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:
2

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 

1 It 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.
3

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 “PreAccrued 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.