RESPONSE TO DEFENDANT’S CORRESPONDENCE

Michael G. Scaramella

1880 W. Demetrie Loop

Green Valley, AZ 85622

Plaintiff/Counterdefendant  

 

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF PIMA
MICHAEL G. SCARAMELLA,         

                   Plaintiff/Counterdefendant,

     vs.
PEGGY J. MILLER; JANE AND JOHN DOES 1-5; ABC ENTITIES 1-5,

                               Defendants

 Case No.: C20193632


RESPONSE TO DEFENDANT’S CORRESPONDENCE

 

Plaintiff hereby responds to Defendant’s correspondence dated March 30, 2022. The Defendant sent the correspondence in response to Plaintiff’s Pre-Trial statement. In this response, Plaintiff will include the Jury Instructions as requested by Defendant’s attorney, and will present further arguments about the Defendant’s conduct. Plaintiff will add further evidence in support of the allegations. 

 

JURY INSTRUCTIONS

Count 1: Constructive Trust

  1. Plaintiff must show that there was a confidential or fiduciary relationship with Defendant Peggy; 
  2. A promise was made either express or implied; 
  3. There was a transfer of property made in reliance on that promise; and 
  4. Defendant Peggy was unjustly enriched.

 

Count 2- Unjust enrichment & Count 3-Unjust enrichment: commissions

  1. Defendant Peggy is unjustly enriched if she fails to consider the history of Plaintiff’s investment into the properties. 
  2. To decide the amount of any unjust enrichment, first determine the value of Defendant Peggy’s benefit that would not have been achieved except for her conduct. Then subtract from that amount Defendant Peggy’s reasonable contribution to the properties. 
  3. In calculating the amount of any unjust enrichment, do not take into account any amount that you included in determining any amount of damages for Plaintiff’s actual loss.

 

Count 4- Replevin

  1. Plaintiff must show that he is entitled to immediate possession of the property.

 

Count 5- Conversion of personal property

  1. Plaintiff claims that Defendant Peggy wrongfully exercised control over Plaintiff’s personal property. 
  2. To establish this claim, Plaintiff must prove all of the following:
  1. That Plaintiff owned/possessed/had a right to possess the personal property;
  2. That Defendant Peggy substantially interfered with Plaintiff’s property by knowingly or intentionally denying Plaintiff access to take possession of the said property; 
  3. That Plaintiff did not consent;
  4. That Plaintiff was harmed; and
  5. That Defendant Peggy’s conduct was a substantial factor in causing Plaintiff’s harm

 

Count 6- Declaratory relief

  1. The Plaintiff must show that there is a proper subject of declaratory relief, and that there is an actual controversy involving justiciable questions relating to Plaintiff’s rights or obligations.

 

Count 7- Breach of Contract

  1. To recover damages from Defendant Peggy’s breach of contract, Plaintiff must prove all of the following:
  1. That Plaintiff and Defendant Peggy entered into a contract;
  2. That Plaintiff did all, or substantially all, of the significant things that the contract required him to do;
  3. That all conditions required by the contract for Defendant Peggy’s performance were satisfied;
  4. That Defendant Peggy failed to do something that the contract her to do;
  5. That Plaintiff was harmed; and
  6. That Defendant Peggy’s breach of contract was a substantial factor in causing Plaintiff’s harm.

 

Count 8- Breach of fiduciary duty

  1. A partner owes what is known as a fiduciary duty to his/her partner. A fiduciary duty imposes on a partner a duty to act with the utmost good faith in the best interests of his/her partner. 

 

Count 9- Breach of oral and/or verbal agreement

  1. To recover damages from Defendant Peggy’s breach of oral/verbal contract, Plaintiff must prove all of the following:
  1. That Plaintiff and Defendant Peggy entered into a verbal/oral contract;
  2. That Plaintiff did all, or substantially all, of the significant things that the contract required him to do;
  3. That all conditions required by the contract for Defendant Peggy’s performance were satisfied;
  4. That Defendant Peggy failed to do something that the contract her to do;
  5. That Plaintiff was harmed; and
  6. That Defendant Peggy’s breach of contract was a substantial factor in causing Plaintiff’s harm.

 

Count 10- Breach of implied covenant of good faith and fair dealing

  1. A party to a contract has a duty to act fairly and in good faith. This duty is implied by law and need not be in writing. 
  2. This duty requires that neither party do anything that prevents the other party from receiving the benefits of their agreement. 

 

DATED: 

Respectfully submitted,                

 

CERTIFICATE OF SERVICE

 

I hereby certify that on [ENTER DATE], copies of the foregoing Pre-Trial Statement have been sent to the Defendants in the following address:

 

LAW OFFICES OF JOSEPH H. WATSON

109 E. Speedway Blvd. 

Tucson, Arizona 85705-7763

(520) 884-0484

Fax: (520) 884-0073

E-mail:  jhwatson2626@gmaiI.com

 

Attorney for Defendant/Counterclaimant, Peggy J. Miller 

State Bar No. 011346     

   

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