Mark Kramer v. Thomas Kramer (mem. dec.) ( 2016 )

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.
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[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.
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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.
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