Whitacre Partnership v. Biosignia2/6/2004
in a prior action from doing so at a later proceeding. Blonder-Tongue Lab., Inc. v. Univ. of Illinois Found., 402 U.S. 313, 328-29, 28 L.Ed. 2d 788, 799-800 (1971) (discussing due process limitations to collateral estoppel). It is well settled, however, that where there is a sufficiently close relationship, called "privity," between the party to a prior action and the party to be estopped in a later action, due process is not offended by the estoppel of the latter, provided the former had a full and fair opportunity to litigate the matter to be precluded. See, e.g., Richards v. Jefferson Cty., 517 U.S. 793, 797-99, 135 L.Ed. 2d 76, 83-84 (1996) (describing the constitutional rationale for allowing preclusion doctrines to estop a "privy" to a prior action from relitigating claims and issues); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7, 58 L.Ed. 2d 552, 559 n.7 (1979) ("It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefore has never had an opportunity to be heard.") (emphasis added) (citations omitted); McInnis, 318 N.C. at 43334, 349 S.E.2d at 559-60 (following Blonder-Tongue and Parklane Hosiery and abandoning the strict mutuality requirement for collateral estoppel in North Carolina).
We observe that other courts have applied the privity concept to the doctrine of judicial estoppel. See, e.g., In re Johnson, 518 F.2d 246, 252 (10th Cir. 1975); Farmers High Line Canal & Reservoir Co. v. City of Golden, 975 P.2d 189, 202 (Colo. 1999); Barnett v. Develle, 289 So. 2d 129, 138 (La. 1974); Messler v. Simmons Gun Specialties, Inc., 687 P.2d 121, 128 (Okla. 1984); Tracy Loan & Trust Co. v. Openshaw Inv. Co., 102 Utah 509, 515, 132 P.2d 388, 390 (1942); see also 28 Am. Jur. 2d ยง 129 Estoppel and Waiver (2000); Anderson & Holober, 4 Conn. Ins. L.J. at 608-09. We agree that "a rigid rule requiring the estopped party to be the identical party as in the earlier proceeding would unnecessarily diminish the protective function of the doctrine of judicial estoppel." Capsopoulos v. Chater, 1996 U.S. Dist. LEXIS 18330 (N.D. Ill. Dec. 9, 1996); see also Ladd v. ITT Corp., 148 F.3d 753, 756 (7th Cir. 1998). Moreover, so long as the party to be judicially estopped is a privy of the party who made the prior inconsistent statement before a tribunal, due process is not offended by the lack of mutuality of the parties between the two proceedings. See Richards v. Jefferson Cty., 517 U.S. at 797-99, 135 L.Ed. 2d at 83-84.
We do not address whether the Whitacres, as general partners of Whitacre Partnership, were in privity with the partnership. Whether privity exists in a given case should generally be resolved by the trial court in the first instance. See Lowell Staats Mining Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1276 (10th Cir. 1989); Vulcan, Inc. v. Fordees Corp., 658 F.2d 1106, 1109 (6th Cir. 1981), cert. denied, 456 U.S. 906, 72 L.Ed. 2d 162 (1982); Astron Indus. Assocs. v. Chrysler Motors Corp., 405 F.2d 958, 961 (5th Cir. 1968); Towle v. Boeing Airplane Co., 364 F.2d 590, 592 (8th Cir. 1966); see also Gerrard v. Larsen, 517 F.2d 1127, 1135 (8th Cir. 1975) (privity is appropriately "resolved on a case by case basis by an examination of underlying facts and circumstances"). We cannot discern whether the trial court made a privity determination in the present case. The parties did not brief the issue in their summary judgment memoranda, and no published appellate decisions in this state have previously discussed the applicability of the privity concept to judicial estoppel. Thus, rather than usurping the trial court's role by making a privity determination on the basis of a cold record, we deem it advisable to reserve this factua
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