GARRETT M. HEHER v. SMITH, STRATTON, WISE, HEHER & BRENNAN, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2557-03T12557-03T1

GARRETT M. HEHER,

Plaintiff-Appellant,

v.

SMITH, STRATTON, WISE, HEHER & BRENNAN,

A New Jersey General Partnership,

Defendant-Respondent,

and

WILLIAM J. BRENNAN, III, HUGH D. WISE,

ARTHUR S. LANE, TODD D. JOHNSTON,

CHRISTOPHER S. TARR, ROBERT A. WHITE,

ANNE REICHELDERFER, ALEXANDER P. WAUGH, JR,

WENDY L. MAGER, RICHARD J. PINTO,

BRIAN P. SULLIVAN, SUZANNE M. McSORLEY,

MARSHA E. NOVICK, ROBERT C. JOHNSTON,

PETER F. FREED, THOMAS E. HASTINGS,

ELIZABETH R. SALASKO, DOROTHY FECHT LUNTEY,

DAVID J. SORIN, JAMES SCOTT HILL, ROBERT P.

GORMAN, EDWARD J. GEOGHEGAN,

EDWIN B. KAGAN, ROBERT D. FRAWLEY,

DIANE M. FRENIER, ELLEN O'CONNELL,

PAUL H. SHUR, WILLIAM E. McGRATH, JR.,

THOMAS E. SCHORR, YALE H. BOHN and

GERALD D. WIXTED,

Defendants.

__________________________________________________________

 

Argued September 20, 2005 - Decided

Before Judges Coburn, Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey,

Chancery Division, Mercer County, C-65-98.

Garrett M. Heher, appellant, argued the cause

pro se (Mr. Heher, on the brief).

Thomas E. Hastings argued the cause for respondent

(Smith, Stratton, Wise, Heher & Brennan, attorneys;

Mr. Hastings and Thomas E. Schorr, of counsel and

on the brief).

PER CURIAM

Garrett M. Heher appeals from the December 19, 2003, Chancery Division order, which gave him a judgment against his former law firm, defendant Smith, Stratton, Wise, Heher & Brennan, for a "stated benefit" of $100,471 plus simple interest under Rule 4:42-11(a), and which ordered that the issue of his entitlement to a "supplemental benefit" under the partnership agreement be referred to arbitration, with the arbitrators to control discovery.

The Chancery Division so ordered because it had been directed to do so by the New Jersey Supreme Court in Heher v. Smith, Stratton, Wise, Heher & Brennan, 170 N.J. 213 (2001), which concluded with this statement:

We remand the matter to the Chancery Division to enter judgment for the stated benefit and prejudgment interest. The Chancery Division should then remand the matter to the arbitrators to determine, after appropriate discovery, the extent of any supplemental benefit due Heher under the Agreement.

[Id. at 222.]

Heher contends that the Chancery Division erred in failing to award him interest on the "stated benefit" by using the prime rate compounded annually and instead giving him simple interest pursuant to Rule 4:42-11(a), and in not ruling on his specific claims for discovery. Since Heher neither sought nor obtained leave to appeal, and since the judgment may be interlocutory, we will grant leave to appeal nunc pro tunc pursuant to Rule 2:4-4(b)(2).

Before the Supreme Court, Heher contended that he was entitled to the "stated benefit" and "prejudgment interest pursuant to Rule 4:42-11(a)." Heher, supra, 170 N.J. at 222. The Court stated that it agreed that Heher was entitled to the "stated benefit" and "prejudgment interest . . . ." Ibid. As a result of the position he took on interest, which was accepted by the Supreme Court, he is judicially estopped from taking an inconsistent position on that issue now. State v. Jenkins, 178 N.J. 347, 359 (2004)(citations omitted). Moreover, "[w]hen a case is remanded, as occurred here, the trial court must 'obey in the particular case the mandate of the appellate court precisely as it is written.'" Ravin & Rosen v. Lowenstein Sandler, 365 N.J. Super. 241, 247 (App. Div. 2003)(quoting Flanigan v. McFeely, 20 N.J. 414, 420 (1956)). Those principles barred the trial court from ordering any interest other than that allowed by Rule 4:42-11(a).

 
The principle of following the appellate mandate precisely also required, as the Supreme Court had directed, that the trial court submit the "supplemental benefit" claim and control of discovery to the arbitrators, which it did. We are no more free to expand on the remand order of the Supreme Court than was the trial court. Therefore, there is no basis for reversing the trial court in this case. Affirmed.

(continued)

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A-2557-03T1

October 28, 2005