IN RE: Jerry A. LEWIS (2025)

OPINION FOLLOWING TRIAL

All should be familiar with the age-old proverb “actions speak louder than words.”¹ In this adversary proceeding, defendant Cindy Swint, a putative grantee of an interest in land, seeks to reform two deeds to include a parcel not identified in the deeds. Because the Court authorized the chapter 7 trustee (the “Trustee”), the plaintiff herein, to sell the allegedly omitted parcel while this proceeding was pending, if Ms. Swint prevails on her counterclaim for reformation, she is entitled to the net sale proceeds. But neither actions nor words adduced at trial supplied the level of proof necessary for Ms. Swint to show that she and the other parties to the deeds intended to include the omitted parcel and that the omission resulted from mutual mistake. If anything, actions by the other parties to the deeds undercut her theory. Consequently, Ms. Swint has no entitlement to the sale proceeds. With regard to the other remaining defendants to this proceeding (those not previously defaulted), only the Hillsborough County Environmental Protection Commission established entitlement to a portion of the net proceeds.

Relevant Procedural History

Jerry A. Lewis (the “Debtor” or “Ms. Swint's father”) and his wife Mary E. Lewis (“Mary Lewis” or “Ms. Swint's mother”) (together, the “Lewises” or “Ms. Swint's parents”) filed a joint petition for relief under chapter 13 of the Bankruptcy Code in 2008.² They voluntarily dismissed that case less than five months later. The following year, in 2009, the Debtor filed an individual petition for relief under chapter 11. The Court subsequently converted it to a case under chapter 7. This proceeding relates to the converted case. It is the second of two adversary proceedings filed by the Trustee.

In 2013, the Trustee filed the first adversary proceeding (the “2013 Proceeding”) against Mary Lewis, Ms. Swint (a daughter of the Lewises), two corporations owned by the Debtor — Lewis 8001 Enterprises, Inc. (“Lewis 8001 A,” formed in 1987 and administratively dissolved in 1999), a second Lewis 8001 Enterprises, Inc. (“Lewis 8001 B,” formed in 2005 and administratively dissolved in 2006) — and several other individuals and entities.³ The Court granted a motion by Ms. Swint to dismiss the complaint as to her without prejudice to the Trustee filing an amended complaint. The Trustee later filed an amended complaint that did not name Ms. Swint as a defendant. The 2013 Proceeding resulted in a final judgment in favor of the Trustee on the following issues relevant to the current proceeding: (1) Lewis 8001 A and Lewis 8001 B (together, the “Lewis 8001 Corporations”) were found to be alter egos of the Debtor; (2) all of the assets of the Lewis 8001 Corporations were deemed to be property of the estate, and (3) Mary Lewis (against whom a clerk's default was entered) was declared to have no legal or equitable claim to property of these corporations. Because the evidence presented at trial rarely distinguished Lewis 8001 A from Lewis 8001 B, this opinion frequently refers to “Lewis 8001” without distinguishing between the two corporations.

Fast forward to 2021, when the Trustee filed this adversary proceeding seeking authorization to sell, for the benefit of the Debtor's estate, a certain piece of real property (the “Front 70”). By this time, the Debtor was deceased, as was Mary Lewis, so the Trustee filed this proceeding against the Debtor's probate estate (if any), his heirs and unknown heirs, and others who the Trustee believed might claim an interest in the Front 70.⁴

The Front 70, located at 9600 Wauchula Road, Myakka City, in Manatee County, Florida,⁵ is one of at least four contiguous parcels ⁶ that were sometimes used for hosting clients of Lewis 8001 for barbeques, Fourth of July parties, and various recreational activities, such as fishing and riding four-wheelers and air boats.⁷ The Front 70 comprises (not surprisingly) approximately 70 acres and lies on dry land.⁸ The largest of the four parcels (address unknown), approximately 362 acres,⁹ is located behind the Front 70 and was described by Ms. Swint as the “swamp” because it lies in “wetlands.”¹⁰ The four parcels include a “pie shape” parcel located at 9500 Wauchula Road and the “camp house” located at 9520 Wauchula Road — each of which are approximately one acre.¹¹ Combined, these properties cover about 434 acres.¹²

The Trustee's Complaint and Rulings Related Thereto

Count I of the complaint in this proceeding seeks declarations (similar to those requested in the 2013 Proceeding) that the Lewis 8001 Corporations are alter egos of the Debtor and that all property interests of these corporations, including the Front 70, are property of the estate. Count II seeks a declaration that the Front 70 is owned and vested in the Debtor's bankruptcy estate (a declaration that would overlap that requested in Count I), none of the Lewis children or unknown heirs of the Debtor or Mary Lewis have any legal or equitable claim to the Front 70, and the legal description should be corrected. Count III seeks an adjudication that fee simple title to the Front 70 is in the name of the Trustee (again overlapping prior counts’ requests), a requirement that all defendants set forth the nature of any claims they may have in the Front 70, an adjudication that all such adverse claims by the defendants or by anyone claiming by, under, or against the defendants are null and void, and an injunction barring the pursuit of any such claims. Lastly, Count IV seeks authority to sell the Front 70 free and clear of claims and interests under 11 U.S.C. § 363(b), (f) and (h).  ¹³

While this proceeding was pending, the Court authorized the Trustee to sell the Front 70 free and clear of liens, with the caveat that any asserted interests of Ms. Swint and another defendant in this proceeding, the Hillsborough County Environmental Protection Commission (“EPC”), “will attach to the proceeds from the sale of the Property to same extent, validity, and priority, if any, as they existed as of the petition date, April 29, 2009.”¹⁴

Eight defendants defaulted by failing to file a response to the complaint.¹⁵ Three others filed answers but did not assert affirmative defenses or counterclaims and did not appear for the trial either in person or through counsel.¹⁶ The EPC filed an answer in which it stated it did not oppose the relief requested in the complaint.¹⁷ However, the EPC's answer further asserted its right to share in proceeds from the sale of the Front 70 pursuant to a judgment lien obtained against property of Lewis 8001 and the Lewises.¹⁸ Ms. Swint filed an answer that included a counterclaim seeking to reform two deeds she holds as grantee (the “Swint Deeds”) such that they include the Front 70.¹⁹

At the outset of the trial, the Trustee's attorney made an ore tenus motion for judgment on the pleadings. The Court granted the motion as to the fact that the Debtor has been determined to be the sole owner of the Lewis 8001 Corporations and that all property interests of those corporations are subject to administration by the Trustee (i.e., the corporations’ property interests may be liquidated). The Court also ruled, however, that if Ms. Swint prevails on her reformation counterclaim, the Trustee may rely on an alter ego theory (to recognize the Debtor as the true owner of all of the assets of the Lewis 8001 Corporations in order to avoid reformation under 11 U.S.C. § 544) only if the Trustee proves such theory in this proceeding.²⁰

The Trustee was the only witness who testified in her case-in-chief. Her primary function was to describe multiple exhibits that were either self-authenticating or subject to judicial notice. Among the documents admitted into evidence during her testimony were the following deeds related to the transfer, or purported transfer, of title to the Front 70:

(1) from Roger Broderick to Lewis 8001 in 1988;21

(2) from Lewis 8001 — regarding a right-of way only — to Manatee County in 1996;22

(3) from Lewis 8001 — regarding the remainder of the Front 70 (less the right-of-way) — to the Debtor, Jerry P. Lewis (a son of the Lewises) identified as “Guardian,” and Jan L. Robinson in 2006;23 and finally

(4) from herself, in her capacity as Trustee (of the Debtor's bankruptcy estate's interest), to the Conservation Foundation of the Gulf Coast in 2022.24

An apparent gap in the chain of title exists between the third and fourth deeds. However, implicit in the Court's ruling on the Trustee's motion for judgment on the pleadings is the Court's acceptance of the Trustee's contentions, included in the complaint, that the third deed described above was deficient as a matter of law and, therefore, did not convey good title.²⁵ Consequently, title to the Front 70 remained in Lewis 8001, and the Trustee's authority to sell the Front 70 derived from the Debtor's ownership of Lewis 8001.

The Trustee also described the Swint Deeds, which do not include the Front 70. The Swint Deeds are dated August 8, 2003, were notarized on July 12, 2004, and recorded on June 27, 2005.²⁶

Further, the Trustee pointed out inconsistent positions taken by the Debtor and Mary Lewis regarding ownership of the property described in the Swint Deeds and ownership of the Front 70 in their bankruptcy schedules and statements (signed under penalty of perjury), sworn testimony at the Debtor's meeting of creditors, and the Debtor's financial affidavit provided in connection with the couple's divorce proceeding (also signed under penalty of perjury), all of which were made long after Ms. Swint claims her parents gave her the Swint Deeds. Specifically, the Trustee noted for the record the following facts:

In the 2008 joint bankruptcy case of the Debtor and Mary Lewis, the Lewises identified in Schedule A real property owned by them as including:

1 Parcel

Myakka City, FL

Pie Shape: 1/212 acre

Wauchula Road

Myakka City, FL

Approx 434 acres – No assigned address

9520 Wauchula Road

Myakka City, FL

Camphouse: 1 acre, MOL 27

Yet, in their Statement of Financial Affairs (SOFA), responding to a question that asked about transfers within two years of the filing date, the Lewises stated that in 2006 the first two parcels listed above were transferred to Ms. Swint.²⁸

Further, in this same SOFA, the Lewises stated that in 2006 the following property was transferred to the Debtor, Jerry P. Lewis, and Jan L. Robinson:

9600 Wauchula Road

68.96 Acres, Hillsborough County, FL

The Court notes that the description of the property the Lewises stated was transferred to the Debtor, Jerry P. Lewis, and Jan L. Robinson in 2006 appears, due to its street address and acreage, to be that of the Front 70, despite the reference to “Hillsborough” and not “Manatee” County. (This reference may have resulted from a scrivener's error.) If true, this creates yet another inconsistency in the Lewises’ 2008 SOFA because the Front 70 appears to lie within the 434-acre parcel that the SOFA indicated was transferred to Ms. Swint.

When asked at the meeting of creditors held in the Lewises’ 2008 case if he remembered what happened to the 434 acres on Wauchula Road in Myakka City, Mr. Lewis answered, “Well, right now my daughter's got it.”²⁹ He said it was deeded to her about four years ago.³⁰ Again, this conflicts with the Lewises’ claimed ownership of this property in their 2008 Schedule A. And assuming that the Front 70 is included in the 434 acres, the Debtor's testimony at the meeting of creditors also conflicts with the SOFA statement that suggests a subset of 434 acres (9600 Wauchula Road) was transferred to the Debtor, Jerry P. Lewis, and Jan L. Robinson.

In the Debtor's 2009 bankruptcy case, he identified in Schedule A real property owned by him as including:

1 Parcel

Myakka City, FL (Pie Shape: 1/212 acre)

Wauchula Road, Myakka City, Florida

(Approx. 434 acres – No assigned address)

9520 Wauchula Road, Myakka City, FL

Camphouse: 1 acre, MOL

No Assigned Address

(Sec. 06, Township 36S, Range 22E/Manatee

County) Property ID: 84410000 31

Further, in the Lewises’ divorce proceeding, a Family Law Affidavit signed under penalty of perjury on April 19, 2006,³² by the Debtor and J. Phillip Lewis (also known as Jerry P. Lewis)³³ as “Guardian” states that property “owned by you (and/or your spouse, if this is a petition for dissolution of marriage)” includes the following:

437 Acres

Wauchula Road Property

Manatee County

1 Acre with house

Manatee County 34

Notably, this affidavit was signed in 2006, two years after Ms. Swint states her parents gave her the Swint Deeds.

At the conclusion of the Trustee's case-in-chief, Ms. Swint's attorney moved for judgment on partial findings on Counts I, II, and III of the complaint. In response, the Court ruled that the Trustee failed to prove, as alleged in Count I, that the Lewis 8001 Corporations were alter egos of the Debtor.³⁵ The Trustee offered little to no evidence to support this contention and, therefore, she was unable to tip the scales even slightly in her favor sufficiently to prove her alter ego allegations by a preponderance of the evidence.³⁶ Thus, the Trustee may not rely on an alter ego theory in her defense of Ms. Swint's counterclaim for reformation.³⁷ Further, the Court ruled that Counts II and III, which requested (respectively) a correction to the legal description of the Front 70 and to quiet title to enable the Trustee to sell the Front 70, both became moot following the sale. Count IV, which sought authorization for the sale, became moot following the sale, too.³⁸ (The Trustee also withdrew Count II in open court at that time.) The Court's ruling made clear that it was without prejudice to Ms. Swint's attempt through her reformation counterclaim to prove that she is, or was, the intended owner of the Front 70 and that she is, therefore, entitled to the net sale proceeds.³⁹

Cindy Swint's Counterclaim and Rulings Related Thereto

Following that ruling, Ms. Swint presented her case in support of her counterclaim, in which she asserts that in consideration for having loaned her parents and Lewis 8001 substantial sums of money, they deeded to her real property located in Manatee County, Florida, which property was meant to include the Front 70. The Front 70 was inadvertently omitted, Ms. Swint alleges, due to a scrivener's error by the individual who prepared the deeds. For the reasons explained more fully below, the Court finds and concludes that Ms. Swint cannot prevail on her counterclaim for reformation.

Under Florida law, to prevail in an action for reformation of a written instrument, the plaintiff must prove that the parties made a mutual mistake and that the instrument fails to accurately reflect the terms of the agreement actually reached.⁴⁰ The applicable standard of proof in an action for reformation is clear and convincing evidence.⁴¹ This standard requires quite exacting evidentiary support of significant weight:

Clear and convincing evidence requires that the evidence must be found credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit; and the witnesses must be lacking in confusion as to the facts at issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief and conviction, without hesitancy, as to the truth of the allegation sough to be established.42

The clear and convincing standard of proof is considerably higher than a mere preponderance of the evidence, the latter of which requires only a showing that the alleged fact is more likely than not.⁴³

Applying Florida law on reformation to the facts of this proceeding, Ms. Swint bore the burden of offering evidence sufficient to produce in the mind of the Court, as the trier of fact, a firm belief and conviction, without hesitancy, that two contentions are true. First, she must prove that the parties made a mutual mistake — by failing to catch that the Swint Deeds, although they clearly identified three other parcels, made no reference to the Front 70 — because, at the time the deeds were given to her, an agreement existed between the parties that the deeds would include the Front 70. In other words, she had to prove that the Swint Deeds do not accurately reflect the parties’ agreement as to which properties would be transferred to her. Assuming she could satisfy this first element, she would need to prove, secondly, that the intended transfer of the Front 70 was supported by valuable consideration, as reformation is unavailable to cure a deficiency in a gift.⁴⁴

As set out above, the deeds at issue in this proceeding were prepared in 2003 and notarized in 2004. Ms. Swint's father died in 2014; Ms. Swint's mother died in 2016.⁴⁵ Thus, Ms. Swint faced an uphill battle from the start to prove that 20 years earlier she and her now-deceased parents agreed that they were transferring to her, for value, certain real property, including the Front 70, even though the deeds themselves make no reference to that parcel.⁴⁶

No evidence was presented at trial to suggest that Ms. Swint and her parents (on their own behalf or on behalf of Lewis 8001) had any form of written agreement that would explain why the Swint Deeds were being given to her or what property was to be included in the deeds.⁴⁷ Ms. Swint testified that the deeds were given to her to repay her for money she had loaned her parents and Lewis 8001 over the course of several years.⁴⁸ When asked, in light of Lewis 8001's financial problems, from what source she expected at the outset to be paid back, she testified that Lewis 8001 was going to sell the landfill it operated and pay her in cash.⁴⁹ She further testified that in 2004, when she was in her mother's living room with both of her parents present, her parents signed the Swint Deeds and Ms. Swint's mother handed them to her, telling her the deeds were being given to her as repayment for monies loaned.⁵⁰ This then, according to Ms. Swint's testimony, is the point at which the agreement was allegedly reached to satisfy a debt owed to her by transferring real property to her, as opposed to being repaid in cash from the sale of the landfill. Critically missing from her testimony or other evidence admitted at trial is proof of an agreement with her parents when they gave her the Swint Deeds that the deeds included or were specifically meant to include the Front 70. For example, no evidence was offered to suggest that any of the parties present the day her mother handed her the deeds (neither Ms. Swint, nor either of her parents) made any reference to inclusion of the Front 70 in the deeds.

Ms. Swint testified that it was her intent and her understanding that the Front 70 was included in the Swint Deeds.⁵¹ In support of her position, she testified that she and her family fenced and mowed the Front 70 ⁵² and that she paid property taxes on it for several years.⁵³ But reformation requires clear and convincing evidence of a mutual mistake. Thus, Ms. Swint bore the burden of proving not only her own intent and understanding, but also that of both of her parents.⁵⁴

Ms. Swint also offered the testimony of Phyllis Ward, a first cousin of Mary Lewis and former bookkeeper for Lewis 8001.⁵⁵ Ms. Ward stated that she is the individual who prepared the Swint Deeds in August of 2003.⁵⁶ She testified credibly that she prepared the deeds using property information from tax bills handed to her by Mary Lewis.⁵⁷ Ms. Ward initially testified she thinks Mary handed her three tax bills to use in preparing the deeds.⁵⁸ Ms. Ward then described how the deeds were handwritten by her because there was no typewriter available,⁵⁹ and she testified with sincerity that she thought she correctly copied everything from the tax bills onto the deeds.⁶⁰ Further, she testified that she witnessed the Lewises sign the Swint Deeds in August of 2003 at Lewis 8001's office.⁶¹

During her testimony, Ms. Ward was questioned about her understanding of why the Swint Deeds were being prepared and what was to be included. The Trustee objected to the extent that Ms. Ward's understanding was based on hearsay of Mary Lewis. The Court initially sustained this hearsay objection. But after the parties briefed and the Court reconsidered the issue, the Court overruled the objection. Relying on legal decisions recognizing “verbal acts” as non-hearsay and/or decisions construing the hearsay exception for statements evidencing the declarant's then-existing state of mind (such as motive, intent, or plan), the Court vacated its prior ruling and permitted Ms. Ward to testify as to what Mary Lewis told her about the Swint Deeds. The Court ruled, however, that such testimony would be admissible only as evidence of Mary Lewis’ mental state at the time she made the statements, not for the truth of the matter asserted.⁶²

After that ruling, Ms. Ward appeared as a witness a second time. During her second appearance, when asked about instructions Mary Lewis gave her regarding what property to include in the Swint Deeds, Ms. Ward testified:

A: Anyway, she gave me the tax bills and she instructed me to give all of the property in Myakka City on a quit claim deed to Cindy Swint.

Q: And just to clarify, when you heard her say “all of the property?”

A: Well, the folios -- all of the folios that she gave me from the tax bill. And it was the property that she owned in Myakka City.63

․

A: She said, here's the tax bill for my property in Myakka City. I want you to put these on a quit claim deed to Cindy Swint. She really didn't say anything other than that that was her property in Myakka City.64

And when Ms. Ward was asked again how many tax bills Mary Lewis handed her to use in preparing the Swint Deeds, this time she answered:

A: There was four of them. And I wrote the tax folio numbers down, but I understand later, I didn't know that at the time. But when I was in court that I evidently missed [one] of the legal description[s] but the folio number was there, so.65

Further, when asked to review the Swint Deeds during this second round of testimony, the following colloquy with Ms. Swint's lawyer took place:

Q: Ms. Ward, on this document under the legal description, the last line says in parentheses, “continuation on tax roll.” Can you please explain why you wrote that?

A: Because my understanding is on the tax -- I mean on the bill that they send you that I had, it doesn't give the full description. So I added that so if you wanted the full description of the folio numbers you could look them up.66

Had Ms. Ward, in fact, transcribed the folio number for the Front 70 on one of the two Swint Deeds, the Court might have considered that as evidence that Mary Lewis intended to deed the Front 70 to Ms. Swint. However, although the Swint Deeds describe three parcels of property in detail — by folio number, street address (except for one parcel with “no assigned address”), and legal description (in whole or in part) — they make no reference at all to the Front 70.

With respect to whether the Debtor intended to deed the Front 70 to Ms. Swint, he did testify in 2008 during a creditors’ meeting that Ms. Swint currently had the 434 acres (which presumably includes the Front 70). However, this statement is contradicted by information he provided in his bankruptcy schedules and statements and in his family law affidavit.

Because an action for reformation relies heavily on the ability to prove intent, witness credibility is particularly critical.⁶⁷ Thus, the Court necessarily placed substantial weight on the trustworthiness — or not — of the testimony of Ms. Swint's only two witnesses (herself and Ms. Ward) and particularly that of Ms. Swint, the only party to the Swint Deeds still alive to testify about the parties’ intent.

The Court found Ms. Swint's testimony, all of which was self-serving, at times lacked credibility. For example, the evidence shows that Ms. Swint learned that her deeds did not include the Front 70 sometime in 2009 or 2010.⁶⁸ Yet, despite having contacted an attorney around that time, she testified that she did not file a lawsuit to reform the deeds until she filed the current counterclaim in 2021.⁶⁹ Moreover, she offered into evidence no written documentation (e.g., saved communications via text or email between herself and her parents) to support the agreement she allegedly had with them and Lewis 8001 to transfer four parcels, including the Front 70, to her in consideration of money she loaned to, or on behalf of, her parents and Lewis 8001. Nor did she offer into evidence written documentation (e.g., receipts or bank statements) to support the more than $480,000 she claims to have loaned them.⁷⁰

Regarding Ms. Ward's testimony, the first time she took the stand, she persuaded the Court that she was both credible and a meticulous bookkeeper who paid attention to details. However, the second time she testified, she contradicted her earlier testimony, causing the Court to lack confidence in the credibility of the latter version. For example, although Ms. Ward testified the first time that she thought Mary Lewis handed her three tax bills to use in preparing the deeds, when asked months later how many tax bills Mary handed her, she responded, without qualification, that there were four.⁷¹ The Court's overall impression of Ms. Ward's testimony is that — being a relative and long-time employee of the family and understanding the significance of her testimony — she was reluctant to give testimony that might hurt Ms. Swint's case and felt impelled to assume responsibility for the omission of the Front 70 from the Swint Deeds. She even apologized multiple times while on the stand,  ⁷² and volunteered a supposition that maybe she made a mistake.⁷³ It appeared to the Court, particularly when testifying the second time, that Ms. Ward may have actually convinced herself, through self-persuasion, that the omission was, in fact, the result of her mistake, even though she initially thought she accurately transcribed all of the information on the tax bills that Mary Lewis gave her to prepare the deeds. Thus, as between Ms. Swint's reformation theory and Ms. Ward's credible testimony about having prepared the Swint Deeds precisely as set out in the tax bills that Mary Lewis handed her, a more plausible conclusion is that Mary Lewis did not hand Ms. Ward the tax bill for the Front 70, meaning she did not intend to transfer that parcel to her daughter.

The testimony of Ms. Swint also conflicted at times with that of Ms. Ward. With regard to when and where the Swint Deeds were signed, for example, Ms. Ward testified that she witnessed the Lewises sign the Swint Deeds in 2003 in Lewis 8001's office trailer. Ms. Swint, on the other hand, testified that her parents signed the Swint Deeds in her presence in 2004 in her mother's living room.⁷⁴ She made no mention of Ms. Ward being present then, too, to witness her parents’ signatures.

Besides, at the time the Swint Deeds were signed, Lewis 8001 held title to the Front 70. Thus, if the parties had meant either of the Swint Deeds to transfer this parcel to Ms. Swint, it would have been the deed identifying Lewis 8001 as the grantor. Yet, on each of the deeds, the signature lines for the “first party” identify the Debtor and Mary Lewis in their individual capacities and that is how the Lewises signed them. No evidence was presented that they ever owned the Front 70 in their individual capacities. Therefore, to prevail on her counterclaim — in addition to proving mutual mistake and valuable consideration — Ms. Swint would have had to essentially adopt the Trustee's argument that Lewis 8001 was the alter ego of Mr. Lewis and prove that Lewis 8001 was the alter ego of Mary Lewis, too. Otherwise, the attributes of the Swint Deeds belie Ms. Swint's assertion that they should have included the Front 70.

At closing, Ms. Swint argued that her deeds suffered from mere technical defects and that such defects appearing in a deed or other executed conveyance will not invalidate the instrument. The authorities relied upon by Ms. Swint for this proposition, however, do not apply to her action for reformation. The Florida Statute she cites applies to conveyances that have “for a period of 7 years or more been spread upon the records of the county wherein the land therein described has been or was at the time situated.”⁷⁵ And the primary case she cites provides for the disregard of “obvious clerical errors” and ”technical omissions” in a notary acknowledgement.⁷⁶ Neither authority applies to an action to reform deeds to include real property that the deeds make no mention of.⁷⁷

In conclusion, even if Ms. Swint's and Ms. Ward's credibility had been stellar and the Swint Deeds reflected an accurate chain of title, the evidence overall was simply too weak for Ms. Swint to succeed on her counterclaim. Due to the inability to hear testimony from her parents, the Court was forced to rely primarily on the Lewises’ actions in its effort to decipher their intent. Only a few spoken words — specifically, the Debtor's testimony at the creditors’ meeting held in his 2008 bankruptcy case about deeding all 434 acres (which presumably includes the Front 70) to Ms. Swint — were admitted into the record as evidence that the parties made an agreement to deed the Front 70 to Ms. Swint. Ms. Swint was not able to offer even her own testimony about any specific conversation she had with her parents when she was given the Swint Deeds that the deeds included the Front 70. On the other hand, her parents’ actions — with respect to how they prepared their bankruptcy statements and schedules and how her father prepared his family law affidavit — suggest that her parents did not intend to deed her the Front 70 because, with some noted exceptions, they continued to present themselves as owners of the Front 70 long after the Swint Deeds were executed. Moreover, the single most telling and, thus, the action that speaks the loudest with respect to Ms. Swint's parents’ intent was their execution of deeds in favor of Ms. Swint that described in detail three parcels of property, yet included not a single detail about the Front 70. This action is entitled to a strong presumption of their intent.⁷⁸

In the end, Ms. Swint was unable to prove, by clear and convincing evidence — or in this Court's opinion, even by a preponderance of the evidence — that omission of the Front 70 was due to the parties’ mutual mistake. Because mutual mistake was not proved, the Court need not decide if valuable consideration was given in exchange for the Swint Deeds ⁷⁹ or rule definitively on whether the deeds were, in fact, valid.⁸⁰

Resolution of the Complaint as to the Remaining Defendants

(Other than Ms. Swint and the Defendants Who Defaulted)

Defendants Jerry P. Lewis, Jan L. Robinson, and Tracey E. Sexton answered the complaint. But they did not participate in the trial, in person or through counsel, and thereby waived any opposition they may have had to the Trustee's motion for judgment on the pleadings. As described previously in this opinion, in response to that motion, the Court ruled that the Debtor was the sole owner of the Lewis 8001 Corporations and that all property interests of those corporations are subject to administration by the Trustee (implicitly recognizing that the deed purporting to show a transfer of title to the Front 70 to Jerry A. Lewis, Jerry P. Lewis, and Jan L. Robinson was deficient as a matter of law to convey title to these three individuals). Thus, they have no interest in the Front 70 and, consequently, no entitlement to any proceeds from the sale of that property.⁸¹

Finally, with regard to the EPC, its answer asserted a right to share in sale proceeds based on a judgment lien obtained against property of Lewis 8001 and the Lewises. The Trustee raised no objection to this assertion. The Court notes here that relief from the automatic stay imposed by the Bankruptcy Code ⁸² was not needed for EPC to create a post-petition lien on property that is not estate property. The Front 70 is not estate property because it was owned by Lewis 8001 and not by the Debtor directly. However, the EPC's post-petition lien is null and void with respect to any property of the estate.⁸³ EPC obtained relief from the automatic stay “for the sole purpose of allowing [EPC] to seek to liquidate existing stipulated penalties previously awarded in a Consent Final Judgment dated January 10, 2077.”⁸⁴

Accordingly, it is

ORDERED:

1. The relief sought by defendant Cindy Swint in her counterclaim for reformation of the Swint Deeds is denied, and Ms. Swint, therefore, has no right to any of the proceeds from the Trustee's sale of the Front 70.⁸⁵

2. The Court will enter a separate final judgement in favor of the defendants and against the Trustee on Count I of the Complaint with respect to the alter ego claim included in that count, in conformity with the Court's prior rulings on the Trustee's Motion for Judgment on the Pleadings and Ms. Swint's Motion for Judgment on Partial Findings.

3. The Court will enter a separate final judgment: (i) in favor of the Trustee and against Ms. Swint, Jerry P. Lewis, Jan L. Robinson, Tracey Sexton, and the defaulted defendants (except as to the alter ego theory raised in Count I), determining that they have no entitlement to the proceeds from the sale of the Front 70; and (ii) in favor of the EPC on its asserted entitlement to share in those proceeds based on its judgment lien.

The Clerk is directed to serve a copy of this order on interested parties who do not receive service via CM/ECF

FOOTNOTES

1.   https://www.phrases.org.uk/meanings/actions-speak-louder-than-words.html (describing this proverb as having been first voiced at the time of the English Civil War, by John Pym, an English parliamentarian, and recorded in 1628 in Hansard, the record of the proceedings of the UK parliament) (last visited April 7, 2025).

2.   Case No. 8:08-bk-06755.

3.   Bauman v. Mary E. Lewis, et al., Adv. Proc. No. 8:13-ap-00935.

4.   The complaint named a total of 13 defendants.

5.   Plaintiff's Ex. 5 and 30.

6.   Tr. vol. 1, 78:3-6. During trial, these four parcels were sometimes referred to together as the “Manatee County property” or the “Myakka City property.” See, e.g., Tr. vol. 1, 7:15-8:2; 78:3-5.

7.   Tr. vol. 1, 80:1-8.

8.   Tr. vol. 1, 78:3-21.

9.   Plaintiff's Ex. 28.

10.   Tr. vol. 1, 78:3-21; 79:8-10. Defendant's Ex. 9.

11.   Plaintiff's Ex. 29 and 30. Tr. vol. 1, 78:8-11. In both the Debtor's 2008 and 2009 bankruptcy cases, Schedule A lists a fifth parcel of property located at 9915 Wauchula Road. Plaintiff's Ex. 17; Defendant's Ex. 9. It is not clear if this property borders any of the four just described.

12.   Tr. vol. 1, 78:3-6. Defendant's Ex. 9. It is clear from the evidence taken as a whole that references in the record to “434 acres” and/or “437 acres” are to the back “swamp,” the Front 70, and possibly one or more smaller parcels. And although the entire 434 (or 437) acres is at times described as having “No assigned address” (see, e.g., Plaintiff's Ex. 17), the Front 70 has a street address of 9600 Wauchula Road, Myakka City. Plaintiff's Ex. 30.

13.   The overlapping requests in the complaint's counts are likely intended to secure a determination that the Front 70 is either estate property or property owned by estate property (meaning owned by Lewis 8001) if the alter ego claim in Count I fails.

14.   See Motion to Sell Real Property Free and Clear of Liens Pursuant to 11 U.S.C. § 363 and the Court's order granting the same (Case No. 8:09-bk-08409, Doc. Nos. 318 and 338, respectively).

15.   These include the Probate Estate (if any) of Jerry A. Lewis, the Probate Estate (if any) of Mary E. Lewis, Unknown Heirs of Jerry A. Lewis, Unknown Heirs of Mary E. Lewis, Lewis 8001 Enterprises, Inc. (a Florida Corporation Dissolved in 1999), Lewis 8001 Enterprises, Inc. (a Florida Corporation Dissolved in 2006), Craig A. Lewis, and Mary Beth Rowe. See Clerk's Defaults at Doc. Nos. 71, 73, 148, 149, 154, 78, 166, and 167 (respectively).

16.   Doc. Nos. 28, 25, and 24 (respectively).

17.   Doc. No. 36.

18.   Id.

19.   Doc. No. 26. Ms. Swint's answer also included six affirmative defenses. Four relate to claims that became moot following the sale of the Front 70. And two opposed application of the alter ego ruling from the 2013 proceeding, which ruling is addressed later in this opinion

20.   Amended Order on the Trustee's Ore Tenus Motion for Judgment on the Pleadings (Doc. No. 196). Because Ms. Swint was no longer a party to the 2013 Proceeding when the complaint in that proceeding was amended to include a claim for a declaration that the Lewis 8001 Corporations were alter egos of the Debtor, the Court's prior alter ego ruling is not binding on Ms. Swint. Id.

21.   Joint Ex. 1.

22.   Joint Ex. 2.

23.   Plaintiff's Ex. 5.

24.   Plaintiff's Ex. 7. See also Order Granting Trustee's Motion to Sell Real Property Free and Clear of Liens Pursuant to 11 U.S.C. § 363 (Case No. 8:09-bk-08409, Doc. No. 338.)

25.   See Complaint (Doc. 1, as amended at Doc. 130) paragraphs 57-68.

26.   One of the two Swint Deeds — which includes one folio number, an “unassigned” street address, and what appears to be a partial legal description (suggested by the notation “Continuation on Tax Roll”) — identifies the grantor as Lewis 8001. Joint Ex. 3. The other one — which includes the folio numbers, street addresses (of 9500 Wauchula Road and 9520 Wauchula Road), and legal descriptions or at least partial legal descriptions (again, notated “Continuation on Tax Roll”) for two parcels — identifies the grantors as Jerry A. Lewis and Mary E. Lewis, husband and wife. Joint Ex. 4. Because the Front 70 was never owned by the Lewises in their individual capacities — as demonstrated by the deeds that show transfers of title beginning with Broderick — if either of the Swint Deeds should have included the Front 70, it would most likely be the first of these.

27.   Defendant's Ex. 9. See also Tr. vol. 1, 17:16-20.

28.   Defendant's Ex. 10.

29.   Joint Ex. 12.

30.   Id.

31.   Plaintiff's Ex. 17. The Trustee testified these are the same properties included in the Lewises’ 2008 case. Tr. Vol. 1, 18:8-19:8.

32.   Plaintiff's Ex. 19

33.   Tr. vol. 1, 63:17-64:1; 9:17-19.

34.   Plaintiff's Ex. 19.

35.   Amended Order on Cindy Swint's Ore Tenus Motion for Judgment on partial Findings Under Rule 52(c) (Doc. No. 195).

36.   See, e.g., In re Xenerga, Inc. 449 B.R. 594, 598 (Bankr. M.D. Fla. 2011) (under Florida law, party asserting an alter ego claim must prove its claim by a preponderance of the evidence).

37.   See supra note 35.

38.   Id.

39.   Id.

40.   See Providence Square Assoc. v. Biancardi, 507 So. 2d 1366, 1369-70 (1987) (“[I]n reforming a written instrument, an equity court in no way alters the agreement of the parties. Instead, the reformation only corrects the defective written instrument so that it accurately reflects the true terms of the agreement actually reached.”) (citations omitted). See also Watkins v. DeAdamich, 187 So. 2d. 369, 371 (Fla. 2d DCA 1966) (no ground for reformation exists “[w]here an instrument is written as one party understands, and not as the other party understands it.”) (citations omitted).

41.   Allstate Ins. Co. v. Vanater, 297 So. 2d 293, 295 (Fla. 1974). See also Watkins v. DeAdamich, 187 So. 2d at 371 (“In a suit for reformation much stronger and clearer evidence is required than in an ordinary action for damages.”).

42.   Swenson v. Wal-Mart Stores East, L.P., --- So. 3d --- , 2025 WL 610443, *2 (Fla. 1st DCA Feb. 26, 2025) (citations omitted). See also Cummings v. State of Florida, 310 So. 3d 155, 158-59 (Fla. 2d DCA 2021) (“Clear and convincing evidence is ‘evidence making the truth of the facts asserted highly probable.’ ”) (quoting Slomowitz v. Walker, 429 So. 2d 797, 799 (Fla. 4th DCA 1983)).

43.   See Gross v. Lyons, 763 So. 2d 276, 281 n.1 (Fla. 2000) (“A preponderance of the evidence is defined as ‘the greater weight of the evidence,’ Black's Law Dictionary 1201 (7th ed.1999), or evidence that ‘more likely than not’ tends to prove a certain proposition.”) (citing American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997) (quoting Bourjaily v.United States, 483 U.S. 171, 175 (1987)).

44.   “[W]here a deed is given gratuitously and thereby constitutes a unilateral act on the part of the grantor, or where the only consideration is ‘love and affection’ rather than material value, equity will not decree reformation on the ground of mistake.” Providence Square, 507 So. 2d at 1370 (citations omitted). See also DRO 15R, LLC v. Ajar Holdings, LLC (In re DRO 15R, LLC), 649 B.R. 216, 229 (Bankr. S.D. Fla. 2022) (under Florida law, “[a] gift is never subject to reformation because the purpose of reformation is to correctly reflect the intent of the parties to an agreement and with a gift there is no agreement.”) (citing Brown v. Brown, 501 So. 2d 24, 25 (Fla. 5th DCA 1986)).

45.   Defendant's Ex. 1 and 2.

46.   The bulk of this opinion as it relates to Ms. Swint's counterclaim focuses on her attempt to prove the parties’ intent with respect to the Front 70. One of the Swint Deeds identifies Lewis 8001 as the grantor. This deed may be invalid in any event due to alleged flaws in its execution as discussed previously in this opinion.

47.   During a deposition of Ms. Swint taken two months prior to trial, she conceded that she did not have any sort of written agreement with either of her parents to get the Myakka City property. See Transcript of Cindy Swint's June 5, 2023, Deposition (portions of which were read into the record). Plaintiff's Ex. 13 (Depo. Tr. 31:20-24).

48.   Tr. vol. 1, 71:2-8; 76:12-23.

49.   Tr. vol. 1, 76:21-25; 105:22-106:5.

50.   Tr. vol. 1, 81:16-24; 84:3-11; 86:8-11; 86:25-87:1; 87:19-22.

51.   Tr. vol. 1, 94:15-19.

52.   Tr. vol. 1, 87:24-88:2; 90:4-10.

53.   Tr. vol. 1, 106:21-23.

54.   Ms. Swint further testified that the back parcel (the “swamp”) was accessible only through the Front 70, suggesting that it would not make sense for her parents to deed to her the back parcel and not the front parcel too. Tr. vol. 1, 78:14-18; 79:11-14. Without more, however, this testimony falls far short of meeting the high burden she carried to prove her parents’ intent.

55.   Tr. vol. 1, 112:13-22; 113:5-25.

56.   Tr. vol. 1, 120 :15-17.

57.   Tr. vol. 1, 124 :16-18; 126:8-10

58.   When asked how many tax bills Mary handed to her, Ms. Ward responded, “I think there was like three.” Tr. vol. 1, 128:9-14. Ms. Ward also testified that she thought the Swint Deeds included all of the Myakka City property. Tr. vol. 1, 128:14-15. But because she was not a party to the deeds, Ms. Ward's personal understanding of what property was to be included is not relevant.

59.   Tr. vol. 1, 125:6-7.

60.   Tr. vol. 1, 127:18-25; 132:20-25.

61.   Tr. vol. 1, 128:3-8; 129:4-6; 114:1-4; 123:12-20. The Court notes that the Swint Deeds show that an individual named Edward Sweeting appears to have witnessed the Lewises signing the Swint Deeds, along with Phyllis Ward. Joint Ex. 3 and 4. Interestingly, the individual who notarized the Swint Deeds is a friend of Ms. Swint named Sharon Sweeting. Tr. vol. 1, 100:2-8.

62.   See Order: 1) Granting Reconsideration of Ruling on Hearsay Objections to Testimony of Phyllis Ward and 2) Reopening Trial for Limited Purpose (Doc. No. 180) (citing Rules 801 and 803(3), Fed. R. Evid.).

63.   Tr. vol. 2, 5:2-9.

64.   Tr. vol. 2, 6:7-10.

65.   Tr. vol. 2, 6:15-21.

66.   Tr. vol. 2, 8:23-9:6.

67.   See Coral Way, LLC v. Jones, No. 05-21934, 2006 WL 8432090, *2 (S.D. Fla. Dec. 7, 2006) (credibility appears to be the critical factor in determining whether a party seeking reformation has met the clear and convincing standard of proof) (citing Watkins v. DeAdamich, 187 So. 2d, 369, 371 (Fla. 2d DCA 1966) and Resort of Indian Spring, Inc. v. The Indian Spring Country Club, Inc., 747 So. 2d 974, 977 (Fla. 4th DCA 2000)).

68.   Tr. vol. 1, 91:15-92:10; 93:8-13; 109:5-12.

69.   Tr. vol. 1, 91:15-92:10. See also Plaintiff's Ex. 13 (Depo. Tr. 39:13-16). Ms. Swint testified that she did at some point contact Manatee County to try and get the folio number for the Front 70 added to her deeds, but the County would not allow it. Id. 39:17-23. The Court notes that the Plaintiff's proposed exhibits include a copy of a complaint for reformation filed by Ms. Swint in Manatee County in 2020. Plaintiff's Ex. 27 (not offered into evidence). Regardless of whether she first sought reformation in 2020 or 2021, she waited ten years after learning that her deeds did not include the Front 70 to do so.

70.   Tr. vol. 1, 73:1-5.

71.   Tr. vol. 2, 6:15-21.

72.   Tr. vol. 1, 112:18-19, 24; 116:10-11, 23; 117:4, 12. Tr. vol. 2, 123:7, 16.

73.   Ms. Ward's testimony that she “thought” she correctly copied information from the tax bills to the Swint Deeds implies that she might not have copied the information correctly. Tr. vol. 1, 127:22-25.

74.   Tr. vol. 1, 86:25-87:1; 87:19-22. See also Joint Ex. 3 and 4.

75.   § 694.08, Fla. Stat.

76.   House of Lyons, Inc. v. Marcus, 72 So. 2d 34, 36 (Fla. 1954) (“Inartificialness in [the execution of certificates of acknowledgement] will not be permitted to defeat them, if looking at them as a whole, either alone or in connection with the instrument, we find that they reasonably and fairly indicate a compliance with the law.”).

77.   The Court was unable to determine how a second case Ms. Swint cites, Schwadel v. Uchitel, 455 So. 2d 401 (Fla. 3d DCA 1984), has any bearing on the facts of the present proceeding. There, the court ruled that the attempted sale of a major corporate asset without complying with certain shareholder rights and protections could not be completed.

78.   Coral Way, LLC v. Jones, 2006 WL 8432090 at *2 (“There is a strong presumption that a written agreement accurately expresses the intent of the contracting parties.”) (citations omitted).

79.   The Court notes that both Ms. Swint and Ms. Ward testified credibly about multiple payments Ms. Swint made to, or on behalf of, her parents and Lewis 8001. Tr. vol. 1, 71:6-72:25; 116:24-119:18. Further, Ms. Swint testified credibly about working on occasion for Lewis 8001 at the landfill. Tr. vol. 1, 73:9-22. And although such testimony did not firmly establish the total amount Ms. Swint claims to have loaned her parents and Lewis 8001, with respect to consideration, a party seeking reformation need only show that some “valuable or meritorious consideration” was given to prove the transfer was not a gift. DRO 15R, LLC, 649 B.R. at 229 (citation omitted).

80.   In addition to challenging one of the Swint Deeds that identifies the grantor as Lewis 8001 because the parties signed in their individual capacities, the Trustee also argued: (1) although the deed was prepared in 2003 and notarized in 2004, Lewis 8001 A was dissolved at that time and Lewis 8001 B had not yet been incorporated, (2) the deed contained no corporate seal, and (3) there was no evidence of a corporate resolution approving the transfer of property.

81.   The Court takes judicial notice that the Claims Register in the Debtor's bankruptcy case shows that none of these three filed a proof of claim.

82.   11 U.S.C. § 362(a).

83.   United States v. White, 466 F.3d 1241, 1244 (11th Cir. 2006) (“It is the law of this Circuit that ‘[a]ctions taken in violation of the automatic stay are void and without effect.’ ”) (citing Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308) (11th Cir. 1982)).

84.   Order on Motion of Environmental Protections Commission of Hillsborough County for Relief from the Automatic Stay (Case No. 8:09-bk-08409, Doc. 112).

85.   The Court takes judicial notice that the Claims Register in the Debtor's bankruptcy case does not show any proof of claim filed by Ms. Swint.

Catherine Peek McEwen, United States Bankruptcy Judge