PRETRIAL STATEMENT

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


PRETRIAL STATEMENT

(Assigned to Hon. Richard E. Gordon)

 

COMES NOW Plaintiff, MICHAEL G. SCARAMELLA, pro se, pursuant to this Court’s Order dated March 11, 2022, and hereby files this Pre-Trial Statement. Accordingly, Plaintiff alleges and states as follows:

SUMMARY OF CASE

On or about January 6, 2014, Plaintiff purchased the property at 6231 N Pascola Circle Tucson AZ.  Consequently, on or about September 2014, Defendant PEGGY J. MILLER (hereinafter “Peggy”) moved into the Plaintiff’s home after her divorce from Kaluse Schoenfeld. Plaintiff and Peggy agreed to create a life together and combine their assets. Accordingly, on or about January 16, 2015, Plaintiff sold the property at Pacola.

On or about January 16, 2015, Plaintiff and Peggy purchased the property on 6065 N Tocito Place.  Funds for this purchase were from the sale of the Pascol property and Peggy’s house from her divorce. Notably, each party contributed $100,000.00 to this purchase and financed $75,000.   Plaintiff also did extensive repairs and remodeling on this home.

On or about May 23, 2016, Plaintiff and Peggy sold the property at Tocito for $335,000. The proceeds from the said sale went into the purchase of the property at 6291 E Avalon Drive Scottsdale, Az.  After the purchase, Peggy and Plaintiff remodeled the house with two baths. On or about August 14, 2017, the Avalon property was sold for $335,500.

Consequently, Plaintiff and Peggy stayed in Scottsdale and traveled until they found the property at 3871 S. Tordo, Green Valley Az. Accordingly, they used proceeds from the Avalon property to purchase the property on Tordo.  Notably, because Peggys credit was better than Plaintiff’s, the parties decided to put the new loan in Peggy’s name using the funds from the sale of Avalon. Plaintiff and Peggy therefore closed on the Tordo property and then spent approximately 1.5 months remodeling the said property. On or about December 9, 2017, Plaintiff and Peggy moved in the said Tordo property. After moving in, the Plaintiff continued to remodel the property until the parties split on or about March 19, 2019, and thus their relationship dissolved. 

An Order of Protection was issued, which Order led to the removal and exclusion of Plaintiff from the Tordo property. Plaintiff was therefore left homeless. After that, Peggy filed numerous complaints against Plaintiff and his friends. Plaintiff asserts that these complaints hampered and/or impeded Plaintiff’s ability to work, which caused Plaintiff a lot of stress.  

On or about July 30, 2019, Plaintiff filed a Complaint and a notice of lis pendens alleging an interest in the Tordo property. 

LEGAL THEORIES

Plaintiff’s claim(s) is based on the following legal theories:

  1. Count 1- Constructive Trust. Under this cause of action, Plaintiff avers that a constructive trust arises by operation of law where a party acquires the ownership of property through fraud, misrepresentation, or concealment. In Re Estate of Rose, 493 P.2d 112 (Ariz. 1972);
  2. Count 2- Unjust enrichment. Under this cause of action, Plaintiff avers that Peggy is unjustly enriched at the expense of Plaintiff and therefore has to make restitution accordingly. Community Guardian Bank v. Hamlin, 898 P.2d 1005,182 Ariz. 627 (Ariz. App. Div. 1 1995). Plaintiff claimed that he contributed  $100,000.00 toward the Tordo property by constructive trust;
  3. Count 3- Unjust enrichment: Commissions. 
  4. Count 4- Replevin. Under this cause of action, Plaintiff avers that he is entitled to possession of the Tordo property as a provisional remedy pursuant to ARS § 12-2401 et seq, pending the determination of this case;

On or about December 1, 2020, Plaintiff filed the First Amended Complaint and added more causes of action.  

  1. Count 5- Conversion of personal property. Under this cause of action, Plaintiff avers that Peggy detained the Plaintiff’s property and converted them to her own use and that Plaintiff is entitled to relief pursuant to ARS § 12-542 et seq.;
  2. Count 6- Declaratory relief. Under this cause of action, Plaintiff avers that he is entitled to a declaration of rights, status, and other legal relation pursuant to ARS § 12-1831;
  3. Count 7- Breach of Contract. Under this cause of action, Plaintiff avers that there existed an implied partnership agreement between Plaintiff and Peggy regarding the Tordo property, and that Peggy breached the partnership by the actions alleged above;
  4. Count 8- Breach of fiduciary duty. Under this cause of action, Plaintiff avers that Peggy breached he fiduciary duty under the partnership and that Plaintiff is entitled to relief pursuant to Arizona Revised Uniform Partnership Act, ARS § 29-1001 et seq.; 
  5. Count 9- Breach of oral and/or verbal agreement. Under this cause of action, Plaintiff avers that there was a verbal agreement between Plaintiff and Peggy and that Peggy’s conduct was in breach of the said agreement;
  6. Count 10- Breach of implied covenant of good faith and fair dealing- Under this cause of action, Plaintiff avers that Peggy’s conduct breached the implied warranty of good faith and fair dealing.

CONTESTED ISSUES OF FACT

Peggy filed an Answer, Affirmative Defenses, and Counterclaim in response to Plaintiff’s Complaint. Peggy denied that there was an implied partnership agreement for the parties to share the Tordo property. Peggy further alleged that:

  1. Plaintiff owes her $5,495.93 of the $13,467.50 allegedly loaned to Plaintiff;
  2. Plaintiff made by Plaintiff concerning commissions and expenses constitute payments under an alleged agreement for rent;
  3. Plaintiff contributed the $100,000.00 toward the purchase of the Tordo property;
  4. Plaintiff has unclean hands under equity and is therefore not entitled to the relief he seeks. 

In light of the foregoing, the following are the contested facts that Plaintiff believes are material in this case: 

  1. Whether the claims made by Plaintiff concerning an ownership interest in the Tordo property are subject to the Arizona Statute of’ frauds, ARS. § 44-1.10.1(6).
  2. Whether the Defendant can set forth sufficient evidence to establish that there was no Partnership Agreement between Peggy and Plaintiff.
  3. Whether a constructive trust exists between the Plaintiff and Peggy concerning the Tordo property.
  4. Whether Peggy owes Plaintiff any amount of money under the alleged agreement. 
  5. Whether the Plaintiff owes Peggy the alleged $5,493.93.
  6. Whether the notice of lis pendens filed by Plaintiff constitutes a violation of ARS §33-420(A)&(C).
  7. Whether Plaintiff/Counterdefendant is entitled to attorney’s fees and costs are given the existence of a contract made by the parties, the said fees and costs being available under A.R.S. §12-341 .0 I (A).
  8. Whether the prevailing party is entitled to taxable costs.

ITEMIZATION OF DAMAGES

Plaintiff presents the following injuries, damages, and/or harm he suffered consequential and incidental to Peggy’s conduct alleged herein:

  1. Plaintiff eventually stopped working as a Real Estate Agent as a result of numerous complaints against Plaintiff and his friends by Peggy.
  2. Financial loss since Plaintiff used all of his monies in the Tordo property. 
  3. Loss of personal property since Peggy prevented Plaintiff from reentering the Tordo property or even being in the area to reclaim any of his personal property.
  4. Severe stress as a result of Peggy’s vendetta against Plaintiff. 

Plaintiff therefore maintains that based on the history of the working together with Peggy in buying, remodeling and selling homes, he is entitled to half of the value of the Tordo property. Plaintiff further avers that he is entitled to 50% of all furniture purchased during this relationship as they bought and sold homes together.  

EXHIBIT LIST

 

Plaintiff, include the Exhibits that the Plaintiff intends to use in the case. You may use the exhibits cited in the Complaint. 

 

WITNESS LIST

Michael G. Scaramella of address 1880 W. Demetrie Loop Green Valley, AZ 85622. 

 

JURY INSTRUCTIONS

Pursuant to Rule 51, Arizona Rules of Civil Procedure, Plaintiff requests that the following Arizona Jury Instructions (Civil), 6th instructions be given to the jury. 

  1. Standard 1: Impeachment with Conviction 

Evidence that a witness has previously been convicted of a crime may be considered only as it may affect the credibility of that person as a witness. You may not consider that evidence for any other purpose. You must not consider that evidence as tending to prove or disprove any of the claims in this case, or as evidence that the witness is a bad person or predisposed to commit crimes.

  • Standard 2: Burden of Proof (More Probably True)

Burden of proof means burden of persuasion. On any claim, the party who has the burden of proof must persuade you, by the evidence, that the claim is more probably true than not true. This means that the evidence that favors that party outweighs the opposing evidence. In determining whether a party has met this burden, consider all the evidence that bears on that claim, regardless of which party produced it.

  • Standard 3: Burden of Proof (Clear and Convincing) 

Some of the claims in this case require proof by clear and convincing evidence. A party who has the burden of proof by clear and convincing evidence must persuade you by the evidence that the claim is highly probable. This standard is more exacting than the standard of more probably true than not true, but it is less exacting than the standard of proof beyond a reasonable doubt. You are to use the standard of more probably true than not true for all claims in this case except for those on which you are specifically instructed that the burden of proof is the standard of clear and convincing evidence. In determining whether a party has met any burden of proof, you will consider all the evidence, whether presented by Michael G. Scaramella or Peggy J. Miller. 

 

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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