Filing # 173410034 E-Filed 05/17/2023 07:50:15 PM

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA

CIRCUIT CIVIL DIVISION

CASE NO. 19-013245 CA 22

MEGAN CAUBLE,

Plaintiff/Counterdefendant,

v.

GREGORY KACZMARSKI,

Defendant/Counterplaintiff.
_________________________________/

GREGORY KACZMARSKI,

Plaintiff,

v. CASE NO. 20-010644 CA 22

MEGAN CAUBLE,

Defendant.
_________________________________/

CAUBLE’S MOTION FOR A PARTIAL STAY OF THE

FINAL JUDGMENT PENDING APPEAL

Megan Cauble, through counsel, pursuant to Florida Rule of Appellate Procedure

9.310(a), requests that this Court enter an order partially staying the operation of the Final

Judgement (sic) (entered on January 17, 2023, DE 157) (hereinafter “Final Judgment”) pending a

resolution of the appeal of the Final Judgment and of this Court’s Order Denying Request for

Rehearing (e-filed April 17, 2023, DE 166), based on the following:

RELIEF REQUESTED

1. Cauble seeks an order from this Court staying the monetary award to Kaczmarski

set forth in the Final Judgment (while this Court of course maintains jurisdiction to determine the
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amount of court costs and reasonable attorney’s fees to award Cauble’s lawyers pursuant to

§ 64.081, Fla. Stat.). An appellant may permissibly seek a stay of a portion of the order to be

reviewed. Lopez-Cantera v. Lopez-Cantera, 578 So. 2d 726 (Fla. 3d DCA 1991) (“There is no

authority prohibiting the trial court from staying a portion of the judgment; the trial court was

laboring under the misconception that its discretion was limited to granting or denying a stay of

the entire final judgment”).

2. On Monday, May 15, 2023, Cauble filed her Notice of Appeal, initiating the appeal

of the Final Judgment and the Order Denying Request for Rehearing.

3. This Court has authority to enter an order partially staying the trial court judgment

pending the resolution of the appeal of the referenced final orders, and it should do so in order to

maintain the status quo. Fla. R. App. P. 9.310(a) (“…a party seeking to stay a final or nonfinal

order pending review shall file a motion in the lower tribunal, which shall have continuing

jurisdiction, in its discretion, to grant, modify, or deny such relief….”); Perez v. Perez, 769 So. 2d

389, 391 n.4 (Fla. 3d DCA 1999) (the primary purpose of a stay pending appeal is to preserve the

status quo during an appellate proceeding).

4. A stay is necessary to prevent a change of the status quo and to provide meaning to

Cauble’s appeal. A stay is absolutely necessary in this action to prevent irremediable harm,

because, without a stay, the money awarded to Kaczmarski and presently being held in Sackrin

and Tolchinsky, P.A. trust account will in due course be paid out to Kaczmarski. If Cauble wins

her appeal, this money, if put in the hands of Kaczmarski, will thereafter be irretrievable (if not

spent), thereby effectively mooting and negating the decision of the Court of Appeal and the

subsequent rulings of this Court in this action, and permanently depriving Cauble of her just share

of the proceeds of sale of the two condominium units. Price v. McCord, 380 So.2d 1037 (Fla.

1980); Perez v. Perez, 769 So.2d 389, 391, fn. 4 (Fla. 3d DCA 1999).

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5. As a condition of the stay of the proceedings, the trial court can require the appellant

to post a supersedeas bond. Cauble proposes that this Court set a supersedeas bond in the amount

of $30,169.42. This proposal is based on the following:

a. Both parties have agreed that, by mathematical computations based on the Court’s

formula, the final judgment awarded $357,475.39 to Kaczmarski ($322,799.32 on

the Castle Beach unit and $34,676.07 on the Porto Bellagio unit) and $64,475.38 to

Cauble. Pursuant to the Final Judgment and to prior orders of this Court, these

awards shall continue to be held in the attorneys’ trust accounts until the Court has

determined the amount of attorney’s fees to be paid by the parties and has deducted

one-half of that amount from Kaczmarski’s award.

b. For the purpose of calculating the net amount that Kaczmarski will ultimately

receive as a distribution, $50,000, representing one-half of the estimated attorney’s

fees to be awarded to Warren Gammill & Associates, PL, should be deducted from

Kaczmarski’s $357,475.34 award, leaving $307,475.34. The actual fee shall be

determined by this Court at a later date. This firm performed services for which it

reasonably billed over $100,000 to Megan Cauble for the benefit of the partition of

the Porto Bellagio unit; for the benefit of the partition of the Castle Beach unit; for

defending and defeating counterclaims asserted by Kaczmarski; for defending the

foreclosure of the second mortgage on the Porto Bellagio unit; for negotiating real

estate contracts for the sales of the two units, and for handling all aspects of the real

estate transactions for the transfer of title of the two units through closing.

c. Likewise, $1,807.52, representing (1) one-half of the filing fees on the partition

actions paid by Cauble ($911), (2) the fees associated with service of process on

Kaczmarski ($100 to process server and $228.04 for publication of notice of

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20-010644 CA 22

action), (3) the Porto Bellagio Condominium Association’s estoppel letter ($376),

and (4) court reporter charges for attendance at two days of trial ($2,000) (paid by

Cauble but, by agreement with Kaczmarski’s counsel, to be split by the parties)

should be deducted from Kaczmarski’s award.

Thus, if the court award of $357,475.39 stands on appeal, and if estimated attorney’s fees and costs

in the aggregate amount of $51,807.52 were deducted from that award, Kaczmarski would net

$305,667.87 as his distribution. (The actual amount of attorney’s fees and costs to be deducted

from Kaczmarski’s share of the proceeds of sale will be fixed at an evidentiary hearing set in

September 2023.)

d. Given that $305,667.87 of Kaczmarski’s award will remain in trust in his attorneys’

trust account throughout the appeal (along with the $51,807.52 in estimated

attorney’s fees and court costs, pending a Court award), the payment of this

$305,667.87 to Kaczmarski upon an affirmance by the appellate court would be

100% secure. This $305,667.87 does not require a bond for its protection. The

supersedeas bond needs to be set based on possible lost interest on the $305,667.87

during the pendency of the appeal at the current legal rate of interest of 6.58% per

annum.1 Cauble asks that the Court set the bond in the amount of the interest at

6.58% per annum on $305,667.87 for 1½ years (maximum estimated time for an

appellate decision) – to wit, $30,169.42. The Final Judgment, with Kaczmarski’s

award being held in trust, is not considered a money judgment, such that the amount

of the supersedeas bond is to be set by the judge pursuant to Fla. R. App. P.

9.310(a). Kaczmarski’s award being held in Sackrin and Tolchinsky, P.A. trust

1
The interest rate would be the same as for the stay of money judgments under Fla. R. App. P.
9.310(b).

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20-010644 CA 22

account should not be bonded, because it is already secure for payment to

Kaczmarski, if he should win the appeal. Wilson v. Woodward, 602 So.2d 545

(Fla. 2d DCA 1991) (the portion of the appellee’s award that is already secured by

funds deposited in the court registry should not be bonded).

e. Cauble wishes to provide a cash bond, using $30,169.42 of her funds from the

$64,475.33 distribution that the Court awarded her. Her distribution is held in

Warren Gammill & Associates Trust Account, the original repository of the

proceeds of the partition sales. Throughout the pendency of the appeal, the Cauble

funds in the amount of the bond would be segregated in the Trust Account from her

$64,475.33 distribution as her cash bond. The cash bond would stand as cash

security for the payment to Kaczmarski of the interest that he will have lost (at

6.58% per annum) during the pendency of the appeal if the final judgment is

affirmed. If the final judgment should be reversed on appeal, the court shall

discharge the cash bond, with the funds to be returned to Cauble, being a part of

her award. It is permissible and appropriate that funds in escrow or trust for the

benefit of appellant may serve as appellant’s cash bond. Mosar Developers, Inc. v.

Creech & Wilson, Inc., 404 So.2d 118, 119 (Fla. 4th DCA 1981); Wilson v.

Woodward, 602 So.2d 545 (Fla. 2d DCA 1991).

f. The bond shall be deemed posted upon notice filed in this action by Warren

Gammill & Associates, P.L. that $30,169.42 of Cauble’s funds in trust have been

deducted from Cauble’s $64,475.33 on her trust account ledger sheet and

segregated to a new trust account ledger sheet as a supersedeas bond for the benefit

of Kaczmarski.

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Wherefore, Cauble requests that this Court (1) enter a stay of the operation of the monetary

award to Kaczmarski in the Final Judgment (DE 157), effective immediately, thereby superseding

the judgment, pending a resolution of the appeal of the Final Judgment and of this Court’s Order

Denying Request for Rehearing (DE 166), and (2) mandate that $357,475.39 (being $305,667.87

plus $51,807.52 in estimated attorney’s fees and court costs) of Kaczmarski’s Final Judgment

award remain in the Sackrin and Tolchinsky, P.A. trust account throughout this appeal (until

released in part for the payment of attorney’s fees and court costs by order of this Court or by

stipulation of the parties), upon Cauble’s posting of the cash bond in the amount of $30,169.42

from her court award into the segregated trust account as above described, within 10 days from

the date of the order.

WARREN GAMMILL & ASSOCIATES, P.L.

Counsel for Megan Cauble
Suite 400, Courthouse Plaza
28 West Flagler Street
Miami, Florida 33130
Tel: (305) 579-0000
Fax: (305) 371-6927
Primary e-mail: gammill@miamilawoffice.com
Secondary e-mail: krassner@miamilawoffice.com
secretary@miamilawoffice.com
warren.gammill@gmail.com

By: /s/ Warren P. Gammill

Warren P. Gammill
Fla. Bar No. 151221

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was furnished via e-mail to
Alan D. Sackrin, Esq. (alan@hallandalelaw.com; pleadings@hallandalelaw.com), Sackrin &
Tolchinsky, P.A., attorneys for Plaintiff Gregory Kaczmarski, 2100 East Hallandale Beach
Boulevard, Suite 200, Hallandale Beach, Florida 33009, on this 17th day of May, 2023.

/s/ Warren P. Gammill

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