ORDER GRANTING THE OCTOBER 5, 2009 MOTION TO RECONSIDER THE SEPTEMBER 23, 2009 DISMISSAL ORDER PURSUANT TO RULE 40 OF THE HAWAI'I RULES OF APPELLATE PROCEDURE Upon review of (1) the September 23, 2009 order dismissing appellate court case number 29838 for lack of jurisdiction, (2) the October 5, 2009 motion by Defendants-Appellants Sydney Antone Naito, Pat Lelia Mulvey, Rand E. Mulvey, Jr., Edna May Naito, and Matalima Janice Naito (the Appellants) for reconsideration of the September 23, 2009 dismissal order pursuant to Rule 40 of the Hawai'i Rules of Appellate Procedure (HRAP), and (3) the record, it appears that the Appellants' October 5, 2009 HRAP Rule 40 motion for reconsideration of the September 23, 2009 dismissal order has merit. We entered the September 23, 2009 dismissal order because the Appellants purported to be appealing from an interlocutory order, and yet the Appellants failed to refer to any judgment in the record that was appealable pursuant to Hawaii Revised Statutes (HRS) § 641-1(a) (1993 Supp. 2008), Rule 58 of the Hawai'i Rules of Civil Procedure (HRCP) and the holding inJenkins v. Cades Schutte Fleming Wright, 76 Hawai'i 115, 119, 869 P.2d 1334, 1338 (1994). In the Appellants' October 5, 2009 HRAP Rule 40 motion for reconsideration of the September 23, 2009 dismissal order, the Appellants refer, for the first time, to a June 15, 2009 "Partial Final Judgment Revesting Title to Genevieve Fernandez Naito" (the June 15, 2009 HRCP Rule 54(b)-certified judgment) that the circuit court certified for appeal pursuant to HRCP Rule 54(b) and entered before the appellate court clerk filed the record on appeal for appellate court case number 29838 on July 20, 2009. In light of the existence of the June 15, 2009 HRCP Rule 54(b)-certified judgment in the record on appeal,
IT IS HEREBY ORDERED that the Appellants' October 5, 2009 HRAP Rule 40 motion for reconsideration of the September 23, 2009 dismissal order is granted, and, thus, the September 23, 2009 order dismissing appellate court case number 29838 is vacated. The Appellants have already filed their opening brief on September 30, 2009, and, thus, the answering brief shall be filed within forty days after entry of this order. The reply brief shall be filed in accordance with HRAP Rule 28. After the parties have filed their appellate briefs, the intermediate court of appeals will review the merits of appellate court case number 29838.