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
*
Honorable Thomas M. Reavley, Senior U.S. Circuit Judge for
the Fifth Circuit, sitting by designation.
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
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).
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. ----,
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.
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.
4
Fed.R.Civ.P. 58 is made applicable to bankruptcy
proceedings by Bankr.R. 9021.
In the present case, the separate document setting forth the
5
judgment was entered on October 1, 1993. Under Rule 59(e), 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
5
Fed.R.Civ.P. 59 is made applicable to bankruptcy
proceedings by Bankr.R. 9023.
6
In 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.
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
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).
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.
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.