NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 13-APR-2026 09:12 AM Dkt. 37 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
DAVID WILLIAM LEWIS, Petitioner-Appellee, v. MIKE BENACQUISTA, Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT NORTH AND SOUTH KONA DIVISION (CASE NO. 3DSS-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, McCullen and Guidry, JJ.)
Respondent-Appellant Mike Benacquista appeals from
District Court of the Third Circuit's March 22, 2024 Order
Granting Petition for Injunction Against Harassment entered in
favor of Petitioner-Appellee David William Lewis. 1
On appeal, Benacquista contends the circuit court
improperly extended the fifteen-day requirement to commence a
1 The Honorable Kimberly B. Tsuchiya presided over both underlying cases at issue in this appeal. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
hearing on the merits by allowing Lewis "to 'refile' his
petition while a prior [temporary restraining order (TRO) was]
still in place," violating his due process rights. 2
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below and affirm.
This appeal involves two underlying district court
cases: 3DSS-XX-XXXXXXX (First Case) and 3DSS-XX-XXXXXXX (Second
Case).
The First Case
In the First Case, Lewis filed an ex parte petition
for a TRO on January 24, 2024, and a TRO issued on the same day.
The petition was served on January 30.
On February 5, Benacquista moved to dismiss the
petition asserting the district court lacked jurisdiction for
lack of "lawful service." For this motion, Benacquista relied
2 In his points of error, Benacquista also contends the district court violated its "duty to 'cold neutrality of an impartial judge.'" Benacquista argues, "Instead of simply dismissing the First Petition, the District Court advised [Lewis] that he could refile his petition, and that the Court would waive the filing fees." However, Benacquista does not point to where in the record he objected or brought this issue to the district court's attention. See Hawaiʻi Rules of Appellate Procedure Rule 28(b)(4) (requiring points of error to set forth where the error was objected to or brought to the court's attention). Accordingly, we disregard this contention. See id. ("Points not presented in accordance with this section will be disregarded[.]").
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
on the District Court Rules of Civil Procedure (DCRCP) Rules 7
and 12(b). 3
Six days after service of the petition, on February 6,
the district court held a hearing on the matter. The record on
appeal contains no transcript of this hearing. Based on the
district court's minutes, Lewis appeared self-represented and
Benacquista appeared represented by counsel. Benacquista
challenged service as improper and moved to dismiss. The
district court continued the case to February 13 for a hearing
on the motion to dismiss and extended the TRO for the same
period.
On February 13, the district court heard arguments and
witnesses related to Benacquista's motion to dismiss and denied
the motion. The district court extended the TRO until
February 27, the trial date. The record on appeal contains no
transcript of this hearing.
On February 21, Benacquista again moved to dismiss for
lack of jurisdiction pursuant to DCRCP Rules 7 and 12(b) and
Hawaiʻi Revised Statutes (HRS) § 604-10.5 (2016 & Supp. 2023).
This time, Benacquista asserted the district court was divested
3 DCRCP Rule 7 governs pleadings and motions generally, and DCRCP Rule 12(b) governs defenses, including lack of jurisdiction. We note however that the DCRCP do not apply to proceedings on petitions for injunctions against harassment under Hawaiʻi Revised Statutes (HRS) § 604-10.5 (2016 & Supp. 2023). DCRCP Rule 81(a)(4) (providing that "these rules shall not apply to . . . [a]ctions for relief from harassment maintained pursuant to HRS Section 604-10.5"). 3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
of jurisdiction because a hearing on the merits had not
commenced within fifteen days.
On February 27, the district court orally dismissed
the petition without prejudice. During the hearing, Lewis
protested, saying there was a hearing held within fifteen days.
The district court explained, based on its "recollection," that
it addressed the motion to dismiss but "didn't have time" to
conduct an evidentiary hearing. The district court ruled it was
granting the motion, and the "TRO on its face will dissolve
today . . . so now it's done."
On March 5, the district court entered its order
granting the motion to dismiss without prejudice for lack of
jurisdiction. The district court dissolved and terminated the
TRO and any extensions "nunc pro tunc," effective February 27,
2024.
The Second Case
In the Second Case, Lewis filed a petition for an ex
parte TRO on February 27, immediately after his petition in the
First Case was dismissed, asserting the same allegations. A TRO
issued on the same day.
On March 12, the district court held a hearing, but
Benacquista had not yet been served. The matter was continued
and the TRO was extended to March 19.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
That same day, Benacquista moved to dismiss the
petition pursuant to DCRCP Rules 12(b)(1) and (6) and Rules of
the District Court of the State of Hawaiʻi Rule 7, arguing that
the TRO in the Second Case was issued before the TRO in the
First Case was dismissed. Benacquista argued that the TRO in
the Second Case "was entered in direct circumvention of [HRS]
§ 604-10.5(g)['s] . . . requirement that a hearing commence on
the merits of a petition within fifteen (15) days."
On March 19, the district court heard arguments and
denied the motion to dismiss. Trial commenced, and the matter
was continued to March 22.
On March 22, the trial resumed, and the district court
granted an injunction for six months. Benacquista appealed.
Benacquista contends the district court improperly
extended the fifteen-day requirement to commence a hearing on
the merits by allowing Lewis "to 'refile' his petition while a
prior TRO [was] still in place," violating his right to due
process. The gist of Benacquista's contention appears to be
that the district court circumvented the fifteen-day requirement
by dismissing the petition without prejudice and allowing Lewis
to refile his petition.
To the extent Benacquista contends the district court
erred in dismissing the First Case without prejudice, we lack
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
jurisdiction over the order dismissing the First Case without
prejudice as no party appealed from that order.
Turning to whether the district court circumvented the
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 13-APR-2026 09:12 AM Dkt. 37 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
DAVID WILLIAM LEWIS, Petitioner-Appellee, v. MIKE BENACQUISTA, Respondent-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT NORTH AND SOUTH KONA DIVISION (CASE NO. 3DSS-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER (By: Nakasone, Chief Judge, McCullen and Guidry, JJ.)
Respondent-Appellant Mike Benacquista appeals from
District Court of the Third Circuit's March 22, 2024 Order
Granting Petition for Injunction Against Harassment entered in
favor of Petitioner-Appellee David William Lewis. 1
On appeal, Benacquista contends the circuit court
improperly extended the fifteen-day requirement to commence a
1 The Honorable Kimberly B. Tsuchiya presided over both underlying cases at issue in this appeal. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
hearing on the merits by allowing Lewis "to 'refile' his
petition while a prior [temporary restraining order (TRO) was]
still in place," violating his due process rights. 2
Upon careful review of the record and the briefs
submitted by the parties, and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below and affirm.
This appeal involves two underlying district court
cases: 3DSS-XX-XXXXXXX (First Case) and 3DSS-XX-XXXXXXX (Second
Case).
The First Case
In the First Case, Lewis filed an ex parte petition
for a TRO on January 24, 2024, and a TRO issued on the same day.
The petition was served on January 30.
On February 5, Benacquista moved to dismiss the
petition asserting the district court lacked jurisdiction for
lack of "lawful service." For this motion, Benacquista relied
2 In his points of error, Benacquista also contends the district court violated its "duty to 'cold neutrality of an impartial judge.'" Benacquista argues, "Instead of simply dismissing the First Petition, the District Court advised [Lewis] that he could refile his petition, and that the Court would waive the filing fees." However, Benacquista does not point to where in the record he objected or brought this issue to the district court's attention. See Hawaiʻi Rules of Appellate Procedure Rule 28(b)(4) (requiring points of error to set forth where the error was objected to or brought to the court's attention). Accordingly, we disregard this contention. See id. ("Points not presented in accordance with this section will be disregarded[.]").
2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
on the District Court Rules of Civil Procedure (DCRCP) Rules 7
and 12(b). 3
Six days after service of the petition, on February 6,
the district court held a hearing on the matter. The record on
appeal contains no transcript of this hearing. Based on the
district court's minutes, Lewis appeared self-represented and
Benacquista appeared represented by counsel. Benacquista
challenged service as improper and moved to dismiss. The
district court continued the case to February 13 for a hearing
on the motion to dismiss and extended the TRO for the same
period.
On February 13, the district court heard arguments and
witnesses related to Benacquista's motion to dismiss and denied
the motion. The district court extended the TRO until
February 27, the trial date. The record on appeal contains no
transcript of this hearing.
On February 21, Benacquista again moved to dismiss for
lack of jurisdiction pursuant to DCRCP Rules 7 and 12(b) and
Hawaiʻi Revised Statutes (HRS) § 604-10.5 (2016 & Supp. 2023).
This time, Benacquista asserted the district court was divested
3 DCRCP Rule 7 governs pleadings and motions generally, and DCRCP Rule 12(b) governs defenses, including lack of jurisdiction. We note however that the DCRCP do not apply to proceedings on petitions for injunctions against harassment under Hawaiʻi Revised Statutes (HRS) § 604-10.5 (2016 & Supp. 2023). DCRCP Rule 81(a)(4) (providing that "these rules shall not apply to . . . [a]ctions for relief from harassment maintained pursuant to HRS Section 604-10.5"). 3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
of jurisdiction because a hearing on the merits had not
commenced within fifteen days.
On February 27, the district court orally dismissed
the petition without prejudice. During the hearing, Lewis
protested, saying there was a hearing held within fifteen days.
The district court explained, based on its "recollection," that
it addressed the motion to dismiss but "didn't have time" to
conduct an evidentiary hearing. The district court ruled it was
granting the motion, and the "TRO on its face will dissolve
today . . . so now it's done."
On March 5, the district court entered its order
granting the motion to dismiss without prejudice for lack of
jurisdiction. The district court dissolved and terminated the
TRO and any extensions "nunc pro tunc," effective February 27,
2024.
The Second Case
In the Second Case, Lewis filed a petition for an ex
parte TRO on February 27, immediately after his petition in the
First Case was dismissed, asserting the same allegations. A TRO
issued on the same day.
On March 12, the district court held a hearing, but
Benacquista had not yet been served. The matter was continued
and the TRO was extended to March 19.
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
That same day, Benacquista moved to dismiss the
petition pursuant to DCRCP Rules 12(b)(1) and (6) and Rules of
the District Court of the State of Hawaiʻi Rule 7, arguing that
the TRO in the Second Case was issued before the TRO in the
First Case was dismissed. Benacquista argued that the TRO in
the Second Case "was entered in direct circumvention of [HRS]
§ 604-10.5(g)['s] . . . requirement that a hearing commence on
the merits of a petition within fifteen (15) days."
On March 19, the district court heard arguments and
denied the motion to dismiss. Trial commenced, and the matter
was continued to March 22.
On March 22, the trial resumed, and the district court
granted an injunction for six months. Benacquista appealed.
Benacquista contends the district court improperly
extended the fifteen-day requirement to commence a hearing on
the merits by allowing Lewis "to 'refile' his petition while a
prior TRO [was] still in place," violating his right to due
process. The gist of Benacquista's contention appears to be
that the district court circumvented the fifteen-day requirement
by dismissing the petition without prejudice and allowing Lewis
to refile his petition.
To the extent Benacquista contends the district court
erred in dismissing the First Case without prejudice, we lack
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
jurisdiction over the order dismissing the First Case without
prejudice as no party appealed from that order.
Turning to whether the district court circumvented the
fifteen-day requirement, HRS § 604-10.5(g) provides in relevant
part, "A hearing on the petition to enjoin harassment shall be
held within fifteen days after the temporary restraining order
is granted." However, "[w]hen claims are dismissed without
prejudice, a party is free to raise those claims in subsequent
litigation." Smallwood v. City & Cnty. of Honolulu, 118 Hawaiʻi
139, 153, 185 P.3d 887, 901 (App. 2008).
Because the petition in the First Case was dismissed
without prejudice, Lewis was free to refile his petition. See
id. As Lewis was free to refile his petition, the circuit court
did not circumvent the fifteen-day requirement or violate
Benacquista's due process rights by addressing Lewis's petition
in the Second Case.
Benacquista also appears to argue that the district
court in the Second Case, "standing alone," did not conduct a
hearing on the merits within fifteen days.
In addition to requiring a hearing on the petition to
be held within fifteen days of the TRO, HRS § 604-10.5(g) allows
the court to set a new hearing date if service has not been
effected:
6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
If service of the temporary restraining order has not been effected before the date of the hearing on the petition to enjoin, the court may set a new date for the hearing; provided that the new date shall not exceed ninety days from the date the temporary restraining order was granted.
Here, the petition in the Second Case was filed on
February 27 and a hearing was held fourteen days later on
March 12. However, because service had not yet been effected,
the district court continued the hearing seven days to March 19.
Because HRS § 604-10.5(g) allows for a continuance
under these circumstances and the seven-day continuance did not
exceed the ninety days allowed under the statute, the district
court did not err.
Based on the foregoing, we affirm the district court's
March 22, 2024 Order Granting Petition for Injunction Against
Harassment.
DATED: Honolulu, Hawaiʻi, April 13, 2026.
On the brief: /s/ Karen T. Nakasone Chief Judge David H. Lawton, Emil A. Macasinag, /s/ Sonja M.P. McCullen (Jung & Vassar) Associate Judge for Respondent-Appellant. /s/ Kimberly T. Guidry Associate Judge