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Whitacre Partnership v. Biosignia2/6/2004
etween the doctrines are clear. Both judicial estoppel and the "mend the hold" rule preclude the assertion of inconsistent factual positions before a tribunal, and both serve to preserve judicial resources, protect judicial integrity, and boost public confidence in the fairness of the judicial system. Anderson & Holober, 4 Conn. Ins. L.J. at 698. In light of these strong similarities, it is not surprising that the United States Supreme Court would cite McCarthy, a case applying the "mend the hold" rule, in support of its nascent formulation of judicial estoppel in Davis v. Wakelee. The latter doctrine is in many ways a natural extension of the former.
Returning to an analysis of our own precedents, we believe that the evolution of our estoppel jurisprudence parallels that of the United States Supreme Court. We have already explained that the doctrine of equitable estoppel has deep roots in the jurisprudence of this state. In addition, we have recognized and approved the "mend the hold" rule, as stated by the United States Supreme Court in McCarthy, on at least two occasions. Standard Accident Ins. Co. v. Harrison-Wright Co., 207 N.C. 661, 672, 178 S.E. 235, 241 (1935) (under McCarthy, insurer not permitted to "mend his hold" by denying that policy covered insured, where insurer's prior representations to court had implicitly acknowledged the contrary); McAden v. R.F. Craig, 222 N.C. 497, 499, 24 S.E.2d. 1, 3-4 (1943) (quoting McCarthy and precluding defendant from reversing position asserted in his answer as an apparent "afterthought" suggested by "the pressure and exigencies of the case"). We have also applied a different formulation of the rule on at least five other occasions, stating in each case that " t is well understood that, except in proper instances, a party to a suit should not be allowed to change his position with respect to a material matter in the course of litigation." Roberts v. Grogan, 222 N.C. 30, 33, 21 S.E.2d 829, 830 (1942) (adding that a party "cannot swap horses in midstream"); Kannan, 182 N.C. at 78, 108 S.E. at 384 (adding that a party should not be permitted to "blow hot and cold in the same breath"); Hylton v. Mount Airy, 227 N.C. 622, 626, 44 S.E.2d 51, 54 (1947); Clark v. Harris, 187 N.C. 251, 251, 121 S.E. 453, 453 (1924); Ingram v. Yadkin River Power Co., 181 N.C. 359, 360, 107 S.E. 209, 209 (1921).
As the United States Supreme Court did in Wakelee, we now draw upon our equitable estoppel and "mend the hold" precedents in support of our recognition of the doctrine of judicial estoppel. Although the doctrines are not equivalent, they substantially overlap and are motivated by a similar set of policy concerns. Anderson & Holober, 4 Conn. Ins. L.J. at 637. Together with the other doctrines previously discussed, these two doctrines demonstrate that the common law of this state has long recognized the importance of protecting the integrity of judicial proceedings, and the appropriateness, under certain circumstances, of invoking some form of estoppel to promote that salutary objective.
As the foregoing discussion demonstrates, North Carolina courts have previously recognized several doctrines that may be used, under prescribed circumstances, to preclude the assertion of inconsistent positions before a tribunal. Judicial estoppel, however, is distinguishable from its companion doctrines in two principle respects. First, judicial estoppel seeks to protect courts, not litigants, from individuals who would play "fast and loose" with the judicial system. In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990), superceded in part on other grounds by statute as stated in Meyer v. Rigdon, 36 F.3d 1375 (7th Cir. 1994). This essential purpose necessarily limits the ap
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