MARCOS FRAYND FILES MOTION FOR REHEARING

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY, FLORIDA

COMPLEX BUSINESS LITIGATION SECTION

CASE NO.: 06-8827-CA-40

FLORIDA DEPARTMENT OF FINANCIAL SERVICES

                                    Plaintiff,

vs.

MARCOS FRAYND, et al

                                    Defendants.

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DEFENDANTS’ MOTION FOR REHEARING

            Defendants hereby request that this Court rehear various this matter.  The grounds for this motion are as follows.

            1.  Defendants believe that this Court may have misapprehended or misunderstood certain key aspects of this matter.

            2.  This Court misapprehends the agreement of Plaintiff as to what issues and counts were being tried.  Pre-trial and reiterated during the trial, Plaintiff stipulated that it was proceeding on only two counts, namely, the alleged diversion of funds and breach of fiduciary duty.  This Court exceeded these two counts in its revised findings of fact which form the basis of the final judgment.

            3.   With respect to the breach of fiduciary duty issue, this Court has overlooked the complete absence of evidence to establish that the defendants received any personal benefit from the transfer of funds from Aries to Onyx.  In its findings of fact, this Court finds that the transfer was illegal and states several bases for this finding.  However, all of these bases was refuted by the overwhelming evidence presented at trial.

            4.  With respect to the diversion issues, there was no evidence that the individual defendants diverted any funds.  The best case and argument submitted by Plaintiff was that Onyx Underwriters did not fully and properly account for monies Onyx received on Aries’s behalf but did not submit to Aries.  Although there was substantial doubt relating to these claims, there is no doubt that no one testified that the individual defendants did any of the alleged diversion or that any of them benefited from any such diversion. Mr. Thomas himself admitted that none of the individual defendants collected any of the alleged diverted money for themselves.  (Thomas-676-677).

            5.  This Court’s findings to establish the personal benefit seems to be based solely on the premise that defendants were paid salaries for their full time work for the various entities.  However, plaintiff’s witnesses testified that these salaries were reasonable.  Again, Mr. Thomas admitted that there was nothing unreasonable or untoward about paying the defendants for their employment nor did he take any issue with the amounts paid to them.  (Thomas-679-680)

            6.   There was no evidence to suggest there was anything improper or inappropriate about these salaries.  Indeed, plaintiff conceded this point. (Thomas 680-681).

            7.   Finally, pre-judgment interest is allowable only for liquidated damages.  Given the bases for the alleged damages in this matter, the amounts claimed are not liquidated and pre-judgment interest is inappropriate.

            WHEREFORE, defendants request that this Court rehear this matter and enter judgment in favor of defendants.    

            I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 22^nd     day of April, 2011 to Edgar Cale, Barclay Cale P. A., 169 E Flagler St , Ste 1200,  Miami, Florida 33131-1205.

THE LAW OFFICES OF ALAN P. DAGEN, P.A.

746 Heritage Drive

Weston, Fl 33326

(954) 389-8605

Fax: (954) 337-3250

By: __________________________________________

ALAN P. DAGEN, P.A.

Florida Bar No.: 456535