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Whitacre Partnership v. Biosignia2/6/2004
educible to any general formulation of principle.'" New Hampshire, 532 U.S. at 750, 149 L.Ed. 2d at 978 (quoting Zurich Ins. Co., 667 F.2d at 1166). Thus, judicial estoppel requires discretionary weighing of the relevant "factors," not rote application of "inflexible prerequisites or an exhaustive formula." Id. at 751, 149 L.Ed. 2d at 978. Similarly, under the Medicare Rentals test, judicial estoppel requires "at a minimum" a showing of intentional misrepresentation to gain advantage. Medicare Rentals, 119 N.C. App. at 771, 460 S.E.2d at 364. Insofar as the Medicare Rentals test suggests that judicial estoppel can be reduced to "inflexible prerequisites or an exhaustive formula," New Hampshire, 532 U.S. at 751, 149 L.Ed. 2d at 978, it too fails to adequately recognize the inherently flexible nature of this discretionary equitable doctrine. Thus, we decline to accept either version of the doctrine articulated by the Court of Appeals, and instead follow the test set forth by the United States Supreme Court in New Hampshire v. Maine.
In New Hampshire v. Maine, the United States Supreme Court applied the doctrine of judicial estoppel to preclude the State of New Hampshire from asserting that a portion of the New Hampshire-Maine border ran along the Maine shore when it had successfully argued in a previous action that the same portion of that border was located at the center of the Piscataqua River's main navigable channel. 532 U.S. 742, 149 L.Ed. 2d 968. The Court stated that the purpose of the doctrine was "`to protect the integrity of the judicial process,'" id. at 749, 149 L.Ed. 2d at 977 (quoting Edwards, 690 F.2d at 598), "by `prohibiting parties from deliberately changing positions according to the exigencies of the moment,'" id. at 750, 149 L.Ed. 2d at 977 (quoting United States v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993), cert. denied, 511 U.S. 1042, 128 L.Ed. 2d 211 (1994)). Noting that "`the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle,'" id. at 750, 149 L.Ed. 2d at 978 (quoting Zurich Ins. Co., 667 F.2d at 1166), the Court enumerated three factors that "typically inform the decision whether to apply the doctrine in a particular case." Id. at 750, 149 L.Ed. 2d at 978. First, a party's subsequent position "must be `clearly inconsistent' with its earlier position." Id. (quoting United States v. Hook, 195 F.3d 299, 306 (7th Cir. 1999), cert. denied, 529 U.S. 1082, 146 L.Ed. 2d 510 (2000)). "Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding" might pose a "threat to judicial integrity" by leading to "`inconsistent court determinations'" or "`the perception that either the first or the second court was misled.'" Id. at 750-51, 149 L.Ed. 2d at 978 (quoting United States v. C. I. T. Constr. Inc., 944 F.2d 253, 259 (5th Cir. 1991) (inconsistent court determinations) and Edwards, 690 F.2d at 599 (risk of either court being misled)). Third, courts consider "whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Id. at 751, 149 L.Ed. 2d at 978.
Applying these factors, the United States Supreme Court concluded that they "tip the balance of equities in favor of barring New Hampshire's present complaint." Id. The Court emphasized, however, that these three factors "do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel" and that " additional considerations may inform the doctrine's applica
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