Pursuant to Ind. Appellate Rule 65(D), this                           Jul 31 2013, 6:34 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

STEVEN P. LANGDON                                JAMES P. MOLOY
McNeely Stephenson Thopy & Harrold               KEVIN M. QUINN
New Albany, Indiana                              NATHAN T. DANIELSON
                                                 Bose McKinney & Evans LLP
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ABDUL G. BURIDI,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )     No. 10A01-1212-MF-580
                                                 )
RL BB FINANCIAL, LLC,                            )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE CLARK SUPERIOR COURT
                       The Honorable Roger L. Duvall, Special Judge
                             Cause No. 10C02-1102-MF-79



                                       July 31, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          In this case, several doctors, including appellant-defendant Dr. Abdul G. Buridi,

invested in a medical center. To secure the necessary loan to build the facility, the bank

required personal guaranties from some of the doctors as additional collateral.

Eventually, the real estate investment company that had obtained the loan to build the

medical center defaulted on the loan by failing to make payments and to pay property

taxes. Consequently, appellee-plaintiff RL BB Financial, LLC (RL BB) filed a complaint

to enforce all the personal guaranties.

          RL BB moved for summary judgment, which was granted, and judgment was

entered against Dr. Buridi for the limit of his guaranty, which was $430,000. After this

judgment was affirmed on appeal, Dr. Buridi filed a motion under Indiana Trial Rule

60(B), asking that the judgment be set aside because of newly discovered evidence,

namely, that RL BB’s predecessor had perpetuated fraud to induce him to sign the

personal guaranty. More particularly, Dr. Buridi claimed that the bank knew that a

smaller medical center was going to be built than what had been originally planned but

failed to inform him before he signed the personal guaranty.

          The trial court denied the motion, and Dr. Buridi appeals, arguing that the trial

court erred by denying his motion. Concluding that it is within the trial court’s sound

discretion whether to set aside a judgment on the basis of newly discovered evidence, we

affirm.




                                              2
                                         FACTS

       Kentuckiana Investors, LLC (KI), which consists of practicing physicians,

including Dr. Buridi, invested in the construction of a new hospital in Clark County (the

Hospital Project). The completed hospital would be operated by Kentuckiana Medical

Center, LLC (Medical Center). Dr. Buridi became affiliated with KI in 2006, when he

was approached by Dr. Christodulous Stavens and Dr. Eli Hallal to invest in the project.

       On June 21, 2007, KMC Real Estate Investors, LLC, (KMC) executed a note to

the Branch Banking & Trust Company (BB&T) in the amount of $21.5 million. The note

was secured by a mortgage on KMC’s real property and the new hospital building that

was to be constructed with the loan proceeds.

       Prior to the execution of the note, BB&T sent out a commitment letter (the

“Commitment Letter”) outlining the major terms of the loan. The Commitment Letter

indicated that BB&T required personal guaranties from various parties in varying

amounts, including a $430,000 personal guaranty from Dr. Buridi. The Commitment

Letter also confirmed that the loan proceeds were to be used to construct a “60 bed acute

care” hospital facility. Appellant’s App. p. 645.     Page seven included a paragraph

stating:

       Basis of Commitment. The undersigned Borrower and Guarantors
       acknowledge that this Commitment is based materially upon financial
       information provided to [BB&T] by Borrower and others, and the
       undersigned Borrower and Guarantors hereby warrant and represent that
       such information was true and correct in all material respects when
       rendered and that no material change has occurred therein through the date
       of the execution of this commitment. All material facts relating to the loan

                                            3
       or the assets, business, profits, prospects, or conditions (financial or
       otherwise) of Borrower have been disclosed to Bank by the Borrower and
       Guarantors.

Id. at 651.

       The Commitment Letter also indicated that BB&T’s lending commitment to KMC

was voidable at the option of BB&T if the Medical Center breached the terms of the

Commitment or the financial conditions of KMC or the guarantors materially changed.

Dr. Buridi read the entire Commitment Letter before signing as one of the guarantors on

May 21, 2007.

       Leading up to the execution of the final loan documents, Dr. Buridi participated in

various meetings relating to the plans for the Hospital Project and the loan to be obtained

from BB&T. These meetings were held with the management of the Hospital Project,

including Dr. Stavens. Representatives from the Medical Center negotiated with BB&T

the limited personal guaranties that were required as additional collateral, including Dr.

Buridi’s guaranty. Dr. Buridi did not have any contact with any representative from

BB&T in connection with the negotiation, solicitation, execution, or delivery of his

guaranty.

       Dr. Buridi did not read his $430,000 personal guaranty before signing it. Dr.

Buridi’s guaranty is governed by Kentucky substantive law and identifies the Hospital

Project as “an acute care hospital facility to be constructed by [KMC] and located in or

near Clarksville in Clark County, Indiana.” Appellant’s App. p. 68. The anticipated



                                            4
number of hospital beds to be included in the Hospital Project was not included in the

guaranty.

       Furthermore, Dr. Buridi’s guaranty is “a guaranty of payment, not of collection,”

and indicates that BB&T:

       shall not be obligated prior to seeking recourse against or receiving
       payment from [Dr. Buridi], to do any of the following . . . all of which are
       hereby unconditionally waived by [Dr. Buridi]:

                                           ***

       (ii) take any steps whatsoever to accept, perfect Lender’s interest in,
       foreclose or realize on collateral security, if any, for the payment of the
       Indebtedness, or any other guaranty of Indebtedness . . . .

Appellant’s App. p. 69. Dr. Buridi also waived “any set-offs or counterclaims against

Lender which would otherwise impair Lender’s rights against [Dr. Buridi] hereunder.”

Id. at 70.

       KMC used the loan proceeds to complete the Hospital Project, which was

constructed to include forty-eight beds. When the Hospital Project was completed, the

Medical Center leased and operated the hospital. When the hospital began operations in

the spring 2009, Dr. Buridi realized that it included only forty-eight beds. Dr. Buridi

discussed the reduced number of beds with the other KI investors and managers of the

Hospital Project in 2009.

       RL BB purchased the loan from BB&T in 2010, and loan documents were

assigned to RL BB on September 30, 2010. KMC defaulted on the loan by failing to

make the required payments, including real estate taxes.

                                            5
       On February 23, 2011, RL BB filed a complaint seeking to foreclose on the

mortgage, to foreclose its security interest in personalty, and for the appointment of a

receiver. The complaint sought to enforce all the personal guaranties of the guarantors,

including Dr. Buridi, as well as the maker of the note, KMC. RL BB sought judgment

against KMC in the amount of $20,606,598. However, on April 1, 2011, KMC filed a

voluntary bankruptcy petition in the United States Bankruptcy Court for the Southern

District of Indiana, which automatically stayed the trial court litigation against KMC.

The stay, however, did not affect RL BB’s claims against Dr. Buridi or the other

guarantors, and Dr. Buridi filed his answer and affirmative defenses on April 18, 2011.

       On May 12, 2011, RL BB moved for summary judgment against Dr. Buridi and

the other guarantors. Dr. Buridi responded on June 28, 2011, and RL BB replied on July

26, 2011. The trial court held a hearing on August 2, 2011, and after it concluded, the

trial court granted RL BB’s motion for summary judgment.

       On September 8, 2011, the trial court entered a final judgment against Dr. Buridi

and the other guarantors pursuant to Trial Rule 54(B) (the “Judgment”). The Judgment

against Dr. Buridi is in the principal sum of $430,000, which is the limit of his personal

liability under the terms of his written guaranty.

       Dr. Buridi, along with a number of other guarantors, appealed the trial court’s

entry of summary judgment in RL BB’s favor. On June 4, 2012, a panel of this Court

affirmed the trial court’s judgment, and denied rehearing on July 24, 2012. KMC Real



                                              6
Estate Investors, LLC v. RL BB Fin., LLC, 968 N.E.2d 873, *1 (Ind. Ct. App. 2012),

reh’g denied.

       On August 22, 2012, Dr. Buridi filed a motion pursuant to Trial Rule 60(B) (Rule

60(B)) “requesting that the Court vacate its final judgment against [Dr. Buridi] on the

grounds of newly discovered evidence; specifically, evidence supporting a defense of

fraud to the breach of contract claim brought by Plaintiff RL BB Financial, LLC.”

Appellant’s App. p. 415.

       Dr. Buridi claimed that this new evidence surfaced during separate proceedings.

More specifically, before judgment was entered against Dr. Buridi, he had commenced a

lawsuit against individuals involved in the Hospital Project in the Jefferson Circuit Court

in Kentucky. Then, on July 12, 2012, Dr. Buridi filed a second lawsuit in the Jefferson

Circuit Court in Kentucky, which related to the loan against BB&T, the assignor of RL

BB’s interest in the instant case. This suit was subsequently removed to the United States

District Court for the Western District of Kentucky.

       RL BB filed its memorandum in opposition of Dr. Buridi’s motion on September

21, 2012, and Dr. Buridi filed a reply on October 4, 2012. After conducting a hearing on

October 30, 2012, the trial court denied the motion. The trial court observed that the

“relief sought by Dr. Buridi is extraordinary relief and generally viewed with disfavor.”

Appellant’s App. p. 36. Dr. Buridi now appeals.




                                            7
                                 DISCUSSION AND DECISION1

                                        I. Standard of Review

        Initially, we observe that a Rule 60(B) motion is addressed to the “equitable

discretion” of the trial court. Ind. Ins. Co. v. Ins. Co. of N. Am., 734 N.E.2d 276, 278

(Ind. Ct. App. 2000). The grant or denial of a Rule 60(B) motion will be reversed only

when the trial court has abused its discretion. Id. When the trial court’s action is clearly

erroneous, an abuse of discretion will be found, and a trial court’s action is clearly

erroneous when it is against the logic and effect of the facts and circumstances before it

or the inferences that may be drawn therefrom. Id. at 279.

                                          II. Rule 60(B)(2)

        When ruling on a Rule 60(B) motion, the trial court is required to “‘balance the

alleged injustice suffered by the party moving for relief against the interests of the

winning party and society in general in the finality of litigation.’” Goldsmith v. Jones,

761 N.E.2d 471, 474 (Ind. Ct. App. 2002) (quoting V.C. Tank Lines, Inc. v. Faison, 754

N.E.2d 1061, 1064 (Ind. Ct. App. 2001)).

        Rule 60(B)(2) provides that a “court may relieve a party or his legal representative

from a judgment . . . for . . . newly discovered evidence, which by due diligence could not

have been discovered in time to move for a motion to correct errors under Rule 59.”




1
  In Dr. Buridi’s brief, he has included a section requesting oral argument. We direct counsel’s attention
to Appellate Rule 52 for the proper procedure for requesting oral argument. In short, the proper
procedure is by filing a motion with the court. Dr. Buridi’s request is denied.
                                                    8
Additionally, “[a] movant filing [because of newly discovered evidence] must allege a

meritorious claim or defense.” Ind. Trial Rule 60(B).

          Here, the trial court denied Dr. Buridi’s motion because the evidence presented in

support of the motion was based on “speculation and assumption,” and the evidence did

not “set forth a basis to find fraud on the part of BB&T.” Appellant’s App. p. 36. Dr.

Buridi challenges each of these findings; thus, we will address each one.

                                         A. Speculative Evidence

          This Court has said that “[r]elief from a judgment based upon newly discovered

evidence requires a showing that the evidence is material, not merely cumulative or

impeaching, not discoverable by due diligence and that it would reasonably and probably

alter the result.” Freels v. Winston, 579 N.E.2d 132, 135 (Ind. Ct. App. 1991). Further,

“[n]ewly discovered evidence warrants relief from summary judgment only where it

creates a genuine issue of material fact or where the moving party is no longer entitled to

a judgment as a matter of law.” Id.

          In the instant case, Dr. Buridi’s Rule 60(B) motion is replete with assertions such

as:

               BB&T was “aware that it was lending funds to build a far smaller
                hospital than the one described in its own loan documents.”
                Appellant’s App. p. 416.

               “As a sophisticated purchaser of pools of distressed loans, Rialto2
                assuredly conducted due diligence into this transaction which would
                have uncovered the glaring discrepancy between the project

2
    Apparently, RL BB is an affiliate of Rialto. Appellant’s App. p. 421.
                                                      9
             described in the loan file and the actual collateral it was acquiring.”
             Id. at 416-17 (emphasis added).

           “Upon information and belief, BB&T reviewed and approved an
            $18.5 million construction budget and design for a 48 bed hospital
            which was inconsistent with its own loan documents and the
            information which had been provided to physician investors.” Id. at
            419.

           “Movant learned that, based on BB&T’s internal loan review and
            approval process, it was seemingly impossible that BB&T would
            have been unaware that the hospital project had been scaled back at
            the time the loan was extended.” Id. at 426 (emphasis added).

           Perhaps most compelling, Dr. Buridi maintains: Rialto “knew or in
            the exercise of reasonable diligence should have known that the
            transaction was tainted by fraud. Discovery will confirm this.” Id.
            at 429 (emphasis added).

      Here, based on the hypothetical nature of Dr. Buridi’s contentions, the trial court

was presented with no evidence from which it could determine whether a genuine issue

of material fact had been created such that the result of the August 2, 2011 summary

judgment hearing would probably be altered. Consequently, the trial court did not err by

determining that Dr. Buridi’s contentions were speculative and based on assumption.

      Nevertheless, Dr. Buridi argues that in the course of pursuing various contract and

tort claims against other persons who contracted with KI and KMC, Dr. Buridi

discovered the depositions of Dr. Stavens and Dr. Hallal, which were taken on February

28, 2012, and March 1, 2012, respectively. Based on the testimony in these depositions,

Dr. Buridi asserts that he learned facts strongly suggesting that BB&T knew that at the




                                           10
time the loan was extended and the guaranties procured, the Hospital Project would not

be built as represented in the loan documents.

         More particularly, Dr. Stavens testified that before the loan was executed, Hospital

Management informed BB&T that a sixty-bed hospital could not be built with the $21.5

million that BB&T was willing to loan. Appellant’s App. p. 575. However, BB&T

refused to loan additional funds with actual knowledge that the proceeds would be used

to build a forty-eight bed hospital. Id.

         First, it is well within the trial court’s discretion to determine whether new

evidence is sufficient under Rule 60(B). Freels, 579 N.E.2d at 135. That said, Dr.

Stavens’s testimony does not establish that BB&T was “fully aware” that the scope of the

Hospital Project had been reduced. Appellant’s Br. p. 10. Indeed, Dr. Stavens indicated

that he had no personal knowledge about when BB&T had been advised regarding the

reduced number of hospital beds. Appellant’s App. p. 575. Therefore, this argument

fails.

                                     B. Fraud by BB&T

         Dr. Buridi also argues that BB&T committed “fraud by omission” in connection

with the loan. Appellant’s Br. p. 20. Under Kentucky law, a claim for fraud by omission

is grounded in a duty to disclose. Giddings & Lewis, Inc., v. Indus. Risk Insurers, 348

S.W.3d 729, 747 (Ky. 2011). Thus, to succeed on a claim of fraud by omission, a party

must prove: (1) there was a duty to disclose the material fact at issue; (2) the other party

failed to disclose the material fact; (3) the other party’s failure to disclose the material

                                              11
fact induced the complaining party to act; and (4) the complaining party suffered actual

damages as a consequence. Id.

       The existence of a duty to disclose is a question of law for the court. Id. Under

Kentucky law, a duty to disclose arises in four circumstances: (1) where there is a

confidential or fiduciary relationship; (2) where there is a statutory duty; (3) where a

defendant has partially disclosed material facts to the plaintiff but created the impression

of full disclosure; and (4) where one party to a contract has superior knowledge and is

relied upon to disclose this knowledge. Id. at 747-48.

       Rather than relying on a fiduciary relationship, Dr. Buridi claims that the

Commitment Letter constituted a representation by BB&T regarding the number of beds

to be included in the Hospital Project and that Dr. Buridi’s personal guaranty “created the

impression of full disclosure, but contained only partial and misleading disclosures”

regarding the Hospital Project. Appellant’s Br. p. 16. Additionally, Dr. Buridi claims

that “BB&T had superior knowledge regarding this issue which [he] relied upon BB&T

to disclose.” Id.

       Concerning Dr. Buridi’s partial disclosure claim, Kentucky law is fairly clear that

“‘mere silence does not constitute fraud [by omission] where it relates to facts open to

common observation or discoverable by the exercise of ordinary diligence, or where

means of information are as accessible to one party as to the other.’” Giddings, 348

S.W.3d at 749 (quoting Bryant v. Troutman, 287 S.W.2d 918, 920-21 (Ky. 1956)).



                                            12
      Here, other than Dr. Buridi’s bald assertions to the contrary, he fails to establish

that BB&T knew that the plans for the Hospital Project changed before the loan was

executed. Similarly, Dr. Buridi cannot show that his guaranty created an impression of

full disclosure but contained only partial disclosure. Indeed, his personal guaranty did

not recite anything about the number of hospital beds. Specifically, the personal guaranty

stated that KMC would receive a loan from BB&T “in a principal sum not to exceed

TWENTY-ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS

($21,500,000) (the “Loan”) relative to an acute care hospital facility . . . .” Appellant’s

App. p. 68.

      Regarding whether BB&T had superior knowledge that Dr. Buridi relied on

BB&T to disclose, under Kentucky law, for a party to have superior knowledge, it must

be shown that all parties did not have equal access to the pertinent information.

Giddings, 348 S.W.3d at 748. The Giddings Court illustrated the superior knowledge

duty by discussing Smith v. General Motors Corp., 979 S.W.2d 127 (Ky. App. 1998),

where a new vehicle dealership had failed to disclose that a new van had received

extensive repairs. 348 S.W.3d at 748. Because the dealership had serviced the van, it

was in a superior position at the time of the sale, but withheld the information. Id. The

Giddings Court distinguished Smith from its case, noting that a “contract for a custom-

made product resulting from engineering input by both the buyer and seller is plainly not

an instance of one party having superior knowledge not available to the other.” Id.



                                            13
      Here, the Commitment Letter simply restated the details of the Hospital Project,

which were consistent with the details that Dr. Buridi already knew through the course of

his meetings with fellow investors including Dr. Stavens. Appellant’s App. p. 712, 715.

Additionally, the number of beds to be included in the Hospital Project was open to

discovery by Dr. Buridi through these meetings, which included a slide show. Id.

      Moreover, Dr. Buridi’s own statements contradict his claim that he relied upon

BB&T to disclose information. For instance, Dr. Buridi admitted that he neglected to

read the personal guaranty before signing it. Id. at 261. In addition, Dr. Buridi “had no

communications with any representative of BB&T prior to, or at the time of, [] signing

the Guaranty.” Id. Dr. Buridi claimed that the Hospital Project’s scope was reduced

“[d]ue to the mismanagement and breaches of fiduciary duties by management of KI,”

the Medical Center, and KMC. Id. at 260. Dr. Buridi also testified that he was a “very

seasoned businessman, you can look at my financials see how I do my other businesses . .

. .” Id. at 714. In light of this evidence, we cannot conclude that BB&T had superior

knowledge than Dr. Buridi or that Dr. Buridi relied on BB&T to disclose that

information. Consequently, this argument also fails. Thus, the trial court did not err by

concluding that Dr. Buridi’s proffered newly discovered evidence was insufficient to set

aside the entry of summary judgment against him.

      The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.



                                           14
