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                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-10044
                        Non-Argument Calendar
                      ________________________

         D.C. Docket Nos. 6:19-cv-00699-PGB; 6:15-bk-06458-CCJ


WILLIAM W. COLE, JR.,

                                                             Plaintiff-Appellant,

                                   versus

PRN REAL ESTATE & INVESTMENTS, LTD.,
NANCY ROSSMAN,
LORI PATTON, Trustee,

                                                         Defendants-Appellees.
                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (September 29, 2020)
Before MARTIN, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
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      William Cole, Jr., appeals the district court’s order affirming the bankruptcy

court’s resolution of his Chapter 7 bankruptcy petition. He argues that the

bankruptcy court incorrectly apportioned the proceeds from the sale of his

lakefront homestead property. Cole moves to certify the question of

apportionment to the Florida Supreme Court. Cole also says that the State of

Florida has title to the portion of his property beneath the lake’s surface, and that

he did not mislead the bankruptcy court by gerrymandering his homestead parcel

to exclude this underwater portion. After careful consideration, we deny Cole’s

motion to certify and affirm the judgment of the bankruptcy court.

                                           I.

      In 2001, Cole purchased 2.95 acres of property on Lake Minnehaha in the

city of Maitland, Florida. The property included approximately .765 acres of dry

land and 2.185 acres of land beneath the surface of the lake. Cole built a 10,000

square foot home on the property and lived there with his family. Cole held title to

the property, as a single parcel of land, through a self-settled revocable trust (the

“Trust”).

      In 2015, however, Cole began preparing to file for bankruptcy after stalled

negotiations with his creditor, PRN Real Estate & Investments, Ltd. (“PRN”). In

January 2015, Cole asked a surveyor to divide his lake property into two parcels.

The first parcel encompassed the dry land containing Cole’s home, dock, and



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boathouse, and the second parcel encompassed the land at the lake bottom. In June

2015, Cole executed a special warranty deed conveying the lake bottom land from

the Trust back to the Trust.

      In July 2015, Cole filed his Chapter 7 bankruptcy petition. His sworn

schedules listed his lake property as two separate parcels of land: the dry property

(with an estimated value of $2.5 million) and the lake bottom property (with a

value of $1,000). Cole designated the dry property as his homestead. Under the

Florida Constitution, a debtor’s homestead is exempted from forced sale following

bankruptcy. See Fla. Const. art. X, § 4. But if a debtor’s homestead is located

within a municipality, as is Cole’s, only one-half acre of contiguous land is

protected by the homestead exemption.

homestead exemption,

Cole sought to shelter the dry property—the smaller of the two newly created

parcels—from forced sale.

      Both PRN and Cole’s bankruptcy trustee, Lori Patten, objected to Cole’s

designation of the dry property as his homestead. PRN asked the bankruptcy court

to deny Cole a homestead exemption in light of Cole’s attempt to split his lake

property and thereby fraudulently gerrymander his homestead. Both PRN and the

trustee argued that the bankruptcy court should consider Cole’s dry and submerged

property as one parcel when evaluating Cole’s homestead exemption claim.




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      Cole responded that he was entitled to a homestead exemption regardless of

his pre-bankruptcy conduct. He also raised a new argument that the land at the

bottom of the lake belonged to the State of Florida, so the bankruptcy court could

not consider it part of his homestead.

      The bankruptcy court held a two-day trial on the issue of Cole’s homestead

property. After trial, the court found that Cole had been “misleading” in claiming

his lake property as two separate parcels in the bankruptcy petition, and that his

explanations for the split were “not credible.” Nevertheless, it held Cole was still

entitled to a homestead exemption under Florida law. The court then addressed

which portions of the lake property were relevant to Cole’s homestead exemption

claim. Because all agreed that the lake bottom property had “little value and

utility,” the court treated Cole’s lake property “as indivisible” and directed the sale

of the property with apportionment of the proceeds to Cole and his creditors.

      The bankruptcy court declined to consider the question of the lake bottom

property’s ownership, because to do so would give credence to Cole’s “blatant and

inequitable” attempt to gerrymander his property before filing for bankruptcy. The

court also found that the issue of whether title to the lake bottom land belonged to

Cole or the State of Florida was not a proper question for the court to decide,

especially since Florida had not asserted claim to title in almost 150 years of record

title history. Instead, the court considered the State’s interest in the lake bottom



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land “as a potential cloud on title” and assumed “that Debtor owns all of the

Property as a single indivisible parcel.”

      Finally, the bankruptcy court allowed Cole to claim a homestead exemption

despite his misleading pre-bankruptcy conduct. Because Cole’s homestead

property was more than one-half acre and indivisible, the court decided that Cole

could benefit from the homestead exemption by receiving a portion of the proceeds

from the sale of his property. The court held that Cole would receive proceeds in

the amount of a simple percentage of the exempt acreage, here .5 acres, divided by

the total acreage of his property, here 2.95 acres. From this calculation, Cole

would receive 16.95% of the proceeds from the sale of his property.

      Cole appealed this ruling to the district court for the Middle District of

Florida. The district court affirmed the bankruptcy court’s decision in full. Cole

appealed, raising several claims of error in the bankruptcy court’s decision. Cole

also moves this Court to certify a question of law to the Florida Supreme Court.

                                            II.

      “In a bankruptcy case, this Court sits as a second court of review.” In re

Brown, 

, 1315 (11th Cir. 2014) (quotation marks omitted). “[W]hen

a district court affirms a bankruptcy court’s order . . . this Court reviews the

bankruptcy court’s decision.”

bankruptcy court’s factual

findings for clear error and its legal conclusions de novo.”

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omitted). We may affirm on any ground that is supported by the record. Big Top

Koolers, Inc. v. Circus-Man Snacks, Inc., 

, 844 (11th Cir. 2008).

                                         III.

                                          A.

      Cole first argues that the bankruptcy court erred by allocating the proceeds

of the homestead sale by “a simple percentage of the exempt acreage to the total

acreage of the property.” He says that the bankruptcy court contradicted “binding

Eleventh Circuit precedent” because our Court had established a different standard

for allocating these proceeds. Specifically, he says our Court has endorsed a

method of calculation that the Eighth Circuit set forth in O’Brien v. Heggen, 

(8th Cir. 1983).

      We begin with the text of the Florida constitutional homestead exemption.

In relevant part, Article 10, § 4, of the Florida Constitution provides:

             There shall be exempt from forced sale under process of
             any court . . . the following property owned by a natural
             person: a homestead, if located outside a municipality, to
             the extent of one hundred sixty acres of contiguous land
             and improvements thereon . . . ; or if located within a
             municipality, to the extent of one-half acre of contiguous
             land, upon which the exemption shall be limited to the
             residence of the owner or the owner’s family.

Fla. Const. art. X, § 4(a) (emphasis added).

      The bankruptcy court held that Cole was entitled to the benefit of the

homestead exemption here. Cole’s property, however, exceeded the one-half acre

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of property allowed for a municipal homestead. Ordinarily, if a Florida

homeowner’s property “exceeds the one-half acre allowed for [a] municipal

homestead,” then “he cannot declare as exempt his entire parcel, but may select his

homestead in any continuous shape from his qualifying lands.” In re Kellogg, 

, 1120 (11th Cir. 1999) (quotation marks omitted). However, the

bankruptcy court determined that, under Kellogg, Cole could not carve out a half-

acre homestead from his property. The court reasoned that Cole’s land was

indivisible, since the lake bottom property was worthless if separated from the dry

property. If a homestead parcel is indivisible, “sale [of the parcel] and

apportionment of the proceeds is an equitable solution [and] allows for an

appropriate recognition of the debtors’ homestead exemption.” In re Englander, 

, 1032 (11th Cir. 1996). The bankruptcy court thus ordered the parcel

sold and decided that Cole would receive proceeds in the amount of “a simple

percentage of the exempt acreage [.5 acres] to the total acreage of the property.”

       On appeal, Cole does not challenge the bankruptcy court’s finding of

indivisibility. 1 Neither does Cole dispute that the proper way to apply the

homestead exemption to indivisible land is to sell the property and apportion the

proceeds. Instead, Cole takes issue with the bankruptcy court’s method of


       1
         Cole does argue that the bankruptcy court should have found that the submerged land
never belonged to him, but to the State of Florida. However, Cole makes no argument that, if he
owns the entire parcel, the submerged portion was divisible from the dry portion.


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apportioning the proceeds from the sale of his land. Cole argues that the

bankruptcy court erred by not following the Eighth Circuit’s decision in O’Brien.

      O’Brien considered the application of Minnesota’s homestead exemption

statute to a parcel of land exceeding the protected homestead 

. The O’Brien debtor acknowledged that his outsized parcel should be sold.

that the non-exempt portion of his land was “virtually worthless,

thus entitling him to keep the [entire] proceeds of the sale, less a nominal amount

of $1,000 attributable to the non-exempt portion.”

rejected

this argument. It held that the bankruptcy court had fairly apportioned the

proceeds from the sale by assessing the value per square foot of the unimproved

land, then multiplying this value “to the total number of square feet in excess of the

[homestead] acre limitation.”

& n.4. This calculation “determined the

non-exempt portion of the proceeds.”

. The rest of the proceeds went to

the debtor in recognition of his homestead exemption. See

Eighth Circuit held, was not “clearly erroneous.”

under O’Brien, the bankruptcy court should have

apportioned the parcel sale proceeds by considering only the value of the

unimproved land. If the bankruptcy court were to determine the non-exempt

portion of the proceeds using the value of the land in its unimproved state, Cole

would retain the full value of his home and other improvements through the



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homestead exemption. Cole argues that this outcome is consistent with the typical

application of the Florida homestead exemption, where debtors are permitted to

keep the full value of their half-acre homestead, including the value of any

improvements to this parcel.

      O’Brien interpreted another state’s homestead exemption and the

surrounding case law. 

–04 (applying Minnesota law). And

contrary to Cole’s assertion, our Court has not endorsed O’Brien’s method of

apportioning homestead sale proceeds. Cole points to this Court’s decisions in

Kellogg and Englander. But in Englander, our Court merely noted that the Eighth

Circuit had approved “the sale of a property and apportionment of the proceeds in

a situation where the property exceeded the state homestead limitation on 

. Kellogg’s reference to O’Brien stood for the same proposition:

“that partition was equitable and proper when the debtor’s homestead exceeded the

amount allowed in the [homestead exemption] and was 

. Neither Kellogg nor Englander discussed O’Brien’s method for

apportioning sale proceeds. The bankruptcy court thus did not contradict “binding

Eleventh Circuit precedent” by declining to apply O’Brien when apportioning the

proceeds in Cole’s case.

      Beyond this, the only court in this circuit to address apportionment has

recognized that, under Florida law, it is permissible to apportion the proceeds of a



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homestead parcel sale, including the value of any improvements, by a pure

percentage of protected acreage to overall acreage. In In re Quraeshi, 

(S.D. Fla. 2002), the bankruptcy court applied the Florida homestead

exemption to order a sale of the debtor’s indivisible, oversized property and

apportionment of the proceeds. See

The bankruptcy court determined

“that one-half acre constituted 19 percent of the total [parcel] acreage . . . [so] the

Debtor was entitled to 19 percent of the [sale] proceeds.”

the

bankruptcy court apportioned the total proceeds by the percentage of homestead-

protected acreage to overall acreage. See

in Cole’s case followed the process used by the

bankruptcy court in Quraeshi by apportioning the sale proceeds to Cole based on a

percentage of homestead-protected acreage to overall acreage. Cole argues that he

should be able to carve out the full value of one-half of an acre of his land,

including the value of his home and other improvements. However, the Quraeshi

court held that “permitting a debtor to ‘carve out’ a one-half acre of land[] refers

only to cases where it is possible, and legal and practical, for the debtor’s real

property to be physically partitioned into a homestead-exempt one-half acre . . .

and a remaining non-exempt portion.”

And although Cole relies on

O’Brien, Quraeshi observed that it was not bound by O’Brien’s interpretation of an

entirely different statute and accompanying case law.

n.1.



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      Cole points out that, on appeal to the district court, the Quraeshi debtor

raised a different issue and “d[id] not challenge the bankruptcy court’s ruling . . .

that the Debtor is entitled to 19 percent of the claimed homestead.”

Nevertheless, the bankruptcy court’s apportionment in Quraeshi still supports that

apportioning proceeds by percentage of homestead acreage to overall acreage is a

valid interpretation of the Florida homestead exemption.

      In sum, it was not legal error for the bankruptcy court to follow Quraeshi’s

interpretation of the Florida homestead exemption instead of O’Brien’s

interpretation of Minnesota law. Cole asks to certify the question of whether

apportionment under Florida homestead exemption follows the rule in O’Brien or

the rule in Quraeshi. This Court may certify a question to the Florida Supreme

Court if “we maintain more than ‘substantial doubt’ as to how the issue before us

would be resolved under Florida law.” Toomey v. Wachovia Ins. Servs., Inc., 

, 1231 (11th Cir. 2006). In light of the precedent supporting the

bankruptcy court’s apportionment of the proceeds, however, we do not have

substantial doubt as to the correctness of the bankruptcy court’s decision. See

argues that the bankruptcy court should have decided whether he

or the State of Florida has ownership of the lake bottom land. Cole says that the

bankruptcy court should have determined that the State of Florida owns the



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submerged land in his parcel. PRN responds that Cole is estopped from

challenging his ownership of the lake bottom land, because he claimed ownership

of this land in the sworn schedules of his bankruptcy filings. We agree with PRN.

      Generally, “a party is bound by the admissions in his pleadings.” Best

Canvas Prods. & Supplies, Inc. v. Ploof Truck Lines, Inc., 

, 621 (11th

Cir. 1983). For this reason, “[n]umerous courts have held that statements in

bankruptcy schedules that are executed under penalty of perjury are eligible for

treatment as judicial admissions.” Ussery v. Allstate Fire & Cas. Ins. Co., 150 F.

Supp. 3d 1329, 1344 & n.10 (M.D. Ga. 2015) (quotation marks omitted and

alterations adopted) (collecting cases); see, e.g., In re Kane, 

, 925

(Bankr. S.D. Fla. 2012) (noting that bankruptcy schedules “are signed under oath

and constitute admissions with regard to the information contained therein”);

Matter of Musgrove, 

, 812 (Bankr. N.D. Ga. 1995) (finding that an

entry in the debtor’s schedule “constitutes a judicial admission”). A fact judicially

admitted is a fact “established not only beyond the need of evidence to prove [it],

but beyond the power of evidence to controvert [it].” Cooper v. Meridian Yachts,

Ltd., 

, 1178 (11th Cir. 2009).

      In his bankruptcy schedules, Cole swore under penalty of perjury that he

owned the submerged land by revocable trust. Cole stated that he was the

“Owner” of the lake bottom parcel and the “Deed/Legal Title is held by: William



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W. Cole, Jr. Family Trust.” Cole never amended his sworn schedules. Even so, at

the trial held in the bankruptcy court, Cole argued for the first time that the State of

Florida owned the submerged land.

      Cole is bound by his sworn admission in the bankruptcy schedules. He

cannot later contradict this admission with evidence that the State of Florida owned

the lake bottom land. See 

. Thus, the bankruptcy court

did not err in declining to decide ownership of the parcel, because Cole had

admitted his ownership. We affirm the bankruptcy court’s decision on this ground.

                                          C.

      Finally, Cole argues that the bankruptcy court clearly erred in finding that he

misleadingly gerrymandered his homestead parcel. We hold that, in light of the

factual record, this finding was not clear error.

      The bankruptcy court held that Cole’s attempts to split his land into dry and

submerged parcels were misleading and even “a species of fraud.” The bankruptcy

court considered the fact that Cole, as a real estate investor and developer of over

20 years, had “admitted expertise in matters of real estate.” The court noted that,

two days after negotiations between Cole and his creditor PRN went south, Cole

asked a surveyor to split his lake property into dry and wet land. Further, Cole did

not use the “ordinary high water mark” to divide his parcel, but requested a

boundary line that included his boathouse in the dry parcel he claimed as his



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homestead. Cole then executed a warranty deed to convey the lake bottom parcel

from the Trust back to the Trust. However, Cole denied that he split his property

solely for fraudulent “pre-bankruptcy planning” reasons. Yet Cole did not seek

approval from the city of Maitland before executing this deed, even though he had

experience obtaining a zoning variance when splitting similar parcels. And of

course, Cole represented in his bankruptcy schedules that the dry parcel was his

homestead and that the wet parcel was an unrelated property.

      On these facts, the bankruptcy court permissibly found that Cole

misleadingly manipulated his homestead exemption by attempting to split his

parcel. And even if this finding was clear error, Cole suffered no harm from this

determination, because the bankruptcy court held he was “nevertheless entitled to

his constitutional homestead exemption.”

                                        IV.

      The bankruptcy court did not apply an incorrect legal standard to apportion

the sale proceeds of Cole’s homestead property. Neither did the bankruptcy court

wrongly decline to hold that Cole’s submerged property was owned by the State of

Florida. Finally, the bankruptcy court’s factual findings do not amount to clear

error. The judgment of the bankruptcy court is AFFIRMED, and Cole’s motion to

certify a question to the Florida Supreme Court is DENIED.




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