GERRI ANN CAPOTOSTO v. FIFTH THIRD BANK, ETC. , 230 So. 3d 891 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GERRI ANN CAPOTOSTO,
Appellant,
v.
FIFTH THIRD BANK, an Ohio banking corporation,
Appellee.
No. 4D16-4197
[November 22, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Barbara Anne McCarthy, Judge; L.T. Case No.
CACE14014431/21.
Gerri Ann Capotosto, Pompano Beach, pro se.
Stacey S. Fisher of Sprechman & Fisher, P.A., Miami, for appellee.
PER CURIAM.
The defendant, Gerri Ann Capotosto, timely appeals a final summary
judgment awarding the plaintiff, Fifth Third Bank, $57,691.57 in damages
for the defendant’s breach of a promissory note. We affirm the entry of
summary judgment in favor of the plaintiff, but remand for the trial court
to correct the amount of the judgment.
The plaintiff sued the defendant for breach of a promissory note
executed in connection with a car loan. The defendant filed an Answer
and Affirmative Defenses, claiming primarily that the alleged debt had
been satisfied and that the plaintiff lacked standing.
The plaintiff moved for summary judgment, filed an affidavit in support
of summary judgment, and later filed affidavits as to interest, costs, and
attorney’s fees. The defendant filed an unsworn response in opposition to
summary judgment, but did not file any affidavits.
The trial court entered a final summary judgment awarding the plaintiff
$57,691.57 in damages, broken down as follows:
Principal: $ 19,562.79
Costs: $ 620.25
Pre-Accrued Interest: $ 13,289.83
Interest: $ 22,818.70
Attorney’s Fees: $ 2,000.00
Total $ 57,691.57
The sum of the figures in the final judgment is $58,291.57, not
$57,691.57. According to the initial brief, the final summary judgment
was “later amended to $58,291.51.” 1 However, there is no amended final
summary judgment in the record on appeal.
The defendant now argues that there are triable issues of fact and that
summary judgment was granted in error. According to the defendant, one
such issue of fact concerns the amount of damages awarded to the
plaintiff. 2
The standard of review of an order granting summary judgment is de
novo. Fla. Atl. Univ. Bd. of Trustees v. Lindsey, 50 So. 3d 1205, 1206 (Fla.
4th DCA 2010).
A movant is entitled to summary judgment “if the pleadings and
summary judgment evidence on file show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment
as a matter of law.” Fla. R. Civ. P. 1.510(c). “[T]he burden is upon the
party moving for summary judgment to show conclusively the complete
absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.
2d 1126, 1129 (Fla. 4th DCA 1996). However, once the movant’s initial
burden is satisfied, “the opposing party must come forward with
counterevidence sufficient to reveal a genuine issue.” Landers v. Milton,
370 So. 2d 368, 370 (Fla. 1979).
A litigant cannot avoid summary judgment by merely asserting a fact
without any evidence to support it. Nat’l Airlines v. Fla. Equip. Co. of Miami,
71 So. 2d 741, 744 (Fla. 1954). Nor may a defendant raise an unpled
affirmative defense as a basis for resisting a motion for summary
1It is unclear if the defendant meant to say “$58,291.57” or if the alleged
amendment really states “58,291.51.”
2 The defendant also appears to argue that the plaintiff wrongfully repossessed
her vehicle and that the alleged losses she suffered as a result should offset the
plaintiff’s damages, but she never pleaded that defense in her answer.
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judgment. Accurate Metal Finishing Corp. v. Carmel, 254 So. 2d 556, 557
(Fla. 3d DCA 1971).
Here, we find that the record evidence established—without genuine
issue of material fact—that the defendant defaulted on the promissory
note, that the plaintiff owned the loan, and that the defendant owed the
plaintiff damages consisting of $19,562.79 in principal and $22,818.70 in
total interest, together with attorney’s fees and costs. The defendant did
not come forward with any counterevidence to the plaintiff’s summary
judgment evidence. Therefore, we affirm the entry of summary judgment
in favor of the plaintiff.
On remand, however, we instruct the trial court to eliminate the “Pre-
Accrued Interest” of $13,289.83 from the damages award. This specific
figure was not supported by any record evidence. The plaintiff’s Affidavit
of Interest Calculation stated that the “Total Interest” was $22,818.70, and
stated nothing about a separate figure for Pre-Accrued Interest. Further,
on remand, the trial court should ensure that the total damages award is
a correct reflection of the sum of the specific damages figures.
Affirmed, but remanded for correction of the judgment.
WARNER, GROSS and TAYLOR, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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