NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

MARIA CARMEN ZUBIA, Plaintiff/Appellee/

Cross-Appellant, 

v.

DAVID SHAPIRO, et al., Defendants/Appellants/ 

Cross-Appellees. 

No. 1 CA-CV 22-0201 

Appeal from the Superior Court in Maricopa County

No. CV2015-002563 

The Honorable Christopher A. Coury, Judge

AFFIRMED

COUNSEL

Law Offices of Kyle A. Kinney PLLC, Scottsdale

By Kyle A. Kinney

Counsel for Plaintiff/Appellee/Cross-Appellant 

Fredenberg Beams LLC, Phoenix

By Daniel E. Fredenberg, Christian CM Beams

Counsel for Defendant/Appellant/Cross-Appellee

FILED 3-14-2023
ZUBIA v. SHAPIRO, et al.

Decision of the Court

2

MEMORANDUM DECISION

Judge Maurice Portley1 delivered the decision of the Court, in which Vice 

Chief Judge David B. Gass and Brian Y. Furuya joined.

P O R T L E Y, Judge:

¶1 In this civil aiding and abetting fraudulent concealment case, 

we are asked to review the superior court’s denial of the defendant’s

motions for judgment as a matter of law under Ariz. R. Civ. P. (“Rule”) 50, 

and its partial denial and partial grant of defendant’s motion for a new trial 

or remittitur under Rule 59. We affirm the rulings because sufficient 

evidence supports the jury’s verdict for the plaintiff and its finding in 

support of joint liability, and the superior court properly reduced the jury’s 

damages award to excise speculative amounts. 

FACTS AND PROCEDURAL HISTORY

¶2 Maria Carmen Zubia sued Jose Juan Pena and others after she 

discovered that her signature had been forged on loan documents 

associated with a loan Pena received. She asserted multiple claims, 

including a claim against David Shapiro for aiding and abetting

concealment fraud. The matter proceeded to a jury trial at which the parties 

presented evidence of the following facts. 

¶3 In 1995, Zubia and her then-husband Pena purchased 

residential property in Waddell, Arizona (“the Residential Property”) as 

joint tenants with right of survivorship. They also rented a commercial 

property in Phoenix (“the Commercial Property”) around the same time. 

They moved to Nevada in 2000 or 2001, but they did not sell the Residential 

Property. 

¶4 Sometime around 2003 or 2004, Pena met Shapiro, a Nevadabased private lender. Thereafter, Shapiro made many commercial loans to 

Pena over the years, but with Pena’s blood relatives appearing to be the 

borrowers so Pena could avoid judgment creditors. Zubia was never 

1 The Honorable Maurice Portley, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article 6, Section 3, of the Arizona Constitution.
ZUBIA v. SHAPIRO, et al.

Decision of the Court

3

named as a borrower, and she kept her finances separate from Pena 

throughout their marriage. Shapiro and Pena became close friends, and 

they discussed personal matters. 

¶5 Zubia and Pena began living separately in 2006, and by late 

2008, Pena had a new partner and children. In January 2008, Shapiro 

acknowledged that Pena signed a document with his signature over his 

daughter’s typed signature line, by which the daughter purportedly

authorized disbursement of an escrow deposit overage to herself and, in 

larger measure, to Pena. According to the daughter, she did not give Pena 

permission to sign the document for her, and Pena later told her that he 

applied the disbursement to money he owed Shapiro. 

¶6 Later in 2008, Pena asked Shapiro for another loan. Before 

agreeing to the loan, Shapiro traveled from Nevada to inspect the 

Commercial Property. He and Pena also inspected the Residential 

Property, where they encountered Zubia’s non-English-speaking parents. 

Shapiro then gave Pena $100,000 outside of escrow, and then directed his 

longtime loan processor to draft a deed of trust and promissory note for 

$150,000. According to Shapiro, he typically reviews such documents. 

¶7 The promissory note, dated November 17, 2008, named both 

Pena and Zubia as the borrowers, as did the deed of trust. The only 

borrower address listed in the documents, however, belonged to Pena’s 

parents, which Shapiro knew. And in a further irregularity, the deed of 

trust described the security by the Residential Property’s legal description 

but the Commercial Property’s address. 

¶8 According to Shapiro, the note and deed of trust were sent 

only to the title company, with instructions that they be signed there 

consistent with normal practices. He testified that he has never seen a title 

company permit a borrower to remove a deed of trust from its office for 

outside notarization. But here, the deed of trust was not notarized at the 

title company’s office. Instead, on November 21, 2008, Pena brought the 

document to a private Nevada notary who notarized only his signature. In 

fact, the notary crossed off Zubia’s printed name, wrote his initials and the 

date beneath the strikethrough, and listed only Pena’s name in his notary 

log. The notary acknowledged that nothing would prevent someone from 

signing for Zubia after the fact and attaching it to his notarization. 

¶9 Shapiro recorded the deed of trust in Arizona in mid-January 

2009. The recorded deed of trust bore same-page signatures for both Pena 

and Zubia but only the one notary stamp. The promissory note similarly 
ZUBIA v. SHAPIRO, et al.

Decision of the Court

4

bore signatures for both Pena and Zubia. Zubia, however, testified that she 

had no knowledge of the loan, never would have agreed to it, and never 

received any communications regarding it despite Shapiro having her 

email and mailing addresses. 

¶10 Zubia filed for legal separation from Pena in late 2009. A 

notice of default on the November 2008 note was sent to Pena’s parents’ 

address in October 2013, and a notice of trustee’s sale for the Residential 

Property was recorded the next month. Zubia testified that when she 

discovered in December 2013 that the Residential Property was 

encumbered, she immediately called Shapiro, and set up an in-person 

meeting that he failed to attend. Shapiro contrastingly testified that he had 

called Zubia to notify her of delinquent payments on the loan much earlier, 

in mid-2010, and had met with her in person after she denied knowledge of 

the loan. 

¶11 Pena quitclaimed his interest in the Residential Property to 

Zubia in mid-2014, in what she claimed was a separation settlement. In 

January 2015, the Residential Property was sold by trustee’s sale to Shapiro 

for approximately $315,000. Zubia filed this litigation soon thereafter, 

seeking, among other things, to invalidate the trustee’s sale. Shapiro 

eventually sold the Residential Property to a third party for $425,000, 

acknowledging that the litigation clouded title at the time of the sale. 

¶12 At the close of Zubia’s evidence, Shapiro moved for judgment 

as a matter of law on the aiding and abetting fraudulent concealment claim 

under Rule 50. The superior court expressed strong reservations about the 

sufficiency of the evidence regarding Shapiro’s knowledge but took the 

motion under advisement and ultimately denied it after the close of all 

evidence. 

¶13 By the time the case was submitted to the jury, the sole claim 

remaining was the aiding and abetting claim and Shapiro had identified 

Pena as a nonparty at fault. The jury was instructed on the elements of the

tort and was asked by special interrogatory to find whether Shapiro and 

Pena had acted in concert. The jury was further instructed to determine 

whether Pena’s fault would reduce a damages award, but it was not 

instructed on how to assess damages. 

¶14 The jury returned a verdict for Zubia for damages of $640,000, 

with 45% of the fault attributed to Shapiro and 55% to Pena. The jury 

further found that Shapiro and Pena had acted in concert. In view of that 
ZUBIA v. SHAPIRO, et al.

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5

finding, the court entered judgment against Shapiro on the full amount of 

the verdict. 

¶15 Shapiro thereafter filed a renewed motion for judgment as a 

matter of law under Rule 50, and a motion for a new trial orremittitur under 

Rule 59. After full briefing and oral argument, the superior court issued a 

detailed ruling denying the Rule 50 motion and granting the Rule 59 motion 

in part by reducing the damages award to $425,000.

¶16 Shapiro appeals from the rulings denying relief, and Zubia 

cross-appeals from the remittitur. We have jurisdiction under A.R.S. § 12-

2101(A)(2) and (5)(a).

DISCUSSION

¶17 A defendant is entitled to judgment as a matter of law or a 

new trial if a verdict for the plaintiff was not reasonably supported by 

sufficient evidence. Rule 50(a)–(b); Rule 59(a)(1)(H). We review rulings on 

motions for judgment as a matter of law de novo and rulings on motions for 

new trial for a manifest abuse of discretion, viewing the evidence in the

light most favorable to affirming based on substantial evidence. A 

Tumbling-T Ranches v. Flood Control Dist. Of Maricopa Cnty., 222 Ariz. 515, 

524, ¶ 14 (App. 2009); Styles v. Ceranski, 185 Ariz. 448, 450 (App. 1996). We 

defer to the jury’s determinations regarding witness credibility and the 

weight to give conflicting evidence. United Cal. Bank v. Prudential Ins. Co. of 

Am., 140 Ariz. 238, 286 (App. 1983). The superior court properly may 

reduce the jury’s damages award, however, if there is a “lack of evidence” 

to support it. In re Estate of Hanscome, 227 Ariz. 158, 162, ¶ 14 (App. 2011). 

We will affirm a reduction to the amount actually proved by nonspeculative evidence. Custom Roofing Co. v. Alling, 146 Ariz. 388, 391 (App. 

1985).

I. THE SUPERIOR COURT PROPERLY UPHELD THE VERDICT.

¶18 Shapiro does not dispute that Pena committed fraudulent 

concealment, which occurs when a party to a transaction conceals or by 

other action intentionally prevents the other party from acquiring material 

information. Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons 

Local No. 395 Pension Trust Fund, 201 Ariz. 474, 496, ¶ 87 (2002). He 

contends, however, that he was entitled to judgment as a matter of law on 

the aiding and abetting claim because there was insufficient evidence of his 

scienter and participation. 
ZUBIA v. SHAPIRO, et al.

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¶19 To establish a defendant’s liability for aiding and abetting a 

primary tortfeasor, the plaintiff must show by a preponderance of the 

evidence that the defendant knew the primary tortfeasor’s conduct 

constituted a tort and substantially assisted or encouraged him or her in 

accomplishing the tort. Id. at 485, 490, ¶¶ 34, 58 & n.16. The defendant’s 

knowledge “may be inferred from the circumstances” and the evidentiary 

burden “may be satisfied by showing [the defendant’s] general awareness 

of the primary tortfeasor’s fraudulent scheme.” Dawson v. Withycombe, 216 

Ariz. 84, 102, ¶ 50 (App. 2007). Circumstantial evidence is just as probative 

as direct evidence. Andrews v. Fry’s Food Stores of Ariz., 160 Ariz. 93, 96

(App. 1989). The defendant’s knowledge cannot, however, be shown by 

“pil[ing] inference upon inference” to “stretch[ ] the evidence presented 

beyond the bounds of circumstantial evidence.” Dawson, 216 Ariz. at 103, 

¶ 52. With respect to the substantial-assistance element, “substantial 

assistance . . . can take many forms, but means more than ‘a little aid.’” 

Wells Fargo, 201 Ariz. at 488, ¶ 46.

¶20 Shapiro contends that because he did not review the 

notarized deed of trust before its recording, he could not have known of 

any fraudulent concealment and a finding to the contrary would be based 

on impermissible inference-piling. We disagree.

¶21 Sufficient circumstantial evidence supports the verdict. As an 

initial matter, the jury reasonably could infer based on the pair’s friendship 

and past dealings that Shapiro knew of Pena’s dubious financial situation, 

deteriorated marriage, and willingness to defraud family. Moreover, the 

jury reasonably could infer based on the evidence that Shapiro knew Pena 

planned to fraudulently conceal the particular loan transaction at issue here 

and substantially assisted him in doing so. As to this specific transaction, 

Shapiro gave Pena a large sum before agreeing to security or drawing up 

any legal documents to demonstrate the loan and secure it. The two men 

then traveled together from Nevada to Arizona to inspect potential security 

properties. Thereafter, it was Shapiro who directed the preparation of loan 

documents that contained several irregularities making Zubia’s discovery 

of the transaction less probable. Namely, (1) the deed of trust used the legal 

description of the Residential Property but recited the Commercial 

Property’s physical address, and (2) it listed the borrowers’ address as one

that Shapiro knew belonged to Pena’s parents.

¶22 Moreover, Shapiro acknowledged that he has never known a 

title company to permit borrowers to remove loan documents from the 

company’s office for notarization. But Pena somehow obtained the deed of 

trust and had it privately notarized. It was reasonable for the jury to infer 
ZUBIA v. SHAPIRO, et al.

Decision of the Court

7

that Shapiro knowingly included the deed of trust’s irregularities and 

provided the document to Pena so that Pena could defraud Zubia. The 

months-long interlude between the notarization and the recording also 

supports an inference that Shapiro knew Zubia had not signed the deed of 

trust. And the evidence that Shapiro never contacted Zubia regarding 

defaults and failed to meet with her after she discovered the encumbrance

further suggests his culpability. 

¶23 Shapiro emphasizes that the superior court strongly 

questioned the sufficiency of the evidence when he first moved for 

judgment as a matter of law and characterized the issue as “an extremely 

close call” when denying the renewed motion. We recognize the only 

evidence of Shapiro’s scienter and participation was circumstantial and the 

jury could have drawn different inferences. But that does not mean Shapiro 

was entitled to judgment as a matter of law. 

II. THE SUPERIOR COURT PROPERLY UPHELD THE ACTINGIN-CONCERT FINDING.

¶24 Shapiro next contends that the evidence was insufficient to 

support the jury’s finding that he acted in concert with Pena, as necessary 

to support joint liability under A.R.S. § 12-2506(D)(1). Acting in concert 

requires more than offering substantial assistance; it requires “entering into 

a conscious agreement to pursue a common plan or design to commit an 

intentional tort.” A.R.S. § 12-2506(F)(1). The totality of the evidence 

described above was sufficient to support the finding that Shapiro did not 

merely assist Pena in his unlawful scheme, but instead consciously agreed 

to help him commit fraudulent concealment. Notably, the tortious conduct

benefited Shapiro because it purportedly gave him a valuable security 

interest far in excess of the value of the loan he previously disbursed to Pena 

outside of escrow. 

III. THE SUPERIOR COURT PROPERLY ORDERED REMITTITUR.

¶25 The parties finally dispute the reduction of the jury’s damages 

award. Shapiro contends that the award should have been reduced to 

reflect that the community was enriched by the loan proceeds under A.R.S. 

§ 25-211 because Pena received them while still married to Zubia. He 

waived that argument by not raising it until the motion for new trial. See, 

e.g., Conant v. Whitney, 190 Ariz. 290, 293–94 (App. 1997). 

¶26 On cross-appeal, Zubia argues that the reduction of the award 

from $640,000 to $425,000 was improper. She contends that because 

Shapiro acknowledged that the sale of the Residential Property for $425,000 
ZUBIA v. SHAPIRO, et al.

Decision of the Court

8

was under clouded title, the jury could properly determine that Zubia’s 

damages exceeded the sale price. However, on this record, the jury’s award 

of damages beyond the sale price was speculative—the jury was not 

instructed on calculating damages and received no evidence regarding the 

Residential Property’s fair market value, the financial impact of a cloud on 

the title, or any evidence of damages beyond the loss of the Residential 

Property. Consequently, the superior court did not err by reducing the 

award. 

CONCLUSION

¶27 We affirm the superior court’s Rule 50 and Rule 59 rulings for 

the reasons set forth above. We deny the parties’ competing requests for

attorney’s fees under A.R.S. § 12-341.01 and the deed of trust because this 

was a tort case merely incidental to a contract to which Zubia was never a 

party. See Ramsey Air Meds., L.L.C. v. Cutter Aviation, Inc., 198 Ariz. 10, 15–

16, ¶ 27 (App. 2000). As the substantially prevailing party, Zubia may 

recover her costs on appeal upon compliance with ARCAP 21. See A.R.S. §

12-341; Montano v. Luff, 250 Ariz. 401, 407, ¶ 18 (App. 2020).