Reginald Whittington v. Indianapolis Motor Speedway Fo

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3352
R EGINALD D. W HITTINGTON, JR.,
Plaintiff-Appellant,
v.
INDIANAPOLIS M OTOR S PEEDWAY F OUNDATION, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:06-cv-333—Larry J. McKinney, Judge.
A RGUED D ECEMBER 11, 2009—D ECIDED A PRIL 13, 2010
Before B AUER, R IPPLE, and K ANNE, Circuit Judges.
K ANNE, Circuit Judge. Reginald Whittington sued the
Indianapolis Motor Speedway Foundation, Inc. (“Founda-
tion”) for tortious conversion and replevin of a 1979
Kremer Racing Porsche 935 K3 automobile, which is on
display at the Foundation’s Hall of Fame Museum. Whit-
tington delivered the racing car to the Foundation in
the early 1980s and sought its return in 2004. Whittington
claimed that he loaned rather than donated the car to the
2 No. 08-3352
Foundation, and thus is entitled to have it returned. The
Foundation refused to return the car because it says the
car was a donation in kind from Whittington and his
brother. The district court found that Whittington’s post-
transaction behavior was more consistent with the car
being a gift rather than a loan, and that he failed to prove
that he had a possessory interest in the car in 2004. Ac-
cordingly, the court held that his claims for tortious
conversion and replevin failed. We affirm.
I. B ACKGROUND
Reginald “Don” Whittington (“Whittington”) is a former
race car driver. During his racing career, Whittington
and his brother, Bill Whittington, participated in a
number of races with a variety of vehicles. Along with
his brother and another driver, Klaus Ludwig, Whittington
won the 1979 Le Mans 24-hour endurance race in France
while driving the Porsche 935 K3 car in question. Whitting-
ton testified that one of the corporations owned by the
Whittington brothers originally purchased the Porsche
935 K3. The record is not clear which of the brothers’
corporations made the original purchase.
The district court noted that Whittington claimed that
Road Atlanta, Inc. originally purchased the car. The Foun-
dation’s statement of facts, however, points to testimony
by Robert Jackson Zeigler, an employee and business
manger of the Whittington brothers, which indicates that
Whittington Brothers Racing, Inc. was the owner. (App. at
73-74.) Whittington also argued that at some point the
No. 08-3352 3
car was owned by Road Atlanta, which later dissolved,
thereby leaving Don Whittington as the sole shareholder
and purported owner of the car. Records with respect to
Road Atlanta or distribution of its assets no longer exist.
The brothers continued to race the car for a short
period, but due to rules changes and a crash involving
the car, it was retired from racing.
The specific circumstances regarding the transfer to the
Foundation remain, in large part, a battle of witnesses. No
documentation exists regarding the original transfer. Key
witnesses have since died. That leaves the parties in the
difficult position of relying solely on witness testimony,
which is conflicting to a large degree. Whittington testi-
fied that he met with Charles Thompson in May 1980,
and that they specifically discussed the transfer of the
car to the Foundation as an indefinite loan. Thompson,
now deceased, was the superintendent of grounds at the
Indianapolis Motor Speedway. Witnesses testified that
Thompson kept his office at the museum and had
general access to the museum, which is located on the
grounds of the Indianapolis Motor Speedway.
Because Whittington’s argument relies heavily on his
assertion that Thompson had the authority to make the
deal with him on behalf of the Foundation, and did so, the
district court noted in its summary judgment order
that although Thompson’s title was superintendent of
grounds and buildings, he was well respected in motor
racing circles (App. at 15), and Whittington testified
that Thompson was the “go-to-guy” (App. at 40) and that
he had the “key to the gate” (App. at 16). Whittington
4 No. 08-3352
claimed that he did not discuss the purported loan
with anyone else affiliated with the Foundation.
Jack Martin, the director of the museum at the time,
testified that Thompson replaced the former superin-
tendent, Clarence Cagle, in the mid-1980s. In contrast to
Whittington’s testimony, Martin recalled that Whitting-
ton’s brother, Bill, initiated the alleged proposal with
Cagle, who, in turn, referred him to Martin. Martin
also testified that the proposal was described as a gift,
and that he never expressed any interest in the car on
behalf of the Foundation other than as a gift. Martin
further testified that very few cars were received by the
Foundation on a loan basis, which was especially true
for cars with little or no connection to the Indianapolis
Motor Speedway. In essence, the only details about the
transfer on which the parties can agree is that no records
of the transfer exist and that the transaction was a “hand-
shake” deal.
Whittington asserts that after delivering the car to the
Foundation, he continued to maintain ownership and
control through a company owned by his brother and
himself. Whittington was convicted subsequently of an
unrelated tax conspiracy and imprisoned for 18 months.
He claims that upon dissolution of the company and in
preparation for his incarceration, he disclosed to the
government that the Porsche 935 K3 was part of his
personal assets. Jack Zeigler, the Whittingtons’ business
manager, similarly testified that the car appeared on the
corporate records of one of the brothers’ corporations,
Road Atlanta. He also testified that he relied on Whitting-
ton’s own representations when he included the car on
No. 08-3352 5
numerous financial statements. No documentation with
respect to any of this has been produced.
The museum has records showing that the Porsche
935 K3 was insured by the museum, although that is not
particularly persuasive because the museum insures
both gifts and loans. The district court noted that Ellen
Bireley,1 director of the museum since 1996, undertook an
effort at one point to determine the ownership of the
various vehicles in the museum’s possession. She testified
that the museum kept documentation for owned cars
and loaned cars in separate files in separate drawers,
and that the Porsche 935 K3 was listed and filed as a
donated, or owned, vehicle. However, she admitted
that the file was created well after the transfer.
Bireley was also unable to produce any documents
indicating how the museum had acquired possession of
the car. The Foundation did not list the Porsche 935 K3
as a gift on its 990 tax forms from 1980 to 1995; how-
ever, it obtained an Indiana certificate of title for the
Porsche 935 K3 in 2001 and has consistently listed it as
an asset of the Foundation. At oral argument, Whitting-
ton’s counsel noted that the fact that Whittington
had not previously titled the car is irrelevant because
racing cars are typically not titled.
Since the transfer of the car in the early 1980s, Whitting-
ton has had very little contact with the Foundation. He
1
The district court, and some parts of the record, spelled
her name as Ellen “Beirley.” She spelled her name in a letter
to Whittington as Ellen “Bireley.” (App. at 159.)
6 No. 08-3352
allegedly viewed the car in 1985, at which time he
claimed he met with Thompson, but he said they did not
discuss the ownership of the Porsche 935 K3. Whittington
testified that he called the Foundation in 2004 and re-
quested the return of the car for an event involving
vintage Porsche cars. He said he learned at that time
through Tony George, a Foundation representative, that
the Foundation claimed ownership of the car. Bireley
sent Whittington a letter in October 2004 confirming the
Foundation’s ownership claim.
Whittington filed a two-count complaint, claiming
tortious conversion and replevin. The Foundation denied
the allegations and asserted affirmative defenses of
laches, statute of limitations, and waiver and estoppel.
Both parties moved for summary judgment, which the
district court denied with respect to each. Following a one-
day bench trial, the district court found in favor of the
Foundation on both counts.
II. A NALYSIS
Whittington now challenges the district court’s ruling
on both counts. First, he argues that he presented suf-
ficient evidence to establish that the Foundation con-
verted the Porsche, and that he is entitled to its return.
Second, Whittington claims that the district court inap-
propriately placed the burden of proof on him to show
that the transfer of the Porsche to the Foundation was not
a gift. Third, he argues that the district court erred in
finding that Whittington possessed the donative intent
necessary to give the Porsche to the Foundation.
No. 08-3352 7
Following a bench trial, we review the district court’s
findings of fact for clear error, but review conclusions of
law de novo. Murdock & Sons Constr., Inc. v. Goheen Gen.
Constr., Inc., 461 F.3d 837, 840 (7th Cir. 2006). We will not
review witness credibility or reweigh the evidence. Id.Indiana law defines tortious conversion as an “appro-
priation of the personal property of another to the party’s
own use and benefit . . . or in exercising dominion over
it, in exclusion and defiance of the rights of the owner or
lawful possessor, or in withholding it from his possession,
under a claim and title inconsistent with the owner’s.”
Schrenker v. State, 919 N.E.2d 1188, 1194 (Ind. Ct. App.
2010). To succeed on a claim for replevin under Indiana
law, a plaintiff “must prove his right to title or possession,
that the property is unlawfully detained, and that the
defendant wrongfully holds possession thereof.” United
Farm Family Mut. Ins. Co. v. Michalski, 814 N.E.2d 1060,
1067 (Ind. Ct. App. 2004). Indiana thus places the
initial burden of proving a replevin claim on the
person seeking repossession: “[t]he plaintiff must prove
his right to possession on the strength of his own title,
not merely the weakness of the defendant’s title or right
to possession.” Id. at 1067-68 (citing Tucker v. Capital
City Riggers, 437 N.E.2d 1048, 1051 (Ind. Ct. App. 1982)).
The burden only shifts to the defendant to show a right
of possession after the plaintiff first establishes a prima
facie case of right of possession. Id. at 1068 (citing Warner
v. Warner, N.E.2d 773, 775-76 (Ind. Ct. App. 1937)).
The district court concluded that Whittington failed to
establish by a preponderance of the evidence that the
8 No. 08-3352
Porsche 935 K3 was on loan to the Foundation, and that
Whittington failed to prove he had a property right in
the car when he demanded its return in 2004. We do not
find clear error in the district court’s findings.
Because little, if any, documentation exists regarding
the prior ownership and transfer of the Porsche 935 K3,
the district court’s findings of fact properly relied on
witness testimony and common-sense interpretations
of the circumstances surrounding the exchange. Whit-
tington offered no clear evidence to establish a present
property right in the car when he demanded its return
in 2004. Whittington’s former business manager testified
that he included the car on Road Atlanta’s financial
statements during the period while it was at the museum,
but he also testified that he relied on Whittington’s
own representations of his ownership in doing so.
In an effort to prove that ownership of the Porsche
935 K3 never transferred, Whittington claimed that he
loaned the car to the Foundation. His primary support
for this argument was his own testimony regarding his
communication with the now-deceased former super-
intendent of grounds, Charles Thompson. It is unclear
what Thompson’s exact role was in 1980 when this pur-
ported communication took place. Notwithstanding the
ambiguity of Thompson’s role, the museum’s former
director, Jack Martin, testified that Thompson would not
have had any authority whatsoever to enter into such
a transaction.
The Foundation was in present possession of the car
when Whittington demanded its return in 2004, and it
provided testimony supporting an inference that the
No. 08-3352 9
Foundation owned it. Martin testified that Whittington’s
brother expressly offered to donate the car to the museum.
He also testified that it would be highly unusual for
the museum to accept cars with little or no connection
to the Indianapolis Motor Speedway on loan. In addi-
tion, at the time the Foundation titled the car in Indiana,
Martin submitted a sworn affidavit attesting that the
car was donated. Finally, the present director of the
museum, Ellen Bireley, testified that the museum con-
sistently filed and listed the car as an asset of rather than
a loan to the Foundation.
The district court made a salient and proper note of the
fact that Whittington’s post-transaction behavior was
inconsistent with the car being on loan. Whittington
apparently made no effort to communicate with the
Foundation from the time of the transfer in the early 1980s
until he demanded its return in 2004. Given the circum-
stances of Whittington’s self-proclaimed dealings with
Thompson, coupled with his current claim of continuous
ownership, it appears both odd and instructive to this
court that Whittington never attempted to contact the
Foundation following Thompson’s death.
We are handicapped, as is Whittington, by the lack
of documentation with respect to the nature of the trans-
action between him and the Foundation. As observed by
a member of this court at oral argument, the lesson for
Whittington should be that an unwritten contract is not
worth the paper it isn’t written on. We find that the
district court did not clearly err in its finding that Whit-
tington failed to prove a property right in the Porsche
935 K3. His claims for conversion and replevin fail.
10 No. 08-3352
Next, Whittington argues that the district court improp-
erly placed the burden of proof on him as plaintiff. Whit-
tington argues that the district court required him to
prove both that the car was not a gift and that he had
a property right in the car. Whittington’s argument falls
flat. As previously noted, Indiana places the burden on
Whittington, as plaintiff, to prove a property right in the
car; and whether the car was loaned was essential to the
existence of such a right. In other words, because his
having a present possessory interest in the car was an
essential element to his conversion and replevin claims,
Whittington was required to prove he loaned the car to
the museum. The district court properly assigned the
burden of proof in this case to Whittington, and we
agree he did not carry that burden.
The last issue raised by Whittington in this case is
whether the district court erred by finding that he pos-
sessed the donative intent necessary to give the Porsche
to the Foundation. We need not address this argu-
ment, however, because the district court made no such
finding, and in any event, his failure to prove his claims
for conversion and replevin are dispositive of this issue.
III. C ONCLUSION
Having found no error in the district court’s findings,
we A FFIRM in all respects.
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