       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                   P.D.K., INC., a Florida corporation,
                               Appellant,

                                     v.

                MADELINE and WILLIAM MCCONNELL,
                            Appellees.

                              No. 4D18-3124

                             [March 4, 2020]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie  County;    Janet    C.   Croom,     Judge;   L.T.    Case    No.
562017CA1650AXXXHC.

   Louis C. Arslanian, Hollywood, for appellant.

   Emily C. Komlossy of Komlossy Law, P.A., Hollywood, for appellees.

       ON MOTION FOR REHEARING AND REHEARING EN BANC

PER CURIAM.

  We deny the motion for rehearing, but withdraw our prior opinion and
substitute the following in its place.

  Appellant corporation challenges a final summary judgment in
appellee’s action to permit inspection of corporate records of appellant,
and to set a shareholder meeting pursuant to sections 607.1602 and
607.0703, Florida Statutes (2017). We affirm.

   Appellant contended that appellees were not entitled to receive the
records, because they were no longer shareholders of the corporation.
Appellant maintained that they had forfeited their shares when they
refused to infuse additional monies into the corporation. The shareholder
agreement between the parties, however, had no provision for forfeiture or
cancellation of shares for any reason. It further included a provision which
required any modification of the agreement to be in writing and signed by
all the parties. No such agreement was provided. While appellant
contends that the contract was orally modified, the requirements of
Okeechobee Resorts, L.L.C. v. E Z Cash Pawn, Inc., 145 So. 3d 989 (Fla.
4th DCA 2014), were not met. Those requirements include:

      (a) that the parties agreed upon and accepted the oral
      modification (i.e., mutual assent); and (b) that both parties (or
      at least the party seeking to enforce the amendment)
      performed consistent with the terms of the alleged oral
      modification (not merely consistent with their obligations
      under the original contract); and (c) that due to plaintiff's
      performance under the contract as amended the defendant
      received and accepted a benefit that it otherwise was not
      entitled to under the original contract (i.e., independent
      consideration).

Id. at 995.

   At the least, appellant failed to allege that the parties agreed upon and
accepted an oral agreement that the appellees would forfeit their shares if
they did not provide funds to the corporation. Appellees, through affidavit,
stated that they never consented to any cancellation or forfeiture of their
shares and provided emails and other documents to show no mutual
assent. Appellant’s principal’s affidavit, as well as that of his attorney,
both detailed a meeting with appellee where appellant demanded that
appellee provide additional funding for the corporation.            Appellant
informed him that his shares would be forfeited should he refuse. What
the attorney’s affidavit states is that appellee refused to put more money
into the corporation and was advised of the consequences should he
refuse. Appellant did make a conclusory statement in his affidavit that
the reason that he refrained from suing appellee is because appellee
“agreed and acquiesced” to the forfeiture. This, however, is a factual
conclusion. “The affidavit in support of the summary judgment may not
be based upon factual conclusions or conclusions of law.” Hurricane
Boats, Inc. v. Certified Indus. Fabricators, Inc., 246 So. 2d 174, 175 (Fla.
3d DCA 1971). The gist of the affidavit, as well as appellant’s pleadings,
was that appellees had never voiced objection to a forfeiture. That is not
the same as mutual assent. See Long Term Mgmt., Inc. v. Univ. Nursing
Care Ctr., Inc., 704 So. 2d 669, 675 (Fla. 1st DCA 1997) (parties’ silence is
insufficient to show mutual assent); cf. also West Coast Inc. v. Florida
Blacktop Inc., 88 So. 3d 301, 305 (Fla 4th DCA 2012) (offer which contains
provision that silence will be taken as consent, does not turn offer into
acceptance because offeror cannot prescribe terms so that offeree’s silence
constitutes acceptance).



                                     2
    Appellant also contends that, if the court denied its motion to amend,
filed the week before the summary judgment hearing, the court erred as
amendments should be liberally granted. Yet, in its initial brief, appellant
notes that because the court allowed argument on the merits of the
motions, as well as subsequent briefing, the court implicitly granted the
motion. The appellant asks this court to reverse “to the extent that this
court finds that the motion was not granted.” If the court granted the
motion, there is no reversible error for which appellant can complain. This
court should not have to guess whether or not a trial court made a ruling.
To preserve an issue for appeal, a party must obtain a ruling from the trial
court. See Carratelli v. State, 832 So. 2d 850, 856 (Fla. 4th DCA 2002),
and cases cited therein.

    Although the court heard some argument on the motion to amend, it
never granted or denied it, but its comments at the hearing suggest that it
would first decide whether the lack of a written modification precluded
appellant from claiming that appellee’s shares were forfeited. The court
granted summary judgment on that issue. Even if the court denied the
motion to amend, it is apparent from a reading of the proposed amended
answer that it mirrors the affidavit of appellant with respect to the issues
of forfeiture of appellee’s stock and thus whether there was mutual assent.
Although the appellant raised estoppel and detrimental reliance,
Okeechobee Resorts disposes of reliance on those theories of oral
modification without mutual assent to the modification. Thus, the court
was not required to grant a motion to amend which would be futile.
Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So. 3d 883 (Fla. 4th
DCA 2009).

   Affirmed.

LEVINE, C.J., WARNER, J., and PHILLIPS, CAROL-LISA, Associate Judge,
concur.

                           *         *         *




                                     3
