FILED
Jul 14 2026, 9:03 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
VoCare, Inc.,
Appellant-Defendant
v.
AGS Capital, LLC, et al.,
Appellees-Plaintiffs
July 14, 2026
Court of Appeals Case No.
25A-CC-2413
Appeal from the Hamilton Superior Court
The Honorable Michael A. Casati, Judge
Trial Court Cause No.
29D01-2406-CC-7062
Opinion by Judge Scheele
Judges Bailey and Vaidik concur.
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 1 of 13
Scheele, Judge.
Case Summary
[1] VoCare, Inc. (VoCare) appeals the trial court’s order granting summary
judgment in favor of Appellees, AGS Capital, LLC (AGS), Scott J. Weaver, as
Trustee of the Scott J. Weaver Revocable Trust (Weaver), and Donald
Woodley (collectively, the Investors). 1 We affirm.
Facts and Procedural History
[2] VoCare is a medical device company that was formed and incorporated in
Indiana in 2009. In 2021, VoCare sought to raise up to $2,000,000 in capital by
issuing convertible promissory notes to various investors. VoCare and the
Investors executed such notes (Note or, collectively, Notes) as follows: (1) on
June 23, 2021, Weaver executed a Note in the principal amount of $50,000; (2)
on June 24, 2021, AGS executed a Note in the principal amount of $25,000;
and (3) on July 1, 2021, Woodley executed a Note in the principal amount of
$50,000. Each Note matured three years from the date of issuance, with annual
interest of twelve percent accruing until the Note was paid in full. The Notes
also included a Stock Purchase Warrant, giving the Investors an option to
purchase VoCare shares at two dollars per share up to the purchase price of the
1
The caption and body of the trial court’s order reflect “Scott A. Weaver” as the trustee of the “Scott A.
Weaver Revocable Trust.” App. Vol. II p. 12. The party name on the docket for this appeal and the case
below, see Cause No. 29D01-2406-CC-7062, reflect “Scott J. Weaver,” and we use the same.
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 2 of 13
Note, in lieu of payment. The Warrants expired upon maturity of the Notes,
and none of the Investors would exercise the option before maturity.
[3] On July 22, 2022, Weaver, Woodley, and the chairman of AGS, Alan Symons,
sued several of VoCare’s officers in the Marion County Commercial Court,
alleging breach of fiduciary duties (the Commercial Court Case). 2 Shortly after,
the Indiana Secretary of State Securities Division began investigating VoCare’s
securities transactions. On February 13, 2024, the Securities Commissioner
issued a cease-and-desist order against VoCare and several of its officers. The
order prohibited VoCare from “engaging in any act that violates the IUSA
[Indiana Uniform Securities Act], Rules, and the Commissioner’s
Administrative Orders, including but not limited to the offer or sale of
unregistered securities.” App. Vol. IV p. 208 (emphasis in original).
[4] Weaver’s and AGS’s Notes matured respectively on June 23 and 24, 2024. On
June 25, Weaver and AGS filed a complaint against VoCare in the Hamilton
Superior Court, alleging breach of contract for failure to pay the Notes. After
Woodley’s Note matured on July 1, the Investors amended their complaint to
add Woodley as a party. The Investors sought recovery of the principal
amounts of the Notes plus interest and all fees associated with collection.
2
This lawsuit, which is currently scheduled for a jury trial on November 16-20, 2026, is not the subject of this
appeal. See Cause No. 49D01-2207-PL-024690.
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 3 of 13 [5] On November 5, 2024, the Investors filed a motion for summary judgment. In
support of their motion, the Investors designated the Notes and sworn
declarations of debt from Weaver, Woodley, and Symons, on behalf of AGS.
On January 6, 2025, VoCare responded to the Investors’ summary judgment
motion. VoCare designated the Notes; several pleadings and orders from the
Commercial Court Case; the Securities Commissioner’s cease-and-desist order;
an affidavit of Mary Zappia, VoCare’s senior counsel; and demand letters
previously sent by the Investors. 3
[6] On September 4, 2025, following a hearing, the court granted the Investors’
motion for summary judgment. The trial court ordered VoCare to pay each
Investor the principal amount of the Notes plus interest accrued up to the date
of the order. The court also awarded reimbursement of all fees and costs
associated with enforcement of the Notes and post-judgment interest at a rate of
eight percent. See App. Vol. II pp. 12-13. VoCare now appeals.
Discussion and Decision
[7] VoCare contends the trial court erred by granting summary judgment in favor
of the Investors. “We review summary judgment de novo, applying the same
standard as the trial court[.]” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).
“The moving party bears the initial burden of making a prima facie showing
3
The demand letters are dated May 9, 2024, and reflect the Investors’ notice of acceleration and demand for
payment due to VoCare’s breach. VoCare contends it never received the letters. Nevertheless, the Investors
pursued damages from the date of maturity of the Notes, not from the acceleration dates.
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 4 of 13
that there are no genuine issues of material fact and that it is entitled to
judgment as a matter of law.” Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013)
(internal quotations and citation omitted). “Summary judgment is improper if
the moving party fails to carry its burden, but if it succeeds, then the nonmoving party must come forward with evidence establishing the existence of a
genuine issue of material fact.” Id. Where “the designated evidentiary matter
shows that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law[,]” summary judgment is
proper. Ind. Trial Rule 56(C). “A fact is ‘material’ if its resolution would affect
the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to
resolve the parties’ differing accounts of the truth, or if the undisputed material
facts support conflicting reasonable inferences.” Hughley, 15 N.E.3d at 1003.
[8] We construe all factual inferences in favor of the nonmoving party and resolve
all doubts as to the existence of a material issue against the moving party.
Manley, 992 N.E.2d at 673. Our review of a summary judgment is limited to
those materials designated to the trial court. Id. “In reviewing a trial court’s
ruling on a motion for summary judgment, we may affirm on any grounds
supported by the Indiana Trial Rule 56 materials.” Flannagan v. Lakeview Loan
Servicing, LLC, 184 N.E.3d 691, 695-96 (Ind. Ct. App. 2022) (citation omitted).
[9] To prevail on their motion for summary judgment on their breach of contract
claim, the Investors needed to prove the existence of a contract, breach thereof,
and damages. Berg v. Berg, 170 N.E.3d 224, 231 (Ind. 2021) (providing the
elements of a breach of contract). Because the Investors’ designated evidence
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 5 of 13
established the existence of the Notes, VoCare’s breach by non-payment, and
the resulting damages, the Investors made a prima facie showing that they were
entitled to judgment. Thus, the burden shifted to VoCare to come forward with
evidence establishing a genuine issue of material fact.
I. Illegality Defense
[10] On appeal, VoCare contends the Notes are negotiable instruments subject to the
UCC and argues the Notes were sold as unregistered securities “in violation of
the law.” Appellant’s Br. p. 15. VoCare thus asserts its obligation to pay the
Notes “is nullified” by the illegality defense under Section 3-305 of the Uniform
Commercial Code (UCC), codified at Indiana Code section 26-1-3.1-305(a)(1)(B), and, as such, summary judgment was erroneous. Id. at 19. The
Investors argue that VoCare advances this issue for the first time on appeal, and
it is waived.
[11] In its reply brief, VoCare does not deny that it did not assert a UCC defense
before the trial court. Instead, VoCare asserts that the Investors have been on
notice about the enforceability of the Notes “since they purchased their
respective Notes” and since the Indiana Secretary of State “charged that
VoCare violated securities laws[.]” Appellant’s Reply Br. pp. 8, 9. VoCare
further contends the Investors had sufficient notice of its void-under-the-UCC
argument because it “intersects with its argument to the trial court that the
Notes are void because of Investors’ role in purchasing Notes with knowledge
that the unregistered securities were noncompliant” with the Indiana Uniform
Securities Act (IUSA). Id. at 10. We agree with the Investors.
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 6 of 13 [12] “Waiver is a threshold issue because generally a party is precluded from
presenting an argument or issue to Indiana appellate courts unless the party first
raised that argument or issue to the trial court.” Thalheimer v. Halum, 973
N.E.2d 1145, 1150 (Ind. Ct. App. 2012).
This rule exists because trial courts have the authority to hear
and weigh the evidence, to judge the credibility of witnesses, to
apply the law to the facts found, and to decide questions raised
by the parties. Appellate courts, on the other hand, have the
authority to review questions of law and to judge the sufficiency
of the evidence supporting a decision. The rule of waiver in part
protects the integrity of the trial court; it cannot be found to have
erred as to an issue or argument that it never had an opportunity
to consider. Conversely, an intermediate court of appeals, for the
most part, is not the forum for the initial decisions in a case.
Consequently, an argument or issue not presented to the trial
court is generally waived for appellate review.
Id. (quoting GKC Ind. Theatres, Inc. v. Elk Retail Investors, LLC, 764 N.E.2d 647,
651 (Ind. Ct. App. 2002) (citations omitted)).
[13] We disagree with VoCare’s contention that its UCC argument intersects with
its arguments below sufficiently enough to put the Investors on notice. Below,
VoCare argued that the Investors breached the Notes first because they “failed
to accurately represent and warrant their knowledge of VoCare.” App. Vol. IV
p. 9. VoCare claimed the Investors either knew that VoCare did not file
appropriate securities exemption forms or they failed to diligently discover the
same; thus, VoCare claimed the Investors made fraudulent representations
about its knowledge of VoCare, voiding the contracts. See id.
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 7 of 13 [14] The UCC argument VoCare now advances rests on a different legal theory. The
UCC provides that the “right to enforce the obligation of a party to pay an
instrument is subject to . . . a defense of the obligor based on . . . illegality of the
transaction which, under other law, nullifies the obligation of the obligor[.]”
Ind. Code § 26-1-3.1-305(a)(1)(B) (2010). It is apparent from the record that
VoCare did not explicitly raise this defense below, either in its answer to the
Investors’ complaint, see App. Vol. II p. 192, or in opposition to the Investors’
motion for summary judgment, see App. Vol. VI pp. 2-11.
[15] Moreover, the UCC theory would have required assertion of additional facts to
support several legal conclusions, including that the Notes were negotiable
instruments subject to Indiana Code chapter 26-1-3.1, that the Notes were
indeed illegal under some other law, and that such illegality nullified VoCare’s
obligation to pay the Notes. As to the underlying theory of illegality, VoCare
partly re-asserts that the Investors should have known the Notes violated
securities laws. But VoCare’s argument now rests on its assertion that “the
Notes were sold to Investors—as has been alleged by the Securities Division—
in violation of the law” and “the absence of strict compliance with [securities]
exemption requirements nullifies the transaction[.]” Appellant’s Br. pp. 15, 16.
In other words, VoCare’s theory on appeal is that its sale of the Notes was itself
non-compliant with the IUSA, not merely that the Investors’ actions
contributed to the IUSA violation.
[16] In sum, VoCare’s UCC defense not only requires proof of additional elements,
but its underlying theory about why the Notes were void and illegal is different
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 8 of 13
from the argument it raised below. Thus, its new argument goes beyond a mere
citation to a different statute which rests on the same legal elements and
provides the same relief. Cf. Collins Asset Grp., LLC v. Alialy, 139 N.E.3d 712
(Ind. 2020) (holding appellant’s argument about timeliness of complaint was
not waived where it cited one statute of limitations before the trial court and a
different statute with the same limitations period on appeal (citing Moryl v.
Ransone, 4 N.E.3d 1133 (Ind. 2014) (no waiver where the newly cited statute
addressed the same timeliness issue already before the court))). Accordingly, the
Investors were not on notice of this argument, and the trial court had no
opportunity to apply the UCC provisions to the designated evidence to
determine whether this issue precluded summary judgment. See Thalheimer, 973
N.E.2d at 1150. VoCare has waived the UCC issue by raising it for the first
time on appeal. See id.
[17] Even if we set aside VoCare’s waiver—which we do not—VoCare’s argument
would fail on the merits. The argument operates on two assumptions: 1) that
the Notes are negotiable instruments subject to Indiana Code chapter 26-1-3.1;
and 2) that the Notes are void and unenforceable because they violate the IUSA
(i.e., that they were illegally entered under a law other than the UCC). It is
unlikely that VoCare could present a genuine issue of material fact as to the
latter.
[18] The official comments to the UCC provide that “[i]llegality is most frequently a
matter of gambling or usury, but may arise in other forms under a variety of
statutes” as governed by local law. U.C.C. § 3-305 official cmt. 1 (2022). The
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 9 of 13
defense may be asserted against an instrument holder only if, under local law,
the effect of illegality is to make the obligation entirely null and void. Id. But
Indiana law has protected the holder’s enforceability of a note issued in
violation of securities laws for nearly a century. See Ind. Code § 23-19-5-9(a)
(2013) (creating a cause of action for a purchaser of a security, where said
security sale violated the IUSA, unless the purchaser knowingly participated in
the violation); e.g., Reinhart v. Boeck, 918 N.E.2d 382, 400-01 (Ind. Ct. App.
2009) (affirming summary judgment in favor of a holder of unregistered
securities that were sold in violation of the IUSA); Hill v. Campbell, 169 N.E.
865, 868 (Ind. Ct. App. 1930) (holding that a note given in security in violation
of the “Blue Sky Law” of 1920 was not void and might be enforced by a holder
in due course). Thus, the effect of VoCare’s issuance of the Notes in violation of
the IUSA did not automatically render them null and void. As such, the UCC
illegality defense would likely have been unavailable to VoCare had it argued
the issue before the trial court.
II. Impossibility of Performance
[19] VoCare also argues its repayment of the Notes became “impossible or
impractical” and is, thus, excused. Appellant’s Br. p. 20. Initially, the Investors
note that VoCare fails to support its argument with relevant authority and does
not even provide the essential elements of the impossibility doctrine. We agree
and further note VoCare’s attempt to argue impossibility as a defense under the
UCC. See id. at 20. Again, VoCare did not raise any defense under the UCC
below, and any argument based thereon is waived. VoCare also failed to raise
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 10 of 13
impossibility as a defense in its answer to the Investors’ complaint. See App.
Vol. II p. 192. However, VoCare argued common law impossibility in
opposition to the Investors’ motion for summary judgment and set forth the
appropriate analysis in its reply brief; as such, this issue is sufficiently preserved
for our review.
[20] Impossibility is an affirmative defense and “has been defined as ‘where the
performance of a contract becomes impossible, non-performance is excused,
and no damages can be recovered.’” Wagler v. West Boggs Sewer Dist., Inc., 980
N.E.2d 363, 378 (Ind. Ct. App. 2012) (quoting Dove v. Rose Acre Farms, Inc., 434
N.E.2d 931, 935-36 (Ind. Ct. App. 1982)), trans. denied, cert. denied. “To invoke
impossibility, one must demonstrate that performance is not merely difficult or
relatively impossible, but absolutely impossible, owing to the act of God, the act
of the law, or the loss or destruction of the subject-matter of the contract.” Id.
(quotations and citations omitted). The circumstances creating the impossibility
must have been “presumably unapprehended” and unpreventable by the
obligor. Ross Clinic, Inc. v. Tabion, 419 N.E.2d 219, 223 (Ind. Ct. App. 1981).
[21] The only evidence VoCare put forth regarding its alleged impossibility was
senior counsel Mary Zappia’s affidavit. There, she stated:
14. The Cease-and-Desist Order prohibits VoCare from offering
any securities for sale, making it impossible for VoCare to raise
additional capital.
***
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 11 of 13
16. The Cease-and-Desist Order, along with the Securities
Division investigation have resulted in challenges for VoCare’s
business and its ability to make a profit in its ordinary course of
business.
17. The Commercial Court Lawsuit and the Securities Division’s
actions, both of which originate with the Plaintiffs, have taken up
much of VoCare’s time and have been detrimental to business.
App. Vol. IV pp. 183-84.
[22] On appeal, VoCare argues these difficulties, especially the cease-and-desist
order, created an impossibility by an “act of law[.]” Appellant’s Br. p. 17.
VoCare points to no authority demonstrating that such an order is the type of
act of law contemplated by the impossibility doctrine, and we find none.
Moreover, the cease-and-desist order prevents VoCare from “engaging in any
act that violates the IUSA, Rules, and the Commissioner’s Administrative
Orders, including but not limited to the offer or sale of unregistered securities.”
App. Vol. IV p. 208 (emphasis in original). VoCare has not provided any
evidence that an act of the law restricted its ability to engage in other
fundraising actions, particularly those that comply with the IUSA.
[23] In addition, VoCare fails to provide authority supporting its proposition that
financial difficulties are the sort of events giving rise to impossibility. To the
contrary, courts have observed that financial difficulties do not invoke
impossibility. See Hoosier Energy Rural Elec. Co-op, Inc. v. John Hancock Life Ins.
Co., 582 F.3d 721, 728 (7th Cir. 2009) (observing the impossibility doctrine
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 12 of 13
differs from financial distress and never justifies failure to make a payment
(citing Restatement (Second) of Contracts § 261 & cmt. d)). And VoCare does
not allege its impossibility arose from an act of God or the loss or destruction of
the subject-matter of the contract.
[24] VoCare has failed to present evidence demonstrating impossibility of
performance. Because VoCare failed to raise a genuine issue of material fact,
we affirm the trial court’s entry of summary judgment in favor of the Investors.
[25] Affirmed.
Bailey, J., and Vaidik, J., concur.
ATTORNEYS FOR APPELLANT
Katherine M. Haire
Anthony L. Holton
Reminger Co., L.P.A.
Indianapolis, Indiana
Joseph S. Simms
Reminger Co., L.P.A.
Cleveland, Ohio
ATTORNEYS FOR APPELLEE
Jonathan D. Mattingly
Jeffrey N. Furminger
Mattingly Burke Cohen & Biederman LLP
Indianapolis, Indiana
Court of Appeals of Indiana Opinion 25A-CC-2413 July 14, 2026 Page 13 of 13