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  "name": "MEDICARE RENTALS, INC., Plaintiff v. ADVANCED SERVICES, THE MOSES H. CONE MEMORIAL HOSPITAL, WESLEY LONG COMMUNITY HOSPITAL, and HIGH POINT REGIONAL HOSPITAL, Defendants",
  "name_abbreviation": "Medicare Rentals, Inc. v. Advanced Services",
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    "judges": [
      "Chief Judge ARNOLD and Judge JOHN concur."
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    "parties": [
      "MEDICARE RENTALS, INC., Plaintiff v. ADVANCED SERVICES, THE MOSES H. CONE MEMORIAL HOSPITAL, WESLEY LONG COMMUNITY HOSPITAL, and HIGH POINT REGIONAL HOSPITAL, Defendants"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nPlaintiff Medicare Rentals, Inc. provides home medical services and equipment such as wheelchairs, hospital beds and walkers. Defendant Advanced Services is a joint venture formed in 1986 by defendants The Moses Cone Memorial Hospital, Wesley Long Community Hospital, and High Point Regional Hospital to provide home health equipment and supplies.\nIn 1987, plaintiff filed a petition for reorganization under Chapter 11 of the United States Bankruptcy Code. Plaintiff\u2019s president, Frederick Tolin, informed the company\u2019s creditors of the reasons the company filed for bankruptcy in a letter which stated:\nIn the years before the bankruptcy the Company grew rapidly, primarily by acquiring other similar companies. The problems of the company arose as a result of a large amount of debt incurred in the acquisition of other companies, the loss of management control by myself, and major changes in Medicare billing requirements.\nIn 1990, the Bankruptcy Court entered a final decree which released plaintiff from bankruptcy.\nIn 1989, while plaintiff was still in bankruptcy proceedings, Mr. Tolin wrote a letter to defendant The Moses Cone Memorial Hospital asking it to open up the referral process for discharged patients who needed home health care equipment. The hospital responded that it provided its patients with a list of firms that provided home health care services.\nPlaintiff filed its complaint against defendants on 26 May 1993 which alleged six causes of action; (1) conspiracy in restraint of trade, (2) conspiracy to monopolize, (3) monopoly, (4) attempted monopoly, (5) using monopoly power to gain an unfair advantage, and (6) unfair methods of competition and unfair acts and practices affecting commerce. Defendants filed a motion to dismiss under N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) on the grounds of judicial estoppel and that the action was barred by the statute of limitations. The parties submitted additional materials regarding the issue of judicial estoppel and the trial court converted that motion to a motion for summary judgment. The trial court granted defendants\u2019 motion for summary judgment on the grounds of judicial estoppel and denied their motion to dismiss on the grounds that the statute of limitations had expired. From this order granting summary judgment, plaintiff appeals. Defendants cross-assign as error the denial of their motion to dismiss on the grounds that the statute of limitations had expired.\nI.\nPlaintiff argues that the trial court erred by granting defendants\u2019 motion for summary judgment on the grounds of judicial estoppel. We agree.\nSummary judgment shall be rendered \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 66(c) (1990). The moving party assumes the burden of clearly showing absence of any genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. James v. Clark, 118 N.C. App. 178, 454 S.E.2d 826 (1995), disc. rev. denied, 458 S.E.2d 187 (1995).\nJudicial estoppel, or preclusion against inconsistent positions, is an equitable doctrine designed to protect the integrity of the courts and the judicial process. Guinness PLC v. Ward, 955 F.2d 875, 899 (4th Cir. 1992). Judicial estoppel forbids a party from asserting a legal position inconsistent with one taken earlier in the same or related litigation. Virginia Sprinkler Co. v. Local Union 669 V.A., AFL-CIO, 868 F.2d 116 (4th Cir. 1989). The doctrine prevents the use of \u201cintentional self-contradiction ... as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.\u201d Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir. 1953).\nThe purpose of judicial estoppel is to prevent litigants from playing \u201cfast and loose\u201d with the courts and deliberately changing positions according to the exigencies of the moment. United States v. McCaskey, 9 F.3d 368 (5th Cir. 1993), cert. denied 114 S.Ct. 1565 (1994); Allen v. Zurich Ins. Co., 667 F.2d 1162 (4th Cir. 1982). Courts are divided as to whether the party asserting the doctrine must have relied on the opposing party\u2019s previous assertion or suffer some other prejudice. Compare Jackson Jordan, Inc. v. Plasser American Corp., 747 F.2d 1567, 1580 (Fed. Cir. 1984) (\u201c[W]e see no justification for wholly dispensing with reliance and prejudice as minimum requirements under the doctrine of preclusion of inconsistent positions.\u201d) with Tenneco Chemicals v. William T. Burnett & Co., 691 F.2d 658, 665 (4th Cir. 1982) (\u201cReliance is . . . not the linchpin to application of judicial estoppel; rather the determinative factor is whether the appellant intentionally misled the court to gain an unfair advantage.\u201d); see generally, Douglas W. Henkin, Comment Judicial Estoppel \u2014 Beating Shields Into Swords and Back Again, 80 U. Pa. L. Rev. 1711 (1991); Rand G. Boyers, Comment, Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel, 80 N.W. U. L. Rev. 1244 (1987).\nIn the instant case, defendants argue that plaintiff\u2019s antitrust claims are barred by judicial estoppel because plaintiff did not disclose these claims during its bankruptcy proceedings. Section 1125 of the Bankruptcy Code requires the debtor in a Chapter 11 reorganization to file a disclosure statement providing \u201cadequate information\u201d in which a hypothetical investor could make an informed judgment about the proposed reorganization plan. 11 U.S.C. \u00a7 1125. Under this disclosure requirement, the debtor must disclose any litigation likely to arise in a non-bankruptcy context. Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414 (3d Cir. 1988). A debtor who fails to disclose potential litigation in the bankruptcy proceeding is estopped from subsequently pursuing the claims. Id. at 419.\nIn the present case, however, there is no evidence that plaintiff was aware of any potential antitrust claims against defendants while it was undergoing bankruptcy reorganization from 1987 to 1990. Mr. Tolin, plaintiff\u2019s president, states in an affidavit that \u201c[I] was not aware that Medicare Rentals, Inc. had any claims for damages which could be made against . . . [defendants] until I read about a similar case in Venice, Florida sometime in 1991.\u201d Defendants contend, however, that plaintiff, through Mr. Tolin, had sufficient knowledge of the facts surrounding its antitrust action when it was in bankruptcy and failed to properly investigate and disclose these facts in its bankruptcy proceedings.\nJudicial estoppel is a harsh doctrine and requires at a minimum that the party against whom the doctrine is asserted intentionally have changed its position in order to gain an advantage. Allen, 667 F.2d at 1167; see Chaveriat v. Williams Pipe Line Co., 11 F.3d 1420, 1428 (7th Cir. 1993) (\u201cJudicial estoppel is strong medicine, and this has led courts and commentators to characterize the grounds for its invocation in terms redolent of intentional wrongdoing.\u201d). In the present case, there is no evidence in the record that plaintiff intentionally misled the bankruptcy court regarding the possibility of an antitrust action against defendants. Since there is no evidence that plaintiff was playing \u201cfast and loose\u201d with the courts, the trial court erred by granting summary judgment for defendants on the grounds of judicial estoppel and this order is reversed.\nII.\nDefendants cross-assign as error the trial court\u2019s denial of their motion to dismiss plaintiffs complaint on the grounds that the statute of limitations had expired. We find that plaintiff\u2019s complaint is not barred by the statute of limitations.\n\u201cA statute of limitations or repose defense may be raised by way of a motion to dismiss if it appears on the face of the complaint that such statute bars the claim.\u201d Hargett v. Holland, 337 N.C. 661, 447 S.E.2d 784 (1994), disc. rev. denied, 338 N.C. 672, 453 S.E.2d 177 (1994); Fleet Real Estate Funding Corp. v. Blackwelder, 83 N.C. App. 27, 348 S.E.2d 611 (1986), dis. rev. denied, 319 N.C. 104, 353 S.E.2d 109 (1987). The applicable statute of limitations for violations of Chapter 75 is N.C. Gen. Stat. \u00a7 75-16.2 which provides in pertinent part: \u201cAny civil action brought under this Chapter to enforce the provisions thereof shall be barred unless commenced within four years after the cause of action accrues.\u201d N.C. Gen. Stat. \u00a7 75-16.2 (1988). In addition, N.C. Gen. Stat. \u00a7 75-8 (1988) provides:\nWhere the things prohibited in this Chapter are continuous, then in such event, after the first violation of any of the provisions hereof, each week that the violation of such provisions shall continue shall be a separate offense.\nN.C. Gen. Stat. \u00a7 75-8 (1988).\nIn the instant case, plaintiff filed its complaint on 26 May 1993 and is thus barred by N.C. Gen. Stat. \u00a7 75-16.2 from recovering for any injuries sustained before 26 May 1989. Plaintiff\u2019s complaint, however, alleges that defendants engaged in continuous violations of Chapter 75. Under section 75-8, each subsequent violation is a separate offense for the purpose of the statute of limitations. Therefore, we conclude that plaintiffs complaint does not, on its face, disclose that it is barred by the statute of limitations. Accordingly, the trial court properly denied defendants\u2019 motion to dismiss.\nFor the foregoing reasons, the trial court\u2019s order is\nReversed in part, affirmed in part, and remanded.\nChief Judge ARNOLD and Judge JOHN concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Smith, Foll\u00edn & James, by Norman B. Smith and Marion G. Foll\u00edn, III, for plaintiff-appellant.",
      "Womble Carlyle Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr. and M. Elizabeth Gee, for defendants-appellees.",
      "Smith, Helms, Mulliss & Moore, by Larry B. Sitton, for defendant-appellee The Moses H. Cone Memorial Hospital.",
      "Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jeffrey E. Oleynik, for defendant-appellee Wesley Long Community Hospital."
    ],
    "corrections": "",
    "head_matter": "MEDICARE RENTALS, INC., Plaintiff v. ADVANCED SERVICES, THE MOSES H. CONE MEMORIAL HOSPITAL, WESLEY LONG COMMUNITY HOSPITAL, and HIGH POINT REGIONAL HOSPITAL, Defendants\nNo. 9418SC31\n(Filed 16 August 1995)\n1. Estoppel \u00a7 10 (NCI4th)\u2014 antitrust action \u2014 judicial estop-pel inapplicable\nPlaintiff\u2019s antitrust claims against defendants were not barred by judicial estoppel because plaintiff did not disclose these claims during its Chapter 11 bankruptcy reorganization proceedings where there is no evidence that plaintiff was aware of any potential antitrust claims against defendants while it was undergoing bankruptcy reorganization or that plaintiff intentionally misled the bankruptcy court about the possibility of an antitrust action against defendants.\nAm Jur 2d, Judgments \u00a7\u00a7 415-429.\n2. Limitations, Repose, and Laches \u00a7 48 (NCI4th)\u2014 continuing antitrust violations \u2014 action not barred by statute of limitations\nPlaintiff\u2019s complaint in an antitrust action was not barred by the four-year statute of limitations of N.C.G.S. \u00a7 75-16.2, since plaintiff alleged that defendants engaged in continuous violations of Chapter 75; under N.C.G.S. \u00a7 75-8 each subsequent violation was a separate offense for the purpose of the statute of limitations; and plaintiff would thus be barred only from recovering for any injuries sustained before 26 May 1989, four years before the complaint was filed.\nAm Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7 713.\nTime when cause of action accrues for civil action under state antitrust, monopoly, or restraint of trade statutes. 90 ALR4th 1102.\nAppeal by plaintiff from order entered 9 November 1993 by Judge Melzer A. Morgan, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 5 April 1995.\nSmith, Foll\u00edn & James, by Norman B. Smith and Marion G. Foll\u00edn, III, for plaintiff-appellant.\nWomble Carlyle Sandridge & Rice, by Roddey M. Lig\u00f3n, Jr. and M. Elizabeth Gee, for defendants-appellees.\nSmith, Helms, Mulliss & Moore, by Larry B. Sitton, for defendant-appellee The Moses H. Cone Memorial Hospital.\nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Jeffrey E. Oleynik, for defendant-appellee Wesley Long Community Hospital."
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