             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-683

                               Filed: 5 January 2016

Currituck County, No. 11 CVS 49

ALLEN TOBY HEDGEPETH, as Trustee under the Allen Toby Hedgepeth
Declaration of Trust, Dated May 30, 2001, Plaintiff,

            v.

PARKER’S LANDING PROPERTY OWNERS ASSOCIATION, INC., Defendant.


      Appeal by plaintiff from order entered 12 January 2015 by Judge Marvin K.

Blount in Currituck County Superior Court. Heard in the Court of Appeals 17

December 2015.


      Vandeventer Black LLP, by Norman W. Shearin and Ashley P. Holmes, for
      plaintiff-appellant.

      Thompson & Pureza, P.A., by C. Everett Thompson, II and David R. Pureza,
      for defendant-appellee.


      TYSON, Judge.


      Allen Toby Hedgepeth (“Plaintiff”) appeals from order granting summary

judgment in favor of Parker’s Landing Property Owners Association, Inc.

(“Defendant”). We reverse and remand.

                      I. Factual and Procedural Background

      Parker’s Landing is a subdivision located in Currituck County, North Carolina.

This property is bordered by U.S. Highway 158 to the west and by a tract of raw land
                          HEDGEPETH V. PARKER’S LANDING POA

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(“the Hedgepeth Tract”) to the south. The last survey plat of Parker’s Landing was

recorded in 1989 and provides all streets in the subdivision are private and owned by

the Property Owners Association (“the POA”). The POA also owns the common areas

within the subdivision.

      In 1993, Plaintiff purchased the Hedgepeth Tract at a foreclosure sale without

conducting a title search. The prior owners of the Hedgepeth Tract had purchased

the property in 1987 with the intent of developing the property into a residential

subdivision. The prior owners allegedly allowed the property to be foreclosed upon,

because it failed to include a reasonable means of ingress or egress. Plaintiff sought

to develop the Hedgepeth Tract into a residential subdivision, but under the

development ordinances, could not do so without a 50-foot right-of-way leading from

his property to U.S. Highway 158 or any other street.

      Plaintiff, a resident of Virginia, filed a complaint against the POA in the

United States District Court for the Eastern District of North Carolina in 2007 (“the

federal complaint” or “the federal action”), to seek a declaration that he had an

easement directly across Parker’s Landing Drive. Plaintiff alleged “Parker’s Landing

Drive now affords the only physical access from the [Hedgepeth] Tract to U.S.

Highway 158.”

      Plaintiff asserted that “[p]rior to the recording of the Final Plat [of Parker’s

Landing], the predecessors in title to the developer of Parker’s Landing recognized



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the existence of two (2) easements burdening Parker’s Landing for the benefit of the

[Hedgepeth] Tract[.]”    Plaintiff contended the easements were created when the

Parker’s Landing Tract and the Hedgepeth Tract were severed from common

ownership, which created an easement-by-necessity for access for an otherwise

landlocked tract across the Parker’s Landing Tract to the public highway. Plaintiff

averred the developer of Parker’s Landing relocated the easements from several

platted lots to a street in the subdivision, Parker’s Landing Drive, with the mutual

assent of Plaintiff’s predecessor-in-title.

       In his federal court complaint, Plaintiff admitted the POA owned “the Common

Areas in Parker’s Landing Subdivision[,]” including Parker’s Landing Drive. Plaintiff

also conceded the south line of the Hedgepeth Tract adjoined Parker’s Landing Drive.

Plaintiff claimed he had either an express easement, an implied easement, or an

easement by estoppel across Parker’s Landing Drive.

       At a pre-trial conference held on 29 May 2009, the parties entered into a pre-

trial order, in which the parties stipulated to the following relevant facts:

              4. POA is the owner of the “Common Areas” in Parker’s
              Landing Subdivision described in that certain deed dated
              December 9, 2005 . . . .

              5. Among the Common Areas owned by POA is a street
              named Parker’s Landing Drive shown on the amended plat
              of Parker’s Landing Subdivision recorded in Plat Cabinet
              E, Slide 116 & 117, Currituck County Registry (the
              “Amended Plat”). . . .



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             ....

             8. POA is the owner of Parker’s Landing Drive as shown
             on the Plats.

      Plaintiff moved for summary judgment, and the federal district court denied

Plaintiff’s motion by order entered on 5 June 2009.          The federal district court

concluded, in part:

             Regardless of the angle from which this case is viewed, or
             with which party a shifting-burdens inquiry begins,
             Hedgepeth, who ultimately must prove he is entitled to
             judgment as a matter of law, unequivocally has
             demonstrated that he cannot do so insofar as he seeks
             declaration of an easement for use of Parker’s Landing
             Drive to subdivide and develop the Hedgepeth tract.

                   However, the court finds that no genuine issue of
             material fact exists, the resolution of which could result in
             Parker’s Landing Drive being subject to an easement
             benefitting the Hedgepeth Tract . . . .           Therefore,
             Hedgepeth’s Motion for Summary Judgment . . . is
             DENIED.

                    However, the court concludes that the record
             demonstrates . . . that an implied easement exists such that
             he has reasonable access to his property over the 25-foot
             right-of-way (Doris Lane) as shown on the plat of the heirs
             of Capitolla Smith . . . . Therefore, it hereby is DECLARED
             that the Parker’s Landing tract, as shown on the August
             30, 1993, Amended Final Plat . . . is subject to a 10-foot
             easement and a 25-foot right-of-way (Doris Lane) as shown
             on the plat of the heirs of Capitolla Smith . . . , the scope of
             which may not exceed that necessary to the farming or
             cultivation of the Hedgepeth tract, consistent with the use
             to which those paths were put when the common title to
             the two tracts was severed in 1894.



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      On 2 February 2011, Plaintiff filed a complaint against the POA and alleged

the portion of Parker’s Landing Drive, as depicted on the Amended Plat as running

along the south line of the Hedgepeth Tract, actually overlaps with the south

boundary of the Hedgepeth Tract.           Plaintiff contended “[t]he true and correct

boundary line dividing the [Hedgepeth] Tract and the lands of the POA is the common

boundary described in that certain deed from W.W. Jarvis et ux to Nancy Virginia

Parker dated October 12, 1940, and recorded in Book 71, Page 449, Currituck County

Registry.”

      Plaintiff requested the trial court “declare the rights of the parties under the

Amended Plat, Declaration, and the deeds, to quiet title to the [Hedgepeth] Tract,

determine the true boundary between the [Hedgepeth] Tract and the lands of the

POA, and enjoin the POA from interfering with those said rights[.]”

      The POA filed a motion for summary judgment, and the trial court granted

summary judgment in favor of the POA on 12 January 2015. Plaintiff gave timely

notice of appeal to this Court.

                                          II. Issue

      Plaintiff argues the trial court erred by granting summary judgment in favor

of defendant the POA on any proper grounds, and particularly under the doctrine of

judicial estoppel.

                                  III. Standard of Review



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      Summary judgment is proper where “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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013); see Draughon

v. Harnett Cnty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735 (2003)

(citation and internal quotation marks omitted), aff’d per curiam, 358 N.C. 131, 591

S.E.2d 521 (2004).

      “In a motion for summary judgment, the evidence presented to the trial court

must be . . . viewed in a light most favorable to the non-moving party.” Howerton v.

Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 (2004) (citations omitted).

             An issue is “genuine” if it can be proven by substantial
             evidence and a fact is “material” if it would constitute or
             irrevocably establish any material element of a claim or a
             defense.

                     A party moving for summary judgment may prevail
             if it meets the burden (1) of proving an essential element of
             the opposing party’s claim is nonexistent, or (2) of showing
             through discovery that the opposing party cannot produce
             evidence to support an essential element of his or her
             claim. Generally this means that on undisputed aspects of
             the opposing evidential forecast, where there is no genuine
             issue of fact, the moving party is entitled to judgment as a
             matter of law. If the moving party meets this burden, the
             non-moving party must in turn either show that a genuine
             issue of material fact exists for trial or must provide an
             excuse for not doing so.




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Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citations and

internal quotation marks omitted). This Court reviews an order granting summary

judgment de novo. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008).

                                      IV. Analysis

      Plaintiff argues the trial court erred by granting summary judgment in favor

of the POA.     Plaintiff contends the trial court improperly based its ruling for

Defendant on the doctrine of judicial estoppel. We agree.

      Judicial estoppel precludes a party to a legal proceeding from making “clearly

inconsistent” factual assertions, by subsequently asserting a contrary factual

position. Whitacre P’ship v. Biosignia, 358 N.C. 1, 22, 591 S.E.2d 870, 884 (2004).

Judicial estoppel seeks to protect the integrity of judicial proceedings by “prevent[ing]

a party from acting in a way that is inconsistent with its earlier position before the

court.” Powell v. City of Newton, 364 N.C. 562, 569, 703 S.E.2d 723, 728 (2010)

(citation omitted); see also Whitacre, 358 N.C. at 26, 591 S.E.2d at 887 (“[J]udicial

estoppel seeks to protect courts, not litigants, from individuals who would play ‘fast

and loose’ with the judicial system.” (citation omitted)).

      Judicial estoppel is an “equitable doctrine, which may be invoked in a court’s

discretion, is inherently flexible and requires weighing of relevant factors.” Powell,

364 N.C. at 568, 703 S.E.2d at 728; see also Whitacre, 358 N.C. at 28, 591 S.E.2d at

888 (noting judicial estoppel should not be subjected to “rote application of inflexible



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prerequisites or an exhaustive formula” (internal quotation marks omitted)). “[T]he

circumstances under which judicial estoppel may appropriately be invoked are . . .

not reducible to any general formulation of principle.” Whitacre, 358 N.C. at 28, 591

S.E.2d at 888 (citation and quotation marks omitted). Judicial estoppel is “limited to

the context of inconsistent factual assertions” and “should not be applied to prevent

the assertion of inconsistent legal theories.” Id. at 32, 591 S.E.2d at 890 (emphasis

supplied).

      Our Supreme Court set forth three factors, which serve as guideposts for a

court’s decision of whether to apply the doctrine.

             First, a party’s subsequent position must be clearly
             inconsistent with its earlier position. Second, courts
             regularly inquire whether the party has succeeded in
             persuading a court to accept that party’s earlier position,
             so that judicial acceptance of an inconsistent position in a
             later proceeding might pose a threat to judicial integrity by
             leading to inconsistent court determinations or the
             perception that either the first or the second court was
             misled. Third, courts consider whether the party seeking
             to assert an inconsistent position would derive an unfair
             advantage or impose an unfair detriment on the opposing
             party if not estopped.

Id. at 29, 591 S.E.2d at 888-89 (emphasis supplied) (citations and internal quotation

marks omitted).

      Here, Plaintiff sought a declaration of the true ownership and location of the

south boundary of his property, which shares a common boundary with the

subdivision. This Court previously addressed the effect of the federal court action on


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subsequent claims Hedgepeth brought against the POA and individual lot owners in

the subdivision in Hedgepeth v. Parker’s Landing Ass’n, Inc., et al. (Hedgepeth I), __

N.C. App. __, 762 S.E.2d 865 (2014).

      In Hedgepeth I, this Court held res judicata applied to Hedgepeth’s claim to

enforce his right of access over the 25-foot easement because “the extent of the federal

court order was to declare that Hedgepeth had limited rights of access over the 25-

foot easement and the 10-foot easement.” Id. at __, 762 S.E.2d at 873.

      This Court also held res judicata did not apply to Hedgepeth’s boundary claims

against the POA:

             As a preliminary matter, we hold that only those portions
             of Hedgepeth’s complaint concerning the two easements
             found by the federal court could possibly be the subject of
             res judicata based upon the federal court order.

                    Neither the 25-foot easement nor the 10-foot
             easement runs along a common boundary of the Parker’s
             Landing Subdivision tract and the Hedgepeth tract.
             Therefore, the easements adjudicated by the federal court
             cannot be determinative of Hedgepeth’s boundary claims in
             [the present action].

Id. at __, 762 S.E.2d at 873 (emphasis supplied).

      This Court’s prior holding is law of the case. Under the doctrine of law of the

case, “once an appellate court has ruled on a question, that decision becomes the law

of the case and governs the question both in subsequent proceedings in a trial court

and on subsequent appeal.” Weston v. Carolina Medicorp, Inc., 113 N.C. App. 415,

417, 438 S.E.2d 751, 753 (1994). We are bound by this Court’s previous determination

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that “the easements adjudicated by the federal court cannot be determinative of

Hedgepeth’s boundary claims[.]” Hedgepeth I, __ N.C. App. at __, 762 S.E.2d at 873.

      At the hearing on Defendant’s motion for summary judgment, Defendant’s

counsel argued judicial estoppel bars Plaintiff’s present boundary dispute allegations,

and asserted Plaintiff had previously stipulated to the location and relative

ownerships of the subdivision and his property in the pre-trial order in the federal

court action. It is unclear from the record and the order whether the trial court

granted summary judgment in favor of Defendant under the doctrine of judicial

estoppel.

      Under the guidelines set forth in Whitacre and its progeny, we cannot conclude

Plaintiff’s current factual assertion — that the south line of his property overlaps

with Defendant’s Parker’s Landing Drive property — is “clearly inconsistent” with

his factual allegations that he had an easement and access rights across Parker’s

Landing Drive in the federal complaint. Whitacre, 358 N.C. at 29, 591 S.E.2d at 888-

89 (emphasis supplied).

      Both parties admitted during oral argument that the federal court action could

have resulted in the same outcome even if Plaintiff had asserted his boundary

overlappage claims in that action. This reinforces our conclusion of an absence of a

“clearly inconsistent” factual position by Plaintiff — the first, and the only requisite,

element to trigger the application of judicial estoppel. Wiley v. UPS, Inc., 154 N.C.



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App. 183, 188, 594 S.E.2d 809, 812 (2004) (“The first factor, and the only factor that

is an essential element which must be present for judicial estoppel to apply, is that a

party’s subsequent position must be clearly inconsistent with its earlier position.”

(citations and internal quotation marks omitted)).

      In the federal court action, the counsel for both parties signed a pre-trial order,

in which they stipulated “[the] POA is the owner of Parker’s Landing Drive as shown

on the Plats.” This Court cannot reasonably interpret this factual stipulation to bind

the boundary lines of the Hedgepeth Tract.

             It has been the policy of [our appellate courts] to encourage
             stipulations and to restrict their effect to the extent
             manifested by the parties in their agreement.              In
             determining the extent of the stipulation[,] we look to the
             circumstances under which it was signed and the intent of
             the parties as expressed by the agreement. Similarly,
             stipulations will receive a reasonable construction with a
             view to effecting the intent of the parties; but in seeking
             the intention of the parties, the language used will not be
             so construed as to give the effect of an admission of a fact
             obviously intended to be controverted, or the waiver of a
             right not plainly intended to be relinquished.

Rickert v. Rickert, 282 N.C. 373, 380, 193 S.E.2d 79, 83 (1972) (citations and internal

quotation marks omitted).

      The federal court litigation involved Plaintiff’s easement and access rights over

Parker’s Landing Drive to the Hedgepeth Tract.           The alleged admissions and

stipulations related to an assertion of access easements across Parker’s Landing




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Drive.     No stipulations were made concerning the underlying ownership or the

location of a disputed boundary line.

         The location of the true boundary lines of the respective properties was simply

not at issue in the federal court action. The federal court’s order did not address, nor

rely on, any underlying ownership of property on the location of the boundary lines

which are now in dispute. Judicial estoppel “seeks to protect courts, not litigants,

from manipulation.” Whitacre, 358 N.C. at 24, 591 S.E.2d at 885 (emphasis supplied)

(citation omitted).

         Adjudicating Plaintiff’s boundary claims does not threaten “the integrity of the

judicial process” by leading to “inconsistent court determinations or the perception

that either the first or the second court was misled.” Id. at 28, 29, 591 S.E.2d at 888,

889 (citation and internal quotation marks omitted). In light of the outcome of the

federal court litigation, we also cannot conclude Plaintiff’s assertion of a boundary

overlap “would derive an unfair advantage or impose an unfair detriment on the

opposing party if not estopped.” Id. at 29, 591 S.E.2d at 889 (citation omitted).

                                      V. Conclusion

         The essential element which must be present in order for a court to apply the

doctrine of judicial estoppel — a “clearly inconsistent” statement by a party — is

wholly absent from the facts at bar. The underlying purpose of judicial estoppel is to

protect the integrity of the court system, which is not achieved by applying it to the



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facts at bar.   The trial court erred by granting summary judgment in favor of

Defendant.

      The trial court’s order granting summary judgment in favor of Defendant is

reversed. This cause is remanded for further proceedings.

      REVERSED AND REMANDED.

      Judges STROUD and DIETZ concur.




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