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.
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PRE-TRIAL STATEMENT
JURY INSTRUCTIONS
Count 1: Constructive Trust
- Plaintiff must show that there was a confidential or fiduciary relationship with Defendant
Peggy; - A promise was made either express or implied;
- There was a transfer of property made in reliance on that promise; and
- Defendant Peggy was unjustly enriched.
Count 2- Unjust enrichment & Count 3-Unjust enrichment: commissions
- Defendant Peggy is unjustly enriched if she fails to consider the history of Plaintiff’s
investment into the properties. - 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. - 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
- Plaintiff must show that he is entitled to immediate possession of the property.
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PRE-TRIAL STATEMENT
Count 5- Conversion of personal property
- Plaintiff claims that Defendant Peggy wrongfully exercised control over Plaintiff’s
personal property. - To establish this claim, Plaintiff must prove all of the following:
i. That Plaintiff owned/possessed/had a right to possess the personal property;
ii. That Defendant Peggy substantially interfered with Plaintiff’s property by
knowingly or intentionally denying Plaintiff access to take possession of the said
property;
iii. That Plaintiff did not consent;
iv. That Plaintiff was harmed; and
v. That Defendant Peggy’s conduct was a substantial factor in causing Plaintiff’s
harm
Count 6- Declaratory relief
- 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
- To recover damages from Defendant Peggy’s breach of contract, Plaintiff must prove all
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PRE-TRIAL STATEMENT
of the following:
i. That Plaintiff and Defendant Peggy entered into a contract;
ii. That Plaintiff did all, or substantially all, of the significant things that the contract
required him to do;
iii. That all conditions required by the contract for Defendant Peggy’s performance
were satisfied;
iv. That Defendant Peggy failed to do something that the contract her to do;
v. That Plaintiff was harmed; and
vi. That Defendant Peggy’s breach of contract was a substantial factor in causing
Plaintiff’s harm.
Count 8- Breach of fiduciary duty
- 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
- To recover damages from Defendant Peggy’s breach of oral/verbal contract, Plaintiff
must prove all of the following:
i. That Plaintiff and Defendant Peggy entered into a verbal/oral contract;
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PRE-TRIAL STATEMENT
ii. That Plaintiff did all, or substantially all, of the significant things that the contract
required him to do;
iii. That all conditions required by the contract for Defendant Peggy’s performance
were satisfied;
iv. That Defendant Peggy failed to do something that the contract her to do;
v. That Plaintiff was harmed; and
vi. 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
- 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. - This duty requires that neither party do anything that prevents the other party from
receiving the benefits of their agreement.
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 G. Scaramella
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