{ "id": 12423393, "name": "OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY and UNITED BANK & TRUST COMPANY, VERSAILLES, KY., f/k/a FARMERS BANK & TRUST COMPANY (GEORGETOWN, KY.) v. HARTFORD FIRE INSURANCE COMPANY, SHRIJEE LLC, HELM BUILDERS, LLC, and MICHAEL D. ANDREWS, in his official capacity as Sheriff of Durham County, North Carolina", "name_abbreviation": "Old Republic National Title Insurance Co. v. Hartford Fire Insurance Co.", "decision_date": "2017-03-17", "docket_number": "No. 155A16", "first_page": "500", "last_page": "515", "citations": [ { "type": "official", "cite": "369 N.C. 500" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "785 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12645135, 12645136, 12645137, 12645138, 12645139, 12645140, 12645141, 12645142, 12645143, 12645144, 12645145, 12645146, 12645147, 12645148 ], "year": 2016, "opinion_index": -1, "case_paths": [ "/se2d/785/0185-01", "/se2d/785/0185-02", "/se2d/785/0185-03", "/se2d/785/0185-04", "/se2d/785/0185-05", "/se2d/785/0185-06", "/se2d/785/0185-07", "/se2d/785/0185-08", "/se2d/785/0185-09", "/se2d/785/0185-10", "/se2d/785/0185-11", "/se2d/785/0185-12", "/se2d/785/0185-13", "/se2d/785/0185-14" ] }, { "cite": "794 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12646754, 12646755, 12646756 ], "year": 2016, "pin_cites": [ { "page": "506", "parenthetical": "quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)" } ], "opinion_index": 0, "case_paths": [ "/se2d/794/0501-01", "/se2d/794/0501-02", "/se2d/794/0501-03" ] }, { "cite": "785 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12645135, 12645136, 12645137, 12645138, 12645139, 12645140, 12645141, 12645142, 12645143, 12645144, 12645145, 12645146, 12645147, 12645148 ], "year": 2016, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 0, "case_paths": [ "/se2d/785/0185-01", "/se2d/785/0185-02", "/se2d/785/0185-03", "/se2d/785/0185-04", "/se2d/785/0185-05", "/se2d/785/0185-06", "/se2d/785/0185-07", "/se2d/785/0185-08", "/se2d/785/0185-09", "/se2d/785/0185-10", "/se2d/785/0185-11", "/se2d/785/0185-12", "/se2d/785/0185-13", "/se2d/785/0185-14" ] }, { "cite": "361 S.E.2d 734", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "744", "parenthetical": "Mitchell, J., concurring in result" } ], "opinion_index": 0 }, { "cite": "321 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570712 ], "year": 1987, "pin_cites": [ { "page": "18", "parenthetical": "Mitchell, J., concurring in result" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0001-01" ] }, { "cite": "37 Tenn. (5 Sneed) 39", "category": "reporters:state", "reporter": "Tenn.", "year": 1857, "pin_cites": [ { "page": "47-48", "parenthetical": "\"The law . .. will not. . . suffer a man to contradict or gainsay, what, under particular circumstances, he may have previously said or done.\"" } ], "opinion_index": 0 }, { "cite": "340 S.E.2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "59" } ], "opinion_index": 0 }, { "cite": "315 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718276 ], "year": 1986, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0749-01" ] }, { "cite": "790 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2016, "pin_cites": [ { "page": "659" } ], "opinion_index": 0 }, { "cite": "112 L. Ed. 2d 24", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "111 S. Ct. 48", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 6121823 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/br/119/0048-01" ] }, { "cite": "498 U.S. 812", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6268582, 6265927, 6266456, 6267691, 6266766, 6267376, 6267058, 6266198, 6267992, 6268281, 6265662 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/us/498/0812-11", "/us/498/0812-02", "/us/498/0812-04", "/us/498/0812-08", "/us/498/0812-05", "/us/498/0812-07", "/us/498/0812-06", "/us/498/0812-03", "/us/498/0812-09", "/us/498/0812-10", "/us/498/0812-01" ] }, { "cite": "892 F.2d 637", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10525338 ], "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/f2d/892/0637-01" ] }, { "cite": "667 F.2d 1162", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 464017 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "1166" } ], "opinion_index": 0, "case_paths": [ "/f2d/667/1162-01" ] }, { "cite": "532 U.S. 742", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9302102 ], "weight": 6, "year": 2001, "pin_cites": [ { "page": "750" }, { "page": "1815" }, { "page": "978" }, { "page": "750" }, { "page": "1814-15" }, { "page": "977-78" } ], "opinion_index": 0, "case_paths": [ "/us/532/0742-01" ] }, { "cite": "44 N.C. (Busb.) 157", "category": "reporters:state", "reporter": "Busb.", "year": 1852, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "108 S.E. 383", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1921, "pin_cites": [ { "page": "384" }, { "page": "384" } ], "opinion_index": 0 }, { "cite": "182 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655255 ], "weight": 2, "year": 1921, "pin_cites": [ { "page": "78" }, { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/182/0077-01" ] }, { "cite": "2016 WL 1321139", "category": "reporters:specialty_west", "reporter": "WL", "weight": 3, "year": 2016, "pin_cites": [ { "parenthetical": "unpublished" }, { "page": "*4" } ], "opinion_index": 0 }, { "cite": "591 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 14, "year": 2004, "pin_cites": [ { "page": "880" }, { "page": "887" }, { "page": "878" }, { "page": "888" }, { "page": "880" }, { "page": "880-82", "parenthetical": "citations omitted" }, { "page": "887" }, { "page": "887", "parenthetical": "citations omitted" }, { "page": "888" }, { "page": "879" }, { "page": "887", "parenthetical": "Judicial estoppel serves \"as a gap-filler\" and is appropriate \"where the technical requirements of' its companion estoppel doctrines may not be met." } ], "opinion_index": 0 }, { "cite": "358 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985361 ], "weight": 6, "year": 2004, "pin_cites": [ { "page": "12" }, { "page": "38" }, { "page": "29" }, { "page": "13-14" }, { "page": "26-27" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0001-01" ] }, { "cite": "639 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637515 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "428", "parenthetical": "brackets in original" }, { "page": "428" } ], "opinion_index": 1, "case_paths": [ "/se2d/639/0425-01" ] }, { "cite": "785 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12645135, 12645136, 12645137, 12645138, 12645139, 12645140, 12645141, 12645142, 12645143, 12645144, 12645145, 12645146, 12645147, 12645148 ], "year": 2016, "opinion_index": 1, "case_paths": [ "/se2d/785/0185-01", "/se2d/785/0185-02", "/se2d/785/0185-03", "/se2d/785/0185-04", "/se2d/785/0185-05", "/se2d/785/0185-06", "/se2d/785/0185-07", "/se2d/785/0185-08", "/se2d/785/0185-09", "/se2d/785/0185-10", "/se2d/785/0185-11", "/se2d/785/0185-12", "/se2d/785/0185-13", "/se2d/785/0185-14" ] }, { "cite": "701 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "299", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "207 N.C. App. 713", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4178742 ], "year": 2010, "pin_cites": [ { "page": "719", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc-app/207/0713-01" ] }, { "cite": "128 F.3d 68", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 977954 ], "year": 1997, "pin_cites": [ { "page": "72-73", "parenthetical": "citing, inter alia, AXA Marine & Aviation, 84 F.3d at 628" } ], "opinion_index": 1, "case_paths": [ "/f3d/128/0068-01" ] }, { "cite": "219 F.3d 79", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11191112, 11205764 ], "year": 2000, "pin_cites": [ { "page": "90", "parenthetical": "same" } ], "opinion_index": 1, "case_paths": [ "/f3d/219/0079-01", "/br/251/0079-01" ] }, { "cite": "84 F.3d 622", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1793381 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "628" }, { "page": "628" } ], "opinion_index": 1, "case_paths": [ "/f3d/84/0622-01" ] }, { "cite": "154 S.E. 746", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1930, "pin_cites": [ { "page": "747" } ], "opinion_index": 1 }, { "cite": "199 N.C. 462", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604821 ], "year": 1930, "pin_cites": [ { "page": "463" } ], "opinion_index": 1, "case_paths": [ "/nc/199/0462-01" ] }, { "cite": "599 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "895" } ], "opinion_index": 1 }, { "cite": "358 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987357 ], "year": 2004, "pin_cites": [ { "page": "660" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0649-01" ] }, { "cite": "794 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2016, "pin_cites": [ { "page": "791", "parenthetical": "brackets in original" } ], "opinion_index": 1 }, { "cite": "386 F.2d 147", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2088353 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/f2d/386/0147-01" ] }, { "cite": "312 U.S. 45", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 359169 ], "weight": 3, "year": 1941, "opinion_index": 1, "case_paths": [ "/us/312/0045-01" ] }, { "cite": "209 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "499", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "286 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563771 ], "year": 1974, "pin_cites": [ { "page": "137", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/nc/286/0130-01" ] }, { "cite": "609 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "452" } ], "opinion_index": 1 }, { "cite": "169 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468984 ], "year": 2005, "pin_cites": [ { "page": "191" } ], "opinion_index": 1, "case_paths": [ "/nc-app/169/0187-01" ] }, { "cite": "215 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "594" } ], "opinion_index": 1 }, { "cite": "288 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564626 ], "year": 1975, "pin_cites": [ { "page": "26" } ], "opinion_index": 1, "case_paths": [ "/nc/288/0019-01" ] }, { "cite": "361 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738287 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "205", "parenthetical": "brackets in original" }, { "page": "205" } ], "opinion_index": 1, "case_paths": [ "/nc/361/0200-01" ] }, { "cite": "790 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2016, "pin_cites": [ { "page": "659", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "591 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 2004, "pin_cites": [ { "page": "884" }, { "page": "888-89" }, { "page": "879" }, { "page": "884" }, { "page": "880" }, { "page": "890" }, { "page": "894", "parenthetical": "citation omitted" } ], "opinion_index": 1 }, { "cite": "358 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985361 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "21" }, { "page": "29" }, { "page": "13" }, { "page": "38" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0001-01" ] } ], "analysis": { "cardinality": 1436, "char_count": 41465, "ocr_confidence": 0.718, "pagerank": { "raw": 6.087085966315723e-08, "percentile": 0.3801690754943628 }, "sha256": "8e730b5830ea53d4fefd711b1d6d9a1335f7c79253824a5dce22c66e019c6786", "simhash": "1:5a81e03a55a7acf4", "word_count": 6633 }, "last_updated": "2023-07-14T22:48:28.411797+00:00", "provenance": { "date_added": "2018-10-24", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justices HUDSON and BEASLEY join in this dissenting opinion." ], "parties": [ "OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY and UNITED BANK & TRUST COMPANY, VERSAILLES, KY., f/k/a FARMERS BANK & TRUST COMPANY (GEORGETOWN, KY.) v. HARTFORD FIRE INSURANCE COMPANY, SHRIJEE LLC, HELM BUILDERS, LLC, and MICHAEL D. ANDREWS, in his official capacity as Sheriff of Durham County, North Carolina" ], "opinions": [ { "text": "NEWBY, Justice.\nThe doctrine of judicial estoppel preserves the integrity of judicial proceedings by preventing a party from taking inconsistent positions before the court, thus safeguarding the rule of law and seeming public confidence in the court system. Here the trial court found that, in a prior related case, defense counsel assured a federal court that defendant Hartford Fire Insurance Company (defendant or Hartford) would not collaterally attack the federal judgment post hoc by relitigating its related claims arising from the same facts. Defendant declined to join that federal litigation, but nonetheless raises substantially similar tort claims here. As such, the trial court found that defendant essentially takes the action which defense counsel stated it would not take, thereby adopting an inconsistent position. Affording the appropriate deference to the trial court, we conclude that the trial court did not abuse its discretion by invoking the doctrine of judicial estoppel to bar defendant from proceeding with its tort counterclaims. Accordingly, we reverse the decision of the Court of Appeals.\nThis case arises from a bonding dispute, which stems from a failed hotel development project. Four suits involving various parties, including the property owner, general contractor, lender, and bonding company, ensued, the last of which is before this Court. The third suit arose in federal court, which Hartford, the bonding company, declined to join, and during which the bonding company\u2019s counsel made declarations to the federal court, which may reasonably be interpreted as contravening the bonding company\u2019s actions sub judice.\nOn 14 November 2007, Shrijee LLC (owner and developer) contracted with Helm Builders, LLC (general contractor) for the construction of a Durham hotel project, known as Hotel Indigo. Under the contract Helm agreed to furnish labor and materials for a total cost of $13,050,000, and Helm was required to obtain a payment and performance bond.\nOn 20 December 2007, United Bank & Trust Company (lender) issued a construction loan to Shrijee in the amount of $13,600,000 for use on the project, and Shrijee executed a \u201cdeed of trust, assignment and security agreement\u201d on the underlying hotel real property for the benefit of the Bank, which was recorded on 21 December 2007 with the Durham County Register of Deeds. At Helm\u2019s request, on 22 February 2008, United Bank sent a letter (the 2008 Letter) to Helm \u201cconfirm[ing] that the financing is available for the Hotel Indigo,\u201d that \u201c[t]he minimum of $13,050,000 has been allocated for the contract amount to Helm Builders, LLC for the construction of the project,\u201d and that \u201cpayment authorizations will be determined and conducted by a third-party architect.\u201d The Bank further stated: \u201cWe understand this letter is to be used to release the Payment and Performance bonds for the construction of this project.\u201d\nOn 8 July 2008, Hartford issued a labor and material payment bond and a performance bond \u201cto guarantee HELM\u2019s faithful performance of HELM\u2019s obligations under the Contract.\u201d Helm had executed various general indemnity agreements beforehand, dating back to 15 August 2005, which assigned to Hartford all of its rights under the construction contract, including tort claims, and which also gave Hartford the discretion to \u201cassert and pursue all of the assigned . . . rights, actions, causes of action, claims, and/or demands.\u201d\nOver the next two years, Helm substantially completed the Hotel Indigo project, which received a conditional certificate of occupancy in August of 2009, but Shrijee withheld payment for certain work. Hartford subsequently made payments under the bonds to various subcontractors whom Helm had failed to pay. On 28 January 2010, Helm sued Shrijee in Superior Court, Durham County (Helm I), and ultimately obtained a judgment for the unpaid work in the amount of $1,074,163.20, plus interest of $352,796.40 and $278,287.05 in attorneys\u2019 fees, on 20 October 2011 (the Shrijee Judgment).\nDuring the pendency of the Helm I suit, on 31 January 2011, Helm sued United Bank in the United States District Court for the Middle District of North Carolina (the federal action), alleging that the 2008 Letter, which \u201cconfirmed in writing . . . that financing was being made available,\u201d contained fraudulent \u201cmisrepresentations made by the Bank,\u201d namely, that the monies were not actually allocated to pay Helm. Helm asserted claims of, inter alia, fraud, fraud in the inducement, negligent misrepresentation, and unfair and deceptive trade practices, all of which relied upon the alleged misrepresentations in the 2008 Letter.\nOn 14 November 2012, counsel for Hartford contacted United Bank to \u201creaffirm\u201d that \u201cHartford was the lawful owner of the Shrijee Judgment\u201d under its previous general indemnity agreements. On 20 November 2012, Helm re-memorialized the agreement by executing an \u201cAssignment of Judgment,\u201d filed with the Durham County Clerk of Superior Court, which stated that \u201cHELM Builders, LLC does hereby further assign, transfer and grant to Hartford all of its rights to sue ... and all other legal processes necessary to the enforcement of the [Shrijee] Judgment and all proceeds recovered,\u201d and that \u201cthe [previous indemnity agreements] shall remain in full force and effect.\u201d\nNonetheless, on 4 June 2013, Helm filed a complaint in Superior Court, New Hanover County, against Hartford (Helm II) seeking, inter alia, a declaratory judgment that Helm\u2019s \u201cAssignment is null and void,\u201d that Hartford \u201chas no rights or interest in the [federal action],\u201d and that \u201cHelm\u2019s claims asserted in the [federal action] are not subject to the assignment provisions of the Hartford Indemnity Agreements.\u201d\nIn light of Helm\u2019s apparent assignment to Hartford of the Shrijee Judgment and tort claims, United Bank became \u201cconcem[ed] over the possibility of inconsistent verdicts should United Bank be forced to litigate the same issues against Helm and Hartford in separate actions.\u201d Furthermore, faced with \u201cHartford\u2019s alleged ownership of all claims arising from or related to the [Hotel Indigo] Project,\u201d the Bank became concerned about not only the claims arising in Helm\u2019s name, but those arising in the name of Hartford. Ultimately, on 7 June 2013, the Bank moved the federal court to substitute Hartford as the plaintiff or, in the alternative, to join Hartford as a necessary party, noting that \u201cit is undisputed that Hartford claims an interest in the subject of this [federal] action,\u201d and thus any related claims arising therefrom.\nOn 21 June 2013, in the action sub judice United Bank filed its complaint in Superior Court, Durham County, against Hartford seeking, inter alia, a declaratory judgment that the Bank\u2019s deed of trust securing the construction loan has priority over Helm\u2019s lien against Shrijee for \u201clabor performed or materials furnished.\u201d\nOn3 July 2013, counsel for Helm, United Bank, and Hartford appeared before the federal court regarding the Bank\u2019s motion to include Hartford as a plaintiff or necessary party in the federal action. Noting the recently filed state court litigation, the Helm II suit and the suit sub judice, the court inquired about the \u201cpurported dispute between the plaintiff here [Helm] and Hartford with regard to what rights Hartford may or may not have in this litigation.\u201d The court expressed concerned about\nwho would be the real party in interest in this case, who owns this action, and whether or not if Helm pursues this case, Hartford would have some right to come along at a later time and say we\u2019re not bound by that, we own this, and we think Helm should have pursued a different course, we don\u2019t think they waived anything that would effect [sic] us. That bothers me. So my question to you is, are Helm and Hartford on the same page with regard to our proceeding ahead with this lawsuit?\nCounsel for Hartford responded: \u201cHartford has no objection with this case moving forward without Hartford..., and that Hartford does not\u2014will not seek to collaterally attack any judgment entered in this action with Hartford not as a named party.\u201d Counsel acknowledged concerns regarding the possible estoppel of its claims in the related actions, stating to the court: \u201cTo the extent there are\u2014there is evidence brought to the Court\u2019s attention in this case, it would be Hartford\u2019s position that there would be no issue preclusion as to Hartford in that related litigation.\u201d\nThe court responded: \u201cI don\u2019t know that I can make any ruling with regard to issue preclusion that would be applied by the state court, . . . [and] anything I say or do would be only advisory with regard to what the state court may find to be precluded.\u201d In other words, if Hartford declined to join the federal action, it would assume the risk that its claims may be estopped in the related state court litigation.\nCounsel for Hartford acquiesced, stating:\n[I]t is clear from Hartford\u2019s perspective that it is not a necessary party to this litigation. To the extent Your Honor does have concerns as to any purported assignments of the general agreements indemnity as they are brought to the Court\u2019s attention, or issues of equitable subrogation, I think that that could be essentially be handled post-litigation through inteipleader action.\nThe court agreed. Hartford ultimately declined to join the federal action.\nAfter extensive discovery and deposition testimony, Helm\u2019s claims arising from the 2008 Letter were tried before a juiy in the federal action. As described by United Bank, \u201cCounsel for Hartford sat through the majority of the trial and never advised the court of any reason to add Hartford to the case.\u201d On the verdict sheet the jury expressly concluded that the February 2008 Letter did not contain \u201cfalse information\u201d and that Helm did not suffer harm therefrom. Following adjudication of Helm\u2019s claims, on 16 July 2013, the federal court ordered that Helm \u201chave and recover nothing from [United Bank]\u201d and dismissed the case with prejudice.\nOn 17 October 2013, Hartford answered United Bank\u2019s complaint sub judice and filed, inter alia, tort counterclaims based on the alleged falsity of the 2008 Letter, which are the only claims at issue before this Court. Based on that alleged falsity, Hartford raises strikingly similar tort counterclaims as those raised by Helm in the federal action, consisting of fraud, fraud in the inducement, negligent misrepresentation, and unfair and deceptive trade practices. Hartford alleges that United Bank acted fraudulently by \u201cma[king] false and misleading representations\u201d in the 2008 Letter and that \u201cHartford would not have issued both the Payment and Performance Bonds absent the Bank\u2019s express representations\u201d therein. In response, United Bank points to the related federal action and raises affirmative defenses of \u201cres judicata and/or collateral estoppel\u201d because the same tort claims \u201cwere litigated to final judgment\u201d by Hartford\u2019s assignor Helm. The Bank asserted other defenses as well, including waiver, unclean hands, and \u201cjudicial estoppel/estoppel by inconsistent positions\u201d based on Hartford\u2019s counsel\u2019s declarations to the federal court.\nOn 25 February 2014, United Bank successfully moved for judgment on the pleadings as to the tort counterclaims. See N.C.G.S. \u00a7 1A-1, Rule 12(c) (2016). The trial court found that \u201cHartford is in privity with Helm\u201d due to Helm\u2019s prior assignment. Given \u201cHartford\u2019s counsel\u2019s representations to [the federal court]\u201d and \u201cHartford\u2019s decision not to participate in the [federal action],\u201d which would have afforded Hartford \u201ca full and fair opportunity to litigate its claims,\u201d the trial court found that \u201cHartford is bound by the judgment entered in the [federal action].\u201d Citing Whitacre Partnership v. BioSignia, Inc., 358 N.C. 1, 591 S.E.2d 870 (2004), the trial court concluded that \u201cHartford is judicially estopped from asserting the counterclaims against United Bank.\u201d In addition to finding judicial estoppel, the trial court found that Hartford\u2019s counterclaims were also barred by the doctrines of collateral estoppel and res judicata because the \u201ccentral issue to the Counterclaims all revolves around the truth or falsity of the statements in the February 2008 Letter,\u201d which statements the federal jury had already determined \u201cto be true.\u201d Hartford appealed to the Court of Appeals.\nIn a divided opinion, the Court of Appeals reversed the dismissal of Hartford\u2019s tort counterclaims. Old Republic Nat\u2019l Title Ins. Co. v. Hartford Fire Ins. Co., _ N.C. App. _, 785 S.E.2d 185, 2016 WL 1321139 (2016) (unpublished). The majority concluded that, though \u201cHartford was in privity with respect to [Helm\u2019s] claims in the federal action,\u201d Old Republic, 2016 WL 1321139, at *4, such participation \u201conly bars any claim Hartford might otherwise have (as assignee of [Helm\u2019s] claims) to recover for [Helm\u2019s] damages based on [Helm\u2019s] reasonable reliance on representations made by United Bank,\u201d id. The dissent opined that Hartford had \u201cnumerous opportunities\u201d to join the federal action and that the doctrines of res judicata and collateral estoppel bar its tort counterclaims. Id. at *12 (Hunter, Jr., J., dissenting). Neither the majority nor the dissent, however, addressed the trial court\u2019s imple-, mentation of judicial estoppel, despite arguments made by the parties. United Bank appeals as a matter of right.\nNorth Carolina has long recognized the importance of candor with the trial court. See Whitacre P\u2019ship, 358 N.C. at 12, 591 S.E.2d at 878 (citing Kannan v. Assad, 182 N.C. 77, 78, 108 S.E. 383, 384 (1921)). The doctrine of \u201cjudicial estoppel seeks to protect the integrity of the judicial process,\u201d id. at 16, 591 S.E.2d at 880, \u201cwhich \u2018lies at the foundation of all fair dealing ... and without which, it would be impossible to administer law as a system,\u2019 \u201d id. at 27, 591 S.E.2d at 887 (quoting Armfield v. Moore, 44 N.C. (Busb.) 157, 161 (1852)).\nA party is generally not \u201callowed to change his position with respect to a material matter, during the course of litigation, nor should he be allowed to \u2018blow hot and cold in the same breath.\u2019 \u201d Id. at 12, 591 S.E.2d at 878 (quoting Kannan, 182 N.C. at 78, 108 S.E. at 384); see id. at 29, 591 S.E.2d at 888 (Judicial estoppel is proper when \u201ca party\u2019s subsequent position ... [is] \u2018 \u201cclearly inconsistent\u201d with its earlier position.\u2019 \u201d (quoting New Hampshire v. Maine, 532 U.S. 742, 750, 121 S. Ct. 1808, 1815, 149 L. Ed 2d 968, 978 (2001))). Unlike its \u201cclosely related\u201d cousins, the doctrines of collateral estoppel and res judicata, judicial estoppel is \u201cdissimilar in critical respects.\u201d Id. at 16, 591 S.E.2d at 880 (quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982)). Judicial estop-pel seeks to protect the judicial process itself and does not require \u201c \u2018mutuality\u2019 of the parties,\u201d detrimental reliance, or that an issue have been \u201cactually litigated in a prior proceeding.\u201d Id. at 16-18, 591 S.E.2d at 880-82 (citations omitted).\nAs a \u201cdiscretionary equitable doctrine,\u201d id. at 26, 591 S.E.2d at 887, judicial estoppel empowers the court with the necessary \u201cmeans to protect the integrity of judicial proceedings where [other] doctrines . .. might not adequately serve that role,\u201d id. at 26, 591 S.E.2d at 887 (citations omitted). Because judicial estoppel \u201cprotects] the courts rather than the litigants,... a court, even an appellate court, may raise [judicial] estoppel on its own motion.\u201d Matter of Cassidy, 892 F.2d 637, 641 (7th Cir.) (footnote omitted) (citing Allen, 667 F.2d at 1168 n.5)), cert. denied, 498 U.S. 812, 111 S. Ct. 48, 112 L. Ed. 2d 24 (1990).\nWe review de novo the trial court\u2019s order granting judgment on the pleadings. See CommScope Credit Union v. Butler & Burke, LLP, _ N.C. _, _, 790 S.E.2d 657, 659 (2016). The trial court\u2019s implementation of judicial estoppel as a basis to grant the order, however, is reviewed for abuse of discretion, Whitacre P\u2019ship, 358 N.C. at 38, 591 S.E.2d at 894 (citing New Hampshire, 532 U.S. at 750, 121 S. Ct. at 1814-15, 149 L. Ed 2d at 977-78), and will only be overturned \u201cupon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision,\u201d In re Foreclosure of Lucks, _ N.C. _, _, 794 S.E.2d 501, 506 (2016) (quoting State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986)).\nThough the parties have primarily focused their briefing on the companion doctrines of collateral estoppel and res judicata, we proceed no further than judicial estoppel. Hartford argues that it is not prosecuting its \u201cAssigned Claims\u201d from Helm but rather \u201cits own, independent Tort Claims.\u201d Such a factual inquiry, however, reaches beyond the appropriate standard of review for judicial estoppel. Presented with Hartford\u2019s counsel's apparently contradictory declarations before the federal court and the substantial similarities of its tort claims to those of Helm, as revealed in the pleadings, the trial court reasonably invoked judicial estoppel to prevent Hartford from taking an inconsistent position, and therefore, did not abuse its discretion.\nBy filing its similar tort counterclaims, the trial court could reasonably conclude that Hartford takes the action that it stated to the federal court it would not take. See Whitacre P\u2019ship, 358 N.C. at 29, 591 S.E.2d at 888. The federal court expressed concerns that Hartford might \u201ccome along at a later time and say we\u2019re not bound by [the federal action]\u201d and further advised Hartford that it could not rule regarding its state-court estoppel concerns. Despite knowing of the estoppel risk, Hartford declined to join the federal action and stated that it \u201cwill not seek to collaterally attack any judgment entered in this action with Hartford not as a named party.\u201d See Hamilton v. Zimmerman, 37 Tenn. (5 Sneed) 39, 47-48 (1857) (\u201cThe law . .. will not. . . suffer a man to contradict or gainsay, what, under particular circumstances, he may have previously said or done.\u201d); see also Collateral Attack, Black\u2019s Law Dictionary (10th ed. 2014) (\u201c[A]n attempt to undermine a judgment through a judicial proceeding in which the ground ... is that the judgment is ineffective.\u201d). Nonetheless, Hartford seeks to raise similar fraud claims to those of its assignor Helm, all of which contest the same adjudicated facts in the federal action\u2014the very situation about which the federal court expressed concern. Moreover, United Bank moved to join Hartford as a necessary party in that action, seeking to avoid such relitigation.\nAllowing Hartford to proceed in the face of its own contravening assertions made -before the federal court poses a significant threat of inconsistent court determinations. See Whitacre P\u2019ship, 358 N.C. at 13-14, 591 S.E.2d at 879; Jones v. Sasser, 18 N.C. (1 Dev. & Bat.) 452, 464 (1836) (Estoppel is \u201cfounded upon the great principles of morality and public policy... to prevent that which deals in duplicity and inconsistency.\u201d); see also Cates v. Wilson, 321 N.C. 1, 18, 361 S.E.2d 734, 744 (1987) (Mitchell, J., concurring in result) (\u201cA lawsuit is not a parlor game . . . .\u201d). Permitting such a conflicting position and inconsistency would serve to undermine public confidence in the judicial process.\nIn sum, Hartford had ample opportunity to litigate all of its related claims, including those attributable to its assignor Helm and to Hartford individually, by joining the federal action. Hartford elected not to do so. Given the statements made by Hartford\u2019s counsel before the federal court and the substantial similarity of its counterclaims, which contest prior adjudicated facts, we conclude that the trial court reasonably invoked judicial estoppel to restrain Hartford from adopting an inconsistent position. See Whitacre P\u2019ship, 358 N.C. at 26-27, 591 S.E.2d at 887 (Judicial estoppel serves \u201cas a gap-filler\u201d and is appropriate \u201cwhere the technical requirements of\u2019 its companion estoppel doctrines may not be met.). The trial court did not abuse its discretion and therefore, properly dismissed Hartford\u2019s tbrt counterclaims. Accordingly, we reverse the decision of the Court of Appeals, which reversed the trial court\u2019s dismissal of the tort counterclaims.\nREVERSED.\n. Farmers Bank & Trust was the original issuer of the loan and merged with United Bank in November 2008. For purposes of this opinion, actions by Farmers Bank before the merger are referred to as those of United Bank, its undisputed successor in interest.\n. Old Republic National Title Insurance Company, as the title insurer for the deed of trust, is a co-plaintiff.\n. On 13 October 2014, the trial court entered a consent judgment, which the parties concede resolved all other remaining claims.", "type": "majority", "author": "NEWBY, Justice." }, { "text": "Justice ERVIN\ndissenting.\nThe majority has resolved this case based upon judicial estoppel considerations instead of the collateral estoppel and res judicata principles upon which the dissenting opinion in the Court of Appeals relied in determining that the trial court\u2019s order should be upheld. Moreover, in holding that Hartford is judicially estopped from seeking relief from United Bank separate and apart from Helm, the majority assumes, without demonstrating, that (1) Hartford \u201ccollaterally attack[ed] the federal judgment post hoc\u201d and (2) attempted to \u201cre-litigat[e] its related claims arising from the same facts.\u201d On the contrary, the fact that two different parties have asserted that the same defendant committed the same torts in connection with the same overall transaction does not, at least in my opinion, mean that these parties have asserted identical claims in the event that those claims are supported by different facts. As a result, given that the dissenting opinion in the Court of Appeals, which provides the basis for our jurisdiction over this case, did not rely on judicial estoppel principles in upholding the trial court\u2019s decision and my belief that the claims that Hartford seeks to assert against United Bank are fundamentally different from the claims that Helm asserted against that financial institution, I respectfully dissent from the Court\u2019s decision with respect to the judicial estoppel issue.\nNeither the majority nor the dissenting opinions in the Court of Appeals make any mention of judicial estoppel. Old Republic Nat'l. Title Ins. Co. v. Hartford Fire Ins. Co., \u2014 N.C. App. \u2014, 785 S.E.2d 185 (2016). \u201cWhen the sole ground of the appeal of right is the existence of a dissent in the Court of Appeals, review by the Supreme Court is limited to a consideration of those issues that are (1) specifically set out in the dissenting opinion as the basis for that dissent, (2) stated in the notice of appeal, and (3) properly presented in the new briefs required by Rule 14(d)(1)-N.C. R. App. R 16(b). Although \u201c \u2018[t]his Court will not hesitate to exercise its rarely used general supervisory authority when necessary to promote the expeditious administration of justice,\u2019 and may do so to \u2018consider questions which are not properly presented according to [its] rules,\u2019 \u201d State v. Ellis, 361 N.C. 200, 205, 639 S.E.2d 425, 428 (2007) (brackets in original) (quoting State v. Stanley, 288 N.C. 19, 26, 215 S.E.2d 589, 594 (1975)), I am not persuaded that we should do so in this case given the limited extent to which the parties addressed this subject in their briefs. As I read the record, United Bank mentioned the subject of judicial estoppel in an eight line footnote found on the last page of its principal brief in which it made the conclusory assertion that Hartford was not entitled to \u201crepresent to the court in the Prior Action that it was not a necessary party and would not collaterally attack the judgment entered in that action and then - three months after the jury verdict - assert identical claims premised on the same facts and issues actually litigated to a final judgment in the Prior Action.\u201d (Citing Whitacre P\u2019ship v. Biosignia, Inc., 358 N.C. 1, 21, 591 S.E.2d 870, 884 (2004)). Although Hartford addressed the judicial estoppel issue in more detail, it did little more than point out that the judicial estoppel issue had not been addressed in the dissenting opinion in the Court of Appeals and was not, for that reason, properly before the Court and to assert that, since it was \u201cprosecuting its own, independent Tort Claims,\u201d it was not judicially estopped from pursuing those claims in this case. (Citing Price v. Price, 169 N.C. App. 187, 191, 609 S.E.2d 450, 452 (2005), and Whitacre P\u2019ship, 358 N.C. at 29, 591 S.E.2d at 888-89)). As a general proposition, deciding an issue that has not been fully briefed and argued by the parties involves risks that I see no reason for the Court to take in this case. In addition, I am not persuaded, and the majority has not demonstrated, that a decision to address and resolve the judicial estoppel issue when it is not properly before us promotes the \u201cexpeditious administration of justice.\u201d Ellis, 361 N.C. at 205, 639 S.E.2d at 428. As a result, I do not believe that we should deviate from our usual practice of refraining from deciding issues that are not properly before us. However, in light of the fact that I disagree with the majority\u2019s decision with respect to the judicial estoppel issue as well, I will discuss the merits of the Court\u2019s determination that Hartford is judicially estopped from pursuing the claims that it has asserted against United Bank.\nThe matter before the Court stems from the trial court\u2019s decision to grant United Bank\u2019s motion for judgment on the pleadings. \u201cA motion for judgment on the pleadings is the proper procedure when all the material allegations of fact are admitted in the pleadings and only questions of law remain. When the pleadings do not resolve all the factual issues, judgment on the pleadings is generally inappropriate.\u201d Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974) (citation omitted). \u201cThe trial court is required to view the facts and permissible inferences in the light most favorable to the nonmoving party. All well pleaded factual allegations in the nonmoving party\u2019s pleadings are taken as true and all contravening assertions in the movant\u2019s pleadings are taken as false.\u201d Id. at 137, 209 S.E.2d at 499 (citing, inter alia, Beal v. Mo. Pac. R.R. Corp., 312 U.S. 45, 61 S. Ct. 418, 85 L. Ed. 577 (1941); Austad v. United States, 386 F.2d 147 (9th Cir. 1967)). A trial court order granting a motion for judgment on the pleadings is reviewed de novo. See CommScope Credit Union v. Butler & Burke, LLP, _ N.C. _, _, 790 S.E.2d 657, 659 (2016) (citation omitted). \u201cUnder the de novo standard of review, the [Court] \u2018considers] the matter anew[ ] and freely substitutes] its own judg- \u2022 ment for\u2019 [that of the lower court].\u201d Midrex Techs., Inc. v. N.C. Dep\u2019t of Revenue, _ N.C. _, _, 794 S.E.2d 785, 791 (2016) (brackets in original) (quoting N. C. Dep\u2019t of Env\u2019t & Nat. Res. v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004)).\nJudicial estoppel is \u201ccustomarily used to promote the fairness and integrity of judicial proceedings.\u201d Whitacre P\u2019ship, 358 N.C. at 13, 591 S.E.2d at 879. \u201cA party is not permitted to take a position in a subsequent judicial proceeding which conflicts with a position taken by him in a former judicial proceeding, where the latter position disadvantages his adversary.\u201d Id. at 21, 591 S.E.2d at 884 (quoting Rand v. Gillette, 199 N.C. 462, 463, 154 S.E. 746, 747 (1930)). However, \u201ca party may not be judicially estopped to assert \u2018inconsistent positions with respect to issues that are only superficially similar.\u2019 \u201d Id. at 16, 591 S.E.2d at 880 (quoting 18 James Wm. Moore et al., Moore\u2019s Federal Practice \u00a7 134.30, at 134-69 (3d ed. 1997)). In other words, \u201cjudicial estoppel is limited to the context of inconsistent factual assertions.\u201d Id. at 32, 591 S.E.2d at 890. For that reason, in order to invoke judicial estoppel, a party must show that (1) the opposing party \u201cadvanced an inconsistent factual position in a prior proceeding, and (2) the prior inconsistent position was adopted by the first court in some manner.\u201d AXA Marine & Aviation Ins. (UK) Ltd. v. Seajet Indus. Inc., 84 F.3d 622, 628 (2d Cir. 1996); see also Wight v. BankAmerica Corp., 219 F.3d 79, 90 (2d Cir. 2000) (same). In other words, \u201cthere must be a true inconsistency between the statements in the two proceedings\u201d; \u201c[i]f the statements can be reconciled there is no occasion to apply an estoppel.\u201d Simon v. Safelite Glass Corp., 128 F.3d 68, 72-73 (2d Cir. 1997) (citing, inter alia, AXA Marine & Aviation, 84 F.3d at 628). As a general proposition, \u201ca trial court\u2019s application of judicial estoppel is reviewed for abuse of discretion.\u201d Whitacre P\u2019ship, 358 N.C. at 38, 591 S.E.2d at 894 (citation omitted). \u201cWhere the essential element of inconsistent positions is not present, it is an abuse of discretion to bar plaintiff\u2019s claim on the basis of judicial estoppel.\u201d Estate of Means ex rel. Means v. Scott Elec. Co. Inc., 207 N.C. App. 713, 719, 701 S.E.2d 294, 299 (2010) (citation omitted). Thus, the issues before us in this instance are: (1) whether the allegations and admissions in the parties\u2019 pleadings, considered in the light most favorable to Hartford, demonstrate that Hartford took inconsistent positions in the related federal case and in this case; and (2) whether the trial court abused its discretion in invoking judicial estoppel to bar the assertion of Hartford\u2019s claims. In view of my belief, after reviewing the allegations and admissions in the pleadings in the light most favorable to Hartford, that Hartford has not made inconsistent assertions in the related federal case and this case, I believe that the trial court erred by dismissing Hartford\u2019s claims on judicial estoppel grounds.\nIn the related federal action, Helm asserted claims against United Bank for (1) fraudulent and deceptive conduct, including the intentional misrepresentation and concealment of material facts from Helm, that constituted unfair and deceptive trade practices; (2) fraud, based upon representations made to Helm by Michael Schomick in a February 2008 letter, by Judy Tackett in July 2009 telephone conversations, and by Kermin Fleming in both a voice mail and telephone conference in July 2009; (3) fraud in the inducement based upon these same representations to Helm; (4) unjust enrichment; and (5) negligent misrepresentation based upon these same representations to Helm.\nOn 7 June 2013, United Bank filed a motion in the related federal action seeking to have Hartford substituted for Helm as the party plaintiff on the grounds that Hartford, which owned any judgment that Helm might obtain, was the real party in interest. At a hearing held for the purpose of considering various pretrial motions held on 3 July 2013, United States District Judge N. Carlton Tilley, Jr., expressed concern that \u201cHartford would have some right to come along at a later time and say we\u2019re not bound by [the federal court judgment], we own this, and we think Helm should have pursued a different course, we don\u2019t think they waived anything that would [a]ffect us.\u201d In response, counsel for Hartford informed the federal district court that: (1) \u201cHartford has no objection with this case moving forward without Hartford as a named party to this litigation\u201d; and (2) \u201cHartford... will not seek to collaterally attack any judgment entered in this action.\u201d (Emphases added.) In other words, as the italicized statements make clear, the representations made by Hartford\u2019s counsel to the federal district court were strictly limited to the issues currently before that forum. Shortly thereafter, Hartford\u2019s counsel told United Bank\u2019s counsel in an e-mail that the representations that she had made to the district court in the federal proceeding did not include any separate claims that Hartford might have against United Bank. More specifically, Hartford\u2019s counsel informed counsel for United Bank that, while it \u201cwill not seek to re-litigate those claims brought by HELM Builders in\u201d the federal action, \u201cHartford did not represent to the [federal district court] that it was waiving and/or in any way releasing any claim that it may possess against United Bank from this date until the end of time, whether known or unknown.\u201d\nAbout three months after the conclusion of the federal trial, in which the jury returned a verdict in United Bank\u2019s favor, Hartford asserted claims against United Bank for (1) fraud, based upon a contention that the 22 February 2008 letter contained representations and omitted material facts that had the effect of making that letter false and misleading so as to deceive Hartford; (2) fraud in the inducement, based upon a contention that United Bank had induced Hartford to provide bonding services for the Hotel Indigo project based upon misleading representations and omissions to Hartford associated with the 22 February 2008 letter; (3) unfair trade practices, based upon the misleading representations and omissions to Hartford associated with the 22 February 2008 letter; and (4) negligent misrepresentation, based upon a contention that United Bank had failed to exercise ordinary care in its communications with Hartford. In determining that Hartford is judicially estopped from asserting these claims based upon the representations that it had made to the district court during the related federal case, the majority has failed to analyze the claims that Hartford has asserted against United Bank in order to ascertain whether they are the same as those that Helm asserted against United Bank. When such an analysis is undertaken, it is clear to me that the claims that Hartford seeks to assert against United Bank in this case are not identical to the claims that Helm asserted against United Bank in the related federal action.\nIn seeking relief from United Bank, Hartford alleged that, \u201c[p]rior to the issuance of the performance and payment bond,\u201d it \u201crequired verification and written assurance from the Bank that the Bank had allocated funds from the Construction Loan sufficient to cover and pay to HELM Builders the base scope of the Shrijee Contract\u2014i.e. $13,050,000.00\u201d and that, \u201cprior to February 22, 2008, the Bank knew and understood that HELM Builders\u2019 surety had refused to issue the performance and payment bond in the amount of $13,050,000.00 for the Hotel Indigo Project based solely upon the Bank\u2019s issuance of the Bank Commitment Letter\u201d and that Hartford \u2018\u2018required the Bank to provide assurances that it had allocated funds from the Construction Loan sufficient to cover the base scope of the Shrijee Contract\u2014i.e., $13,050,000.00 in order for Hartford to issue the performance and payment bond.\u201d In light of that understanding, United Bank provided a letter from Michael E. Schomick, Jr., an Executive Vice President, to Scott McAllister, who served as Helm\u2019s President, dated 22 February 2008 in which Mr. Schomick stated that:\nThis letter is to confirm that the financing is available for the Hotel Indigo, Durham, NC project. The minimum of $13,050,000 has been allocated for the contract amount to Helm Builders, LLC for the construction of the project. Direct funding to Helm Builders LLC is contingent upon Shrijee LLC authorization, draw percentages must be commensurate with completion percentage and the standard lien waivers from both Helm and all subcontractors including vendors. Inspections & payment authorizations willbedeterminedandconductedbyathird-party architect.\nWe understand this letter is to be used to release the Payment and Performance bonds for the construction of this project.\nAccording to Hartford, United Bank \u201cprovided the February 2008 Bank Letter to Har[t]ford, in care of HELM Builders, to obtain Hartford\u2019s issuance of the requested performance and payment bonds for the construction of the Hotel Indigo Project.\u201d However, as Hartford discovered during the trial of the related federal action, United \u201cBank had not allocated at least $13,050,000 of the Construction Loan for the Shrijee Contract;\u201d \u201cnever intended to allocate at least $13,050,000.00 of the Construction Loan for the Shrijee Contract;\u201d and did not \u201cinclude within the February 2008 Bank Letter sufficient information to put Hartford on notice that the Bank was not financing one hundred percent (100%) of the construction costs for the Hotel Indigo Project\u201d or \u201cto put Hartford on notice that the Bank had not allocated at least $13,050,000 of the Construction Loan for the Shrijee Contract.\u201d Hartford contended that it \u201cwould not have issued both the Payment and Performance Bonds absent the Bank\u2019s express representations to Hartford, set forth in the February 2008 Bank Letter.\u201d As a result, Hartford alleged that it was entitled to recover damages from United Bank for fraud, fraud in the inducement, unfair and deceptive trade practices, and negligent misrepresentation.\nThe essence of the claim that Hartford seeks to assert against United Bank is that Hartford could have reasonably understood the statements contained in the 22 February 2008 letter to indicate that the bank had committed sufficient funds from the construction loan to pay for the construction of the Hotel Indigo project; that no such commitment had, in fact, been made; and that Hartford would not have provided bonding services for the project had it understood that the bank had not allocated sufficient funds from the construction loan to pay for the construction of the Hotel Indigo. Although Helm had asserted that the 22 February 2008 letter contained misrepresentations as to Helm and that Helm would not have commenced construction had it known that sufficient funds had not been committed from the construction loan to pay the costs that Helm anticipated occurring in connection with the construction of the Hotel Indigo, I do not believe that there is any inconsistency between a representation to a federal district court that Hartford did not intend to collaterally attack or otherwise seek to relitigate claims based upon representations that were allegedly false as to Helm, which Hartford owned by virtue of an assignment that it had received from Helm, and the assertion of claims based upon misrepresentations that were alleged to have been made directly to Hartford, particularly given that this issue is being resolved at the pleading stage without the benefit of further factual development. As a result, given that the statements made by Hartford to the federal district judge prior to the federal trial were limited to a commitment that Hartford would not attempt to reliti-gate the claims that Helm had asserted against United Bank and given that the claims that Hartford has asserted against United Bank rest upon alleged misrepresentations made to Hartford rather than to Helm, I do not believe that the undisputed information in the present record provides any basis for a determination that Hartford\u2019s representations to the federal district court conflict with the position that Hartford has taken in this case. As a result, since the allegations set out in the parties\u2019 pleadings, viewed in the light most favorable to Hartford, provide ample justification for a determination that Hartford did not make inconsistent representations in the related federal case and in this case, I respectfully dissent from the Court\u2019s decision to uphold the dismissal of Hartford\u2019s claims against United Bank on judicial estoppel grounds.\nJustices HUDSON and BEASLEY join in this dissenting opinion.\n. In view of the fact that the Court has not reached the issue of whether Hartford is precluded from asserting its claims against United Bank on collateral estoppel or res judicata grounds, I express no opinion concerning the maimer in which that issue should be decided.", "type": "dissent", "author": "Justice ERVIN" } ], "attorneys": [ "Manning Fulton & Skinner, P. A., byJudsonA. Welbom, J. Whitfield Gibson, and Natalie M. Rice, for 'plaintiff-appellant United Bank & Trust Company.", "Lewis & Roberts, PLLC, by James A. Roberts, III and Jessica E. Bowers, for defendant-appellee Hartford Fire Insurance Company." ], "corrections": "", "head_matter": "OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY and UNITED BANK & TRUST COMPANY, VERSAILLES, KY., f/k/a FARMERS BANK & TRUST COMPANY (GEORGETOWN, KY.) v. HARTFORD FIRE INSURANCE COMPANY, SHRIJEE LLC, HELM BUILDERS, LLC, and MICHAEL D. ANDREWS, in his official capacity as Sheriff of Durham County, North Carolina\nNo. 155A16\nFiled 17 March 2017\nEstoppel\u2014judicial\u2014collateral attack\u2014inconsistent position\nThe trial court did not abuse its discretion by invoking the doctrine of judicial estoppel to dismiss counterclaims arising from a failed hotel development project. In a prior related case, defense counsel had assured a federal court that defendant would not collaterally attack the federal judgment by relitigating claims from the same facts. The trial court found that defendant essentially took the action which defense counsel had stated it would not take, thereby adopting an inconsistent position.\nJustice ERVIN dissenting.\nJustices HUDSON and BEASLEY join in this dissenting opinion.\nAppeal pursuant to N.C.G.S. \u00a7 7A-30(2) from the unpublished decision of a divided panel of the Court of Appeals,_N.C. App._, 785 S.E.2d 185 (2016), affirming an order on summary judgment entered on 30 September 2014 by Judge Henry W. Hight, Jr., and reversing and remanding an order granting judgment on the pleadings entered on 14 August 2014 by Judge G. Wayne Abernathy, both in Superior Court, Durham County. Heard in the Supreme Court on 14 February 2017.\nManning Fulton & Skinner, P. A., byJudsonA. Welbom, J. Whitfield Gibson, and Natalie M. Rice, for 'plaintiff-appellant United Bank & Trust Company.\nLewis & Roberts, PLLC, by James A. Roberts, III and Jessica E. Bowers, for defendant-appellee Hartford Fire Insurance Company." }, "file_name": "0500-01", "first_page_order": 576, "last_page_order": 591 }