# Wells Fargo Bank v. Arizona Laborers, Teamsters & Cement Masons Local No. 395 Pension Trust Fund

> Arizona Supreme Court · April 9, 2002 · 201 Ariz. 474

URL: https://www.frixlaw.com/law-library/cases/9786737

## Case

- **Full name:** WELLS FARGO BANK, a National Banking Association, Plaintiff-Counterdefendant-Appellee, v. ARIZONA LABORERS, TEAMSTERS AND CEMENT MASONS LOCAL NO. 395 PENSION TRUST FUND; Arizona Laborers, Teamsters and Cement Masons Local No. 395 Defined Contribution Pension Trust Fund; Arizona Operating Engineers Defined Benefit Pension Trust Fund; Arizona Operating Engineers Defined Contribution Pension Trust Fund; Arizona State Carpenters Pension Trust Fund; Arizona State Carpenters Defined Contribution Pension Trust Fund; McMorgan & Company, a California Corporation, as Managing Agent of the Funds, Defendants-Counterclaimants-Appellants
- **Court:** Arizona Supreme Court
- **Decided:** April 9, 2002
- **Citations:** 201 Ariz. 474; 38 P.3d 12
- **Precedential status:** Published
- **Opinion:** Concurring in part by Martone
- **Judges:** Jones, Martone, McGregor, Feldman, Zlaket
- **Cited by:** 229 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9786737

## How later opinions describe it (automated extraction)

- holding that although common-law fraud and civil conspiracy must be proven by clear and convincing evidence, aiding and abetting fraud need only be proven by a preponderance of the evidence
- stating the “implied covenant of good faith and fair dealing prohibits a party from doing anything to prevent other parties to the contract from receiving the benefits and entitlements of the agreement,” without limiting the obligation to execution of the contract
- stating that the most important factors in the improper conduct test are the nature of the conduct and the motive

## Opinion text

MARTONE, Justice,
concurring in part and dissenting in part.
¶ 106 I agree with the court that the absence of a duty to disclose is not fatal to the assertion of intentional tort claims. This is the issue decided by the court of appeals upon which review was sought. I would thus remand the case to the court of appeals for consideration of those issues presented to but not decided by it. The court instead proceeds to examine the sufficiency of the evidence in this case as to each of five separate counts. In the process it sweeps broadly, drawing on decisions from scores of other courts, to set forth, in dicta, rules for Arizona on issues not briefed by the parties. See, e.g., ante, at ¶ 58 *500 n. 16. To illustrate, the court concludes that the tort of aiding and abetting fraud, unlike fraud itself, requires proof only by a preponderance of the evidence. I would like to have seen this issue briefed and argued. I should think that if fraud requires proof by clear and convincing evidence, aiding and abetting fraud would require the same.
¶ 107 Rule 23(i)(3), Ariz. R. Civ.App. P., provides that if issues were raised in, but not decided by, the court of appeals, we may consider them or remand to the court of appeals to decide them in the first instance. Given the fact intensive nature of the inquiry and the wide range of views expressed nationally on the torts alleged, it is best to have such issues decided in the court in which they were raised and briefed. I thus concur in the judgment but dissent from the court’s opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9786737. Public record. Not legal advice.