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Whitacre Partnership v. Biosignia2/6/2004
ou were to receive 1.25 million shares of BioMar?
Dr. Whitacre: Right.
Mr. Yaeger: What's the status of that? Is that an asset your creditors can look to?
Dr. Whitacre: It's an asset I won't have because of a vesting schedule that is required - two and a half years to receive fifty percent of that, which would have been spring of next year, and five years to receive a hundred percent of that on a vesting schedule, so I will not receive that at this point. Mr. Craven [counsel for Whitacre]: As a result of resigning 1, October.
Dr. Whitacre: Right. Resigning - the October 1 resignation.
Mr. Yaeger: Does that stock have any present value?
Dr. Whitacre: It does not.
Mr. Yaeger: Are you owed anything by BioMar as a result of your employment or other contributions?
Dr. Whitacre: No, I received my last paycheck, and that's it.
Eventually, the Whitacres' bankruptcy petition was voluntarily dismissed.
Whitacre resigned from Clintech in October 1997, permanently ending his professional relationship with BioSignia, its predecessors, and its subsidiaries. Handwritten entries in the "transfer" columns of the stock ledger dated 1 October 1997 describe certificates 18, 19, and 27 -- issued to Attorney Bill Walker, Attorney Richard Kurth, and Whitacre Partnership, respectively -- as "VOID: Reverted to BioSignia, Inc."
On 8 May 2000, Whitacre Partnership instituted the instant civil action against BioSignia, alleging wrongful cancellation of and, in the alternative, conversion of, 1,000,000 shares of stock, and seeking damages in excess of twenty million dollars. On 28 June 2001, after the close of discovery, BioSignia filed a motion for summary judgment, arguing that Whitacre Partnership was judicially estopped to deny the earlier assertions of its general partners before a bankruptcy tribunal that the stock was subject to the RSA and its Addendum and, by the terms of those agreements, could never vest in plaintiff. On 13 July 2001, the trial court granted defendants' motion for summary judgment. On 5 November 2002, the Court of Appeals reversed the trial court and remanded for adjudication on the merits. On 27 February 2003, this Court allowed discretionary review.
II.
The dispositive issue before this Court is whether the doctrine of judicial estoppel bars Whitacre Partnership from asserting ownership of the stock in question based on the Whitacres' earlier representations before a bankruptcy tribunal. This case thus requires us to determine whether the doctrine of judicial estoppel is a part of the common law of North Carolina. We hold that it is, and hereby join at least thirty-five other states and the United States Supreme Court in recognizing the doctrine. See New Hampshire v. Maine, 532 U.S. 742, 749, 149 L.Ed. 2d 968, 977 (2001); Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 251-52, 489 S.E.2d 472, 477 (1997); Fay v. Fed. Nat'l Mortgage Ass'n, 419 Mass. 782, 787-88, 647 N.E.2d 422, 426 (1995); Douglas W. Henkin, Comment, Judicial Estoppel -- Beating Shields into Swords and Back Again, 139 U. Pa. L. Rev. 1711, 1756-60 (1991) (appendix listing thirty-three states as having accepted judicial estoppel).
Before we describe the contours of the doctrine, we pause to consider the evolution of judicial estoppel, tracing its roots in the legal landscape of this Court and the United States Supreme Court. As this discussion will show, our recognition of judicial estoppel is not a point of departure, but a natural step in the evolution of our jurisprudence, consistent with well-established legal principles and settled precedent. Although we
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 North Carolina Personal Injury Attorneys
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