Whitacre Partnership v. Biosignia2/6/2004
have not previously considered whether judicial estoppel is a viable doctrine in North Carolina, we have long applied several of its companion estoppel doctrines and have consistently recognized the importance of protecting the integrity of the judicial process from the vagaries of litigants who may seek to manipulate it. See, e.g., Kannan v. Assad, 182 N.C. 77, 78, 108 S.E. 383, 384 (1921) ("It 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, during the course of litigation, nor should he be allowed to `blow hot and cold in the same breath.'" (citations omitted)). In addition, although the Court of Appeals has recognized the doctrine, it has struggled with its precise formulation. See, e.g., Medicare Rentals, Inc. v. Advanced Servs., 119 N.C. App. 767, 769-71, 460 S.E.2d 361, 363-64 (1995) (defining judicial estoppel); State v. Taylor, 128 N.C. App. 394, 400, 496 S.E.2d 811, 815 (1998) (using the term "judicial estoppel" interchangeably with "equitable estoppel"), disc. rev. denied, 348 N.C. 76, 505 S.E.2d 884 (1998), appeal dismissed in part, 348 N.C. 76, 505 S.E.2d 884 (1998), aff'd, 349 N.C. 219, 504 S.E.2d 785 (1998). Our discussion of the historical roots of judicial estoppel seeks to avoid further confusion by carefully situating judicial estoppel in the broader analytical framework of estoppel and preclusion doctrines.
Broadly speaking, "estoppel is a bar which precludes a person from denying or asserting anything to the contrary of that which has, in contemplation of law, been established as the truth." 28 Am. Jur. 2d Estoppel and Waiver § 1 (2000). As we noted over 150 years ago, it is a principle which "lies at the foundation of all fair dealing between [persons], and without which, it would be impossible to administer law as a system." Armfield v. Moore, 44 N.C. 157, 161 (1852). "Estoppel" is not a single coherent doctrine, but a complex body of interrelated rules, including estoppel by record, estoppel by deed, collateral estoppel, equitable estoppel, promissory estoppel, and judicial estoppel. 28 Am. Jur. 2d Estoppel and Waiver § 2 (2000). Viewed in its proper theoretical context, judicial estoppel is best understood as a specific branch of a broader spectrum of estoppel and preclusion doctrines customarily used to promote the fairness and integrity of judicial proceedings.
While estoppel in its broadest sense predates the American colonial experience, see Armfield, 44 N.C. at 161, legal scholars generally agree that the concept of judicial estoppel was first applied in Hamilton v. Zimmerman, 37 Tenn. 39 (1857). See William Houston Brown, Debtor's Counsel Beware: Use of the Doctrine of Judicial Estoppel in Non-bankruptcy Forums, 75 Am. Bankr. L.J. 197, 200 (2001) [hereinafter Brown]. Describing the doctrine as a device to protect the sanctity of the oath, the Tennessee Supreme Court applied judicial estoppel on an absolute basis, holding that a factual assertion in a judicial proceeding estopped any contradictory factual assertion by the same party in a later proceeding, except where the original representation was made "inconsiderately or by mistake." Hamilton, 37 Tenn. at 48. Although the Tennessee courts continue to apply this narrow version of the doctrine, most modern authorities agree that the purpose of judicial estoppel is to "`protect the integrity of the judicial process,'" New Hampshire, 532 U.S. at 749, 149 L.Ed. 2d at 977 (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir. 1982)), not just the sanctity of the oath, and that "a hallmark of the doctrine is its flexible application." Heckler v. Cmty. Health Servs., 467 U.S. 51, 59, 81 L.Ed. 2d 42, 51 (1984) (di
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