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.
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PRE-TRIAL STATEMENT
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.
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PRE-TRIAL STATEMENT
LEGAL THEORIES
Plaintiff’s claim(s) is based on the following legal theories:
i. 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);
ii. 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;
iii. Count 3- Unjust enrichment: Commissions.
iv. 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.
v. 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.;
vi. 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;
vii. Count 7- Breach of Contract. Under this cause of action, Plaintiff avers that there
existed an implied partnership agreement between Plaintiff and Peggy regarding
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PRE-TRIAL STATEMENT
the Tordo property, and that Peggy breached the partnership by the actions
alleged above;
viii. 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.;
ix. 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;
x. 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:
i. Plaintiff owes her $5,495.93 of the $13,467.50 allegedly loaned to Plaintiff;
ii. Plaintiff made by Plaintiff concerning commissions and expenses constitute
payments under an alleged agreement for rent;
iii. Plaintiff contributed the $100,000.00 toward the purchase of the Tordo property;
iv. 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:
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PRE-TRIAL STATEMENT
i. 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).
ii. Whether the Defendant can set forth sufficient evidence to establish that there was
no Partnership Agreement between Peggy and Plaintiff.
iii. Whether a constructive trust exists between the Plaintiff and Peggy concerning
the Tordo property.
iv. Whether Peggy owes Plaintiff any amount of money under the alleged agreement.
v. Whether the Plaintiff owes Peggy the alleged $5,493.93.
vi. Whether the notice of lis pendens filed by Plaintiff constitutes a violation of ARS
§33-420(A)&(C).
vii. 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).
viii. 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:
i. Plaintiff eventually stopped working as a Real Estate Agent as a result of
numerous complaints against Plaintiff and his friends by Peggy.
ii. Financial loss since Plaintiff used all of his monies in the Tordo property.
iii. Loss of personal property since Peggy prevented Plaintiff from reentering the
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PRE-TRIAL STATEMENT
Tordo property or even being in the area to reclaim any of his personal property.
iv. 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.
i. 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.
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PRE-TRIAL STATEMENT
ii. 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.
iii. 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,
Signature
Michael G. Scaramella
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PRE-TRIAL STATEMENT
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
Signature
Michael
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