FOR PUBLICATION
ATTORNEYS FOR APPELLANT:                ATTORNEYS FOR APPELLEES:

DENNIS F. CANTRELL                      JULIA BLACKWELL GELINAS
Cantrell Strenski & Mehringer LLP       MAGGIE L. SMITH
Indianapolis, Indiana                   Frost Brown Todd LLC
                                        Indianapolis, Indiana
DOUGLAS D. CHURCH
Church Church Hittle & Antrim           WILLIAM N. RILEY
Noblesville, Indiana                    JOSEPH N. WILLIAMS
                                        Price Waicukauski & Riley LLC
KARL L. MULVANEY                        Indianapolis, Indiana
NANA QUAY-SMITH
BRIANA L. CLARK                         J. MARK McKINZIE
Bingham Greenebaum Doll LLP             Riley Bennett & Egloff LLP
Indianapolis, Indiana                   Indianapolis, Indiana

SHEILA L. BIRNBAUM
DOUGLAS W. DUNHAM
ELLEN P. QUACKENBOS                                        Sep 16 2014, 8:59 am
Quinn Emanuel Urquhart & Sullivan LLP
New York, New York


                            IN THE
                  COURT OF APPEALS OF INDIANA

STATE FARM FIRE & CASUALTY COMPANY, )
                                    )
       Appellant-Plaintiff/         )
       Counterclaim/Defendant,      )
                                    )
              vs.                   )         No. 29A04-1311-CT-542
                                    )
JOSEPH MARTIN RADCLIFF and          )
COASTAL PROPERTY MANAGEMENT, LLC, )
a/k/a CPM CONSTRUCTION OF INDIANA,  )
                                    )
       Appellees-Defendants/        )
       Counterclaimants.            )


                 APPEAL FROM THE HAMILTON SUPERIOR COURT
                            The Honorable Steven R. Nation, Judge
                              Cause No. 29D01-0810-CT-1281


                                      September 16, 2014

                              OPINION - FOR PUBLICATION

RILEY, Judge

                                STATEMENT OF THE CASE

       Appellant-Plaintiff/Counterclaimant-Defendant, State Farm Fire & Casualty

Company (State Farm), appeals the trial court’s denial of its Trial Rule 60(B) Motion,

which rejected its request for relief on the limited issue of defamation after a jury

awarded 14.5 million dollars to Appellees-Defendants/Counterclaimants-Plaintiffs,

Joseph Martin Radcliff (Radcliff) and Coastal Property Management LLC, a/k/a/ CPM

Construction of Indiana (CPM).1

       We affirm.

                                            ISSUES

       State Farm raises four issues which we restate as the following three issues:

    (1) Characterizing its T.R. 60(B) Motion as solely a T.R. 60(B)(3) motion based on

       fraud on the court, State Farm asserts that the trial court abused its discretion by

       interpreting State Farm’s T.R. 60(B) Motion as a T.R. 60(B)(2) motion based on

       newly discovered evidence and applying T.R. 60(B)(2)’s due diligence

       requirement to its T.R. 60(B)(3) Motion;



1
 We conducted oral argument in this cause on August 20, 2014 at the Indiana Court of Appeals
Courtroom in Indianapolis, Indiana. We thank counsel for their excellent presentation and advocacy.


                                                2
   (2) Whether the trial court abused its discretion by denying State Farm’s T.R. 60(B)

      Motion as a matter of law; and

   (3) Whether the trial court abused its discretion in denying State Farm to engage in

      further protracted discovery pursuant to T.R. 60(D) and in ruling on the T.R.

      60(B) Motion without an evidentiary hearing when Radcliff elected to respond to

      State Farm’s T.R. 60(B) Motion on legal grounds as opposed to factual grounds

      and therefore no further pertinent evidence would be needed to aid the trial court

      in its ruling.

                       FACTS AND PROCEDURAL HISTORY

      On June 29, 2011, a Hamilton County jury awarded Radcliff $14.5 million, the

largest defamation verdict in Indiana history. Before us is the second appeal involving

Radcliff’s defamation counterclaim against State Farm arising from the Good Friday

2006 hailstorm.

      On Good Friday, April 14, 2006, central Indiana suffered a large hailstorm that

caused millions of dollars in property damage, generating almost 50,000 State Farm

claims. Most of its policyholders’ claims were denied by State Farm, even though other

insurance companies were paying similar claims. Radcliff and his company, CPM,

offered to help the State Farm policyholders. Amid a flurry of bad publicity about State

Farm’s claims response which, in part, was generated by Radcliff, State Farm launched

an insurance-fraud investigation into Radcliff and CPM.       Radcliff was arrested on

fourteen felony counts, but the charges were eventually dismissed pursuant to a diversion

agreement with the State. State Farm then sued Radcliff for fraud and racketeering;


                                           3
Radcliff and CPM counterclaimed for, among other things, defamation.                            In the

underlying defamation proceeding, Radcliff and CPM asserted that State Farm had

defamed them by: (1) sending information to the National Insurance Crime Bureau

(NICB)2 which alleged that Radcliff and/or CPM had engaged in criminal conduct and (2)

reviewing the accuracy of the probable cause affidavit which was the basis of the State’s

Information of fourteen felonies and one misdemeanor. See State Farm Fire & Cas. Co.

v. Radcliff, 987 N.E.2d 121, 137 (Ind. Ct. App. 2013), reh’g denied, trans. denied (State

Farm I).

        Following a nearly six-week-long jury trial in which more than forty witnesses

testified, a jury returned a $14.5 million verdict in favor of Radcliff and CPM on their

defamation counterclaim. State Farm filed a motion to correct error in which it argued

that (1) it was entitled to judgment on the evidence on the defamation claim, (2) it was

entitled to a new trial under the “thirteenth juror” rule, and (3) the damage award was

excessive. See id. at 136-37. The trial court denied the motion in its entirety. See id. at

137.

        State Farm appealed. Documents filed in the appeal include twenty volumes of

trial transcripts, more than fifteen volumes of exhibits, twelve volumes of appellant’s

appendix, ten claims notebooks, and other materials. During the appellate briefing stage,

State Farm filed a Verified Motion for Limited Remand under Appellate Rule 37 in order



2
  The NICB is a not-for-profit organization that acts as a liaison between insurers and law enforcement.
State Farm I, 987 N.E.2d at 132. It screens suspicious claims referred by insurers to determine whether
they warrant submission to law enforcement. Id. At the time of State Farm I, State Farm was a member
of the NICB and one of its largest financial contributors. See id.


                                                   4
to be allowed to file a Trial Rule 60(B) motion because it had “received a sworn

statement leading it to believe that fraud was used to obtain the $14.5 million defamation

judgment against State Farm and in favor of [CPM].” Id. On July 13, 2012, the motions

panel, in a 2-1 decision, denied State Farm’s Appellate Rule 37 motion. See id.

        In its first appeal, State Farm brought three issues, alleging that: (1) it was entitled

to judgment on Radcliff’s defamation counterclaim pursuant to two defenses: the public

interest privilege for crime reporting and statutory immunity; (2) Radcliff failed to prove

actual malice by clear and convincing evidence; and (3) it was entitled to a new trial on

damages. Finding that the evidence was sufficient to support Radcliff’s and CPM’s claim

that, as limited-purpose public figures, they had proven by clear and convincing evidence

that State Farm’s statements were made with actual malice3 and finding that State Farm

had no applicable defenses, we affirmed the trial court. See id. at 148-51.

        With respect to State Farm’s Claim for Alternate Relief pursuant to its Verified

Motion for Limited Remand, we held as follows:

        State Farm makes a request for alternative relief in its reply brief. Because
        State Farm makes this request for the first time in its reply brief, the issue is
        waived.

        Waiver notwithstanding, State Farm asks us to overrule the motions panel’s
        decision and grant its Verified Motion of Limited Remand under Appellate
        Rule 37. State Farm argues that is motion presented compelling evidence
        of fraud on the court and this case should be remanded under Logal v.
        Cruse, 368 N.E.2d 235 (Ind. 1977). That is, State Farm claims that there is
        newly discovered evidence from a former CPM employee, Myisha


3
  In order to establish actual malice, Radcliff and CPM were required to prove by clear and convincing
evidence that the speaker “‘entertained serious doubts as to the truth of his publication’ or acted with a
‘high degree of awareness of [his statement’s] probable falsity.’” State Farm I, 987 N.E.2d at 148.


                                                    5
      Richards, alleging again that Radcliff committed fraud—this time, they
      claim, on the court.

      The record shows however, that State Farm was scheduled to depose
      Richards in November 2009, but the deposition was canceled and never
      rescheduled. In addition, Richards contacted State Farm about the alleged
      fraud before State Farm filed its motion to correct error[], yet State Farm
      did not include this information in its motion to correct error[]. Based on
      these facts, we will not overrule the motions panel’s ruling.

Id. at 155. After our supreme court denied transfer, the case was remanded to the trial

court for further proceedings on State Farm’s Trial Rule 60(B) Motion.

      In its Verified Motion for Relief From Judgment Pursuant to Trial Rule 60(B),

State Farm contended that it had located two ex-employees fired by Radcliff— Myisha

Richards (Richards) and Charles Mulligan (Mulligan)—who suggested that the

defamation judgment “may have been procured by fraud[.]” (Appellant’s App. p. 1579).

Because “the newly discovered evidence establishes fraud on the court,” State Farm

maintained that new “discovery, [a] hearing and [a] new trial are required.” (Appellant’s

App. p. 1601).

      On November 5, 2013, the trial court issued its Order, denying State Farm’s

Motion and ordering the jury award to be distributed. On November 13, 2013, State

Farm filed an emergency motion to stay execution on judgment pending appeal with this

court, which was unanimously denied the same day. Two days later, on November 15,

2013, State Farm sought emergency relief from our supreme court “to obtain an

immediate stay of disbursement order.” (Appellees’ App. p. 94). On November 27,

2013, the supreme court unanimously denied the request. On December 2, 2013, the trial




                                           6
court distributed the jury’s award of $14.5 million, plus an additional amount in interest,

to Radcliff.

       State Farm now appeals the trial court’s denial of its Motion for Relief based on

T.R. 60(B). Additional facts will provided as necessary.

                              DISCUSSION AND DECISION

       State Farm presents this court with three overarching procedural issues arising

from the trial court’s denial of its T.R. 60(B) Motion. In essence, State Farm requests

this court to grant relief from the defamation judgment in “light of the evidence that has

been discovered that the judgment in this case may have been provided by fraud.”

(Appellant’s App. p. 1579).

                                    I. Standard of Review

       A grant of equitable relief under Indiana Trial Rule 60(B) is within the discretion

of the trial court. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind. 2002). In reviewing a

T.R. 60(B) motion, “the trial court must weigh the alleged inequity that would result from

allowing a judgment to stand against the interest of the prevailing party in its judgment,

as well as those of society at large in the finality of litigation in general. Dumont v.

Davis, 992 N.E.2d 795, 805 (Ind. Ct. App. 2013). Accordingly, we review a trial court’s

ruling on T.R. 60(B) motions for an abuse of discretion. See id. Thus, we will reverse

the judgment only if it goes against the logic and effect of the facts or the trial court has

misinterpreted the law. Hartig v. Stratman, 760 N.E.2d 668, 671 (Ind. Ct. App. 2002).

                              II. T.R. 60(B)(2) vs. T.R. 60(B)(3)

                                          A. Waiver


                                              7
       Prior to turning to State Farm’s procedural arguments, we must first address the

waiver argument raised by Radcliff. In the first evaluation of State Farm’s Motion, the

court of appeals in State Farm I appeared to treat the T.R. 60(B) Motion as a motion

brought under T.R. 60(B)(2), as it alluded to “newly discovered evidence.” State Farm I,

987 N.E.2d at 155. Moreover, stronger support for the court’s treatment of the motion

pursuant to T.R. 60(B)(2) is found in the court’s statement that State Farm could have

included this new information in its motion to correct error. See id. Upon remand, the

trial court apparently followed the path suggested in State Farm I and appeared to treat

State Farm’s Motion as a Motion pursuant to T.R.60(B)(2). Relying on the trial court’s

Order, Radcliff now contends that State Farm’s argument is no longer available for our

review because the factual findings made in State Farm I operate as a bar to State Farm’s

requested relief pursuant to the law of the case doctrine.

       The law of the case doctrine provides that an appellate court’s determination of a

legal issue binds both the trial court and the court on appeal in any subsequent appeal

involving the same case and substantially the same facts. Luhnow v. Horn, 760 N.E.2d

621, 625 (Ind. Ct. App. 2001). The purpose of the doctrine is to minimize unnecessary

relitigation of legal issues once they have been resolved by an appellate court. Id.

Accordingly, under the law of the case doctrine, relitigation is barred for all issues

decided “directly or by implication in a prior decision.” Id.

       Focusing on the “waiver notwithstanding” language of State Farm I, Radcliff

asserts that because the appellate court already decided State Farm’s motion for alternate

relief, it is precluded from raising this issue again.           However, the ‘waiver


                                              8
notwithstanding’ part of our appellate decision is dicta, which is not binding and,

therefore, cannot establish the law of the case. In Dutchmen Mfg., Inc. v. Reynolds, 891

N.E.2d 1074, 1083 (Ind. Ct. App. 2008), we noted that “statements that are not necessary

in the determination of the issues presented are dicta, are not binding, and do not become

the law of the case.” We next turn to State Farm’s substantive arguments.

                                 B. T.R. 60(B)(3) Motion

       State Farm first contends that the trial court abused its discretion by characterizing

its Motion for Relief from Judgment as a T.R. 60(B)(2) motion based on new evidence

while its Motion clearly invoked the parameters of T.R. 60(B)(3), fraud on the court.

Alleging that both subsections of the rule have substantially different standards, State

Farm maintains that the trial court erred by applying the ‘due diligence’ requirement of

subsection 2 to the fraud provision of subsection 3.

       Indiana Trial Rule 60(B) provides that

       On motion and upon such terms as are just the court may relieve a party or
       his legal representative from a judgment, including a judgment by default,
       for the following reasons:

       ***

              (2) any ground for a motion to correct error, including without
              limitation newly discovered evidence, which by due diligence could
              not have been discovered in time to move for a motion to correct
              error under Rule 59;

              (3) fraud (whether heretofore denominated intrinsic or extrinsic),
              misrepresentation, or other misconduct of an adverse party[.]

***




                                             9
      The motion shall be filed . . . not more than one year after the judgment,
      order or proceeding was entered or taken . . . and must allege a meritorious
      claim or defense.

      Thus, when a new trial is sought based on newly-discovered evidence pursuant to

Indiana Trial Rule 60(B)(2), the appellant must show, among other things, that the

evidence could not have been discovered before trial by the exercise of due diligence.

Hartig v. Stratman, 760 N.E.2d 668, 671 (Ind. Ct. App. 2002), trans. denied. A bare

assertion that reasonable diligence has been used is insufficient to show due diligence;

the appellant must set out facts showing due diligence has been exercised. Id. Moreover,

a finding of due diligence does not rest upon abstract conclusions about, or assertions of,

its exercise but upon a particularized showing that all the methods of discovery

reasonably available to counsel were used and could not uncover the newly-found

evidence. Id. It has been long recognized that a litigant is obliged “to search for

evidence in the place where, from the nature of the controversy, it would be most likely

to be found.” Id.

      On the other hand, T.R. 60(B) provides three distinct ways to attack a judgment

based on fraud on the court. The first method—pursued by State Farm—is by way of a

motion filed under T.R. 60(B)(3). Such a motion may be grounded in any kind of

fraud—albeit intrinsic, extrinsic, or fraud on the court—so long as it is chargeable to an

adverse party and has an adverse effect on the moving party. Shepherd v. Truex, 823

N.E.2d 320, 325 (Ind. Ct. App. 2005), reh’g denied.           The second method is an

independent action for fraud on the court pursuant to the savings clause of T.R. 60(B),

which provides that this rule does not limit the power of a court to entertain an


                                            10
independent action to relieve a party from a judgment, order or proceeding for fraud upon

the court. Id. The third method, which also arises out of the savings clause, invokes the

inherent power of a court to set aside its judgment if procured by fraud on the court. Id.

       Regardless of which procedural avenue a party selects to assert a claim of fraud on

the court, the party must establish that an unconscionable plan or scheme was used to

improperly influence the court’s decision and that such acts prevented the losing party

from fully and fairly presenting its case or defense. Id. Fraud on the court has been

narrowly applied and is limited to the most egregious of circumstances involving the

courts. Id. Further, to prove fraud on the court, it is not enough to show a possibility that

the trial court was misled; rather, there must be a showing that the trial court’s decision

was actually influenced. Id. (emphasis added).

       In addition to their individual requirements, both subsections of T.R. 60(B) also

mandate the establishment of a meritorious claim or defense. This requires a showing

that vacating the judgment will not be an empty exercise. Outback Steakhouse of Fla.,

Inc. v. Markley, 856 N.E.2d 65, 73 (Ind. 2006).

       Here, the record is muddled as to which procedural avenue—T.R. 60(B)(2) or T.R.

60(B)(3)—State Farm selected for its Motion. While in its Verified Motion State, Farm

refers to its petition as being brought pursuant to the general provision of T.R. 60(B);

throughout its Motion, it frequently alludes to the narrower subsection of “new evidence”

as well as presents us with numerous references to “fraud” allegations.

(Appellant’s App. p. 1583).

                              C. Due Diligence Requirement


                                             11
       While we agree with State Farm that the fraud provision of T.R. 60(B)(3) does not

include the explicit due diligence requirement of T.R. 60(B)(2), this is merely the

beginning of our inquiry. First, it should be noted that the general preamble of the Rule

calls for judicial relief “upon such terms as are just.” See T.R. 60(B). Furthermore, when

applying the ‘ability to fully and fairly prepare the case’ requirement of T.R. 60(B)(3)

motions, federal courts4 refuse to vacate a judgment based on allegations of fraud if the

evidence (1) could have been obtained by the movant before the verdict had the movant

used reasonable diligence; (2) is immaterial or merely conflicts with other evidence; (3)

is inadmissible or merely impeaching; or (4) if the evidence is cumulative of other

evidence. See, e.g., Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d 33, 41 (1st Cir. 2013)

(“[T]he plaintiff has made no showing that any misconduct of the defendants’ counsel

inhibited her from fully and fairly preparing her case. It is transparently clear that,

regardless of what defense counsel may or may not have done, the plaintiff has at her

fingertips the records that would have laid bare what she now asserts to be the true facts.

[] [H]er pursuit of the truth was not hampered by anything except her own reluctance to

undertake an assiduous investigation.”).

       Albeit not explicitly, these federal requirements have been applied in Indiana case

law before. In Shepherd, 823 N.E.2d at 327, we denied relief based on T.R. 60(B)(3)

because “Shepherd had the opportunity, yet failed, to challenge the alleged perjurous

affidavits by designating the witnesses’ statements and the guilty plea—which were

4
  Because Indiana’s Rule 60(B)(3) is worded identically to Federal Rule 60(b)(3), “Indiana courts
routinely look to both Indiana and federal authority to interpret Indiana Rule 60(B)(3).” Outback
Steakhouse of Fla., 856 N.E.2d at 72.


                                               12
known to him at the time of the original action.” Likewise, in Cleveland v. Clarian

Health Partners, Inc., 976 N.E.2d 748 (Ind. Ct. App. 2012), the court specifically noted

the movant’s lack of expediency or diligence: “Dr. Choi’s deposition testimony was

nearly seven years old, and Cleveland did not seek a second, updated deposition or

propound interrogatories or requests for admissions. Neither did she request to voir dire

Dr. Choi outside the presence of the jury, otherwise attempt to explore the circumstances

of the purported change in testimony, or move for a mistrial.” Id. at 759. In Glover v.

Torrence, 723 N.E.2d 924, 933 (Ind. Ct. App. 2000), we cited with approval “49 C.J.S.

Judgments § 468 at 633-34” which stated that “ordinarily, relief on the ground of fraud

cannot be predicated on matters or issues which actually were, or which with due

diligence, could have been presented and adjudicated in the original proceedings.”

       Even though State Farm mentions Freels v. Winston, 579 N.E.2d 132 (Ind. Ct.

App. 1991), in which this court specifically noted that “[t]he court’s judgment can be

sustained on the basis of misrepresentation which does not require a showing of due

diligence,” Freels also recognized the existence of contrary case law by referencing “but

cf. McFarland, Lantz v. Phend & Brown, Inc. et al., 317 N.E.2d 460, 462-63 (Ind. Ct.

App. 1974) (in affirming the trial court’s denial of relief, [the c]ourt based its decision on

finding that affiant’s statements were not false, yet, in dicta [the c]ourt also noted that the

evidence disclosing possible misrepresentation was not new and had been available from

the beginning of the case).”

       Whereas T.R. 60(B)(2) incorporates the due diligence requirement explicitly into

its language, we find that the Rule’s subsection (3) is not completely without an


                                              13
obligation for the movant. The mandate incorporated into T.R. 60(B)(3) that the non-

movant must have prevented the movant from “fully and fairly presenting its case or

defense” implicitly requires a movant to act expeditiously and diligently during the

proceedings. If no diligence must be used, then the finality of judgments is nonexistent

as the movant might wait until the verdict to see if he or she should raise a fraud claim

and, as such, this would effectively give litigants a second bite of the apple. Even though

this diligence requirement is less strict than the explicit due diligence requirement of T.R.

60(B)(2), courts, within the exercise of their discretionary power, can take into account

the totality of the circumstances, as proposed in its federal counterpart, and order relief

“upon such terms as are just.” See T.R. 60(B). With these parameters in mind, we now

turn to State Farm’s T.R. 60(B) Motion.5

                          III. Denial of State Farm’s T.R. 60(B) Motion

        Turning to the main focus of this appeal, State Farm contends that because it

presented sufficient evidence of fraud committed by Radcliff before and during the trial,

the trial court erred when it denied its T.R. 60(B)(3) Motion. In support of its Motion,

State Farm alludes to the sworn testimony by Richards and Mulligan, both former

employees of Radcliff and/or CPM and both fired by Radcliff.



5
  State Farm contends in its appellate brief that the trial court characterized and interpreted its T.R. 60(B)
Motion as a T.R. 60(B)(2) based on newly discovered evidence rather than as a T.R.60(B)(3) motion
based on fraud on the court. Although the trial court’s Order references T.R.60(B)(2), the Order also
indicates the cumulativeness of what State Farm now alludes to as evidence supporting its fraud claim.
Specifically, the trial court mentioned that State Farm was offered the opportunity to depose Richards,
Mulligan’s affidavit is barred by the motion in limine, and State Farm was in possession of Radcliff’s
Maryland conviction. Reading the trial court’s Order in light of our interpretation of T.R. 60(B)(3), the
trial court properly reviewed State Farm’s T.R. 60(B) Motion.


                                                     14
       In her affidavit, Richards affirmed that she noticed Radcliff intentionally shred

documents after his Indiana arrest for insurance fraud in 2008 and that he paid Christine

Sears, a former office manager, to “keep quiet.” (Appellant’s Br. p. 28). Mulligan

asserted that he had observed Radcliff create simulated hail damage on a homeowner’s

downspout and heard him talk about damaging an insured’s roof. In addition, State Farm

argues that during his deposition Radcliff misrepresented his criminal record and omitted

relevant information as to his October 2009 domestic violence arrest.

       State Farm contends that due to Radcliff’s fraudulent actions, State Farm was

prevented from fully and fairly presenting its claims and defenses. Focusing on the

defamation action, State Farm claims that by testifying at trial that he did not and would

never engage in insurance fraud, Radcliff squarely placed his own truthfulness on the

line. Thus, State Farm maintains that Radcliff was able to successfully convince the jury

that State Farm’s own communications were false by not disclosing this fraudulent

conduct.

       Radcliff’s response focuses on the nature of the evidence, asserting that this

perceived ‘new’ evidence referenced by State Farm is not all that new and was readily

available to State Farm prior to trial. Therefore, as it was available—and in some

instances already in State Farm’s possession—State Farm was able to fully and fairly

litigate the issues under T.R. 60(B)(3).

                         A. Richards (Radcliff’s Office Manager)

       Radcliff’s main argument with respect to Richards relates to her availability to be

deposed by State Farm. Radcliff points out that Richards claims to have learned of the


                                           15
alleged fraudulent schemes in the spring and summer of 2009 in her capacity as

Radcliff’s office manager. State Farm was scheduled to take Richards’ deposition on

November 14, 2009—after Richards had acquired this alleged knowledge. However, on

November 12, 2009, Radcliff’s counsel informed State Farm that the scheduled

deposition of Richards and Shannon Seale (Radcliff’s wife) could not occur due to a

“family emergency.” (Appellant’s App. p. 2439). Radcliff’s counsel proposed and

offered to reschedule both depositions for December 5, 2009.                       Although Seale’s

deposition was rescheduled, State Farm never followed up nor rescheduled Richards’

deposition in the ensuing sixteen months leading up to trial. Regardless, Richards was

listed as a fact witness and was a central figure throughout discovery.

        Accordingly, not only was Richards known to State Farm, Radcliff practically

begged State Farm to take her deposition, to no avail. Considering that Richards was in a

managerial position during the period that the allegations took place, one would have

expected State Farm to have obtained her deposition. State Farm’s failure to depose

Richards in a timely fashion prior to trial when it was aware of her existence and had

been offered her presence at a deposition, is no one’s fault but its own.6 “Their effort to

pass the buck is a technique as old as time, . . . , but its efficacy as a basis for relief has

not improved with age.” Nansamba, 727 F.3d at 41. Given State Farm’s failure to offer

a convincing explanation for the patent lack of common sense advocacy exhibited here,

let alone to point to even the smallest remnant of an unconscionable ploy instigated by

6
  State Farm claims that even if they had deposed Richards in a timely manner, there is no guarantee that
her deposition testimony would have divulged these fraudulent allegations as she only came forward after
the verdict was handed down. However, this is a pure speculative claim which we refuse to entertain.


                                                   16
Radcliff to commit fraud on the court, the trial court properly denied State Farm’s T.R.

60(B) with respect to Richards’ affidavit. See Shepherd, 823 N.E.2d at 325.

                                         B. Mulligan

       Mulligan is a fired ex-employee of CPM who did not work on any of the ten

houses at issue in the underlying defamation action but who has now come forward and

alleges that Radcliff intentionally damaged roofs of State Farm’s insureds and told his

employees to do the same. However, the trial court’s Order in limine precluded State

Farm from proffering evidence of vandalism on any homes other than the ten houses at

issue. (Appellant’s Tr. App. p. 2381).

       “The catalyst needed to obtain the proper relief is some admissible evidence which

may be in the form of an affidavit, testimony of witnesses, or other evidence obtained

through discovery[.]” Natare Corp. v. Cardinal Accounts, Inc., 874 N.E.2d 1055, 1059

(Ind. Ct. App. 2007) (citing Bross v. Mobile Home Estates, Inc., 466 N.E.2d 467, 469

(Ind. Ct. App. 1984)). Accordingly, as the trial court had already excluded the substance

of Mulligan’s affidavit during the underlying trial by way of an Order in limine, State

Farm cannot now bring in Mulligan’s testimony through the back door.

                    C. Radcliff’s Arrest & Domestic Violence Incident

       First, State Farm alludes that Radcliff falsely withheld his own guilty plea to

having made a false statement on an application for the purchase of a firearm in

Maryland. However, Radcliff points out that not only did State Farm produce this

document in the course of discovery, it also presented this document for admission at trial

and published it to the jury.


                                             17
       Second, with respect to the domestic violence incident between Radcliff and

Seale, State Farm argues that, besides a brief mention during depositions, Radcliff and

CPM never “revealed that Radcliff was arrested for aggravated bodily harm and assault

on a law enforcement officer, or that physical violence was involved.” (Appellant’s

Reply Br. p. 10). State Farm intends to use this evidence for impeachment purposes only,

conceding that, had it been aware of this evidence, it “would have been entitled to

explore the facts regarding Radcliff’s violent physical abuse of his spouse, and those facts

would have significantly altered the jury’s view of Radcliff’s defamation claim and the

extent of any purported harm to his reputation.” (Appellant’s Br. p. 33).

       On July 29, 2010, State Farm took Radcliff’s deposition. During the deposition,

Radcliff alerted State Farm to a domestic incident that had resulted in his arrest:

       State Farm:          Question is, have you been arrested since April 1,
                            2009?
       Radcliff:            Yes.
       State Farm:          When?
       Radcliff:            Couple of months ago.
       State Farm:          Where?
       Radcliff:            Florida.
       State Farm:          For [w]hat?
       Radcliff:            Family stuff.
       State Farm:          Where you charged with a crime?
       Radcliff:            All charges dismissed.
       State Farm:          Where you charged with a crime?
       Radcliff:            Yes.
       State Farm:          What were the charges?
       Radcliff:            Domestic.
       State Farm:          Domestic what?
       Radcliff:            It was domestic. I don’t know the exact charges of it.
                            It was domestic and everything was dismissed.
       State Farm:          Who brought the charges?
       Radcliff:            The State, even though they were told not to do
                            charges because there was not crime committed, and


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                            we just had to get lawyers to prove that case with
                            witnesses, and they dismissed the case.
         State Farm:        By domestic do you mean your family?
         Radcliff:          Yes.

(Radcliff Depo. pp. 298-99). State Farm did not further pursue this information until

after the defamation verdict was handed down. Radcliff counters, asserting that because

State Farm itself elicited testimony about the incident from both Radcliff and Seale

before the trial ever started, State Farm had undisputed knowledge of the information and

it was State Farm who thereafter chose not to explore the facts in greater depth. We

agree.

         The deposition testimony clearly indicates a “domestic”-type crime, serious

enough for the State to pursue charges and for Radcliff to consult an attorney. (See

Radcliff Depo. pp. 298-99). Therefore, State Farm had in its possession all the facts it

needed to pursue this information with the authorities in Florida or to demand production

of the relevant documents by Radcliff. Contrary to its assertion, State Farm was not

hampered by Radcliff’s veracity, but rather by its own reluctance to conduct an assiduous

investigation into the knowledge it gained. As such, State Farm was not prevented by

Radcliff from fully and fairly presenting its defense. See T.R. 60(B)(3).

         In addition, Radcliff maintains that evidence of this arrest (there was never a

conviction) would have been inadmissible at trial. We agree. On May 23, 2011, prior to

trial, the trial court entered an Order in limine specifically prohibiting all “evidence of

any alleged criminal action that was charged but did not result in a conviction . . . except

where the evidence is of relevant acts or criminal charges that were in the furtherance of



                                            19
and not separate and distinct from the pattern of racketeering that is set forth in the

Amended Complaint.” (Appellant’s Tr. App. p. 2382). State Farm never challenged this

ruling at trial or on appeal. Consequently, as this evidence would have been precluded at

trial, it cannot now be admitted through a T.R. 60(B) Motion. See Natare Corp., 874

N.E.2d at 1059.

       Simply put, the record does not reveal fraud or any unfair impediment to State

Farm’s ability to fully and fairly defend against Radcliff’s claim of defamation. After all,

State Farm had at its beck and call the complete panoply of pretrial discovery devices,

including deposition notices and demands for document production. It was offered

access to depose Richards, if it had chosen to take advantage of that opportunity. State

Farm availed itself of none of these measures. Had it done so, common sense suggests

that it easily could have discovered this ‘new’ evidence prior to the entry of the verdict.

Based on the record before us, State Farm’s quest in uncovering this evidence was

hampered by its own reluctance to undertake a detailed investigation. Because we will

not grant State Farm relief from its own omissions, we affirm the trial court and conclude

that it properly denied State Farm’s T.R. 60(B) Motion.

                                   III. Ind. T.R. 60(D)

       As a final argument, State Farm contends that the trial court abused its discretion

by failing to conduct a hearing on its T.R. 60(B) Motion and denying its request for

further discovery pursuant to T.R. 60(D).

       Indiana Trial Rule 60(D) provides:




                                            20
       In passing upon a motion allowed by subdivision (B) of this rule, the court
       shall hear any pertinent evidence, allow new parties to be served with
       summons, allow discovery, grant relief as provided under Rule 59 or
       otherwise as permitted by subdivision (B) of this rule.

Thus, where there is no “pertinent evidence,” a hearing is unnecessary. Benjamin v.

Benjamin, 798 N.E.2d 881, 889 (Ind. Ct. App. 2003). In Keystone Square Shopping

Center Co. v. Marsh Supermarkets, Inc., 459 N.E.2d 420, 425 (Ind. Ct. App. 1984), we

noted that while the language of the rule may be read as requiring the trial court to allow

discovery for purposes of a motion for relief from judgment, it remains that discovery is

an issue within the sound discretion of the trial court. Limitations are necessarily placed

upon discovery to prevent it from becoming a tool of oppression and harassment. Id.

Therefore, we will only reverse a trial court’s grant or denial of a discovery request for an

abuse of discretion. Id.

       Focusing on Richards’ detailed affidavit, State Farm claims that there was ample

pertinent evidence requiring a hearing and further discovery. In particular, the discovery

requested by State Farm would include depositions of Richards, Mulligan, and others

which could show the extent of the insurance fraud, litigation fraud, and misconduct that

allegedly occurred in this case, as well as expert analysis of computers, cell phones, and

other records in the possession of Richards, Mulligan, and Radcliff.

       In formulating its response to State Farm’s T.R. 60(B) motion, Radcliff treated

State Farm’s factual allegations as true and responded to the Motion on legal grounds

based on State Farm’s moving papers, therefore essentially eliminating the need for—

what State Farm terms—the collection of ‘new’ evidence. Furthermore, Judge Nation



                                             21
had a long familiarity and first-hand knowledge of this case and its proceedings: Judge

Nation “saw every piece of evidence come in, heard and ruled on every objection,

observed the objections that were not made, and followed every theme presented to the

jury” and, as such, he did not mandate a separate evidentiary hearing prior to his ruling.

(Appellees’ Br. p. 40). Therefore, we conclude that the trial court did not abuse its

discretion by denying State Farm’s request for a hearing and further discovery.

                                     CONCLUSION

      Based on the foregoing, we conclude that the trial court properly denied State

Farm’s T.R. 60(B) Motion and affirm the trial court’s denial of State Farm’s request

based on T.R. 60(D)

      Affirmed.

ROBB, J. and BRADFORD, J. concur




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