SAMIR M. SHAMS, Appellee,
SONA HASSAN, Appellant.
review from the Iowa Court of Appeals. Appeal from the Iowa
District Court for Polk County, Jeanie Kunkle Vaudt, Judge.
plaintiff seeks further review of a court of appeals decision
vacating a judgment entered on a jury verdict and remanding
for a new trial.DECISION OF COURT OF APPEALS AFFIRMED;
DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.
C. Reed of Law Offices of Steven C. Reed, West Des Moines,
B. Howie of Shindler, Anderson, Goplerud & Weese, P.C.,
West Des Moines, for appellee.
intrafamily dispute comes before us for the second time. A
brother, leaving for Iraq for an extended period of time,
entrusted his sister with blank checks he had signed in
advance. The checks were to be used to pay bills of the
brother and his adult children. On his return, the brother
was dismayed to learn that the sister had written many checks
to herself. She assured him, however, that his money had been
invested in a land transaction and was still available to him
whenever he needed it. The sister did provide some funds to
her brother as he requested. However, when the brother later
asked for all the money back, she told him it had been spent.
The brother sued.
statute of limitations is a flash point in the lawsuit. If
the brother's causes of action accrued when he learned
the sister had written checks to herself (or earlier), the
claims are time-barred. If they accrued only when he was told
the money was gone, they are timely. The sister pled the
statute of limitations in her answer and unsuccessfully moved
for summary judgment and a directed verdict on that basis.
Later, she submitted a proposed statute-of-limitations
instruction for the jury. The district court declined to
instruct the jury on the statute of limitations, and the jury
returned a substantial damage verdict on several of the
brother's legal theories. The sister now appeals.
conclude this case must be reversed and remanded for a new
trial. Genuine factual disputes over the statute of
limitations should be resolved by the factfinder-here, the
jury. Moreover, although the sister's proposed
statute-of-limitations instruction required editing and
amplification before it could have been given to the jury, it
was sufficient to alert the trial court to the need for an
instruction in an area where no instruction was being given.
Therefore, error was preserved. For these reasons, we affirm
the decision of the court of appeals, reverse the district
court's judgment, and remand for further proceedings.
Factual and Procedural Background.
Shams emigrated from Egypt to the United States in 1971. In
1980, he came to Des Moines. He continued to live in the Des
Moines area and held a variety of jobs until 2003, when he
was hired to serve as an Arabic-English interpreter in Iraq.
Shams left for Iraq, he underwent training in Virginia. He
also spent time with his sister Sona Hassan, who lives in
Maryland. Knowing he was going to be in Iraq for some time,
Shams gave Hassan several books of signed blank checks from
his Bankers Trust bank account in Windsor Heights. This
account contained Shams's life savings, to which regular
deposits of paychecks, disability payments, and IPERS
payments were continuously added.
has three grown children who live in Iowa and Arizona. Shams
and Hassan agreed that Hassan would use the presigned checks
to pay any of Shams's bills that came to Hassan's
attention or to take care of Shams's kids if they needed
money. Hassan did not have permission to use the money for
her own benefit.
Shams was in Iraq, he did not see cancelled checks or account
statements for the Bankers Trust account. Upon his return to
the United States in June 2006, Shams visited his brother in
Arizona. His brother had been receiving the monthly mailings
from the bank, and at that point Shams noticed cancelled
checks made out to Hassan. Traveling thereafter from Arizona
to Maryland, Shams asked Hassan about his money. Hassan
responded, "Your money is safe." She explained that
funds in the bank account had been used to buy land in
Maryland for development, that the property would be resold
at a profit to him, and that if he needed money all he had to
do was to ask. Hassan's husband took Shams to see the
land. Shams was satisfied at the time with this explanation.
2009, Shams needed $50, 000 to buy a house and asked Hassan
for the funds. She provided the $50, 000. However, the
following year Shams asked her for the rest of his money and
was told there was only $124, 000 left.
turned out that Hassan had written checks totaling $269,
980.66 to herself, many of which were initially deposited in
other accounts. The parties later disputed vigorously and in
excruciating detail who benefited from this money-Hassan and
her immediate family or Shams and his immediate family.
26, 2011, Shams filed suit against Hassan in the Iowa
District Court for Polk County, alleging breach of contract,
conversion, bad faith, fraud, and breach of fiduciary duty.
Hassan moved to dismiss for lack of personal jurisdiction,
claiming she did not have minimum contacts with the State of
Iowa. The district court granted the motion, and the court of
appeals affirmed. On further review, we reversed. Shams
v. Hassan, 829 N.W.2d 848, 860-61 (Iowa 2013). We
concluded Hassan had sufficient contacts with Iowa for
personal jurisdiction under the effects test for intentional
torts set forth in Calder v. Jones, 465 U.S. 783,
104 S.Ct. 1482 (1984). Shams, 829 N.W.2d at 857-60.
remand, in addition to answering Shams' claims, Hassan
filed a counterclaim against Shams for defamation based on
repeated statements he had made about her being a thief.
Hassan also pled the statute of limitations as an affirmative
defense. See Iowa Code § 614.1(4) (2011)
(five-year statute of limitation for actions founded on
unwritten contracts, brought for injuries to property, or for
relief based on fraud). Hassan later filed a motion for
summary judgment based on the statute of limitations. The
district court denied the motion, ruling,
[Hassan] says that the applicable statutes of limitations
began to run in 2006. [Shams] says they did not begin to run
until 2010. [Hassan] says [Shams] should have known he was
injured in 2006. [Shams] says he did not know of his injury
until 2010. The Court finds that these opposing statements
assert genuine issues of material fact that a jury must sort
case proceeded to a jury trial. Much of the two-week trial
was spent going over particular checks, transfers, and
expenditures. Neither side retained an accountant or any
other type of expert or summary witness. Instead, both Shams
and Hassan were called to the stand to testify on four
separate occasions: once each in their own case, their
opponent's case, their own rebuttal case, and their
opponent's rebuttal case. Other relatives testified as
moved for a directed verdict based on the statute of
limitations. The arguments replayed the prior summary
judgment arguments. Hassan maintained that Shams clearly knew
by June 2006 that Hassan had not complied with the terms
under which she was given authority to disburse checks on his
bank account; yet he did not file suit until July 2011, over
five years later. Shams countered that Hassan had made
assurances in 2006 that his money was safe and he could
continue to have it, and in fact did give him money as
requested in 2009. According to Shams, the event triggering
the obligation to bring suit did not occur until 2010, when
Hassan refused to give him any more money. The district court
denied the motion.
also proposed a statute of limitations jury instruction as
The defendant has raised as a defense to the plaintiffs'
claims of oral contract, conversion, fraud and breach of
fiduciary duty that the plaintiff cannot prevail on those
claims or any one of those [claims] because he did not bring
suit on such claims with[in] the time allowed by law. There
are state statutes that specify how much time a person has to
bring certain kinds of claims. These are called statutes of
limitation. A person cannot recover on a claim that is
brought after the time period that applies to a particular
claim, even if it is only one day late.
The statute of limitation that applies to each of the above
claims provides that the claim must be brought within five
years of the date the incident occurred. The plaintiff
brought his suit against the defendant on July 26, 2011. A
claim for oral contract, conversion, fraud, and breach of
fiduciary duty, based on acts or occurrences that took place
more than five years before the date is barred by the statute
of limitation. You must decide when each act or occurrence on
which [he] bases his claim occurred. If any of these acts or
occurrences took place more than five years before the
plaintiff brought suit, then a claim based on that act or
occurrence is barred by the statute of limitation.
counsel objected to this instruction, pointing out "this
instruction is more in tune as it is drafted for a personal
injury action, because it talks in regards to acts or
occurrences." He maintained that for the claims asserted
in this case, the statute of limitations would not begin
running just because some act on which the claim is based had
occurred. For example, he noted, the statute of limitations
on a breach of contract claim does not start when "the
contract is entered into."
district court declined to give the proposed instruction. It
I am going to let the case go to the jury without the
instruction that Mr. Reed has proposed for the reasons that,
A, it's not a stock; B, I don't think it applies; and
C, as it is drafted, I believe the jurisdictions that Mr.
Reed found the instruction located in, used it for purposes
that were not associated with the kinds of claims we have
asserted here. So for all of those reasons, I am going to not
submit that instruction to the jury. But we've made a
record for the benefit of counsel on why Mr. Reed thinks it
should be submitted, when Mr. Anderson believes it is not to
be submitted, and why the Court has ultimately concluded that
that instruction should not be submitted.
case thus went to the jury without a statute-of-limitations
jury returned a verdict of $148, 501.60 for Shams on his
conversion, breach-of-fiduciary-duty, and breach-of-contract
claims, but not his fraud claim. The jury also returned an
actual damage verdict of $14, 556.25 and a punitive damage
verdict of $15, 000 for Hassan on her libel counterclaim.
filed a motion for new trial on several grounds, including
the failure to give her statute-of-limitations instruction.
The district court denied the motion, stating in part,
The statute of limitations instruction [Hassan] proposed was
properly withheld from the jury as to all of [Shams's]
claims she asserts it applied to. This proposed instruction
is not the law in Iowa and does not include the discovery
rule. Furthermore, the evidence presented was sufficient for
the jury to conclude that [Shams] and [Hassan] entered into a
new oral agreement in June of 2006, and his claims for breach
of contract, conversion, ...