*

Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for

the Fifth Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-4373.

In re SOUTHEAST BANK CORPORATION, Debtor.

STATE OF FLORIDA, DEPARTMENT OF REVENUE, Dade County Property

Appraiser, Joel W. Robbins, Dade County Tax Collector, Fred Ganz,

Defendants-Appellants,

v.

William A. BRANDT, Jr., Trustee, Plaintiff-Appellee.

Oct. 10, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-189-CIV-SMA), Sidney M. Aronovitz,

District Judge.

Before TJOFLAT and BLACK, Circuit Judges, and REAVLEY*

, Senior

Circuit Judge.

PER CURIAM:

Defendants-Appellants Joel W. Robbins, as Dade County Property

Appraiser, Fred Ganz, as Dade County Tax Collector, and the State

of Florida Department of Revenue (collectively, the "County"),

appeal the district court's affirmance of the bankruptcy court's

order granting final judgment for Plaintiff-Appellee William A.

Brandt, Jr., the trustee in bankruptcy (Trustee). The Trustee

filed this adversary proceeding seeking to establish that certain

ad valorem taxes on a collection of artworks were invalid and that

the related tax lien was avoidable. We conclude that the Trustee's

motion for rehearing before the bankruptcy court was untimely, and

therefore, the bankruptcy court's reconsideration and reversal of

its initial holding for the County was without jurisdiction. We
 1

Appellants' "Motion to Stay Proceedings Pending Ruling on

Motion for Certification of Question to Florida Supreme Court"

and "Motion for Certification of Question to Florida Supreme

Court" are denied. 

 2"All items of inventory are exempt from ad valorem

taxation." Fla.Stat. § 196.185 (1989). 

reverse.1

I. BACKGROUND

On September 19, 1991, Southeast Bank, N.A. and Southeast Bank

of West Florida (collectively, the "Banks") were declared insolvent

and seized by federal and state regulators. The following day, the

holding company of the Banks, Southeast Banking Corporation

(Southeast), filed a voluntary petition for relief under Chapter 7

of the Bankruptcy Code.

Since the early 1970's, Southeast had acquired a collection of

artwork (Collection) of over 4,000 paintings, prints, photographs,

sculptures, lithographs, and other works. Following Southeast's

bankruptcy petition, the County assessed the value of the

Collection as of January 1, 1992, at $4,535,281 and imposed ad

valorem taxes of $143,325.31 for the 1992 tax year. In addition,

the County imposed a post-petition statutory lien upon the

Collection pursuant to Florida Statute § 197.122, effective January

1, 1992.

The Trustee sought an administrative recharacterization of the

Collection as inventory held for sale and exempt from ad valorem

taxation under Florida Statute § 196.185.2

 The County declined the

request, and on April 1, 1993, the tax assessment became delinquent

and the lien became enforceable.

On May 13, 1993, the Trustee commenced an adversary proceeding
against the County seeking a determination that the ad valorem tax

assessment for the 1992 tax year was invalid and the related tax

lien was avoidable. The parties filed cross-motions for summary

judgment in July 1993. The bankruptcy court, Judge Weaver,

conducted a hearing on August 23, 1993, and requested the filing of

supplemental memoranda and a stipulation of facts. During a

conference call on September 29, 1993, Judge Weaver announced his

ruling in favor of the County. At the conclusion of the conference

call, the court requested counsel for the County to submit a draft

memorandum opinion and order. A Memorandum Opinion and Order

Granting Defendant's Motion for Final Summary Judgment, as well as

a Final Judgment, were submitted to the court the next day. Judge

Weaver signed both the Memorandum Opinion and Final Judgment on

September 30, 1993.

The bankruptcy court docket sheet reflects the Final Judgment

was entered on October 1, 1993, and the Memorandum Opinion entered

on October 4, 1993. On October 13, 1993, the Trustee filed a

Motion for Rehearing. The bankruptcy court, Judge Hyman, granted

the motion. Upon rehearing, Judge Hyman ruled in favor of the

Trustee holding the Collection was inventory held for sale and thus

exempt from ad valorem taxation. On appeal, the district court

affirmed the bankruptcy court's order.

II. STANDARD OF REVIEW

 This Court is the second court of review of the bankruptcy

court's judgment, and we independently examine the bankruptcy

court's factual and legal determinations. In re Delta Resources,

Inc., 54 F.3d 722, 727 (11th Cir.), cert. denied, --- U.S. ----,
 3

On the merits, the County contends the Collection was not

property held-for-sale and was therefore subject to ad valorem

taxation. Because we conclude the Trustee's motion for rehearing

was untimely filed, we do not address the merits of the district

court's resolution of this issue. 

 4Fed.R.Civ.P. 58 is made applicable to bankruptcy

proceedings by Bankr.R. 9021. 

116 S.Ct. 488, 133 L.Ed.2d 415 (1995). The bankruptcy court's

factual findings are reviewed for clear error, id., and the legal

conclusions of the bankruptcy court and district court are reviewed

de novo, id.

III. ANALYSIS

 The County contends the Trustee's motion for rehearing before

the bankruptcy court was untimely filed, and therefore, the

bankruptcy court lacked jurisdiction to consider the motion.3

Rule 584 states in relevant part:

[U]pon a decision by the court ... that all relief shall be

denied, the clerk, unless the court otherwise orders, shall

forthwith prepare, sign, and enter the judgment without

awaiting any direction by the court.... Every judgment shall

be set forth on a separate document.

Fed.R.Civ.P. 58. In addition, the advisory committee notes

indicate that any uncertainty as to the effective date of entry of

judgment which may arise from the separate filing of memorandum and

judgment is eliminated "by requiring that there be a judgment set

out on a separate document—distinct from any opinion or

memorandum—which provides the basis for entry of judgment."

Fed.R.Civ.P. 58 (1963 Amendment, adv. comm. notes). Therefore,

Rule 58 creates a brightline definition of "entry of judgment"—upon

the entry (filing) of the separate document setting forth the

judgment.
 5

Fed.R.Civ.P. 59 is made applicable to bankruptcy

proceedings by Bankr.R. 9023. 

 6In granting the motion for rehearing, Judge Hyman relied

upon Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55

L.Ed.2d 357 (1978), and "equitably consider[ed]" the motion as

timely filed. The bankruptcy court was without jurisdiction to

"equitably consider" the motion. In Bankers Trust, the court

noted that the separate-document "rule should be interpreted to

prevent loss of the right of appeal, not to facilitate loss." 

435 U.S. at 386, 98 S.Ct. at 1121 (quoting 9 J. Moore, Federal

Practice ¶ 110.08[2], p. 119-20 (1970)). Bankers Trust, however,

is inapposite. The Bankers Trust Court held that where the

district court failed to enter a separate judgment and the

petitioner did not object to the appeal in absence of a separate

judgment, the parties are deemed to have waived the separate

judgment requirement and the appellate court properly had

jurisdiction. Id. at 387-88, 98 S.Ct. at 1121. In the present

case, the bankruptcy court correctly entered a separate judgment,

and the 10-day period under Rule 59(e) began to run. Unlike

Bankers Trust, there is no confusion as to the entry of a

separate judgment or its date. The bankruptcy court was without

jurisdiction to consider the untimely filed motion for rehearing,

in equity or otherwise. 

In the present case, the separate document setting forth the

judgment was entered on October 1, 1993. Under Rule 59(e), 5

 the

Trustee had 10 days to file a motion to alter or amend the

judgment. The Trustee's Motion to Open Judgment and for Rehearing

of Memorandum Opinion or In Alternative to Amend and Make

Additional Findings was filed October 13, 1993—12 days after the

entry of judgment and 2 days after the filing deadline. The

motion, therefore, was untimely, and the bankruptcy court was

without jurisdiction to grant the motion for rehearing. See Wright

v. Preferred Research, Inc., 891 F.2d 886, 890 (11th Cir.1990) (10-

day period under Fed.R.Civ.P. 59(e) is jurisdictional and may not

be extended by the court); Bankr.R. 9006(b)(2) ("The court may not

enlarge the time for taking action under Rule[ ] ... 9023.").6

 The Trustee argues that the district court correctly held
 7

A determination that adjudicates fewer than all the claims

is non-final and "subject to revision at any time before the

entry of judgment adjudicating all the claims...." Fed.R.Civ.P.

54(b). 

that Judge Weaver's memorandum opinion was not a final judgment and

was therefore subject to revision at any time. The district court

found that Judge Weaver's judgment did not address Counts II and

III of the Trustee's complaint. Citing Rule 54(b),7 the district

court held that the failure to adjudicate all the claims in the

first judgment left the judgment non-final and subject to revision

at any time prior to the entry of final judgment adjudicating all

claims. Consequently, the district court did not determine whether

the motion for rehearing was timely filed within the 10-day limit.

Judge Weaver's memorandum opinion states:

The issues raised in Counts II and III of the Complaint

dealing with the enforceability of the tax liens by operation

of Section 197.122, Florida Statutes, need not be addressed,

as the Defendant-Tax Collector has applied for payment of the

taxes at issue as administrative expenses. See, In re: Inn

on the Bay, 7 Fla.L.W.Fed. B109 [154 B.R. 364]

(Bankr.Ct.S.D.Fla. April 16, 1993) (appeal pending).

Although Judge Weaver chose not to address Counts II and III at

length, this does not mean that the claims were not adjudicated.

In In re Inn on the Bay, 154 B.R. 364 (Bankr.S.D.Fla.1993), the

bankruptcy court held that an adversary proceeding seeking a

determination of the validity, priority, and extent of liens on

post-petition property taxes is subject to dismissal where the

post-petition taxes have been determined to be administrative

expenses of the estate. 154 B.R. at 367. Regardless of whether

Inn on the Bay was properly applied to this case, by citing the

case, Judge Weaver adjudicated the claims in Counts II and III, and
 8

Although the grounds for rehearing or appeal may not be

clearly known or identified until the memorandum opinion has

issued, where the judgment is entered prior to the memorandum

opinion, a party is free to timely file a motion for rehearing

and later file a supplemental memorandum based upon the

memorandum opinion. 

his final summary judgment dismissed the action in its entirety.

Therefore, Judge Weaver's judgment was a final judgment, and Judge

Hyman did not have jurisdiction under Rule 54(b) to consider the

motion for rehearing.

 The Trustee also contends he should not be prejudiced by a

docketing error committed by the clerk of the bankruptcy court.

Our review of the record convinces us that no docketing error was

committed. Although the final judgment and memorandum opinion were

entered on separate dates, they were clearly identified and the

date of entry clearly noted.8

IV. CONCLUSION

For the foregoing reasons, we conclude that the Trustee's

motion for rehearing was untimely filed after the expiration of the

10-day period under Rule 59(e). The judgment of the district court

affirming Judge Hyman's grant of rehearing and disposition of the

issues is REVERSED and the original judgment of Judge Weaver is

REINSTATED.