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
[January 8, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Janet C. Croom, Judge; L.T. Case No.
562017CA1650AXXXHC.
Louis Arslanian, Hollywood, for appellant.
Emily Komlossy of Komlossy Law, P.A., Hollywood, for appellees.
PER CURIAM.
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. (Emphasis original.)
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 did not state that appellees had
affirmatively assented to cancellation of their stock, merely that they had
never objected. That is not the same as mutual assent. We affirm, as the
trial court did not err in concluding that no material issues of fact
remained, and that appellees were entitled to judgment as a matter of law.
Appellant also contends that the court committed reversible error,
because it had filed a motion to amend which was not ruled upon but
should have been granted. 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. Here, appellant filed the
motion to amend five days before the hearing and did not notice it for
hearing. Although the court heard some argument on the motion, it never
granted or denied it. Therefore, the issue is not preserved.
Affirmed.
LEVINE, C.J., WARNER, J., and PHILLIPS, CAROL-LISA, Associate Judge,
concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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