Session: March 28, 2018
from the Chancery Court for Davidson County No. 07C1757
William B. Acree, Senior Judge
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.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed and Remanded
Reguli, Brentwood, Tennessee, for the appellant, Polly Spann
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.
BRANDON O. GIBSON, JUDGE
Facts & Procedural History
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"). 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.
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
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.
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.
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