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Whitacre Partnership v. Biosignia2/6/2004
scussing estoppel generally); see also 18 James Wm. Moore et al., Moore's Federal Practice ยง 134.31, at 134-71 (3d ed. 1997).
Scholars have noted that the doctrine "has its roots in nineteenth century American law," a period when preclusion law formed an "inconsistent patchwork," and the phrase "judicial estoppel" was often used to refer to the emerging doctrines of res judicata and collateral estoppel. Lawrence B. Solum, Caution! Estoppel Ahead: Cleveland v. Policy Management Systems Corporation, 32 Loy. L.A. L. Rev. 461, 475-76, 483 (1999) [hereinafter Solum]. By the early part of the twentieth century, the phrase was used loosely to refer to a variety of legal doctrines, including res judicata, collateral estoppel, equitable estoppel, quasi-estoppel, and election of remedies. See, e.g., Aycock v. O'Brien, 28 F.2d 817, 819 (9th Cir. 1928) (using the phrase "judicial estoppel" to refer to collateral estoppel); Van Norden v. Charles R. McCormick Lumber Co., 27 F.2d 881, 881 (9th Cir. 1928) (using "judicial estoppel" to refer to res judicata or claim preclusion); Parkerson v. Borst, 264 F. 761, 766-67 (5th Cir. 1920) (using "judicial estoppel" to refer to an election of remedies doctrine); United States Fid. & Guar. Co. v. Porter, 3 F.2d 57, 59 (D. Idaho 1924) (using "judicial estoppel" to refer to res judicata and collateral estoppel). Although these doctrines are technically distinguishable from judicial estoppel, they reflect a shared and longstanding judicial reluctance to permit the assertion of inconsistent positions before a judicial or administrative tribunal. See Eugene R. Anderson & Nadia V. Holober, Preventing Inconsistencies in Litigation with a Spotlight on Insurance Coverage Litigation: The Doctrines of Judicial Estoppel, Equitable Estoppel, Quasi-Estoppel, Collateral Estoppel, "Mend the Hold," "Fraud on the Court" and Judicial and Evidentiary Admissions, 4 Conn. Ins. L.J. 589, 591-97 (1998) [hereinafter Anderson & Holober]. It is therefore useful to consider judicial estoppel in connection with these related doctrines.
North Carolina courts have recognized many of the doctrinal precursors of judicial estoppel in an evolving jurisprudence that has consistently disfavored reversals of position on factual matters to suit the exigencies of the moment. Our recognition of judicial estoppel is a natural extension of these doctrines, one which parallels the development of a line of cases from the United States Supreme Court that culminated in New Hampshire v. Maine, 532 U.S. 742, 149 L.Ed. 2d 968.
We begin our survey of the historical roots of judicial estoppel with a discussion of res judicata and collateral estoppel. North Carolina recognizes both doctrines as traditionally formulated, although we have followed the modern trend in abandoning the strict "mutuality of estoppel" requirement for defensive uses of collateral estoppel. Thomas M. McInnis & Assocs. v. Hall, 318 N.C. 421, 434, 349 S.E.2d 552, 560 (1986). Recognizing the close relationship between the two doctrines, we have sometimes referred to both res judicata and collateral estoppel as species of a broader category of "estoppel by judgment." See, e.g., Bockweg v. Anderson, 333 N.C. 486, 491-92, 428 S.E.2d 157, 161 (1993). More often, however, we have used the term "estoppel by judgment" to refer specifically to collateral estoppel. See, e.g., State v. Summers, 351 N.C. 620, 622, 528 S.E.2d 17, 20 (2000); State v. Brooks, 337 N.C. 132, 147, 446 S.E.2d 579, 589 (1994) (referring to "collateral estoppel by judgment").
Under the doctrine of res judicata or "claim preclusion," a final judgment on the merits in one action precludes a second suit based on the same cause of action between the sa
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