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5. Hocker Construction, L.L.P. is a Colorado Limited Liability Partnership doing <br />business in La Plata County. <br />FACTS COMMON TO ALL COUNTS <br />6. At all times material herein, the Defendants, Anthony Zellitti and Marilyn Zellitti <br />were owners as joint tenants of an undivided 75% interest as tenant in Common in <br />certain real property located in La Plata County, Colorado described as: W % of the SW <br />% Section 34 and SE Y4 of the SE % Section 33 T34N, R9W. <br />7. Plaintiff was the owner as tenant in common of an undivided 25% interest of <br />the property described in the preceding paragraph. <br />8. The tenants in common had entered an oral month to month agreement with <br />the Defendant Hocker Construction, L.L.P., to mine sand and gravel and associated <br />products from the property and to pay a royalty to the owners, tenants in common, <br />Anthony Zellitti, Marilyn Zellitti and Zellitti Properties. <br />9. Anthony and Marilyn Zellitti lived on the premises and, Plaintiff Zellitti <br />Properties had allowed Anthony and Marilyn Zellitti to manage the sale of sand and <br />gravel from the premises in return of a management fee of 5% of the net royalties. <br />10. As a result of the management fee arrangement, Anthony Zellitti and Marilyn <br />Zellitti assumed a fiduciary relationship to the Plaintiff as agents for the Plaintiff and to <br />exercise the utmost good faith on behalf of the principal, Zellitti Properties, including to <br />keep the principal informed and to advise the principal of all business opportunities and <br />to seek the principal's signature and approval of any significant alteration of the <br />relationship of the owners to Hocker Construction, L.L.P. or any other party significant to <br />the relationship. <br />11. The agreement for management fee was oral in nature and was subject to <br />termination at will of the Plaintiff, Zellitti Properties. <br />12. On or about August 2005, without the prior knowledge or consent of the <br />Plaintiff, Defendant, Anthony Zellitti entered a new written agreement with Hocker <br />Construction, L. L. P. to lease the existing gravel pit to Hocker Construction, L. L. P. for a <br />different rate than had been previously agreed; and, further, Plaintiff was not a named <br />party to the lease either directly or through any agent and did not consent to the same <br />and in fact Anthony Zellitti and Hocker Construction falsely claimed that Anthony Zellitti <br />was sole owner of the property being leased..