### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

NATALIA DEMARCO FUENTES
, Appellant,

v.

LUXURY OUTDOOR DESIGN, INC., a Florida for p rofit c orporation

, ROBERT COGGINS, an individual

, and ROBERT ANASTASI,

an individual

, Appellee s

.

No. 4D 22

- 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 appear ance for appellees.

P ER C URIAM

.

Natalia Fuentes (“the p laintiff”) appeals two orders addressing her complaint against Robert Coggins (“the d efendant”) : 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

d efendant’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 d efendant, the defendant filed an answer and raised affirmative

defenses and moved for summary judgment concerning the remaining

counts , negligence and negligent misrepresentation . The p laintiff did not file a response to the motion.2 During a hearing on the motion, the trial court observed that the

p laintiff 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 co urt 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 ha s no alternative but to find that there is no dispute of the factual allegations raised by . . . [the] d efenda nt 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 a n 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

sup porting 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, 113 4

- 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 supporti ng 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 p laintiff’s failure to respond, it ha d “no alternative but to find that” the facts were undisputed. However, this reasoning does not support a

conclusion that the d efendant 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 d efendant’s

entitlement to sum mary judgment based on any of the d efendant’s myriad arguments in support of summary judgment, no r 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 ana lysis because the nonmovant fail ed 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 d efendant 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

.

W ARNER
, C IKLIN and F ORST

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.