10.5(f) directs that "the court shall receive such evidence as is relevant at the hearing." (Emphasis added.)

We consider, further, that the...