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
