Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:06-cv-333-Larry J. McKinney, Judge.
The opinion of the court was delivered by: Kanne, Circuit Judge.
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
Reginald Whittington sued the Indianapolis Motor Speedway Foundation, Inc. ("Foundation") 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. Whittington 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 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. Accordingly, the court held that his claims for tortious conversion and replevin failed. We affirm.
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. Whittington 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 Foundation'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 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 testified 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 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 superintendent, Clarence Cagle, in the mid-1980s. In contrast to Whittington's testimony, Martin recalled that Whittington'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 "handshake" 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 Whittington's own representations when he included the car on 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.*fn1 The district court noted that Ellen Bireley, 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, Whittington's counsel noted that the fact ...