  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                             Electronically Filed
                                             Intermediate Court of Appeals
                                             CAAP-XX-XXXXXXX
                                             08-JUL-2020
                                             07:58 AM
                         NO. CAAP-XX-XXXXXXX
               (Consolidated with No. CAAP-XX-XXXXXXX)


                IN THE INTERMEDIATE COURT OF APPEALS

                       OF THE STATE OF HAWAI#I

                           CAAP-XX-XXXXXXX
                 MELANIE SATO, Petitioner-Appellant,
                                  v.
                 JOHN C. KNAUSS, Respondent-Appellee

       APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                         WAHIAWĀ DIVISION
                     (Civil No. 1SS191000168)

                                 and

                           CAAP-XX-XXXXXXX
                 MELANIE SATO, Petitioner-Appellant,
                                  v.
               ANN SPEESE GIESE, Respondent-Appellee,
                                 and
                   JEANNE E. NAKASHIMA, Respondent

       APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
                         WAHIAWĀ DIVISION
                     (Civil No. 1SS191000107)

                      SUMMARY DISPOSITION ORDER
     (By:    Leonard, Presiding Judge, Chan and Hiraoka, JJ.)

            Petitioner-Appellant Melanie Sato (Sato) appeals from
orders denying her petitions for injunctions against Respondent-
Appellee John C. Knauss (Knauss) in CAAP-XX-XXXXXXX, and against
Respondent-Appellee Ann Speese Giese (Giese) in CAAP-XX-XXXXXXX,
entered by the District Court of the First Circuit, Wahiawā
Division1 on September 26, 2019, and related judgments for
attorney's fees entered by the district court on June 19, 2019.
For the reasons explained below, we affirm the orders and
judgments.
             On January 25, 2019, Sato filed a petition for ex parte
temporary restraining order (TRO) and for injunction against
harassment against Giese and Jeanne E. Nakashima.             A TRO against
Giese only was issued on January 25, 2019, and a hearing on the
requested injunction was set for February 8, 2019.             The TRO was
extended and the hearing date was continued to March 27, 2019.
             On February 11, 2019, Sato filed a petition for TRO and
for injunction against harassment against Knauss.             A TRO was
issued on February 11, 2019, and a hearing on the requested
injunction was set for February 26, 2019.           The TRO was extended
and the hearing date was continued to March 27, 2019.
             At the hearing on March 27, 2019, counsel for Giese and
Knauss requested a joint hearing.           The district court granted the
request over Sato's objection.         The court reminded the parties
that the applicable statute allowed for an award of attorney's
fees to the prevailing party.2        The court heard testimony from
Sato and her witnesses James Hardy Reinburg, Shannon Chun, and
Kara Casebeer.      Four exhibits were received into evidence.          After
Sato rested, Knauss and Giese each moved for a directed verdict.
The district court granted the motions, and also declared Sato to
be a vexatious litigant.
             On June 19, 2019, Knauss and Giese filed separate
motions for attorney's fees.         The district court granted both
motions.    Also on June 19, 2019, judgments were entered in favor
of Knauss and against Sato for $2,094.24, and in favor of Giese
and against Sato for $2,094.24.            Sato appealed.    We temporarily
remanded for entry of final orders.           On September 26, 2019, the
district court entered written orders denying Sato's petitions



      1
             The Honorable Hilary Benson Gangnes presided.
      2
            The transcript of the joint hearing indicates that the court was
familiar with the parties through previous cases.

                                       2
for injunction and dismissing each petition with prejudice.               We
consolidated the appeals.
          Hawaii Revised Statutes (HRS) § 604-10.5 (2016) is
titled "Power to enjoin and temporarily restrain harassment."              It
provides, in relevant part:

          (a)   For the purposes of this section:

                "Course of conduct" means a pattern of conduct
          composed of a series of acts over any period of time
          evidencing a continuity of purpose.

                "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 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 the power to
          enjoin, prohibit, or temporarily restrain harassment.

                . . . .

                (g)   . . . 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[.] . . .

                . . . .

                (h)   The court may grant the prevailing party in an
          action brought under this section costs and fees, including
          attorney's fees.


(Emphasis added.)     "The clear and convincing evidence standard is
an intermediate standard of proof greater than a preponderance of
the evidence, but less than proof beyond a reasonable doubt
required in criminal cases."      Uyeda v. Schermer, 144 Hawai#i 163,
174, 439 P.3d 115, 126 (2019) (cleaned up) (emphasis added).
          We review a trial court's findings of fact under the
"clearly erroneous" standard.         Birano v. State, 143 Hawai#i 163,
181, 426 P.3d 387, 405 (2018).         A finding of fact is clearly


                                       3
erroneous when the record lacks substantial evidence to support
the finding or when, despite some evidence to support the
finding, we are left with the definite and firm conviction in
reviewing all of the evidence that a mistake has been committed.
Id.   "Substantial evidence" is "credible evidence which is of
sufficient quality and probative value to enable a person of
reasonable caution to support a conclusion."           In re Grievance
Arbitration Between State of Hawai#i Organization of Police
Officers and County of Kaua#i, 135 Hawai#i 456, 462, 353 P.3d 998,
1004 (2015) (citations omitted).
            We review conclusions of law under the "right/wrong"
standard.    Estate of Klink ex rel. Klink v. State, 113 Hawai#i
332, 351, 152 P.3d 504, 523 (2007).         A conclusion of law that is
supported by the trial court's findings of fact and reflects an
application of the correct rule of law will not be overturned.
Id.   When a conclusion of law presents mixed questions of fact
and law, we review it under the "clearly erroneous" standard
because the court's conclusions are dependent on the facts and
circumstances of each individual case.          Id.
            In denying Sato's petition against Knauss, the district
court stated:

                  The court finds that [Sato] -- that the statute
            requires clear and convincing -- that [Sato] present clear
            and convincing evidence that harassment by [Knauss] in the
            form of physical harm, bodily injury, assault, or the threat
            of imminent physical harm, bodily injury or assault
            occurred. That's one part. No physical assault or threat
            here.

                  Or an intentional or knowing course of conduct
            directed at [Sato] that seriously alarms or disturbs
            consistently or continually bothers [Sato] and that served
            no legitimate purpose, and that such course of conduct would
            cause a reasonable person to suffer emotional distress.

                  The court finds that [Sato] has failed. There's
            really not much evidence at all here, let alone clear and
            convincing evidence of a course of conduct directed at
            Ms. Sato by Mr. Knauss. Ms. Knauss -- Ms. Sato's testimony
            -- the court just finds she seems to say conspiracy -- she
            -- she alleges a conspiracy without any convincing evidence
            of one. And Mr. Knauss, the fact that she's unhappy with
            his actions as board president is not a grounds [sic] under
            the statute for the court to enter an injunction.

                  And I don't find a course of conduct here that would
            cause a reasonable person to suffer emotional distress.

                                      4
           Even if I believe that Ms. Sato has suffered emotional
           distress, she doesn't meet the standard of the statute,
           which is the clear and convincing evidence.

                  The court therefore denies the petition for injunction
           against harassment and dismisses the temporary restraining
           order.


           In denying Sato's petition against Giese, the district
court stated:

                 Okay. The court finds here and, you know, [Sato] has
           rested, that [Sato] has failed to meet her -- Ms. Melanie
           Sato has failed to meet her burden of proving by clear and
           convincing evidence that there has been a course of conduct
           directed at her by Ms. Giese that seriously alarms, and
           disturbs consistently, or continually bothers [Sato], and
           serves no legitimate purpose, and that such course of
           conduct would cause a reasonable person to suffer emotional
           distress.

                 The court therefore denies the petition for injunction
           against harassment and dismisses the TRO. Dismisses with
           prejudice.

                 . . . .

                 This is -- and I -- and I have to say I think Ms. Sato
           grossly exaggerates what she observes, what happens. I
           think she -- I don't even know if she honestly believes a
           lot of what she's saying. I did not find her to be
           particularly credible as to most of her testimony. In fact,
           if it weren't for the workers who were credible, I don't
           know that I'd believe there'd been any spraying going on,
           but I'm finding that her witnesses are more credible than
           she is so she had -- but that doesn't -- that doesn't meet
           the standard of the injunction. It's -- you know, a
           reasonable person would suffer emotional distress. . . .

                 . . . .

                 . . . The petition -- the -- the -- the allegations in
           the petition, none of them were proved by clear and
           convincing credible evidence. None of them.


           "It is well-settled that an appellate court will not
pass upon issues dependent upon the credibility of witnesses and
the weight of evidence; this is the province of the trier of
fact."   Fisher v. Fisher, 111 Hawai#i 41, 46, 137 P.3d 355, 360
(2006) (citation omitted).      In this case, the district court's
findings of fact were supported by substantial evidence — or lack
thereof, to the extent Sato bore the burden of proof — and we are
not left with a definite or firm conviction in reviewing all of
the evidence that a mistake was committed.          Birano, 143 Hawai#i


                                     5
at 181, 426 P.3d at 405.    The district court's conclusions of law
were supported by its findings of fact and reflect an application
of the correct rule of law.    Klink, 113 Hawai#i at 351, 152 P.3d
at 523.   Accordingly, the September 26, 2019 orders denying
Sato's petitions for injunctions against Knauss and Giese are
affirmed.    The June 19, 2019 judgments for attorney's fees in
favor of Knauss and Giese and against Sato are also affirmed.
            DATED: Honolulu, Hawai#i, July 8, 2020.

On the briefs:

Alen M. Kaneshiro,                    /s/ Katherine G. Leonard
for Petitioner-Appellant.             Presiding Judge

Marcus L. Landsberg IV,               /s/ Derrick H.M. Chan
for Respondents-Appellees.            Associate Judge

                                      /s/ Keith K. Hiraoka
                                      Associate Judge




                                  6
