SAMIR M. SHAMS, Plaintiff-Appellant,
SONA HASSAN, Defendant-Appellee.
from the Iowa District Court for Polk County, Sarah E. Crane,
Shams appeals the order dismissing his claims of conversion,
breach of contract, and breach of fiduciary duty against Sona
Hassan following a bench trial. AFFIRMED.
Kenneth J. Weiland Jr. of Weiland Law Firm, Des Moines, for
C. Reed of Law Offices of Steven C. Reed, West Des Moines,
Considered by Doyle, P.J., Potterfield, S.J., and Carr, S.J.
Shams appeals the dismissal of his claims against Sona
Hassan. Shams alleged Hassan, his sister, misappropriated
$271, 773.93 from a checking account he entrusted her with to
provide for his children and pay his bills while he worked in
Iraq from 2004 to 2006. The district court dismissed the claims
after finding his breach-of-fiduciary-duty claim was barred
by the statute of limitations and Shams failed his burden of
proving conversion and breach of contract.
action began in 2011. The district court dismissed
Shams's petition for lack of personal jurisdiction, but
the Iowa Supreme Court reversed. See Shams v.
Hassan, 829 N.W.2d 848, 852 (Iowa 2013). In 2015, a jury
awarded Shams $148, 501.60 in damages but found in
Hassan's favor on her defamation counterclaim, awarding
her $29, 566.25 in compensatory and punitive damages. Our
supreme court reversed the judgment against Hassan on appeal
because the district court failed to submit a factual dispute
on the statute of limitations to the jury. See Shams v.
Hassan, 905 N.W.2d 158, 159 (Iowa 2017). It remanded the
matter for a new trial. See id.
second trial occurred in September 2018, this time to the
bench. The parties stipulated "that if compensatory
damages are to be awarded herein, and not barred by
affirmative defense, the amount shall be $148, 501.60,"
the amount awarded by the jury in the first trial. In its
ruling, the trial court found that the statute of limitations
barred only Shams's breach-of-fiduciary-duty claim. But,
although his claims for conversion and breach of contract
were not barred, the court determined that Shams failed to
prove the elements of each by a preponderance of the
parties agree that our review is for correction of errors at
law. See Metro. Prop. & Cas. Ins. Co. v. Auto-Owners
Mut. Ins. Co., 924 N.W.2d 833, 839 (Iowa 2019). The
trial court's fact findings have the effect of a special
verdict and are binding on us if supported by substantial
evidence. See id. We view the evidence in the light
most favorable to the judgment, liberally construing the
trial court's findings to uphold it. See id. The
question is not whether the evidence supports a different
finding but whether it supports the finding the court made.
contends the court failed to honor the parties'
stipulation. In his view, the parties stipulated that he had
proved each claim against Hassan and the only question before
the trial court was whether Hassan proved at least one
affirmative defense for each claim. But even if his
interpretation of the stipulation is correct, Shams has
failed to preserve error on this claim. Shams states that he
preserved error by filing a timely notice of appeal, but this
is insufficient. See Thomas A. Mayes & Anuradha
Vaitheswaran, Error Preservation in Civil Appeals in
Iowa: Perspectives on Present Practice, 55 Drake L. Rev.
39, 48 (2006) (noting that although reference to filing a
timely notice of appeal "is a common statement in
briefs, it is erroneous, for the notice of appeal has nothing
to do with error preservation"). "As a general
rule, the error preservation rules require a party to raise
an issue in the trial court and obtain a ruling from the
trial court." Id.; accord Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a
fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court
before we will decide them on appeal."). To preserve
error, a party must alert the district court to the issue at
a time when the district court can take corrective action.
See Top of Iowa Coop. v. Sime Farms, Inc., 608
N.W.2d 454, 470 (Iowa 2000). That is because our error
preservation rules are "designed to preserve judicial
resources by avoiding proceedings that would have been
rendered unnecessary had an earlier ruling on the issue been
made." Id. Although Shams claims he could not
have obtained a ruling earlier because it did not become
apparent until the judgment was rendered, filing a motion
under Iowa Rule of Civil Procedure 1.904(2) would have
alerted the trial court to any error. See Johnson v.
Kaster, 637 N.W.2d 174, 182 (Iowa 2001) (holding
landowners failed to preserve error on a claim that the trial
court erred in granting an easement that substantially
increased the burden on their property because they raised
the issue for the first time on appeal rather than request
that the trial court enlarge or amend its findings). Shams
failed to do so. A motion under this rule "advise[s]
counsel and the appellate court of the basis of the trial
court's decision in order that counsel may direct [an]
attack upon specific adverse findings or rulings in the event
of an appeal." Id. (quoting Ritz v. Wapello
Cty. Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa
also contends that the trial court placed an unfair burden of
proof on him in proving his conversion claim. The main issue
before the trial court was whether Hassan used the funds as
Shams intended and whether she failed to return the remaining
funds to Shams. Shams argues that to succeed on his claim,
the court required him to perform the near impossible task of
proving a negative by showing Hassan did not refund his money
and that he had no control over it because of Hassan's
actions. Because he had no access to the accounts in which
Hassan deposited the money, Shams argues that it is unfair to
require him to prove what happened to the money beyond
stating Hassan did not return it to him.
ruling, the trial court noted the lack of documentary
evidence introduced at trial "due to the time lag
between the events at issue and the bench trial." For
instance, the only exhibit that purported to account for the
funds was Hassan's response to an interrogatory. Neither
party detailed the bank records or tried to trace the funds.
And the trial court noted that some bank records were
unavailable because of how much time had passed. The case
therefore rested largely on "which 'side of the
story' the court [found] more credible-that of Shams or
that of Hassan." And on that issue, the court found
Hassan presented the more credible evidence. It noted that
Hassan's son, Emery, testified that Hassan used the funds
to pay tuition and rent for Shams's children. As we note
below, the trial court credited this evidence. Emery also
testified that Hassan converted some funds to cash, which
others brought to Shams in Egypt. In contrast, the court
noted that Shams did not respond to the testimony about
whether his children received money for tuition or rent, and
that it did not find his denial that he received cash in
Egypt credible given the other evidence. Noting that Shams
bore the burden of proving Hassan did not spend the funds as
he intended, the court refused to assume, without more, that
Hassan converted the funds she deposited into her account. We
find no error.
also challenges the trial court's finding on Emery's
credibility, but "[t]he trier of fact-here, the district
court-has the prerogative to determine which evidence is
entitled to belief." See Tim O'Neill Chevrolet,
Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996).
Because it is in a better position to evaluate the
credibility of the witnesses, factual disputes depending
heavily on credibility "are best resolved by the
district court." See id. Although another fact
finder may have concluded differently, substantial evidence
supports the court's conclusion that Shams failed to
prove his claims. Deferring to the ...