Vocare, Inc. v. AGS Capital, LLC

Opinion

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 non-

moving 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