Sky Aviation Holdings, LLC v. Aviation Unlimited

DISTRICT COURT OF A PPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SKY AVIATION HOLDINGS LLC,
Appellant/Cross-Appellee,
v.
AVIATION UNLIMITED,
Appellee/Cross-Appellant.
No. 4D2024-0725
[December 17, 2025]
Appeal 	and 	cross-appeal 	from 	the 	Circuit 	Court 	for 	the 	Fifteenth
Judicial Circuit, Palm Beach County; Jaimie R. Goodman, Judge; L.T.
Case No. 502021CA013571XXXXMB.
Donna 	Greenspan 	Solomon 	of 	Solomon 	Appeals, 	Mediation 	&
Arbitration, Fort Lauderdale, for appellant/cross-appellee.
Ronnie D. Dykes of Law Office of Ronnie D. Dykes, P.A., Boca Raton,
and 	Jared 	A. 	Schneider 	of 	Tressler 	LLP, 	Chicago, 	Illinois, 	for
appellee/cross-appellant.
PER CURIAM .
This appeal and cross-appeal involves an aircraft sale contract which
Sky Aviation Holdings, Inc. (“the seller”) admittedly breached when the
seller discovered the sale would no longer be profitable. 	When Aviation
Unlimited (“the buyer”) sued the seller for breach of contract, the seller
argued the contract limited the buyer’s monetary remedies. 	Pre-trial, the
circuit court entered partial summary judgment for the buyer, finding the
contract 	improperly 	limited 	the 	buyer’s 	remedies. 	The 	circuit 	court
permitted the buyer to recover the lost profits which the buyer had
expected to earn by re-selling the aircraft to a third party. A jury returned
a verdict for the buyer for the lost profits amount which the buyer had
claimed at trial. 	However, the circuit court vacated the jury’s verdict
because of the buyer’s counsel’s alleged discovery abuses, and ordered a
new trial. 	The seller appeals from the circuit court’s partial summary
judgment order, while the buyer cross-appeals from the order vacating the
jury’s verdict. 	We reverse the circuit court’s partial summary judgment
order, and affirm the order vacating the jury’s verdict.

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i. 	Background
The seller agreed to sell an aircraft to the buyer for $1,050,000. 	The
sale contract stated that the buyer would initially deposit $25,000 with an
escrow agent. 	The buyer would then have the aircraft inspected at the
buyer’s expense. After the inspection, the buyer was required to notify the
seller whether the buyer either: 	(1) accepted the aircraft; (2) conditionally
accepted 	the 	aircraft 	“subject 	to 	the 	[s]eller’s 	recertification 	of 	all
airworthiness discrepancies”; or (3) rejected the aircraft.
If the buyer accepted the aircraft, the buyer had to deposit an additional
$25,000 with the escrow agent, then pay the remaining $1,000,000 at
closing. 	If the buyer rejected the aircraft, the buyer had to reimburse the
seller for relocating the aircraft and any other sums due, and the parties
would “return[] to their respective positions ab initio.”
Contract section 10.4(a) stated that if the buyer defaulted, the seller’s
“exclusive remedies” were to keep the aircraft and the buyer’s deposit.
Section 10.4(b) stated that if the seller defaulted by “fail[ing] to deliver the
[aircraft] in accordance with the terms of [the contract],” the buyer’s “sole
remedies” were the seller’s reimbursement of the buyer’s inspection costs.
The buyer’s inspection cost $12,000. 	The inspector identified several
aircraft 	components 	that 	needed 	repair 	or 	replacement, 	costing 	an
estimated $51,898.67 for parts and labor. 	After the inspection, the buyer
informed the seller that the buyer conditionally accepted the aircraft
subject to the seller making these repairs. 	The repairs were completed
over two months and ultimately cost $108,017.70. 	The seller paid the
invoice in full, but the repair costs turned the transaction into a loss for
the seller.
Four days after the seller had received the $108,017.70 invoice for the
repairs, the seller sent notice to the buyer that the seller was electing not
to complete the transaction. The notice stated the seller would reimburse
the buyer for the buyer’s inspection costs per contract section 10.4(b). The
seller also directed the escrow agent to return the buyer’s deposit.
The 	next 	day, 	the 	seller’s 	attorney 	emailed 	the 	buyer’s 	attorney
reiterating that “the seller is breaching the contract and will not fulfill its
obligations.” 	The seller’s attorney stated that “[t]he sole remedy available
for such breach is the payment of the buyer’s inspection expenses which
the seller is prepared to do,” and requested any invoice so the seller could
pay it.

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Instead, the buyer sued the seller for breach of contract. 	Pretrial, the
circuit court considered competing summary judgment motions. Relevant
here, the buyer’s motion argued that contract section 10.4(a) permitted
the seller to both retain the buyer’s $25,000 deposit and sell the aircraft
to another person if the buyer defaulted, but section 10.4(b) permitted the
buyer to recover only the buyer’s inspection costs if the seller defaulted,
thus rendering section 10.4 illusory. 	The circuit court entered a partial
summary judgment for the buyer, concluding section 10.4(b) was illusory
and did not limit the buyer’s damages.
The case proceeded to a jury trial. 	The trial focused on the buyer’s
damages. 	On four separate occasions, the circuit court told the jury: 	(1)
the court already had ruled the seller had breached the contract; and (2)
the jury must ignore contract section 10.4(b) when determining damages.
During trial, the buyer’s representative testified the buyer had a contract
to sell the aircraft to a third party. The jury ultimately awarded the third-
party contract amount to the buyer as lost profits.
Post-trial, the seller filed a motion for judgment notwithstanding the
verdict based on the buyer’s alleged 	“lackluster” discovery responses
regarding the buyer’s alleged lost profits. 	The circuit court had noted
before trial that the buyer’s discovery responses had essentially stated “we
don’t have anything, so we’re not telling you anything.” 	The buyer’s
counsel acknowledged that “errors were made” in crafting the buyer’s
discovery responses, but argued the errors were not prejudicial.1 	The
circuit court found the buyer’s counsel’s discovery misconduct was “clear,”
“severe,” 	“egregious 	and 	inexcusable,” 	and 	“reflect[ed] 	a 	cavalier 	and
egregious disregard for the discovery process.” 	But, the circuit court
concluded, the buyer could not be held liable for the egregious errors of
counsel.2 As a result, the circuit court ordered a new trial on the buyer’s
damages.
The seller’s appeal argues the circuit court erred in entering partial
summary judgment finding contract section 10.4(b) to be illusory and
removing the limits on the buyer’s remedies. 	The buyer’s cross-appeal
1 The attorney who had signed the discovery responses was not a Florida Bar
member. The attorney was later admitted pro hac vice.
2 We remind counsel that Florida courts admonish against “trials by ambush.”
Office Depot, Inc. v. Miller, 584 So. 2d 587, 589 (Fla. 4th DCA 1991) (citing Binger
v. King Pest Control, 401 So. 2d 1310 (Fla. 1981)). The circuit court’s conclusion
that the discovery violations were severe are well-founded. 	But based on our
ultimate conclusion in this appeal, we need not address the issue further.

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argues the circuit court erred in vacating the jury’s verdict and ordering a
new trial on the buyer’s damages.
ii. 	Analysis
On the seller’s appeal, we conclude that contract section 10.4(b) was
not illusory and, as a result, the circuit court erred in granting partial
summary judgment for the buyer and removing the limits on the buyer’s
remedies. 	On the buyer’s cross-appeal, we affirm the order vacating the
jury’s verdict without further comment.
The circuit court’s partial summary judgment order finding contract
section 10.4(b) was illusory shaped the entire trial. 	Without that order,
the case was ripe for partial summary judgment for the seller based on
contract section 10.4(b).
Parties to a contract may agree to limit their respective remedies, and
those remedies need not be the same. 	Ocean Dunes of Hutchinson Island
Dev. Corp. v. Colangelo, 463 So. 2d 437, 439 (Fla. 4th DCA 1985). 	The
contractual provision, however, must be reasonable for a trial court to
enforce it. Id. (citation omitted). To be reasonable, both parties must have
genuine obligations. 	Id. at 440.
In Ocean Dunes, condominium unit buyers sought specific performance
against the developer to convey the unit to the buyers. 	Id. at 438. 	The
parties’ purchase agreement had provided that, if the buyers breached, the
developer could either retain the buyers’ deposit or pursue “any other legal
or equitable remedy to which Developer may be entitled.” 	Id. at 439. 	But
if the developer breached, the buyers’ only remedy was to terminate the
agreement and have their deposit refunded. 	Id. at 438. 	The trial court’s
final judgment found the provision was unreasonable and granted specific
performance for the buyers. 	Id. at 438, 440.
On the developer’s appeal, we agreed with the trial court that the
provisions were unreasonable and therefore unenforceable. Id. at 440. We
noted that the developer could breach the purchase agreement by refusing
to convey the unit to the buyers and selling it to a third party for a higher
price. Id. at 439. In that situation, the developer would suffer no “harmful
consequence[],” 	as 	the 	developer 	must 	only 	return 	the 	buyers’ 	“own
money,” which “hardly constitutes damages in any meaningful sense.” Id.
In contrast, if the buyers breached the contract, the developer could
choose any legal or equitable remedy to which the developer may have
been entitled. Id. at 440. Because the developer’s obligations were “wholly

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illusory” and the buyers’ obligations were “quite real,” we affirmed the trial
court’s final judgment. 	Id.
The key in Ocean Dunes was that one party had no obligation and the
other party’s obligations were real. 	Here, contract section 10.4 imposed
real obligations on both the seller and the buyer.
More similar to the instant case is Inlet Beach Cap. Investments, LLC v.
F.D.I.C., 778 F.3d 904 (11th Cir. 2014). 	There, a buyer contracted to
purchase forty acres of land for nearly $2 million. 	Id. at 905. 	Under the
contract, if the seller breached, the buyer was entitled to “the return of its
earnest money and up to $1,000.00 in out-of-pocket costs.” 	Id. at 907.
The contract also provided that the seller could not be liable to the buyer
for any actual, punitive, or consequential damages, and the buyer could
not sue for specific performance. 	Id. 	The contract featured a similar
provision for the seller if the buyer “refuse[d] or fail[ed] to consummate”
the purchase; the seller would retain the earnest money deposit “as its sole
and exclusive remedy . . . .” 	Id. 	But if the buyer committed “any other
default,” the seller was entitled to all “rights and remedies available at law
or in equity . . . .” 	Id.
When the seller refused to convey one of the parcels, the buyer sued
under the contract for damages, specific performance, punitive damages,
and 	attorneys’ 	fees. 	Id. at 	905-06. 	The 	buyer 	contended 	that 	the
contract’s remedies limitation was unenforceable due to lack of mutuality.
Id. at 907. 	The seller moved to dismiss, arguing that contract’s remedies
limitation barred the buyer’s claims. 	Id. at 906.
The federal district court granted the seller’s motion to dismiss, and the
Eleventh Circuit affirmed. 	Id. at 906, 908. 	The Eleventh Circuit held the
parties’ respective remedies were not “unreasonably disparate” because
each party was “precluded from obtaining actual damages or specific
performance” if the other party failed to consummate the sale. 	Id. at 908.
Further, the Eleventh Circuit distinguished Ocean Dunes because the
buyers’ remedies in that case were “limited to the return of its deposit,
without recovery of any out-of-pocket expenses.” 	Id.
But in Inlet Beach, the Eleventh Circuit observed, the buyer could
recover its deposit and an additional $1,000 in out-of-pocket costs. 	Id.
The Eleventh Circuit noted that we had previously found enforceable a
similar provision, which limited the purchaser’s remedy to the refund of
its deposit and recovery of all out-of-pocket damages. 	Id. (citing Ament v.
One Las Olas, Ltd., 898 So. 2d 147, 150 (Fla. 4th DCA 2005)).

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Inlet Beach supports a conclusion here that the seller’s reimbursement
of the buyer’s inspection costs was a reasonable limitation on damages.
See also 	Ament, 	898 	So. 	2d 	at 	150; 	Jet Sales of Stuart, LLC v. Jet
Connection Travel, GmbH, No. 06-80039-CIV, 2006 WL 8435439 (S.D. Fla.
Sept. 19, 2006).
iii. 	Conclusion
The circuit court erred in finding contract section 10.4(b) was illusory
and granting partial summary judgment for the buyer. 	As a result, we
reverse that order and remand with directions for the circuit court to
vacate the partial summary judgment for the buyer and enter summary
judgment for the seller, which summary judgment orders the seller to: (1)
pay the buyer’s inspection costs as contract section 10.4(b) required; and
(2) refund the buyer’s deposit as the seller had directed.
Reversed and remanded with directions on the seller’s appeal; affirmed
on the buyer’s cross-appeal.
KUNTZ , C.J., G ERBER and C ONNER , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.