Whitacre Partnership v. Biosignia2/6/2004
286-87 (1829). "An election, in equity, is a choice which a party is compelled to make between the acceptance of a benefit under a written instrument, and the retention of some property already his own, which is attempted to be disposed of in favor of a third party by virtue of the same paper." Elmore v. Byrd, 180 N.C. 120, 122, 104 S.E. 162, 163 (1920). The doctrine "is founded on the principle that where by law or by contract there is a choice of two remedies which proceed upon opposite and irreconcilable claims of right, the one taken must exclude and bar the prosecution of the other." Irvin v. Harris, 182 N.C. 647, 653, 109 S.E. 867, 870 (1921). The doctrine precludes the assertion of inconsistent positions by confining a party to the position "which he first adopts." In re Lloyd's Will, 161 N.C. 557, 559-60, 77 S.E. 955, 956-57 (1913); see also Sears v. Braswell, 197 N.C. 515, 523, 149 S.E. 846, 850 (1929); Chilton v. Groome, 168 N.C. 639, 640-41, 84 S.E. 1038, 1039 (1915). Thus, a party asserting rights under a will, deed, or contract is "`estopped, by claiming under it, to attack any of its provisions. . . . ne who accepts the terms of [an instrument] must accept the same as a whole; one cannot accept part and reject the rest.'" Braswell, 197 N.C. at 523, 149 S.E. at 850 (quoting Bigelow on Estoppel, 6 ed., p. 744); see also Field v. Eaton, 16 N.C. at 286-87.
Other authorities have recognized the close connection and essential differences between judicial estoppel and the doctrine of election. See, e.g., United States v. Carrero, 140 F.3d 327, 330 (1st Cir. 1998) (referring to judicial estoppel and election of remedies as "companion doctrines"); Butcher v. Cessna Aircraft Co., 850 F.2d 247, 248 (5th Cir. 1988), cert. denied, 489 U.S. 1067, 103 L.Ed. 2d 812 (1989). Both are equitable doctrines that derive from the ancient common law doctrine of estoppel, and both work to preclude a party from asserting a position that is "inconsistent" with its position in a prior proceeding. See Gens v. Resolution Trust Corp., 112 F.3d 569, 572 (1st Cir. 1997), cert. denied, Gens v. Fed. Deposit Ins. Corp., 522 U.S. 931, 139 L.Ed. 2d 260 (1997). Neither doctrine requires the party invoking the estoppel to show that he has detrimentally relied on the prior position of the party to be estopped. See, e.g., Myers v. Ross, 10 F. Supp. 409, 411 (S.D. Fla. 1935); Barbe v. Villeneuve, 505 So. 2d 1331, 1334 (Fla. 1987). Despite these similarities, however, the doctrines diverge in their purposes and scopes of application. Whereas the primary purpose of judicial estoppel is to "`protect the integrity of the judicial process,'" New Hampshire, 532 U.S. at 749, 149 L.Ed. 2d at 977 (quoting Edwards, 690 F.2d at 598), the doctrine of election is used to "prevent double redress for a single wrong." Smith v. Gulf Oil Corp., 239 N.C. 360, 368, 79 S.E.2d 880, 885 (1954). Furthermore, because it is "based upon an inconsistency of position rather than a selection of means of enforcing a right," Eads Hide & Wool Co., 252 F.2d at 84, judicial estoppel has a much broader scope of application than the doctrine of election. Cf. Zurich Ins. Co., 667 F.2d at 1166-67 (judicial estoppel may apply where election of remedies would not). Thus, even though the election of remedies rule substantially overlaps judicial estoppel, the doctrines are not coextensive.
In addition to invoking the specific estoppel doctrines described above, we have on other occasions estopped parties to assert inconsistent positions in the same or subsequent judicial proceeding without specifying the precise legal theory at work. See, e.g., King v. Snyder, 269 N.C. 148, 153, 152 S.E.2d 92, 96 (1967) ("A person appointed administrator and acting in that capacity in
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