WHITTINGTON v. INDIANAPOLIS MOTOR SPEEDWAY FOUND.
601 F.3d 728 (2010)
Reginald D. WHITTINGTON, Jr., Plaintiff-Appellant,
INDIANAPOLIS MOTOR SPEEDWAY FOUNDATION, INC., Defendant-Appellee.
United States Court of Appeals, Seventh Circuit.
Argued December 11, 2009.
Decided April 13, 2010.
William L. O'Connor (argued), Dann, Pecar, Newman & Kleiman, Indianapolis, IN, for Plaintiff-Appellant.
David M. Mattingly, Angela P. Krahulik (argued), Ice Miller, Indianapolis, IN, for Defendant-Appellee.
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
KANNE, Circuit Judge.
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.I. BACKGROUND
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 manager 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.