GERRI ANN CAPOTOSTO, APPELLANT,
v.
FIFTH THIRD BANK, AN OHIO BANKING CORPORATION, APPELLEE

Fla. 4th DCA | 2017-11-22
No. 4D16-4197
Warner, Gross and Taylor, JJ., concur.
230 So. 3d 891 Florida District Court of Appeal, Fourth District (2017) Positive Treatment
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Defendant Capotosto appeals a summary judgment for breach of a promissory note on a car loan, arguing triable issues of fact remain. The Fourth District affirmed the summary judgment but remanded for correction of the judgment amount, which contained mathematical errors and an unsupported damage component.


Holding

Summary judgment was properly granted because the defendant failed to come forward with counterevidence sufficient to create a genuine issue of material fact regarding the default and damages owed. However, the judgment must be remanded to eliminate the unsupported 'Pre-Accrued Interest' component of $13,289.83 and correct the mathematical error in the total damages award.


Headnotes

[1] Summary judgment is appropriate when the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.

[2] Once the movant for summary judgment satisfies its initial burden, the opposing party must present counterevidence sufficient to raise a genuine issue of material fact.

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Key Quotes

“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."”

Establishes the legal standard for summary judgment in Florida

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Facts & Procedural History

Fifth Third Bank sued Capotosto for breach of a promissory note related to a car loan. Capotosto filed an answer claiming the debt was satisfied and t…

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Opinion of the Court
Per Curiam.

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.

*892. 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:

$ 19,562.79 Principal:

$ 620.25 Costs: .

$ 13,289.83 Pre-Accrued Interest:

Interest: • $ 22,818,70

Attorney’s Fees: '•$ 2.00Q.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 judgment. Accurate Metal Finishing Corp. v. Carmel, 254 So.2d 556, 557 (Fla. 3d DCA 1971).

*893Here, 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 counterevi-dence to the plaintiffs 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 plaintiffs 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.


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Citator

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  • Oliver v. Winn-Dixie Store, Inc., 291 So. 3d 126 (Fla. 4th DCA 2020)
  • Leftwich v. Wal-Mart Stores E., LP, 396 So. 3d 603 (Fla. 5th DCA 2024)
  • …stating, in part, that “[t]he complainant shall also have the right to sue at common law to recover such deficiency, unless the court in the foreclosure action has granted or denied a claim for a deficiency judgment”); Capotosto v. Fifth Third Bank, 230 So. 3d 891, 892 (Fla. 4th DCA 2017) (holding that a defendant cannot “raise an unpled affirmative defense as a basis for resisting a motion for summary judgment; stating that “[a] litigant cannot avoid summary judgment by merely asserting a fact without any ev…

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