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Kershaw v. Levy

Court of Appeals of Tennessee, Nashville

May 8, 2018

POLLY SPANN KERSHAW
v.
JEFFREY L. LEVY

          Session: March 28, 2018

          Appeal from the Chancery Court for Davidson County No. 07C1757 William B. Acree, Senior Judge

         This is a legal malpractice case. Appellant filed suit against Appellee, who had previously served as Appellant's attorney in a divorce matter. Appellant alleged that she suffered monetary damages and was convicted of criminal contempt as a result of the negligent legal representation she received from Appellee in her divorce case. Appellee filed a motion for summary judgment claiming that Appellant's claims were, among other things, barred by the doctrine of judicial estoppel as a result of the sworn statements Appellant made in conjunction with her divorce settlement. The trial court agreed and granted summary judgment in favor of Appellee. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

          Connie Reguli, Brentwood, Tennessee, for the appellant, Polly Spann Kershaw.

          Jeffrey John Switzer, Nashville, Tennessee, for the appellee, Jeffrey L. Levy.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin, and Kenny Armstrong, JJ., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         Plaintiff/Appellant Polly Spann Kershaw filed the instant suit against her former attorney, Defendant/Appellee Jeffrey L. Levy, for legal malpractice on June 19, 2007. In November 2006, Ms. Kershaw hired Mr. Levy to represent her in her pending divorce litigation against her then-husband Elliot Kershaw (the "Divorce Case").[1] Mr. Levy represented Ms. Kershaw in the Divorce Case for approximately seven months - from November 2006 through June 2007. Ms. Kershaw was also represented by other attorneys in her Divorce Case, both before and after she was represented by Mr. Levy. At the time Mr. Levy took over representation of Ms. Kershaw, Ms. Kershaw was already in a precarious position in her Divorce Case. Before Mr. Levy's involvement, Ms. Kershaw had been convicted of criminal contempt for incurring marital debt for the purposes of gambling and served approximately one week in jail. Also, at the time Mr. Levy took over Ms. Kershaw's representation, Ms. Kershaw had overdue discovery responses pending and Mr. Kershaw had filed a second petition for criminal contempt against Ms. Kershaw. This pending petition for criminal contempt against Ms. Kershaw appears to have been based on Ms. Kershaw's violation of previous court orders on three occasions by forging checks on Mr. Kershaw's account and using the proceeds for gambling.

         After taking over representation of Ms. Kershaw, Mr. Levy prepared a response to Mr. Kershaw's allegations of contempt against Ms. Kershaw, in which Ms. Kershaw admitted she was guilty of the contemptuous activity. On December 8, 2006, the court in the Divorce Case held a hearing on Mr. Kershaw's second petition for criminal contempt and found Ms. Kershaw guilty of three counts of contempt for gambling. As punishment, the court sentenced Ms. Kershaw to thirty (30) days in jail to run consecutively. Ms. Kershaw was taken into custody immediately following the contempt hearing. On December 11, 2006, Mr. Levy appealed Ms. Kershaw's criminal contempt convictions to the Tennessee Court of Appeals, and Ms. Kershaw was released from custody that same day.

         Also at the December 8, 2006 hearing, the trial court extended the deadline for Ms. Kershaw to respond to discovery from December 11, 2006 until December 13, 2006. Although Mr. Levy represented to the trial court that he actually deposited Ms. Kershaw's discovery responses in the U.S. mail on December 13, 2006, the responses were not postmarked until December 15, 2006. As a result of this and Ms. Kershaw's previous contemptuous acts, the trial court awarded a default judgment to Mr. Kershaw, struck Ms. Kershaw's pleadings, including her answer and counter-complaint for divorce, decreed that the "facts and claims" asserted by Mr. Kershaw would be taken as true, barred Ms. Kershaw from introducing any defenses against Mr. Kershaw's claims, and awarded attorney's fees to Mr. Kershaw.

         Mr. Levy moved to withdraw as counsel for Ms. Kershaw in the Divorce Case on May 16, 2007. Ms. Kershaw filed the case at hand against Mr. Levy for legal malpractice on June 19, 2007. Therein, Ms. Kershaw claimed that Mr. Levy was guilty of legal negligence for failing to timely send Ms. Kershaw's discovery responses and by not properly advising her of her constitutional right against self-incrimination with regard to her criminal contempt proceedings. Ms. Kershaw contended that Mr. Levy's alleged malfeasance resulted in her receiving an inadequate settlement in the Divorce case and her serving approximately three days in jail.

         Ms. Kershaw subsequently retained new counsel in the Divorce Case. In November 2007, Ms. Kershaw and Mr. Kershaw attended mediation in the Divorce Case and settled their case in its entirety. Mr. and Ms. Kershaw memorialized their agreement in a Marital Dissolution Agreement, which was entered into on November 19, 2007 (the "MDA"). With respect to the provisions ...


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