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Whitacre Partnership v. Biosignia2/6/2004
defending a wrongful death action is estopped from asserting therein the invalidity of his own asserted status as such administrator."); Owens v. Voncannon, 252 N.C. 461, 462, 114 S.E.2d 95, 96 (1960) (co-defendant who consistently denied the authority of an attorney to act as her attorney "for any purpose" could not rely on answer filed by that attorney "purportedly in behalf of all defendants"); Kanupp v. Land, 248 N.C. 203, 206-07, 102 S.E.2d 779, 782 (1958) (plaintiffs who had denied existence of road in prior action could not ask court in later action to locate boundaries of that road; "plaintiffs cannot ask for the location of something which they deny exists"); Brown v. Vestal, 231 N.C. 56, 58, 55 S.E.2d 797, 798 (1949) (defendants were not entitled to dismiss action based on an agreement the existence of which they denied in their pleadings and testimony); Hill v. Dir.-Gen. of R.R.s, 178 N.C. 607, 612, 101 S.E. 376, 379 (1919) (where Director General of Railroads had obtained stay of proceedings against defendant railroad on grounds that such suits must be conducted against him in his official capacity, "he should not be allowed to change his attitude and undertake a resistance as being in charge of the [railroad]"); Fisher v. Toxoway Co., 165 N.C. 663, 670-71, 81 S.E. 925, 928 (1914) (where defendant's pleadings claimed title to property solely on the basis of a deed from plaintiff and that deed was later declared void, defendant could not change his position and assert a paramount title). In many of these cases, the rationale for the estoppel has come very close to that traditionally used to support judicial estoppel. See, e.g., Rand v. Gillette, 199 N.C. 462, 463, 154 S.E. 746, 747 (1930) ("A party is not permitted to take a position in a subsequent judicial proceeding which conflicts with a position taken by him in a former judicial proceeding, where the latter position disadvantages his adversary. . . . e cannot safely `run with the hare and hunt with the hound.'").
We do not propose that these cases applied the doctrine of judicial estoppel without denominating it as such. Rather, these cases evince the early stirrings of judicial estoppel in the case law of this state. The purpose and effect of the estoppels applied in these cases closely approximate the purpose and effect of judicial estoppel as it has been applied in most jurisdictions. We therefore draw upon these cases, in addition to all the others cited earlier, in recognizing that judicial estoppel is a part of the common law of this state.
We now turn to a close examination of the precedents cited in New Hampshire v. Maine in support of the United States Supreme Court's articulation of the doctrine of judicial estoppel. Because we follow the Supreme Court's reasoning in that case in our opinion today, we explore in some detail the manner in which the United States Supreme Court derived the rule of judicial estoppel from its own precedents.
In New Hampshire, the United States Supreme Court implicitly recognized the doctrine's deep roots in American jurisprudence, beginning its discussion of the law of judicial estoppel with the following quotation from the 1895 case, Davis v. Wakelee: "`Where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken . . . .'" New Hampshire, 532 U.S. at 749, 149 L.Ed. 2d at 977 (quoting Davis v. Wakelee, 156 U.S. 680, 689, 39 L.Ed. 578, 584 (1895)). The Court stated that " his rule, known as judicial estoppel, `generally prevents a party from preva
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