Shcharansky v. Shapiro

IN THE COURT OF APPEALS OF IOWA
No. 19-0739
Filed May 13, 2020
ALEXANDER SHCHARANSKY and TATIANA SHCHARANSKY,
Petitioners-Appellees/Cross-Appellants,
vs.
VADIM SHAPIRO, BORIS PUSIN, ILYA MARKEVICH, ALEX KOMM and
DMITRY KHOTS,
Respondents-Appellants/Cross-Appellees.
________________________________
VADIM SHAPIRO, BORIS PUSIN, ILYA MARKEVICH, ALEX KOMM and
DMITRY KHOTS,
Cross-Petition Plaintiffs/Appellants,
vs.
BORIS SHCHARANSKY, ZOYA STAROSELSKY, LEONID SHCHARANSKY,
and SLAVA STAROSELSKY,
Cross-Petition Defendants/Appellees.
________________________________
VADIM SHAPIRO, BORIS PUSIN, ILYA MARKEVICH, ALEX KOMM and
DMITRY KHOTS,
Third-Party Petition Plaintiffs/Appellants,
vs.
CONTINUOUS CONTROL SOLUTIONS, LLC,
Third-Party Defendant/Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.
The cross-petition plaintiffs and third-party petition plaintiffs appeal from jury
verdicts finding against their claims for breach of contract and reimbursement. As
respondents, they also challenge the scope of the trial as to the contribution claim
2
against them, arguing they should have been allowed to present affirmative
defenses. The petitioners cross-appeal, challenging the district court’s ruling they
were not entitled to prejudgment interest on their contribution claim. AFFIRMED
ON APPEAL; REVERSED AND REMANDED WITH DIRECTIONS ON CROSS-
APPEAL.
Jaki K. Samuelson and Anna E. Mallen of Whitfield & Eddy, P.L.C., Des
Moines, for appellants.
Mark E. Weinhardt and Danielle M. Shelton of The Weinhardt Law Firm,
Des Moines, for appellees.
Considered by Bower, C.J., Ahlers, J., and Potterfield, S.J.* Blane, S.J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
3
POTTERFIELD, Senior Judge.
Together, the Shapiro Group1 and members of the Shcharansky Group2
owned and operated Continuous Control Solutions, Inc. (CCS). Then in 2007, the
Shcharansky Group purchased the Shapiro Group’s shares of CCS through the
execution of a stock purchase agreement—ending the Shapiro Group’s part in the
business.3 That agreement, and what followed, have been the focus of nearly a
decade of litigation.
In this third appeal, we are asked to determine if the district court properly
limited the scope of the 2018 trial, based on the ruling of our supreme court in
Shcharansky v. Shapiro, 905 N.W.2d 579, 588 (Iowa 2017), so as not to include
evidence of the Shapiro Group’s alleged affirmative defenses to Alexander and
Tatiana Shcharansky’s contribution claim against them. Additionally, regarding
their cross-claims for breach of contract and reimbursement, the Shapiro Group
maintains the district court should have granted their motions for directed verdict,
judgment notwithstanding verdict (JNOV), or new trial. Alexander and Tatiana
Shcharansky cross-appeal, arguing the district court erred in its determination they
were not entitled to prejudgment interest for their contribution claim; they otherwise
ask that we affirm.
1 The Shapiro Group includes Vadim Shapiro, Boris Pusin, Ilya Markvich, Alex
Komm, and Dmitry Khots.
2 The Shcharansky Group includes Alexander, Tatiana, Boris, and Leonid
Shcharansky and Zoya and Slava Staroselsky. Alexander and Tatiana are
married. Boris and Alexander are brothers; they are the sons of Leonid
Shcharansky. Slava and Zoya Staroselsky are husband and wife.
3 Alexander and Boris Shcharansky and Zoya Staroselsky were the buyer-
members of the Shcharansky Group; only these three members of the
Shcharansky Group signed the stock purchase agreement. Leonid Shcharansky
and Slava Staroselsky were then appointed to the board of directors of CCS.
4
I. Background Facts and Proceedings.
Prior to September 2007, while both the Shapiro Group and members of the
Shcharansky Group owned and operated CCS, the company borrowed $900,000
from Wells Fargo Bank.4 Individual members of the Shapiro and Shcharansky
Groups personally guaranteed the debt.5
The Shapiro Group decided to sell their shares of CCS and get out of the
business. In September 2007, the two groups—with the Shapiro Group as the
sellers and Alexander and Boris Shcharansky and Zoya Staroselsky of the
Shcharansky Group as the buyers—executed a stock purchase agreement. The
agreement contained this provision:
7.1 Buyers’ Covenants. In connection with the transfer of the
Shares to the Buyers pursuant to this Agreement, the Buyers hereby
covenant that as the controlling shareholders of the Corporation, the
Buyers will cause the Corporation to:
(a) Use best efforts to, and prior to the payment of any existing
or new debt obligations payable by the Corporation to any Buyer or
any Buyer's immediate relative or any entity affiliated with any Buyer
or any Buyer's immediate relative, satisfy and repay in full all debt
obligations of the Corporation owed to Wells Fargo Bank.
After the execution of the stock purchase agreement, Leonid Shcharansky and
Slava Staroselsky—other members of the Shcharansky Group—were appointed
to CCS’s Board of Directors.
4 CCS took out two separate loans; one for $150,000 and the other for $750,000.
As it is unnecessary for the basis of this appeal, we do not distinguish between the
two.
5 Originally all members of the Shapiro Group and the three buyer-members of the
Shcharansky Group guaranteed the loans. Tatiana Shcharansky later became a
guarantor as well, making nine individual guarantors in total.
5
From the time the Shcharansky Group became the sole owners and
operators of CCS through May 30, 2009, CCS made no payments toward the Wells
Fargo debt.
In April 2009, Wells Fargo obtained judgment against CCS and the
individual guarantors for the principal amount, late fees, accrued interest, and
attorney fees. The judgment was for more than $960,000.
On June 1, 2009, CCS and Alexander Shcharansky entered into a
forbearance agreement with Wells Fargo. In exchange for the bank’s agreement
to forgo execution of the judgment, CCS agreed to pay $400,000 upon the
execution of the forbearance agreement and deliver additional collateral in the form
of a mortgage and security agreement for property in New York owned by Tatiana
Shcharansky, who is married to Alexander.6 Additionally, CCS and Alexander
agreed to make “eight equal quarterly installments of principal and accrued
interest, each in the amount of $76,022.11, commencing on the first day of
September, 2009 and on the first day of each December, March and June
thereafter” with “all unpaid principal and accrued interest on the Indebtedness . . .
fully due and payable on June 1, 2011.”
CCS made the initial $400,000 payment and the first three quarterly
payments of $76,022.11. Alexander Shcharansky personally made the June 2010
payment and Tatiana personally made the September payment—though not until
September 10. In December, rather than making the next payment of $76,022.11,
Tatiana paid off the remaining judgment—$241,935.92.
6 Tatiana had not previously personally guaranteed the CCS debt, but she
executed a guaranty at this point.
6
In January 2011, Alexander and Tatiana Shcharansky filed a petition for
contribution against the Shapiro Group, claiming Alexander and Tatiana paid more
than their equitable share of the judgment against CCS. They sought 5/9 of the
total they personally paid, or $218,877.7
The Shapiro Group responded, filing their answer, affirmative defenses,
counterclaims, and cross-claims. The Shapiro group maintained Alexander’s
claimed breach of the stock purchase agreement to cause CCS to repay the Wells
Fargo loans precluded his and Tatiana’s right and ability to seek equitable
contribution. They asserted it was Alexander’s conduct that caused any injury or
damage he sustained and that the claims were barred “in whole or in part by the
doctrines of waiver, estoppel and unclean hands.” In their counterclaims and
cross-claims, the Shapiro Group alleged the buyer-members of Shcharansky
Group breached the stock purchase agreement by failing to use their best efforts
to have CCS repay its debt obligations to Wells Fargo and causing CCS to make
payments to members of the Shcharansky Group before paying the Wells Fargo
debt.8 The Shapiro Group also raised a counterclaim of tortious interference with
a contract, alleging Leonid Shcharansky and Slava Staroselsky (CCS board
members) caused CCS to make improper and excessive payments to parties and
party relatives rather than satisfying the debt owed to Wells Fargo.
7 Alexander and Tatiana paid $393,980.14 of CCS’s Wells Fargo debt, which was
guaranteed by nine individuals. They sought 5/9 of that total in contribution from
the five Shapiro Group members.
8 The Shapiro Group also raised a claim of fraudulent misrepresentation, which
they later asked the court to dismiss.
7
In May 2012, the Shapiro Group moved for partial summary judgment. They
asserted there was no genuine issue of material fact pertaining to either Alexander
and Tatiana Shcharansky’s contribution claim or the Shapiro Group’s breach-of-
contract counterclaim. The Shapiro Group claimed Alexander and Tatiana
Shcharansky’s claim for contribution failed as a matter of law because the money
Alexander and Tatiana used to pay CCS’s debt was not their own money.
Additionally, the Shapiro Group argued the undisputed facts showed Alexander,
as president of CCS, had chosen to use CCS’s money to repay loans to the
company from family and other members of the Shcharansky Group rather than
using those company funds in payment of the Wells Fargo debt. The Shapiro
Group maintained this was a clear breach of the stock purchase agreement.
Alexander and Tatiana Shcharansky resisted, arguing their contribution claim was
not precluded because they used funds that were loaned to them in order to pay
the Wells Fargo debt. They maintained the Shapiro group had received a benefit
when the Wells Fargo debt was paid off since the members of the Shapiro Group
had personally guaranteed the loan, and they asserted CCS had been unable to
pay the loan.
In August, the district court granted the Shapiro Group’s motion for partial
summary judgment. The court ruled that Alexander and Tatiana Shcharansky did
not use their own money in paying CCS’s debt to Wells Fargo; “[i]nstead, Alex and
Tatiana were mere conduits for their parents’ money that was transferred to them
specifically for the purpose of paying” the obligation. The court determined this
precluded their claim for contribution from the Shapiro group. Additionally, the
court concluded “that the Shapiro Group established its breach of contract
8
counterclaim as a matter of law.” It concluded the buyers’ covenant of the stock
purchase agreement “clearly and unambiguously provides both a requirement of
best efforts and that prior to the payment of any existing or new debt obligations
payable by [CCS] to any buyer or buyer’s immediate relative.” Noting the
undisputed facts that before the Wells Fargo debt was discharged in December
2010 (with non-CCS funds), CCS paid $90,000 on a loan obligation to an entity
owned by three members of the Shcharansky Group, $172,000 to Leonid
Shcharansky, $95,000 to Alexander Shcharansky, and $25,000 to Tatiana
Shcharansky, the court concluded the buyer-members of the Shcharansky Group
breached the stock purchase agreement.
The Shcharanskys appealed. In Shcharansky v. Shapiro, No. 13-0151,
2013 WL 6116883 (Iowa Ct. App. Nov. 20, 2013), this court reversed the ruling
that Alexander and Tatiana Shcharansky were not entitled to contribution as a
matter of law, ruling there were genuine issues of material fact that must be
decided by a fact finder, including whether members of the Shapiro Group were
co-guarantors and whether the funds Alexander and Tatiana used to discharge
CCS’s Wells Fargo debt were loans or gifts. Additionally, the court ruled, “In light
of our determination that genuine issues of material fact exist on the Shcharansky
Group’s contribution claim, it necessarily follows that the Shapiro Group is unable
to establish a breach of contract claim predicated on damages stemming from the
contribution claim at the summary judgment stage.” Shcharansky, 2013 WL
6116883. The case was remanded to the district court for further proceedings. Id.
Back at the district court on remand, the Shapiro Group requested leave to
file a third-party claim against CCS for reimbursement, asserting that if the Shapiro
9
Group was found liable to the Alexander and Tatiana Shcharansky for contribution,
the Shapiro Group had a claim for reimbursement from CCS. The district court
granted the motion.
The court bifurcated Alexander and Tatiana Shcharansky’s claim for
contribution from the Shapiro Group’s counterclaim, cross-claim, and third-party
claim, noting the second part of the trial would be unnecessary if Alexander and
Tatiana could not prove their right to contribution from the Shapiro Group.
The first part of the bifurcated proceedings was tried to the bench in
December 2015. In its written ruling, the court found “the evidence clearly
demonstrated that [Alexander’s and Tatiana’s] parents actually made the
payments to Wells Fargo and that the monies simply passed through [Alexander’s
and Tatiana’s] bank accounts on their way to Wells Fargo.” Finding the money
given to Alexander and Tatiana by their parents were not loans with any legal
obligations to return the money, the court ruled the Alexander and Tatiana’s claim
for contribution was not yet ripe, as they had not personally made more than their
share of repayment on CCS’s Wells Fargo loan. Based on this ruling, the court
dismissed as moot the Shapiro Group’s counterclaims, cross-claims, and third-
party claims. The Shcharanskys again appealed.
In Sharansky v. Komm, No. 16-1265, 2017 WL 2875690, at *5 (Iowa Ct.
App. July 6, 2017), this court affirmed the district court ruling, stating, “Although
the money used to discharge the joint debt came from [Alexander’s and Tatiana’s]
accounts, they have been unable to establish that they personally were forced to
bear more than their just share of the debt. Thus, we affirm the district court’s
dismissal of their action for contribution.”
10
The Shcharanskys sought further review, which our supreme court granted.
In Shcharansky v. Shapiro, 905 N.W.2d 579, 580 (Iowa 2017), the supreme court
vacated the 2017 court of appeals ruling and reversed the judgment of the district
court. The court decided that the sources of the funds used to pay the underlying
debt were inapposite, noting “there is no evidence supporting the conclusion that
the transfer of funds from the parents to [Alexander and Tatiana] was artificial or
the subject of a scheme to defraud the Shapiro Group.” Shcharansky, 905 N.W.2d
at 588. The court remanded the case to the district court, instructing:
While the issues were bifurcated for purposes of separate trials, the
claims, counterclaims, and cross-claims remain part of a single
court case. Further, the counterclaims, cross-claims, and third-party
claims of the Shapiro Group appear to be intertwined with the
Shcharanskys’ contribution claim. The Shapiro Group may be
entitled to recover on their theories against various cross and third-
party defendants only to the extent that it is liable to the
Shcharanskys for contribution.
We therefore hold only that the Shcharanskys are entitled to
contribution from the Shapiro Group on the undisputed facts of this
case. We remand the case to the district court for further
proceedings on the Shapiro Group’s claims against the
Shcharanskys.
Id.
Before the district court for the third time, on October 22, 2018, Shapiro
Group filed a motion asking the court to establish the scope of the trial. The
Shapiro Group argued the supreme court’s 2017 decision in favor of Alexander
and Tatiana Shcharansky’s contribution claim did not consider or rule upon the
Shapiro Group’s affirmative defenses to the claim, leaving those issues for the jury
to decide in the upcoming trial.
11
In a written ruling, the district court concluded the Shapiro Group’s
affirmative defenses to the contribution claim were no longer viable. Focusing on
the supreme court’s “instructions on remand,” the district court ruled:
The supreme court stated that “the Shcharanskys are entitled to
contribution from the Shapiro Group on the undisputed facts of this
case” and that it is to conduct further proceedings “on Shapiro-
Group’s claims against the Shcharanskys.” The court does not
state that the district court should conduct proceedings on whether
the Shcharanskys may prevail in light of the affirmative defenses
to the claim for contribution. It is the duty of this court to honor and
respect the ruling and mandate by the appellate court in this case.
As such, because the supreme court’s ruling does not address the
affirmative defenses to the contribution claim, this court must follow
the direction of the supreme court and address only the Shapiro
Group’s claims against the Shcharanskys.
Deciding Alexander and Tatiana Shcharansky had already won their contribution
claim, the district court limited the scope of the trial to the Shapiro Groups’ claim
of breach of contract against the buyer-members of the Shcharansky Group
(Alexander and Boris Shcharansky and Zoya Staroselsky), tortious interference
with a contract against Leonid Shcharansky and Slava Staroselsky of the
Shcharansky Group, and their cross-claim for reimbursement from CCS.
A multiple-day jury trial began on October 29, 2018. At the parties’
agreement, the court gave the jury a preliminary instruction before trial began that
summarized the case. It said:
This is a lawsuit about a business contract. On one side of the
dispute are members of a group called the Shapiro Group. . . . On
the other side of the dispute are members of a group called the
Shcharansky Group. . . .
A number of years ago members of both groups co-owned a
company called Continuous Control Solutions, LLC, which we will
call “CCS” in this trial. Members of the Shapiro Group had majority
control of CCS. CCS borrowed $900,000 from Wells Fargo Bank.
Members of both the Shapiro Group and the Shcharansky Group
personally guaranteed that CCS would pay the debt to Wells Fargo.
12
In 2007, a dispute developed between the Shapiro Group and the
Shcharansky Group concerning the financial difficulites of CCS.
At this time the Shapiro Group transferred its shares of the
CCS stock to three members of the Shcharansky Group, Alexander
Shcharansky, Boris Shcharansky, and Zoya Staroselsky. That
transfer is called the Stock Purchase Agreement. This is the
business contract at issue in this lawsuit. The Stock Purchase
Agreement had a clause in it called the “best efforts” clause. Under
that clause, Alexander Shcharansky, Boris Shcharansky, and Zoya
Staroselsky, the “Buyers,” promised to cause CCS to use best efforts
to, and prior to the payment of any existing or new debt obligations
payable by [CCS] to any Buyer or any Buyer’s immediate relative or
any entity affiliated with any Buyer or any Buyer’s immediate relative,
satisfy and repay in full all debt obligations of [CCS] owed to Wells
Fargo Bank.
When CCS could not pay the debt to Wells Fargo, Wells Fargo
sued all of the members of the Shapiro Group and the Shcharansky
Group who gave personal guarantees that they would pay the debt.
Alexander Shcharansky then entered into an agreement with Wells
Fargo to give CCS additional time to pay the debt. In 2010, after
CCS had paid over half of the Wells Fargo debt, Alexander
Shcharansky and his wife Tatiana Shcharansky repaid all of the
remaining outstanding debt themselves. They then filed this lawsuit
to have the members of the Shapiro Group reimburse them for their
proportional shares of those payments. This court has already
determined that Alexander and Tatiana are entitled to contribution
from the members of the Shapiro Group, meaning that their claim for
reimbursement has been established.
Now, the members of the Shapiro Group claim that they are
entitled to damages for breach of the “best efforts” clause. First, they
allege that Alexander, Boris, and Zoya breached that clause.
Second, they allege that two other members of the Shcharansky
Group, Leonid Shcharansky and Slava Staroselsky, intentionally
interfered with the performance of the “best efforts” clause. Third,
they allege that CCS is obligated to reimburse them for any amounts
for which they must reimburse Alexander and Tatiana. Your job will
be to decide those claims.
Little evidence was in dispute at trial. Alexander Shcharansky, the president of
CCS and one of the buyers, agreed that CCS paid back loans from Shcharansky
Group members and their families before paying the Wells Fargo debt. The
amount paid back was in excess of $380,000. This occurred before Alexander
and Tatiana Shcharansky personally paid approximately $394,000 of CCS’s debt
13
to Wells Fargo. Each side had an expert testify—an accountant who had reviewed
CCS’s financials. Each was asked about various payments CCS made to
members of the Shcharansky Group and their opinion of the financial health or
capacity of the company.
In closing, the two sides focused on the meaning of the “best efforts”
language in the buyers’ covenants of the stock purchase agreement. The Shapiro
Group urged the jury to conclude that the contract imposed two separate
obligations on the buyers—to cause CCS to use its best efforts to repay the Wells
Fargo debt and to not make any payments “to any Buyer or any Buyer’s immediate
relative or any entity affiliated with any Buyer or any Buyer’s immediate relative”
before the Wells Fargo debt was paid off. The Shapiro Group maintained that it
was not contesting CCS’s need to take loans from Shcharasnky Group members
to “keep the doors open”—they were arguing the choice to pay back those loans
before or instead of paying off the Wells Fargo debt breached the contract. In
contrast, the Shcharansky Group urged the jurors to conclude the relevant
language of the stock purchase agreement created only one obligation: that the
buyers use their best efforts to have CCS repay the Wells Fargo debt prior to
paying debts to related parties. Additionally, the Shcharansky Group urged that
even if their reading of the contract was wrong—even if it imposed two
obligations—that the Shapiro Group had failed to show a link between the buyers’
breach and the remaining Wells Fargo debt that Tatiana and Alexander paid (as
opposed to CCS).
With the verdict form, the jury was asked if the Shapiro Group proved
Alexander or Boris Shcharansky or Zoya Staroselsky breached the stock purchase
14
agreement; the jury marked “no” as to each of the three. The jury was asked
whether the Shapiro Group proved either Leonid Shcharansky or Slava
Staroselsky intentionally interfered with the “best efforts” clause of the stock
purchase agreement, and the jury answered “no” to each. As directed, because
the jury answered “no” to the first five questions, it did not answer question 6—the
amount of damages incurred by the Shapiro Group as a result of any of the
preceding. In question 7, the jury was asked whether the Shapiro Group proved
they were entitled to reimbursement from CCS for the amounts they were
compelled to pay on the Wells Fargo debt, and the jury marked “no.” In question
8, the jury wrote “0” on the line for the amount of damages proved.
A few days later, Alexander and Tatiana Shcharansky moved the court to
enter judgment and asked the court to order “interest at the statutory rate from the
filing of the [contribution] claim on January 10, 2011.” The Shcharansky Group
also asked the court to enter judgment in their favor on the Shapiro Group’s claims
and to order the Shapiro Group to pay costs.
The Shapiro Group filed a motion for JNOV or, in the alternative, requested
a new trial on both the breach-of-contract and the reimbursement claim pursuant
to Iowa Rule of Civil Procedure 1.1004(6). The Shcharansky Group resisted.
In one written ruling, the court denied the Shapiro Group’s motions for JNOV
and new trial. Additionally, the court denied Alexander and Tatiana Shcharansky’s
request for prejudgment interest, concluding they were not entitled to it on their
contribution claim “[b]ased upon the plain language of Iowa Code [section] 625.21.”
The court later entered a final judgment order, entering judgment in favor of
Alexander Shcharansky in the amount of $8446.90 against each of the Shapiro
15
Group members and judgment in favor of Tatiana Shcharansky in the amount of
$35,328.69 against each of the Shapiro Group members.
The Shapiro Group appeals,9 and Alexander and Tatiana Shcharansky
cross-appeal.
II. Discussion.
A. Breach-of-Contract Claim.
The Shapiro Group urges that the buyers’ covenant of the stock purchase
agreement is unambiguous and allows for only one reasonable interpretation—
that the contract required the buyers (1) to cause CCS to use its best efforts to
repay the Wells Fargo debt and (2) to not make any payments “to any Buyer or
any Buyer’s immediate relative or any entity affiliated with any Buyer or any Buyer’s
immediate relative” before the Wells Fargo debt was paid off. The Shapiro Group
maintains the court should have interpreted the relevant language of the stock
purchase agreement rather than allowing the jury to do so. And, because it is
undisputed that the buyers caused CCS to pay back the buyers and their families
before paying off the Wells Fargo debt, the Shapiro Group argues the court should
have determined as a matter of law that the buyers breached the stock purchase
agreement and entered judgment in favor of the Shapiro Group.
They purportedly moved for directed verdict, JNOV, and new trial under this
theory and urge us to consider and reverse each of the district court’s rulings.
1. Motions for Directed Verdict and JNOV. The Shapiro Group argues
the district court erred in denying their motions for directed verdict and for JNOV
9 On appeal, the Shapiro Group has not raised any issues regarding the tortious-
interference claim against Leonid Shcharansky and Slava Staroselsky.
16
on the breach-of-contract claim. While the Shcharansky Group does not challenge
error preservation, we conclude this issue has not been preserved for our review.
“On appeal, an appellate court’s review is limited to those grounds raised in the
defendant’s motion for a directed verdict.” Royal Indem. Co. v. Factory Mut. Ins.
Co., 786 N.W.2d 839, 844 (Iowa 2010). “A motion for judgment notwithstanding
the verdict must stand on grounds raised in the directed verdict motion.” Id. at 845.
And “[e]rror must be raised with some specificity in a directed verdict motion.” Id.
When the Shapiro Group moved for directed verdict on the breach-of-
contract claim, they stated, “Just for the reasons that I previously stated we believe
that all elements of breach of contract and [tortious] interference have been—have
been developed as a matter of law.” It is unclear what “reasons previously stated”
the Shapiro Group referred to.10 Their statements immediately before—in
response to the Shcharansky Group’s motion for directed verdict—were
arguments that the breach-of-contract claim was not foreclosed by the Iowa
Supreme Court’s 2017 ruling. In their pretrial brief, filed approximately ten days
before they moved for directed verdict, the Shapiro Group alluded to their
understanding of the meaning of the stock purchase agreement, claiming, “In the
Stock Purchase Agreement, Alexander Shcharansky promised to cause CCS to
use its best efforts to repay the Wells Fargo loans in full, and to do so prior to the
repayment of any existing or new debt obligation to any buyer or any buyer’s
10 In their later motion for JNOV, the Shapiro Group claimed that in making their
motion for directed verdict, they “further relied upon the arguments and authorities
provided to the Court in its Scope of Trial submission and Trial Brief.” We assume
their reliance on “reasons previously stated” is a request to incorporate arguments
in prior filings, but the content was not clear at the time of the motion for directed
verdict.
17
relatives or affiliated entities.” This is not enough to preserve this issue for our
review. Especially as it is not clear the trial court understood the Shapiro Group’s
reference; it did not rule on the motion for directed verdict with any specificity,
stating only, “And again, [the court] believe[s] that there are sufficient matters in
dispute taking the reasonable inferences for the nonmoving party, in this case the
Shcharansky Group. There are sufficient—there is sufficient evidence that a
reasonable jury could find on those matters and the Court would as a result deny
the Shapiro Group's motion for directed verdict.”
2. Motion for New Trial. The Shapiro Group raised the same argument in
their motion for new trial, claiming the jury’s verdict “is not sustained by sufficient
evidence, or is contrary to the law.” Iowa R. Civ. P. 1.1004(6). “We review the
denial of a motion for new trial based on the grounds asserted in the motion.” Fry
v. Blauvelt, 818 N.W.2d 123, 128 (Iowa 2012) (citation omitted). We review
motions based on rule 1.1004(6) for errors at law. See id.
Assuming without deciding that the stock purchase agreement is
unambiguous and permits only the Shapiro Group’s interpretation, they
established the buyers breached the contract by causing CCS to make payments
to themselves and family members before CCS’s Wells Fargo debt was paid off.
But in viewing the evidence in the light most favorable to the Shcharansky Group,
the Shapiro Group did not prove damages related to that breach. See, e.g., Molo
Oil Co. v. River City Ford Truck Sales, Inc., 578 N.W.2d 222, 224 (Iowa 1998)
(providing as an element of breach of contract that the complaining party must
prove “that plaintiff has suffered damages as a result of the breach”); see also
Estate v. Pearson ex rel. Latta v Interstate Power and Light Co., 700 N.W.2d 333,
18
345 (Iowa 2005) (“In reviewing the motion for new trial, ‘[w]e view the evidence in
the light most favorable to the verdict and need only consider the evidence
favorable to [the verdict] whether it is contradicted or not.’” (alteration in original)
(citation omitted)).
The evidence presented at trial could show CCS was in financial trouble
and close to shuttering in 2007 when the Shapiro Group left the company in the
hands of the Shcharansky Group. How the Wells Fargo debt would be handled
was the key focus in negotiating the stock purchase agreement, as it was the only
debt of the company the members of the two groups had individually guaranteed
and Wells Fargo was allowed to pursue any and all of them if CCS failed to repay
the debt.
CCS began taking and repaying short-term loans from its owners (the
buyers) and members of the owners’ families in order to keep the company’s doors
open while it obtained new contracts and waited on payment for others. These
loans were only given because CCS promised to repay the money quickly—for
example, before a family member incurred a penalty for taking money out of their
retirement account prematurely. By taking these loans, the company was able to
stay afloat and, in doing so, paid approximately $640,000 on the Wells Fargo debt
in 2009 and 2010, before Alexander and Tatiana personally repaid the remaining
$394,000 debt in the second half of 2010.
Even the Shapiro Group’s expert did not unequivocally opine CCS could
have paid more of the Wells Fargo debt. The expert testified that in looking at the
gross revenue minus all of the expenses of CCS from November 2010 to May
2011—a period the Shapiro Group asked him to look at specifically—the company
19
had a “net income” of $1.4 million. During direct examination, the expert was then
asked, “Would the company have the net income available to make payments on
that Wells Fargo debt?” He responded:
It would depend somewhat on the mix of the income and whether the
receivables increase and so forth. If all that, if in a perfect world all
this converted to cash and it was cash coming in the door minus the
expenses going out, yes, they would have 1.[4] million dollars worth
of profit.
On cross-examination, the Shapiro Group’s expert agreed that showing $1.4
million profits on the financial statements did not mean that much cash came into
the business during that period. Specifically, part of the $1.4 million net income
was based on the fact that a Shcharansky-family owned company forgave
$425,000 in debt CCS owed it during that period. The expert also agreed there
could be other noncash transactions affecting what he reported as the net income.
The Shcharansky Group expert testified he “reviewed party loan activities
to determine whether or not any of that activity impaired the company’s ability to
make payments to Wells Fargo Bank.” He opined a better metric to measure
CCS’s ability to pay more of the Wells Fargo debt was “net working capital,” which
he described calculating by
look[ing] at what’s called current assets. And current assets are,
essentially, cash and things that are expected to become cash within
the next twelve months, and so you could look at that as a closer
measure of a company’s ability to come up with cash to make
payments. And you could compare that to current liabilities and
current liabilities are, essentially, obligations that are expected to
come due within the next twelve months.
He further explained that “[a] company with negative net working capital, it says
that they have more obligations coming due than they have resources on hand
right now. And so a negative working capital balance . . . would indicate that a
20
company does not have the ability to make cash payments.” Generally using
CCS’s yearly balance sheets from their tax returns, the Shcharansky Group expert
indicated CCS had a negative net working capital every year between 2007 and
May 2018—the last point at which the expert was asked to consider leading up to
trial. He went further, opining that while he had not reviewed the balance sheet for
every single day over the decade-long period, he had “a high degree of confidence
that the company has just never dug themselves out of the hole they’ve been in
since 2007, 2008.” He testified that companies with cash-flow issues, like CCS,
would need short-term loans in order to not go out of the business “because if you
can’t pay your employees and you can’t pay your vendors, you just can’t stay in
business.” When asked what would have happened to the Wells Fargo debt if
CCS shuttered rather than taking short-term loans from related parties, the expert
testified:
Wells Fargo would not have been paid in full, for sure. I mean, since
the beginning balance sheet that we looked at earlier in this
testimony, the company’s net equity balance has been negative, and
the company never had the ability to pay off all of its liabilities. And
so the Wells Fargo debt certainly would have been unpaid at least in
part at any point in time in the last decade.
....
I would say the short-term loans increased the probability that
Wells Fargo can be paid back. If the company had not borrowed
these funds, then they could have gone out of business a long time
ago. The fact that they are able to stay in business allowed the
company to pay . . . over $600,000 back to Wells Fargo. And they
would not have been able to do that had the company gone bankrupt
prior to 2009.
Even if we assume the buyers breached the stock purchase agreement, there is
not substantial evidence in the record to support the Shapiro Group’s claimed
21
damages are related to the breach. Thus, the district court did not err in denying
the motion for new trial.
B. Reimbursement Claim. The Shapiro Group sued CCS as a third-party
defendant for reimbursement of the amount of their liability for contribution. The
Shapiro Group maintained that if they had to contribute to Alexander and Tatiana
for the part of CCS’s obligation to Wells Fargo that Alexander and Tatiana paid
personally, then CCS was required to reimburse the Shapiro Group members for
that amount. See Hills Bank & Trust Co. v. Converse, 772 N.W.2d 764, 772 (Iowa
2009) (adopting the Restatement (Third) of Suretyship and Guaranty and stating,
“Under the Restatement, when a principal obligor has notice of the secondary
obligation, the principal obligor has the duty to reimburse the secondary obligor to
the extent the secondary obligor is called upon to perform, or if the secondary
obligor settles with the obligee”).
The parties agreed that in order for the Shapiro Group to be successful on
their reimbursement claim against CCS, the Shapiro Group needed to prove all of
the following:
1. As between CCS and the Shapiro Group, CCS was the
principal obligor to Wells Fargo.
2. CCS and the Shapiro Group[11] did not make an express
agreement regarding the obligations of CCS should the Shapiro
Group pay or be compelled to pay the debt owed to Wells Fargo
pursuant to the personal guarantees.
11 We note this is not the instruction given to the jury. While discussing the jury
instructions before closing arguments, the Shapiro Group asked the court to
change the second element from “The parties did not make an express
agreement . . .” to “CCS and the Shapiro Group did not make an express
agreement . . .” for purposes of clarity. The Shcharansky Group did not resist the
change, and the court agreed to do so. However, the final instructions given to the
jury did not include the edit.
22
3. The Shapiro Group has been ordered to make payments
on the debt owed to Wells Fargo pursuant to the personal
guarantees.
4. The Shapiro Group has been damaged by CCS’s failure to
make payments on the debt owed to Wells Fargo.
At the close of the evidence, it had been established that CCS was the primary
obligor on the Wells Fargo debt while the members of the Shapiro Group were
secondary obligors; Alexander and Tatiana Shcharansky had already won their
contribution claim against the Shapiro Group members and the Shapiro Group
would be ordered to make payments on that claim; and the Shapiro Group had
been damaged by CCS’s failure to pay the debt.
That left only the second element at issue. Under the Restatement (Third)
of Suretyship and Guaranty, the default rule is that the primary obligor owes the
secondary obligors if the secondary obligors settle the debt. See § 22 cmt. a (Oct.
2019 Update) (“Just as the principal obligor impliedly agrees that it will perform the
underlying obligation so that the secondary obligor will not have to perform, the
principal obligor also agrees that it will reimburse the secondary obligor to the
extent that the secondary obligor does perform, thereby fulfilling all or part of the
underlying obligation.”). This default can be overcome by an express agreement
limiting or foreclosing the secondary obligors’ right to reimbursement. See Hills
Bank, 772 N.W.2d at 773 (noting the primary obligor has a duty to reimburse a
secondary obligor because “the law raises an implied promise, unless there is an
express one”). More specifically, the question at issue here was whether the stock
purchase agreement relieved CCS of its implied promise to reimburse the Shapiro
Group if they were forced to pay the Wells Fargo debt.
23
1. Motions for Directed Verdict and JNOV. As with their motion for
directed verdict on the breach-of-contract claim, the Shapiro Group’s motion
regarding the reimbursement claim was not presented with enough specificity for
us to review the issue on appeal.12 The Shapiro Group noted the element in
dispute was whether a contractual obligation controlled CCS’s duty to reimburse,
but, when making their motion for directed verdict, they did not make any argument
based on the evidence presented at trial nor offer legal analysis regarding why the
stock purchase agreement was not an express agreement controlling the issue of
reimbursement. They stated:
[M]oreover your Honor, we as I said earlier we disagree, but there is
[not] a contractual obligation that takes this out of the realm of that.
And I would draw the Court’s attention to comment A section 22 of
that restatement section that’s been accepted by this Court. And it
discusses the underlying obligation that this is—that this legal
contribution claim is necessary to—because when a secondary
obligor satisfies the obligation of a primary obligor that the primary
obligor is enriched considering that it is—it receives its money which
it should not, or receives its benefit and which it should not have.
And at the expense of the secondary obligor and that is consistent
with what [the Shcharansky expert witness] testified today that
Tatiana paying off the loan was considered debt forgiveness. It was
considered on the income category of CCS.
Again, CCS got a benefit from the secondary obligor paying
off this debt. And for those reasons we would request that the Court
find that the elements of the legal—legal reimbursement claim have
been established as a matter of law and grant a directed verdict on
that claim as well as the other two claims presented by the Shapiro
Group.
In their motion for JNOV, the Shapiro Group addressed the issue with more
specificity, stating:
During closing argument, the Shcharansky Group’s counsel
suggested the Stock Purchase Agreement was an express
agreement that superseded CCS’s legal obligation to reimburse the
12 The Shcharansky Group contests error preservation on this issue.
24
Shapiro Group. This argument is illogical and unfounded based on
the plain language of the Stock Purchase Agreement.
While CCS, the entity, was a signatory to the Stock Purchase
Agreement [(SPA)], it was only because a lawsuit currently pending
against CCS was being dismissed as part of the SPA, and the
Shapiro Group was resigning as shareholders, resignations that
needed to be formally accepted CCS. The relevant language of
Section 7.1 was a covenant between the Buyers, the individual
members of the Shcharansky Group, and the Sellers, the individual
members of the Shapiro Group. CCS made no promises as part of
Section 7.1. Moreover, no part of Section 7.1, nor the SPA in
general, a fully integrated agreement, speaks to a separate
arrangement between CCS and the members of the Shapiro Group
(or the Shcharansky Group) should those members be compelled to
pay pursuant to their Wells Fargo personal guaranties. Moreover,
there was no testimony from any witness nor any document
presented at trial that addressed any sort of separate agreement on
that issue. Accordingly, even taking the evidence in a light most
favorable to the Shcharansky Group, all four elements of the legal
reimbursement against CCS were established at trial, and no
reasonable juror could find otherwise.
But, as we noted before, the motion for JNOV must stand on the grounds raised in
the motion for directed verdict.13
We give no further consideration to the Shapiro Group’s claims the district
court erred in denying their motions for directed verdict and for JNOV on the
reimbursement claim. See Konicek v. Lommis Bros., Inc., 457 N.W.2d 614, 617
(Iowa 1990) (“A judgment notwithstanding verdict must stand or fall on the grounds
stated in the motion for directed verdict. On appeal, our review is limited to those
grounds.”).
2. Motion for New Trial. In the their motion for new trial, the Shapiro Group
generally argued there was not sufficient evidence to sustain the jury’s conclusion
that the stock purchase agreement constituted an express agreement that relieved
13While we recognize the district court rejected the reimbursement claim in its
JNOV ruling, we are limited to the motion for directed verdict in our review.
25
CCS of its implied promise to reimburse the Shapiro Group for the Wells Fargo
debt. The district court denied their motion, and we find no error in that decision.
While the stock purchase agreement does not explicitly discuss the issue
of reimbursement between CCS as the primary obligor and the Shapiro Group
members as the secondary obligors, the evidence at trial could be found to show
that this agreement was CCS’s and the Shapiro Group’s comprehensive
agreement regarding the Wells Fargo debt—supplanting any implied promise.
CCS had little, if any, money at the time the stock purchase agreement was
executed, and the company was on the verge of bankruptcy. Meanwhile, the
Shapiro Group members were each on the hook for the nearly $1 million CCS
owed to Wells Fargo. Any implied promise to repay them had little to no value if
CCS went bankrupt or became judgment proof.
The Shapiro Group members were very concerned about the outstanding
debt and made it the focus of their negotiations regarding the stock purchase
agreement. They wanted the buyers and CCS to guarantee the Shapiro Group
members would not have to be responsible for discharging CCS’s debt
personally—suggesting they recognized the lack of value of an implied promise for
reimbursement in this situation. But the buyers knew the company was in a
precarious financial situation and may not be able to discharge the whole amount,
and they refused to include in the stock purchase agreement language that would
hold the Shapiro Group harmless in case Wells Fargo sought to enforce the
personal guarantees. The “best efforts” clause was the compromise the two sides
reached in allocating the risk regarding the unpaid Wells Fargo debt.
26
Next, the Shapiro Group also argues the stock purchase agreement cannot
be an express agreement between them and CCS that overrides the implied
promise to reimburse because the buyers’ covenant involves the Shapiro Group
and the buyers—not CCS. As stated before, the relevant contract language is:
7.1 Buyers’ Covenants. In connection with the transfer of the
Shares to the Buyers pursuant to this Agreement, the Buyers hereby
covenant that as the controlling shareholders of the Corporation, the
Buyers will cause the Corporation to:
(a) Use best efforts to, and prior to the payment of any existing
or new debt obligations payable by the Corporation to any Buyer or
any Buyer’s immediate relative or any entity affiliated with any Buyer
or any Buyer’s immediate relative, satisfy and repay in full all debt
obligations of the Corporation owed to Wells Fargo Bank.
We agree that “Buyers’ Covenants” suggests duties or obligations taken on by the
buyers rather than CCS. But the language of the section involves what the buyers
promise—“as the controlling shareholders of” CCS—to cause CCS to do in the
future. Moreover, CCS is a party to the stock purchase agreement. The first
paragraph of the agreement states:
THIS STOCK PURCHASE AGREEMENT (this “Agreement”)
is made and entered, effective as of the 16th day of September 2007,
by and among, Alex Shcharansky, Boris Shcharansky and Zoya
Staroselsky (the “Buyers”), those individuals listed on Schedule A
[the Shapiro Group], and Continuous Control Solutions, Inc., an Iowa
corporation (the “Corporation”).
And Vadim Shapiro signed the contract for the company as its president.
Because the jury’s verdict in favor of CCS on the reimbursement claim is
sustained by sufficient evidence, the district court did not err in denying the Shapiro
Group’s motion for new trial.
27
C. Scope of Trial.
The Shapiro Group maintains the district court erred in limiting the scope of
the 2018 trial to the Shapiro Group’s cross-claims and counterclaims, preventing
them from trying their affirmative defenses to Alexander and Tatiana
Shcharansky’s contribution claim. They moved for new trial based on this alleged
error. Because the motion for new trial was “based on a legal question,” we review
for errors at law. Clinton Physical Therapy Servs P.C. v. John Deere Health Care,
Inc., 714 N.W.2d 603, 609 (Iowa 2006) (citation omitted).
The Shapiro Group maintains the 2017 ruling of the Iowa Supreme Court in
Shcharansky v. Shapiro, 905 N.W.2d 579, 588 (Iowa 2017), should not have been
understood to foreclose the litigation of their affirmative defenses to the
Shcharanskys’ contribution claim. They argue that because the Shapiro Group
prevailed on the issue of the contribution claim before the district court and this
court, it was not “procedurally possible for the affirmative defenses to be
considered.” They understand the supreme court’s lack of mention of the
affirmative defenses to mean the court did not consider them—leaving them viable
on remand.
We recognize the supreme court’s opinion did not mention the Shapiro
Group’s affirmative defenses. But the Shapiro Group admit in their appellate briefs
that they did not “raise[] the affirmative defenses in their briefs for the prior appeal.”
They assert it would have been improper for them to do so without a trial record or
ruling regarding the affirmative defenses from the district court. But the affirmative
defenses were tried as part of the 2015 trial to the bench on Alexander and Tatiana
Shcharansky’s contribution claim. And “[i]t is well-settled law that a prevailing party
28
can raise an alternative ground for affirmance on appeal without filing a notice of
cross-appeal, as long as the prevailing party raised the alternative ground in the
district court.” Duck Creek Tire Serv., Inc. v. Goodyear Corners, L.C., 7496 N.W.2d
886, 893 (Iowa 2011). “A successful party, without appealing, may attempt to save
a judgment on appeal based on grounds urged in the district court but not
considered by that court.” Moyer v. City of Des Moines, 505 N.W.2d 191, 193
(Iowa 1993). Their initial success on the contribution claim at the district court and
the court of appeals did not prevent the Shapiro Group from pursuing their
affirmative defenses as alternative grounds for affirmance before the supreme
court. Their failure to do so waived having those affirmative defenses considered.
See Shcharansky, 905 N.W.2d at 588 (concluding “the Shcharanskys are entitled
to contribution from the Shapiro Group on the undisputed facts” and remanding to
the district court only “for further proceedings on the Shapiro Group’s claims
against the Shcharanskys”); Ostrem v. Prideco Secure Loan Fund, LP, 841
N.W.2d 882, 904 (Iowa 2014) (“If we disagree with the basis for the court’s ruling,
we may still affirm if there is an alternative ground, raised in the district court and
urged on appeal, that can support the court’s decision.” (emphasis added)); In re
E.S., No. 19-0944, 2019 WL 4678217, at *2 n.3 (Iowa Ct. App. Sept. 25, 2019)
(noting that while there were other possible grounds upon which to affirm that were
raised in the original petition, the State did “not venture to resurrect any of the other
grounds pled in its petition” so those grounds would not be considered).
D. Prejudgment Interest.
Alexander and Tatiana Shcharansky cross-appeal. They argue the district
court erred in ruling against their motion asking the court to enter judgment in their
29
favor “with interest at the statutory rate from the filing of the claim on January 10,
2011.” We review for errors at law on the award (or lack thereof) of prejudgment
interest. See Gosch v. Juelfs, 701 N.W.2d 90, 91 (Iowa 2005).
Here, the district court determined that Iowa Code section 625.21 prevented
the Shcharanskys from being awarded prejudgment interest. The statute says,
“Except for an action brought pursuant to chapter 668, when the judgment is for
the recovery of money, interest from the time of the verdict or report until judgment
is finally entered shall be added to the costs of the party entitled to the costs.” Iowa
Code § 625.21.
The district court relied on section 625.21 in denying prejudgment interest
without distinguishing between an interest award dating from a verdict and an
interest award dating from filing a lawsuit. Section 625.21 allows for an award of
interest from the time of the verdict—not waiting until the entry of the judgment—
for cases not brought pursuant to chapter 668. Here, it is undisputed the
Shcharanskys did not bring their suit under the comparative fault act of chapter
668. See Mulhern v. Catholic Health Initiatives, 799 N.W.2d 104, 113 (Iowa 2011)
(noting the legislature created the comparative fault act of Iowa Code chapter 668
in 1994 and “[b]y its terms, the purposes of the comparative fault act is to establish
‘comparative fault as the basis for liability in relation to claims for damages arising
from injury to or death of a person or harm to property’” (alteration in original)
(citation omitted)). If anything, this statute supported the entry of interest from the
date of the verdict in November 2018, rather than the April 2019 date when the
court entered judgment—which the district court did not do. Additionally, section
30
625.21 does not control the request for interest from the date of the
commencement of an action.
The Shcharanskys offer two “pathways” to an award of prejudgment interest
from the commencement of their action. First, they argue section 668.13(1) allows
for it. That section provides, “Interest shall be allowed on all money due on
judgments and decrees on actions brought pursuant to this chapter, subject to the
following: 1. Interest . . . shall accrue from the date of the commencement of the
action.” Iowa Code § 668.13(1). But as we stated, it is undisputed the
Shcharanskys did not bring their contribution claim pursuant to the chapter 668
comparative fault act. And, on its face, the section is limited to “actions brought
pursuant to this chapter.” See id. Baumler v. Hemesath, 534 N.W.2d 650, 655–
56) (Iowa 1995), supports this understanding; in it, our supreme court rejected the
party’s claim that interest should be governed by section 668.13 rather than
chapter 535, noting the case was not tried pursuant to chapter 668 and therefore
those interest provisions did not govern apply. This pathway fails.
Second, the Shcharanskys argue section 535.2(1)(b) allows them to receive
prejudgment interest. It provides, “[T]he rate of interest shall be five cents on the
hundred by the year in the following cases . . . . Money after the same becomes
due.” Iowa Code § 535.2(1)(b). The Shcharanskys maintain this section arguably
allows them to receive interest from the date they discharged the Wells Fargo debt
in 2010 but, as they did at the district court, they ask that we award interest from
the date they filed suit in January 2011.
“Generally, interest runs ‘from the time money becomes due and payable
and, in the case of unliquidated claims, from the date they become liquidated.’”
31
Hughes v. Burlington N. R.R. Co., 545 N.W.2d 318, 321 (Iowa 1996) (citation
omitted). “Unliquidated damages normally become liquidated on the date of the
judgment.” Id. “Iowa courts, however, have recognized an exception to the
unliquidated claims rule when the damage is complete at a specified time.”
Brenton Nat’l Bank v. Ross, 492 N.W.2d 441, 443 (Iowa Ct. App. 1992). “In such
a situation, interest runs from the time the damage is complete even though the
damage has not been fixed in a specific sum.” Id.
Here, the damage was complete at the time Alexander and Tatiana
discharged the Wells Fargo debt. Therefore, the district court erred in denying
their request for interest from the day they filed their contribution claim. We reverse
the district court’s ruling on prejudgment interest and remand for the court to
correct the entry of judgment.
IV. Conclusion.
We affirm the district court ruling as to all the issues raised by the Shapiro
Group on appeal. However, on cross-appeal, we reverse the district court’s ruling
as to Alexander and Tatiana Shcharansky’s request for interest from the day they
filed their contribution claim. We remand for the limited purpose of correction of
the judgment order.
AFFIRMED ON APPEAL; REVERSED AND REMANDED WITH
DIRECTIONS ON CROSS-APPEAL.