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Ex-racer loses appeal on Porsche ownership

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The 7th Circuit Court of Appeals has issued its take on an ownership dispute over a classic 1979 Porsche on display at the Indianapolis Motor Speedway Foundation's Hall of Fame Museum.

Affirming now-senior U.S. Judge Larry McKinney in Indianapolis, the three-judge Circuit panel rejected the claims by a former racer who claimed that he'd loaned, not donated, the car and that it should be returned to him. The case is Reginald D. Whittington, Jr., v. Indianapolis Motor Speedway Foundation Inc, No. 08-3352.

Former driver Don Whittington - who comes from a racing family and had raced in five Indianapolis 500s and made many other high-profile races through the 1970s and '80s - sued IMS over the Kremer Racing Porsche 935 K3, which he'd driven to win the 1979 Le Mans 24-hour endurance race in France. Whittington delivered the car to the museum in the 1980s for display, but in 2004 he claimed the car should be returned because it was only on loan. The IMS refused to return the car because it had recorded the transaction as a donation in kind from Whittington and his brother Bill.

He sued for tortious conversion and replevin of the automobile, arguing in part that a conversation with former IMS grounds superintendent Charles Thompson, now deceased, had the authority to make that deal with him on behalf of the foundation. Though the car insurance was paid by the museum, various testimony and documents showed differing accounts about who the actual owner was through the years. Whittington hadn't maintained much contact with the foundation since the late '80s, when he pled guilty to federal money-laundering charges and spent 18 months in prison. At the time, he was connected to a scandal where many drivers financed their racing activities with drug-smuggling proceeds.

In 2008, Judge McKinney held a one-day bench trial and ruled against Whittington. He described the case largely a battle of witnesses who provided conflicting testimony, finding in favor of the IMS because Whittington failed to prove he owned the classic car.

The 7th Circuit agreed, pointing out that Judge McKinney made a salient and proper note of the fact that Whittington's post-transaction behavior was inconsistent with the car being on loan - mainly because he made no effort to communicate with the foundation between the 1980s and the 2004 demand.

The court decided Judge McKinney didn't clearly err in finding that Whittington failed to prove a property right for the vehicle, nor did the judge make a mistake in placing the burden of proof on Whittington as Indiana law requires. The court didn't address the donative intent, because Judge McKinney hadn't made any finding on that point.

"We are handicapped, as is Whittington, by the lack of documentation with respect to the nature of the transaction between him and the Foundation," Circuit Judge Michael Kanne wrote. "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."

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