DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

NATALIA DEMARCO FUENTES,

Appellant,

v.

LUXURY OUTDOOR DESIGN, INC., a Florida for profit corporation,

ROBERT COGGINS, an individual, and ROBERT ANASTASI,

an individual,

Appellees.

No. 4D22-332

[March 8, 2023]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Keathan Frink, Judge; L.T. Case No. 16-15675 CACE 

(12).

Debbie R. Campbell of Campbell Legal Group PLLC, Coral Gables, for 

appellant.

No appearance for appellees.

PER CURIAM.

Natalia Fuentes (“the plaintiff”) appeals two orders addressing her 

complaint against Robert Coggins (“the defendant”): 1) the order granting 

dismissal of most counts, and 2) the summary judgment order disposing 

of the two remaining counts. She raises multiple issues on appeal but we 

find merit as to only one, namely her argument that the trial court erred 

in granting summary judgment based on her failure to respond to the

defendant’s summary judgment motion. With respect to the remaining 

issues, we affirm without further discussion.

After the trial court granted a motion to dismiss as to most of the counts 

against the defendant, the defendant filed an answer and raised affirmative 

defenses and moved for summary judgment concerning the remaining 

counts, negligence and negligent misrepresentation. The plaintiff did not 

file a response to the motion. 
2

During a hearing on the motion, the trial court observed that the 

plaintiff had failed to file a response and that the summary judgment rule 

requires the nonmovant to serve a response, including a supporting 

factual position, at least twenty days before the summary judgment 

hearing. The trial court found that “[b]ased on the failure to properly 

respond to the motion for summary judgment, according to amended rule 

1.510(c)(5), the court has no alternative but to find that there is no dispute 

of the factual allegations raised by . . . [the] defendant in the motion for 

summary judgment,” and it granted the motion. 

First, we note that the motion for summary judgment quoted from and 

attached the first amended complaint rather than the operative complaint, 

which was styled as the Substitute Amended Complaint. 

Second, the amended summary judgment rule, which applies here, 

does not provide that summary judgment may be granted based solely on 

the nonmovant’s failure to respond. Rather, the rule provides that “[i]f a 

party fails to properly support an assertion of fact or fails to properly 

address another party’s assertion of fact as required by rule 1.510(c), the 

court may,” among other things, “consider the fact undisputed for 

purposes of the motion,” or “grant summary judgment if the motion and 

supporting materials – including the facts considered undisputed – show 

that the movant is entitled to it[.]” Fla. R. Civ. P. 1.510(e) (2022); see also

Lloyd S. Meisels, P.A., v. Dobrofsky, 341 So. 3d 1131, 1134-36 (Fla. 4th 

DCA 2022) (recognizing that pursuant to rule 1.510(c)(5), the requirement 

of filing a response is mandatory, and if one is not filed, rule 1.510(e)

“provides discretionary options for the trial court,” including “grant[ing] 

summary judgment if the motion and supporting materials – including the 

facts considered undisputed – show that the movant is entitled to it”). 

Further, the rule requires the trial court to “state on the record the reasons 

for granting or denying the motion.” Fla. R. Civ. P. 1.510(a).

The trial court’s stated reason for granting the motion was that, based 

on the plaintiff’s failure to respond, it had “no alternative but to find that” 

the facts were undisputed. However, this reasoning does not support a 

conclusion that the defendant is entitled to summary judgment as a matter 

of law. In other words, this reasoning does not indicate that the court 

analyzed whether the “supporting materials – including the facts 

considered undisputed,” would necessarily result in the defendant’s 

entitlement to summary judgment based on any of the defendant’s myriad 

arguments in support of summary judgment, nor is there any indication 

that the trial court considered these arguments. 
3

To the extent the trial court believed it lacked discretion to engage in 

any analysis because the nonmovant failed to respond to the summary 

judgment motion, this was error. While the trial court may have found 

that the defendant, based on the undisputed facts alleged and arguments 

raised by the defendant in his motion, was entitled to summary judgment, 

that finding is not apparent from the reasons stated on the record. 

Based on the foregoing, we affirm the order granting dismissal, reverse 

the summary judgment, and remand for further proceedings on the 

negligence and negligent misrepresentation counts. 

Affirmed in part, reversed in part, and remanded for further proceedings.

WARNER, CIKLIN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.