Mark Kramer v. Thomas Kramer (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 3, 2016
• Docket: 71A03-1507-PL-862
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Mar 03 2016, 8:36 am this 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 Shawn P. Ryan Lonnie D. Johnson South Bend, Indiana Belinda R. Johnson-Hurtado Clendening Johnson & Bohrer, P.C. Bloomington, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark Kramer, March 3, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1507-PL-862 v. Appeal from the St. Joseph Circuit Court Thomas Kramer, The Honorable Michael G. Appellee-Plaintiff Gotsch, Judge The Honorable Larry L. Ambler, Magistrate Trial Court Cause No. 71C01-0510-PL-292

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1507-PL-862 | March 3, 2016 Page 1 of 3 [1] Brothers Mark and Thomas Kramer owned a business together. Thomas filed a

lawsuit alleging that Mark had committed multiple breaches of their operating

agreement. Following a bench trial, the trial court determined that Mark had

committed certain breaches and awarded Thomas $33,043.49 plus prejudgment

interest. Thomas appealed, and this Court affirmed in part, reversed in part,

and remanded to the trial court with instructions “to find Mark in breach of the

. . . noncompetition clause as to all three of [t]he [p]roperties and to award

[Thomas] $333,156 in damages therefor.” Kramer v. Kramer, No. 71A04-1305-

PL-261, slip op. at 21 (Ind. Ct. App. May 30, 2014), reh’g denied.

[2] On July 2, 2014, following a hearing, the trial court recalculated the damages

and awarded Thomas damages in the amount of $372,799.83. On September

17, 2014, Mark filed a petition for transfer.1 Mark neglected to inform our

Supreme Court that the trial court had already recalculated the damages award.

On March 17, 2015, our Supreme Court granted transfer, “summarily

affirm[ed] the Court of Appeals’ conclusion that Mark breached the

noncompetition agreement with respect to all three properties,” and

“remand[ed] to the trial court with instructions to determine damages.” Kramer

v. Kramer, 27 N.E.3d 270, 270 (Ind. 2015).

[3] On May 22, 2015, Mark filed a motion asking that the trial court redetermine

damages anew in light of our Supreme Court’s opinion. Following a hearing

1 Mark sought rehearing from this Court, and his petition for rehearing was denied on July 31, 2014.

Court of Appeals of Indiana | Memorandum Decision 71A03-1507-PL-862 | March 3, 2016 Page 2 of 3 held on June 8, 2015, the trial court determined that the amount of damages

awarded in July 2014 was still accurate in light of our Supreme Court’s opinion.

Mark now appeals.

[4] Mark contends that the trial court improperly awarded damages pursuant to

this Court’s opinion, which has since been vacated by our Supreme Court’s

opinion in Kramer. To the contrary, what the trial court did, following this

Court’s opinion, was to redetermine—based upon evidence admitted at trial—

the amount of damages due to Thomas based upon Mark’s breaches. That it

did so before our Supreme Court directed it to do so does not warrant yet

another redetermination. It certainly does not, as Thomas insists, mean that

the trial court’s initial damages determination of $33,000 is magically

resurrected. As the trial court stated, “I don’t think there’s going to be any

difference between what I did on July 2, 2014 and what I would do after the

Supreme Court [opinion]. I can only assume that the Supreme Court had no

idea that we already did what they wanted us to do.” Tr. p. 12. We agree, and

affirm.

[5] The judgment of the trial court is affirmed.

Bradford, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1507-PL-862 | March 3, 2016 Page 3 of 3