2024.07.22 Pl. Opp. to D's MIL with Exhibits July 22, 2024 (2024)

 
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 IN THE SUPERIOR COURT OF GWINNETT COUNTY STATE OF GEORGIAIFLYAJET, INC., ) ) Plaintiff, ) ) )v. ) Case No. ) 22-A-10788-10 )OPTICAL AIR DATA SYSTEMS, LLC., )and WHBB, LLC. ) ) Defendant. ) PLAINTIFF IFLYAJET, INC.’S OPPOSITION TO DEFENDANTS’ MOTIONS IN LIMINE COMES NOW, Plaintiff, IFLYAJET, Inc. (“IFJ” or “Plaintiff”) and opposesDefendants’ Motions in Limine as follows:I. Defendants’ MIL No. 1 to Exclude Evidence or Testimony from Counsel The Court should deny Defendants’ Motion in Limine Number 1 for thereasons set forth in IFJ’s Opposition to Defendants’ Motion to Quash Subpoena ofMr. Faraci, which is fully incorporated herein by reference.II. Defendants’ MIL No. 2 to Exclude Evidence of Settlement Discussions Defendants claim that IFJ’s Trial Exhibits 90, 91, 92, 99, 110, 111, 126, 127,134, 137 and 148 are inadmissible settlement communications and should beexcluded. The Court should deny the Motion. Notably, IFJ’s Trial Exhibits 99, 110,111, 134 and 137 are not settlement communications. Regardless, even if they weresettlement communications, all of the Trial Exhibits that Defendants seek to excludeare admissible under O.C.G.A. § 24-4-408(c). O.C.G.A. § 24-4-408 governs the admissibility of settlement communicationsand states as follows: a. Except as provided in Code Section 9-11-68, evidence of: 1. Furnishing, offering, or promising to furnish; or 2. Accepting, offering, or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount shall not be admissible to prove liability for or invalidity of any claim or its amount. b. Evidence of conduct or statements made in compromise negotiations or mediation shall not be admissible. c. This Code section shall not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations or mediation. This Code section shall not require exclusion of evidence offered for another purpose, including, but not limited to, proving bias or prejudice of a witness, negating a contention of undue delay or abuse of process, or proving an effort to obstruct a criminal investigation or prosecution.“Rule 408 does not operate as a blanket prohibition of all evidence relating tosettlement offers . . . .” SEC v. Melvin, 2014 U.S. Dist. LEXIS 200251 at *7 (N.D.Ga. Nov. 21, 2014).1 The contents and facts of settlement communications are1 O.C.G.A. § 24-4-408 is substantially similar to Federal Rule of Evidence 408. Georgia courts,therefore, may look to the decisions of the federal courts in applying the Rule. Hayes v. State,298 Ga. 98, 102-103 (2015). 2admissible for certain purposes. Thus, “admissibility under Rule 408 turns on thepurpose for which the settlement evidence is being introduced.” Id. IFJ does notintend to offer Trial Exhibits 90, 91, 92, 99, 110, 111, 126, 127, 134, 137 and 148 toprove liability. Instead, IFJ intends to offer them for other permissible purposes,including to prove facts that are otherwise admissible, for purposes of rebuttal, andto show that Defendants acted in bad faith, were stubbornly litigious, and caused IFJunnecessary expense under O.C.G.A. § 13-6-11. A. Exhibits 99, 110, 111, 134, and 137 are not settlement communications O.C.G.A. § 24-4-408 only concerns the admissibility of settlementcommunications. If the proffered evidence is not evidence of statements made in“compromise negotiations or mediation” then the rule is inapplicable. IFJ’s TrialExhibits 99, 110, 111, 134 and 137 were not offers to compromise a claim. 1. IFJ’s Trial Exhibit 99 IFJ’s November 21, 2022 email communication to OADS was not an offer tocompromise. Rather, Mr. Brown noted that OADS would be working with a brokerto sell its share of N250KC, and Mr. Brown offered his assistance in that endeavor.See Pla. Trial Ex. 99. Mr. Brown also attempted to collect the debt OADS owed byIFJ. Mr. Brown’s communication does not contain any offer to compromise the case.The email is admissible because it is not a settlement communication that is subject 3to O.C.G.A. § 24-4-408. See e.g., Jordan v. Trower, 208 Ga. App. 552 (1993) (letterwas admissible because “there is no evidence of any effort to compromise). Even ifit were, the Trial Exhibit is admissible because Mr. Brown’s offer to assist in sellingDefendants’ share of N250KC and his attempts to collect are facts that are“otherwise discoverable” under O.C.G.A. § 24-4-408(c). 2. IFJ’s Trial Exhibits 134 and 137. Exhibit 134 and IFJ’s communication on page 1 of Exhibit 1372 are not offersto compromise and do not mention O.C.G.A. § 24-4-408. Notably, the emailcommunication shown in Exhibit 134 (and also on page 4 of Exhibit 137) does notmake an offer to resolve the litigation. Rather, IFJ’s counsel merely told OADS thatIFJ had found a buyer willing to purchase the entirety of N250KC for approximately$3.2mm. See Pla. Trial Ex. 134 and 137 attached hereto. IFJ’s counsel does not saythat the purchase was conditioned on resolution of the dispute. To the contrary, IFJinvited Defendants to engage in settlement discussions, demonstrating that IFJ didnot intend the communication to be a settlement offer. See IFJ Trial Ex. 137 at pg.4. In response, Defendants attempted to turn that communication into an offer ofcompromise. See Pla. Trial Ex. 137 at pg. 2, Jan. 3, 2024, message from S. Faraci.2 Exhibit 134 is the initial communication of a longer email chain. Exhibit 137 includes theinitial Exhibit 134 email, as well as others in the chain. 4Specifically, Defendants characterized IFJ’s original email as an “inquiryconcerning my clients’ interest in a potential purchase of WHBB’s interest in theN250KC as a means to resolve the current dispute.” (emphasis added)). Defendants,however, did not send the original communication and cannot change the intent ofIFJ’s counsel’s communication. IFJ’s original email did not make an offer to“resolve the current dispute” as Defendants claim. IFJ’s Trial Exhibit 137 is not an offer of compromise. Nothing in thecommunication from IFJ’s counsel (Ms. Gentry) to OAD’s counsel contains an offerfrom IFJ to compromise a claim or resolve the dispute. IFJ intends to use TrialExhibit 137 to show that IFJ “arranged for a purchase of WHBB’s interest for$800,000.00 which WHBB rejected and your client also turned down an offer to buyanother owner’s interest for $750,000.00” as Ms. Gentry noted in her email. See Pla.Trial Ex. 137. As discussed above, IFJ did not arrange for the purchase of WHBB’sinterest for $800,000.00 as a means to settle this case. See IFJ Trial Ex. 137 at pg. 4.In addition, the fact that Defendants turned down an offer to buy a third-partyowner’s interest for $750,000.00 is a fact that is independent of any settlementnegotiations between IFJ and OADS. Thus, Exhibit 137 is not evidence of an offerto compromise under Rule 408. The Court should, therefore, deny Defendants’Motion as to Exhibits 134 and 137 because they are not evidence of offers tocompromise. 5 3. IFJ’s Trial Exhibits 110 and 111. Similarly, O.C.G.A. § 24-4-408 also does not apply to IFJ’s Trial Exhibits 110and 1113 because they are not settlement communications. While Exhibits 110 and111 contain “Rule 408” in the subject line, the context and substance of thecommunications in the email chain demonstrate that the Trial Exhibits are not offersto compromise. Instead, the Rule 408 communication was a letter sent by IFJ’scounsel on November 26, 2022, which was transmitted via the initial email in thechain. See Pla. Trial Ex. 110. That letter is not a part of IFJ’s Trial Exhibits 110 and111. Counsel engaged in a number of communications unrelated to settlementdiscussions throughout early December using the same email chain withoutchanging the subject line. See Pla. Trial Ex. 110. On December 15, 2022, continuingto use that same email chain, IFJ’s counsel sent the following email:3 Exhibits 110 and 111 are identical. 6Pla. Trial Ex. 110 at pg. 2. IFJ’s December 15, 2022, email does not contain an offerto compromise. Notably, IFJ’s counsel did not suggest that the option for Defendantsto sell their interest was contingent on resolution of any claim in this case. Thestatement that “[w]e would want to settle up on money out of the proceeds” did notrequire Defendants’ to release any claim. IFJ’s counsel did not intend for the email to be a settlement communicationand nothing in the communication suggests that it was. Instead, Defendants claimthat it was a settlement communication based only on the subject line which containsthe words “Rule 408.” The context of the communications, however, shows that thesubject line was a held-over relic from a previous settlement offer. O.C.G.A. § 24-4-408 does not apply to IFJ’s Trial Exhibits 110 and 111. Therefore, the Court shoulddeny Defendants’ motion as to those exhibits because they do not reflect settlementoffers. B. All of the Trial Exhibits Defendants seek to exclude admissible under O.C.G.A. § 24-4-408(c) because IFJ intends to offer them for permissible purposes and not to prove liability. The contents and facts of settlement communications are admissible forcertain purposes, including for purposes of rebuttal, to show that a party is entitledto attorneys’ fees, and if the information is otherwise discoverable. See e.g. Christiev. Rainmaster Irrigation, Inc., 299 Ga. App. 383 (2009) (evidence regardingsettlement negotiations was admissible to show bad faith when offered to support 7claim for attorneys’ fees under O.C.G.A. § 13-6-11); Zurich American Ins. Co. v.Watts Indus., 417 F.3d 682, 689 (7th Cir. 2005) (affirming trial court’s decision toallow statements made during settlement negotiations to prove intent and state ofmind); Freidus v. First Nat’l Bank, 928 F.2d 793 (8th Cir. 1991) (affirmingadmission of evidence of settlement communications from defendant to rebut party’sclaim that defendant “never gave any reason for its conditions on consent to the sale,‘even up to this date’ [of trial.]” because the “jury could well find that the letterswhen read together, constituted plausible explanation” for the bank’s conduct). And,of course, evidence that is otherwise admissible should not be excluded merelybecause it was presented during a settlement negotiation or mediation. O.C.G.A. §24-4-408(c). Exhibits 90, 91, 92, 110 and 111 are admissible under O.C.G.A. § 24-4-408(c)for two independent reasons: (1) the independent appraisal that Defendants sent toIFJ is a fact that is otherwise admissible and (2) IFJ intends to offer the exhibits torebut Defendants claims. First, OADS attached an appraisal from an “independent broker” thatdetermined that OADS’ share of N250KC was worth $1,400,000.00. See Pla. TrialEx. 90, 91. The communication demonstrates that OADS did not obtain the appraisalin connection with settlement but rather in connection with its desire to sell its shareof N250KC. Similarly, in its December 16, 2022, communication (Pla. Trial Ex. 110 8and 111), Defendants’ counsel claimed that the “fair market value” of Defendants’share was $1,400,000.00, which is an obvious reference to the appraisal. The facts that (1) OADS obtained an appraisal from an “independent broker”for its share of N250KC, (2) the appraisal show found that OADS’ share of N250KCwas worth $1,400,000.00 and (3) Defendants’ belief that the $1,400,000.00 appraisalvalue was the “fair market value” of Defendants’ share are all “otherwisediscoverable.” Therefore, the Trial Exhibits are admissible under § 24-4-408(c). Seee.g. Blakely Hardwood Lumber Co. v. Reynolds Bros. Lumber Co., 173 Ga. 602(1931) (“an independent acknowledgement of a fact may be received, although madepending a treaty for the amicable adjustment of a controversy”); Young v. McDowellServs., 1991 U.S. Dist. LEXIS 21814 (N.D. GA. April 30, 1991) (form letter sent toplaintiff’s counsel during settlement negotiations was admissible because it wasotherwise discoverable). Second, IFJ’s Trial Exhibits 90-92, 99, 110, 111 134, 1374 and 148 are eachadmissible for purposes of rebuttal. Defendants now, in litigation, claim that theirshare is worthless and valued at $0.00. See e.g., Ex. A, Romaine Depo. at 23:22-34.Defendants claim that Defendants’ share of N250KC is unsalable because of theFAA investigations and IFJ’s use of time share agreements. See e.g., Ex. A, Romaine4 As argued above, Exhibits 99, 110, 111, 134 and 137 were not settlement communications. But,even if they were, they are admissible. 9Depo. at 99:12-19; Ex. B, Romaine Report at 8 (excerpt only). IFJ’s Trial Exhibits 90-92 and 110-111 are admissible to rebut Defendants’contention that the value of Defendants’ share N250KC is $0.00. Defendants cannothide evidence that a third party found that their share was worth $1,400,000.00 inNovember 2022, under the guise of that independent fact being a part of allegedsettlement negotiations. See e.g., Fisk Elec. Co. v. Solo Constr. Corp., 417 Fed.Appx. 898, (11th Cir. 2011) (evidence establishing that a mediation took place andresulted in a payment to defendant was admissible for “other purposes” becausedefendants’ affirmative defense of a “pay when paid” clause in a contract invitedevidence rebutting that defense); Coyote Portable Storage, LLC v. Pods Enters.,2012 U.S. Dist. LEXIS 197867 (N.D. Ga. March 29, 2012) (“PODS has asserted asan affirmative defense, that the definition of Net Sales in the contract is ambiguous,was the result of a scrivener’s error, and necessitates reformation of the contract.PODS’ prior position regarding the language of the contract, which is not beingoffered to prove liability, is thus relevant and admissible as rebuttal evidence onPlaintiff’s breach of contract claims.”); Zurich, 417 F.3d at 689 (Evidence fromsettlement negotiations is admissible “for additional purposes than establishingliability, including for purposes of rebuttal . . . .”); Freidus, 928 F.2d at 795(affirming admission of settlement communications for purposes of rebuttal). IFJ Trial Exhibits 110, 111, 134, and 137 are also admissible. Each of those 10Trial Exhibits demonstrates that there were buyers willing to purchase Defendants’share of N250KC, which directly rebuts Defendants’ claim that their share ofN250KC was “worthless” and unsalable. IFJ Trial Exhibits 90-92, 99, 110, 111, 134 and 137 are all admissible for anadditional reason. IFJ has claimed that Defendants are liable to IFJ for attorneys’fees and costs under O.C.G.A. § 13-6-11. Specifically, IFJ has alleged thatDefendants acted in bad faith, were stubbornly litigious, and caused IFJ unnecessarytrouble or expense. Pursuant to O.C.G.A. § 13-6-11, IFJ may admit evidence that it madesettlement offers and that Defendants refused to comply to show that Defendantsacted in bad faith, or were stubbornly litigious, or put IFJ to unnecessary trouble orexpense. See e.g., Christie v. Rainmaster Irrigation, Inc., 299 Ga. App. 383 (2009)(evidence regarding settlement negotiations was admissible to show bad faith whenoffered to support claim for attorneys’ fees under O.C.G.A. § 13-6-11); U-Haul Co.v. Ford, 171 Ga. App. 744 (1984). Therefore, the Trial Exhibits are also admissiblefor that purpose. Finally, IFJ does not intend to use Trial Exhibit 126, 127, and 148 to proveliability. Instead, IFJ intends to use Trial Exhibits 126 and 127 for the narrowpurpose of showing that on June 30, 2023 IFJ placed Stephen Faraci and Defendantson notice regarding Mr. Faraci’s role as a witness and the necessity of his 11disqualification trial counsel. IFJ intends to use Trial Exhibit 148 for the narrowpurpose of showing that Defendants’ have stated that Virginia witnesses, includingPhil Rogers, Alisa Rogers, Beth Daiken, and Tom Daiken, are unavailable for trialbecause any service of subpoenas to them is improper. IFJ is willing to redact theextraneous material in Exhibits 126, 127, and 148.III. Defendants’ MIL No. 3 to Exclude Proffer of the Pleadings into Evidence. The Court should deny Defendants’ efforts to preclude IFJ from admittingDefendants’ own pleadings into evidence. IFJ’s Trial Exhibits 114, 133, 135, 138,139, 147, 175, and 176 are all pleadings filed by Defendants.5 See Ex. C, Plaintiff’sAmended Exhibit 1 to Consolidated Pretrial Order. An admission of fact in apleading is a judicial admission. See e.g., Vaughn v. Metro Prop & Cas. Ins. Co.,260 Ga. App. 573, 574 (2003). Therefore, any statements of fact made inDefendants’ pleadings are admissible. Defendants’ reliance on Behar v. Aero Med Int’l Inc, 185 Ga. App. 845, 846(1998) is misplaced. The statement in Behar that “allegations contained in pleadings5 Exhibit 114 is Defendants’ Answer, Affirmative Defenses and Counterclaim filed January 23,2023. Exhibit 133 is Defendants’ Answer to Plaintiff’s Second Amended Complaint filedDecember 19, 2023. Exhibit 135 is Defendants’ Answer to Plaintiff’s Second Amended Complaintfiled January 4, 2024. Exhibit 138 is Alisa Rogers’ January 22, 2024 Affidavit. Exhibit 139 is PhilRogers January 22, 2024 Affidavit and Exhibit 147 is Defendants’ Amended Counterclaim deemedfiled on June 21, 2024. Exhibits 174 and 175 are pleadings from the Virginia action that PhilRogers brought against IFLYAJET and Robert Brown that was dismissed for lack of standingbecause the claims belonged to OADS and were substantially similar to the ones brought in thiscase. 12do not constitute evidence nor are they to be accepted as true except to the extentthey are admitted by the opposite party to be true” concerned allegations in pleadingssubmitted by the same party offering them into evidence. Id. Thus, the Court foundthat a plaintiff could not rely on allegations in his complaint to prove that thedefendant was subject to personal jurisdiction. Id. But, IFJ only listed Defendants’pleadings on its Exhibit List, not IFJ’s pleadings. Defendants’ allegations of fact areconclusive, binding judicial admissions. Defendants’ pleadings are admissible for another reason. IFJ has claimed thatit is entitled to attorneys’ fees under O.C.G.A. § 13-6-11. The allegations andstatements of fact that Defendants made in their Answers, Counterclaims, and theRogers’ Affidavits are relevant to whether Defendants’ have acted in bad faith, beenstubbornly litigious, and caused IFJ unnecessary expense. The limiting instructionthat Defendants’ request is inappropriate in the context of O.C.G.A. § 13-6-11.Defendants’ allegations are evidence of the claims that they made in this case. Thus, the Court should deny Defendants’ Motion in Limine Number 3because (1) the statements of fact in Defendants’ pleadings are judicial admissionsas to Defendants and (2) the allegations made in their pleadings are relevant evidenceunder O.C.G.A. § 13-6-11. In the alternative, the Court should deny the Motionbecause the Court is well equipped to handle any objections to IFJ’s introduction ofDefendants’ pleadings, should IFJ seek to admit the pleadings at trial. The rationale 13behind a motion in limine is based upon the recognition that the mere asking of somehighly improper questions within the hearing of the jury can prove so prejudicial orinflammatory that even a cautionary instruction by the court to disregard theoffensive matter provides insufficient guarantee of a fair trial. By requesting alimiting instruction, Defendants implicitly admit that this is not the type of evidencethat should be the subject of a motion in limine. Moreover, by handling anyobjections to the introduction of Defendants’ pleadings at trial, the Court will be ableto assess the admissibility of the pleadings with the full context of the specific issuesfor which IFJ seeks to introduce the pleadings. IV. Defendants’ MIL No. 4 to Exclude Reference to the “October 2022 Agreements” as Valid or Operative in this Matter. The Court should deny Defendants’ Motion. IFJ asserted that the October2022 Agreements control in its Original Complaint through its Fourth AmendedComplaint and in the Pretrial Order. Defendants inaccurately claim the Court refused to allow Defendants to addtheir proposed Declaratory Judgment claim6 seeking to invalidate the October 2022Agreements because “IFLYAJET (via counsel) represented to the Court thatIFLYAJET would not contend that the October 2022 Agreements are valid oroperative in this case” Def. Mot. at pg. 4-5. IFJ did not represent that it would not6 Count VI of Defendants’ Proposed Amended Counterclaim. 14argue at trial that the October 2022 Agreements were valid; and, the Court did notdeny Defendants’ Motion to Add Parties and Amend Counterclaims on that basis. Defendants omit a crucial fact from their Motion in Limine. In their Motionto Add Parties and Amend Counterclaims, Defendants sought to add RFBC as a newparty to this action and proposed to assert their new Declaratory Judgmentcounterclaim against both IFJ and RFBC. As the Court is aware, the Court found that it was not necessary to involveRFBC in this dispute, especially given the procedural posture of the case. The Court,therefore, denied Defendants’ Motion to Add Parties on that basis. Both Partiesacknowledged in open court that not adding RFBC and the proposed newDeclaratory Judgement counterclaim would not impede Defendants from presentingtheir arguments that the October 2022 Agreements were invalid as part of theirbreach of contract case. Indeed, the allegations of the proposed Declaratory Judgment claim againstIFJ and RFBC are nearly identical to allegations made as part of Defendants’ breachof contract claim. In the proposed Declaratory Judgment Counterclaim (Count VI),Defendants alleged that in or around October 2022 IFJ “purported to transfer certainownership interest in the N250KC [to RFBC] and to enter into a new JointOwnership Agreement” without obtaining unanimous owner consent. See Ex. D,Defs. Mot. to Add Parties and Amend Counterclaims at its Exhibit A, Count VI, ¶¶ 15106-108. Defendants further claimed that IFJ “fraudulently affixed Phil Rogers”signature to the agreements. Id. Defendants made substantially the same allegations as part of their breach ofcontract claim. Specifically, Defendants’ Amended Counterclaim includes a sectiontitled “Material Breaches of the Parties’ Agreements and IFLYAJET’s Breaches ofFiduciary Duties.” See Ex., D Amended Counterclaim at pg. 17. Within that section,Defendants alleged that “IFLYAJET has committed, at least, the following firstmaterial breaches of the parties’ agreements, among others . . . d. Forging OADS’s signature on ownership documents and FAA documents (Ex. D, First Ownership Agreement § 6(h); Ex. A, Ownership Agreement § 1(b)); e. Failing to obtain unanimous member consent before purporting to transfer ownership interest in the N250KC.See Ex. D, Amended Counterclaim at ¶ 69(d), (e). IFJ’s contention that the October2022 Agreements are valid, and binding will not impede Defendants fromcontending that they are invalid because IFJ allegedly forged Phil Roger’s signatureand did not obtain unanimous owner consent. Thus, the Court should deny Defendants’ Motion and allow IFJ to presentevidence and argument regarding the validity of the October 2022 Agreements. TheCourt should also deny Defendants’ request that it be allowed to proceed on itsproposed Declaratory Judgment claim if IFJ is allowed to argue that the October 162022 Agreements are valid. RFBC must be a party to any such Declaratory Judgmentclaim because it is a signatory to the October 2022 Agreements. Thus, if the Courtwere to find that those Agreements are invalid, RFBC’s rights will be adverselyaffected. Conversely, the addition of RFBC and Defendants’ Declaratory Judgmentclaim is not necessary for Defendants to argue that the October 2022 Agreementsare invalid. Defendants may make that (baseless) argument to the jury if they sochoose. CONCLUSION The Court should deny each of Defendants’ Motions in Limine. Mr. Faraci isa necessary witness. Defendants injected the issue of IFJ’s compliance with FAAregulations and its alleged illegal charter into this litigation. Defendants waived theattorney-client privilege when they asserted that they relied on advice of counselwhen concluding that IFJ operated an illegal charter. Mr. Faraci is the only witnesswho can provide answers to IFJ’s questions. Thus, Mr. Faraci should be disqualifiedunder Georgia Rule of Professional Conduct 3.7. IFJ’s Trial Exhibits 99, 110, 111, 134 and 137 are not offers to compromise asDefendants claim. O.C.G.A. § 24-4-408, therefore, does not preclude thosecommunications from being admitted into evidence. In addition, IFJ’s Trial Exhibits90, 91, 92, 99, 110, 111, 126, 127, 134, 137, and 148 are each admissible underO.C.G.A. 24-4-408(c) as evidence that is otherwise admissible, to rebut Defendants’ 17claims that N250KC is worthless and unsalable and to show that Defendants actedin bad faith, were stubbornly litigious, and caused IFJ unnecessary trouble andexpense. Factual statements in Defendants’ own pleadings are admissible. They arejudicial admissions that are binding on Defendants. In addition, the allegations in thepleadings are admissible under O.C.G.A. § 13-6-11 to show that Defendants actedin bad faith, were stubbornly litigious, and caused IFJ unnecessary trouble andexpense. Therefore, Defendants’ limiting instruction is improper. Defendants misrepresent what occurred at the June 18, 2024 hearing to claimthat IFJ should not be allowed to argue that the October 2022 Agreements are valid.At the hearing, the Parties agreed that Defendants could argue that the October 2022Agreements are invalid as part of their breach of contract case. The Court should notallow them to recapture their proposed Declaratory Judgment claim (Count VI)because, as the Court determined at the June 18 hearing, RFBC should not be addedto this action. Respectfully submitted this 22nd day of July, 2024. COHAN & LEVY /s/ Louis R. Cohan LOUIS R. COHAN Georgia Bar No. 173357 18 Robin L. Gentry Georgia Bar No. 289899 Attorneys for Plaintiff 3340 Peachtree Rd. NE, Ste. 2570 Atlanta, Georgia 30326 (404) 891-1770 (telephone) (404) 891-5094 (facsimile) lcohan@cohanlevy.com19 PLAINTIFF’S TRIAL EXHIBITS90, 91, 92, 99, 110, 111, 126, 127, 134, 137, and 148 Thursday, February 29, 2024 at 16:10:06 Eastern Standard TimeSubject: N250KCDate: Thursday, November 10, 2022 at 1:01:48 PM Eastern Standard TimeFrom: Karyn KraftTo: Bob BrownCC: Alisa Rogers, Phil Rogers, Eliza BrownAttachments: Becky Brock.vcf, image.pngBob,An independent broker has provided the a3ached comparable valua8on of N250KC. If you wish to buyout Op8cal Air Data Systems quarter share and for a full and complete se3lement of all claims, pleasedeposit $1.4M into escrow at Interna8onal AircraL Title and Escrow, contact informa8on is a3ached,within the next 5 days. We are planning on engaging a private broker to sell our share on November17th in the event that you decline this offer.Best Regards,KarynKaryn KraftChief Financial OfficerOptical Air Data Systems, LLCPrecision Flight Technologies, LLC10781 James Payne CourtManassas, VA 20110703-393-0754 phonekkraft@oads.comwww.oads.com 90 IFLYAJET0004793 1 of 1Becky Brock.vcf attachment produced in native. IFLYAJET0004794IFLYAJET0004795 Monday, November 21, 2022 at 17:53:16 Eastern Standard TimeNicoleNicole Graham | Vice President - SalesJSSI Maintenance SoftwareMobile +1 904.945.0980website | facebook | linkedin | twiFer | instagram​This message and any attachments may contain confidential, proprietary and/or privileged material. If this message was misdirected, JetSupport Services, Inc., and its affiliates do not waive any confidentiality or privilege. If you are not the intended recipient, please notify thesender immediately and destroy the message. ​Unauthorized review, use, disclosure, or distribution of this e-mail or the information itcontains is prohibited.Subject: N250KCDate: Thursday, November 10, 2022 at 1:01:48 PM Eastern Standard TimeFrom: Karyn KraATo: Bob BrownCC: Alisa Rogers, Phil Rogers, Eliza BrownAFachments: image.png, Becky Brock.vcfBob,An independent broker has provided the a2ached comparable valua6on of N250KC. If you wish to buy outOp6cal Air Data Systems quarter share and for a full and complete se2lement of all claims, please deposit$1.4M into escrow at Interna6onal Aircra[ Title and Escrow, contact informa6on is a2ached, within the next5 days. We are planning on engaging a private broker to sell our share on November 17th in the event thatyou decline this offer.Best Regards,KarynKaryn KraftChief Financial OfficerOptical Air Data Systems, LLCPrecision Flight Technologies, LLC 9110781 James Payne CourtManassas, VA 20110703-393-0754 phonekkraft@oads.com Page IFLYAJET0001560 13 of 132From: Bob BrownTo: Karyn KraftCc: Alisa Rogers; Phil Rogers; Eliza BrownSubject: Re: N250KCDate: Friday, November 11, 2022 1:48:43 PMAttachments: image.png Becky Brock.vcfThanks for this information. I will take evaluate and get back to you shortly.Bob Brown, PresidentIFLYAJET, Inc.510 Briscoe BlvdLawrenceville, GA 30046(678) 691-5204 Office(770) 547-1327 Cell(678) 367-4570 Faxinfo@iflyajet.comwww.iflyajet.com On Nov 10, 2022, at 10:02 AM, Karyn Kraft wrote:  Bob, An independent broker has provided the attached comparable valuation of N250KC. If you wish to buy out Optical Air Data Systems quarter share and for a full and complete settlement of all claims, please deposit $1.4M into escrow at International Aircraft Title and Escrow, contact information is attached, within the next 5 days. We are planning on engaging a private broker to sell our share on November 17th in the event that you decline this offer. Best Regards, Karyn Karyn Kraft Chief Financial Officer Optical Air Data Systems, LLC Precision Flight Technologies, LLC 10781 James Payne Court Manassas, VA 20110 703-393-0754 phone kkraft@oads.com www.oads.com 92 99OADS_0459OADS_0460 Thursday, July 11, 2024 at 15:53:25 Eastern Daylight TimeSubject: RE: ***URGENT***. IFLYAJET/Optical Air Data Systems, LLC (OADS) – Rule 408 settlement communicationDate: Friday, December 16, 2022 at 10:21:36 AM Eastern Standard TimeFrom: Faraci Sr., StephenTo: Louis CohanCC: Robin Gentry, Shannon Clutter, Gregory CirilloAttachments: image001.png, image002.jpg, image003.png 110Louis:Thanks for your e-mail. My client and I have had the opportunity to review your client’s offerand discuss same. After due consideration, your offer for my client to sell its 24.75% interest inthe Gulfstream G-IV, FAA Registration N250KC (the “Aircraft”) for $800,000 is rejected. Aspreviously noted, my client is willing to accept the fair market value of $1,400,000 for its interestin the Aircraft.With regard to your statement that “if OADS does not sell its interest, Bob will sell his smallerinterest for the same equivalent value,” please note that any purported transfer of an interest inthe Aircraft without prior written consent of all other Owners is not a valid transfer. SeeOwnership Agreement § 7(a), (d). OADS cannot, and will not, consent to the transfer of anyinterest in the Aircraft until it has concluded its review of relevant corporate records anddocuments, the production of which has been requested and which I understand is forthcoming.As noted in prior letters, Mr. Brown is not authorized, by DocuSign or any other means, to signon behalf of OADS or any member or manager of OADS, including, but not limited to, PhilRogers. Any purported attempt to do so would be unauthorized and void. See OwnershipAgreement § 7(d).On Tuesday, December 13, 2022, you noted that you expected to produce the documentsresponsive to my recent letter by Wednesday of this week. Please advise whether you still intendto make that production.Many of your communications have asserted that OADS owes IFLYAJET in connection withtwo aircrafts (i.e., the Gulfstream and the Falcon). Prior correspondence has detailed the seriousand substantial damages OADS has suffered as a direct result of IFLYAJET’s breaches of theManagement Agreement, which damages offset the amounts IFLYAJET contends it is owed.With respect to the Falcon, it should be noted that OADS paid significant maintenance fees toMr. Brown’s maintenance shop (which he owns) for unnecessary repairs. Indeed, in someinstances, Mr. Brown was purporting to do monthly maintenance for matters that are onlynecessary on an annual basis. Thus, there is a good deal to get to the bottom of with respect toboth aircrafts.Nothing contained in or omitted from this letter shall be deemed a waiver of any claims, rights,or available remedies, each of which are expressly reserved with respect to the OwnershipAgreement, the Management Agreement, applicable law or regulations, and the relationshipbetween IFLYAJET and OADS and WHBB. 1 of 9Best regards,SteveFrom: Louis Cohan Sent: Thursday, December 15, 2022 1:29 PMTo: Faraci Sr., Stephen Cc: Robin Gentry ; Shannon CluKer ;Gregory Cirillo Subject: [EXTERNAL] ***URGENT***. IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408seKlement communicaZonImportance: HighStephen: Bob has a potenZal buyer for your client’s interest in N250KC. I believe the amount is $800k.The buyer offered to buy Bob’s interest and Bob wanted to give your client the opZon to sell if they wantto do it. We would want to seKle up on money out of the proceeds. The buyer needs to get this donebefore the end of the year, so we need your client’s response by noon tomorrow. To be clear, if OADSdoes not sell its interest, Bob will sell his smaller interest for the same equivalent value. Thanks.__________________________LOUIS R. COHANATTORNEY AT LAW■ COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: "Faraci Sr., Stephen" Date: Tuesday, December 13, 2022 at 1:31 PMTo: Louis Cohan Cc: Robin Gentry , Shannon CluKer, Gregory Cirillo Subject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonWe look forward to the production. Thank you.From: Louis Cohan Sent: Tuesday, December 13, 2022 1:23 PM 2 of 9To: Faraci Sr., Stephen Cc: Robin Gentry ; Shannon CluKer ;Gregory Cirillo Subject: [EXTERNAL] Re: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonSteve: Pursuant to the Agreement, your client is enZtled to: “All records pertaining to the performance of Manager's services hereunderand all books of account and records relating to the Aircraft [N250KC] and itsoperations…” We expect to produce those documents tomorrow. They are and have been available at theoffices of IFLYAJET, subject to availability of IFLYAJET personnel to supervise your inspecZon/audit. Iassume you would prefer we produce them to you. It will be faster, a lot less expensive, and you willhave copies. Meanwhile, it is worth poinZng out that the past due and unpaid billing applies to two planes: N250KC Total $203,419.56 N59CJ Total $118,444.03 My understanding is that the N59CJ was not shared. The money is owed and past due, andyour client has refused to pay. That speaks volumes about their intenZons.__________________________LOUIS R. COHANATTORNEY AT LAW■ COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: "Faraci Sr., Stephen" Date: Tuesday, December 13, 2022 at 12:22 PMTo: Louis Cohan Cc: Robin Gentry , Shannon CluKer, Gregory Cirillo Subject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZon Some people who received this message don't often get email from sfaraci@wtplaw.com. Learn why this is 3 of 9 important [aka.ms]Louis:Please advise when IFLYAJET will provide access to the documents identified in my letter. Inyour response, please confirm that OADS will have access to all of the document categoriesidentified.Thank you,SteveFrom: Faraci Sr., StephenSent: Friday, December 9, 2022 3:33 PMTo: 'Louis Cohan' Cc: Robin Gentry ; Shannon CluKer ;Gregory Cirillo Subject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlement communicaZonLouis:Just following up on our call of yesterday.?With respect to the question in your last message ofyesterday, OADS/WHBB has no interest in the trip that is apparently on IFLYAJET’s calendarand has no interest in restoring access to the calendar.Instead, we look forward to your notice that the records identified in my letter are ready for eitherinspection and/or production.?Thanks,SteveFrom: Louis Cohan Sent: Thursday, December 8, 2022 12:14 PMTo: Faraci Sr., Stephen Cc: Robin Gentry ; Shannon CluKer ;Gregory Cirillo Subject: [EXTERNAL] Re: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonSteve: Just tried to call you and I leq you a vmail to call me back. Please give me a call. Your client owes more than $300k. Notwithstanding inconsistent allegaZons in your leKer, yourclient has a lengthy reservaZon in place for February 2023. Your client has purported to transfer itsinterest but that transfer is void. Your client complains about the availability of the plane, but this is ashared plane and there is nothing in the agreement that guarantees your client a percentage of use, nordoes it obligate your client to pay for a percentage of use. My office and cell numbers are below. Thanks. 4 of 9__________________________LOUIS R. COHANATTORNEY AT LAW?/span> COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: "Faraci Sr., Stephen" Date: Thursday, December 8, 2022 at 8:56 AMTo: Louis Cohan Cc: Robin Gentry , Shannon CluKer, Gregory Cirillo Subject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZon Some people who received this message don't often get email from sfaraci@wtplaw.com. Learn why this is important [aka.ms] This message's attachments contains at least one web link. This is often used for phishing attempts. Please only interact with this attachment if you know its source and that the content is safe. If in doubt, confirm the legitimacy with the sender by phone.Louis:Please see the attached.Best regards,SteveFrom: Louis Cohan Sent: Tuesday, December 6, 2022 12:04 PMTo: Faraci Sr., Stephen ; Gregory Cirillo Cc: Robin Gentry ; Shannon CluKer Subject: [EXTERNAL] Re: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonSteve and Greg(ory): I just tried to call Steve in response to his leKer. I need to know what your client wants to do?Unpaid fees and expenses (airplane) conZnue to mount. The plane needs expensive parts. The groupmembers are co-dependent, and OADS is causing problems for everyone. IFLYAJET has received arequest for informaZon in connecZon with a change in the OADS insurance for the plane. 5 of 9 It is in everyone’s interest to avoid liZgaZon, but that is the current trajectory. What are your client’s intenZons? Thanks.__________________________LOUIS R. COHANATTORNEY AT LAW?/span> COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: "Faraci Sr., Stephen" Date: Friday, December 2, 2022 at 5:39 PMTo: Louis Cohan , Gregory Cirillo Cc: Robin Gentry , Shannon CluKerSubject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZon Some people who received this message don't often get email from sfaraci@wtplaw.com. Learn why this is important [aka.ms] This message's attachments contains at least one web link. This is often used for phishing attempts. Please only interact with this attachment if you know its source and that the content is safe. If in doubt, confirm the legitimacy with the sender by phone.Louis:Please see the attached.--SteveFrom: Louis Cohan Sent: Thursday, December 1, 2022 11:03 AMTo: Faraci Sr., Stephen ; Gregory Cirillo Cc: Robin Gentry ; Shannon CluKer Subject: [EXTERNAL] Re: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonThank you. 6 of 9__________________________LOUIS R. COHANATTORNEY AT LAW?/span> COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: "Faraci Sr., Stephen" Date: Thursday, December 1, 2022 at 11:00 AMTo: Louis Cohan , Gregory Cirillo Cc: Robin Gentry , Shannon CluKerSubject: RE: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlementcommunicaZonLouis:Thanks for your e-mail. Between holiday travels and prior out of town work commitments, Ihave not been able to get a substantive response to you, though I expect to do so soon.Also, I have replaced the e-mail address for Greg Cirillo that you used with his correct e-mailaddress.Regards,SteveStephen M. Faraci, Sr. | Partner1021 E. Cary Street | Suite 1700 | Richmond, VA | 23219t: 804.977.3307 | f: 804.977.3298 | m: 804.873.0116sfaraci@wtplaw.com | www.wtplaw.com | bio | vcardFrom: Louis Cohan Sent: Thursday, December 1, 2022 10:33 AMTo: gcirillo@dilworthlaw.com; Faraci Sr., Stephen Cc: Robin Gentry ; Shannon CluKer Subject: [EXTERNAL] Re: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlement 7 of 9communicaZonImportance: HighGentlemen: Good morning. I have heard from neither of you. One of the outstanding issues is life raqs. As an accommodaZon, IFLYAJET was able to fit theFalcon 50 with life raqs borrowed from another plane IFLYAJET managed in order to facilitate the August14 to September 3 HI trip. There are two parts to this issue:First – OADS needs to return the life raqs.Second – At the request of and with approval from OADS, IFLYAJET ordered life raqs for the Falcon.IFLYAJET may, yet, be able to cancel the order. In the absence of a response by noon tomorrow, return ofthe borrowed raqs, and payment arrangements for the ordered raqs, IFLYAJET will seek to cancel theorder for the raqs. If cancellaZon is not possible, OADS will be liable for the cost of the raqs.__________________________LOUIS R. COHANATTORNEY AT LAW?/span> COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.comwww.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMFrom: Louis Cohan Date: Saturday, November 26, 2022 at 10:00 AMTo: "gcirillo@dilworthlaw.com" , "sfaraci@wtplaw.com"Cc: Robin Gentry , Shannon CluKerSubject: IFLYAJET/OpZcal Air Data Systems, LLC (OADS) – Rule 408 seKlement communicaZonGentlemen: See aKached. I hope to hear from one or both of you not later than Monday.__________________________LOUIS R. COHANATTORNEY AT LAW?/span> COHAN LAW GROUP, LLC3340 Peachtree Rd., N.E., Suite 2570Atlanta, GA 30326lcohan@cohanlawgroup.com 8 of 9www.cohanlawgroup.com [cohanlawgroup.com]p: 404.891.1770 | c: 404.513.3711 | f: 404.891.5094Seeking to make everything we do, the best we have ever done! TMThis transmission contains information from the law firm of Whiteford, Taylor & Preston LLP which may be confidential and/or privileged. Theinformation is intended to be for the exclusive use of the planned recipient. If you are not the intended recipient, be advised that anydisclosure, copying, distribution or other use of this information is strictly prohibited. If you have received this transmission in error, pleasenotify the sender immediately. 9 of 9 Monday, June 24, 2024 at 09:11:50 Eastern Daylight TimeSubject: RE: ***URGENT***. IFLYAJET/Optical Air Data Systems, LLC (OADS) – Rule 408 settlement communicationDate: Friday, December 16, 2022 at 10:21:36 AM Eastern Standard TimeFrom: 

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