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Kershaw v. Levy

Supreme Court of Tennessee, Nashville

September 18, 2019

POLLY SPANN KERSHAW
v.
JEFFREY L. LEVY

          Session: February 6, 2019.

          Appeal by Permission from the Court of Appeals Circuit Court for Davidson County No. 07C1757 William B. Acree, Senior Judge.

         We granted permission to appeal in this case to clarify application of the doctrine of judicial estoppel. The plaintiff filed this legal malpractice action against an attorney who represented her in her divorce. She asserts that the attorney's actions so compromised her position in the divorce proceedings that she was forced to settle on unfavorable terms. After the attorney filed a motion for summary judgment, the trial court applied the doctrine of judicial estoppel. Citing the plaintiff's sworn acknowledgment in her marital dissolution agreement that the divorce settlement was "fair and equitable," the trial court held that the plaintiff was estopped from asserting in the legal malpractice action that the divorce settlement terms were unfavorable. On this basis, the trial court granted summary judgment to the defendant attorney. The Court of Appeals affirmed. We hold that the trial court should not have applied the doctrine of judicial estoppel to the statements at issue because they are not directly contradictory statements of fact. The plaintiff's sworn acknowledgment in her marital dissolution agreement is instead a context-related legal conclusion, and the plaintiff offers a reasonable explanation for any apparent discrepancy between her sworn acknowledgment in the divorce and her assertions in this legal malpractice action. As a result, we hold that the trial court erred in granting summary judgment on the basis of judicial estoppel. We reverse the grant of summary judgment and remand the case for further proceedings.

         Tenn. R. App. P. 11 Appeal by Permission; Judgments of the Circuit Court and the Court of Appeals Reversed; Case Remanded to the Circuit Court for Davidson County

          Connie Reguli, Brentwood, Tennessee, for the Plaintiff/Appellant, Polly Spann Kershaw.

          Jeffrey J. Switzer, Nashville, Tennessee, for the Defendant/Appellee, Jeffrey L. Levy.

          Holly Kirby, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G. Lee, and Roger A. Page, JJ., joined.

          OPINION

          HOLLY KIRBY, JUSTICE.

         Factual and Procedural Background

         Beginning in November 2006, Defendant/Appellee Jeffrey L. Levy represented Plaintiff/Appellant Polly Spann Kershaw in her divorce. Mr. Levy represented Ms. Kershaw for a period of about seven months.[1]

         By the time Ms. Kershaw retained Mr. Levy, the divorce proceedings had been contentious for some time. The divorce court[2] had already held Ms. Kershaw in contempt once, and a second petition for contempt was pending against her.[3] Discovery requests were outstanding, and Ms. Kershaw had not yet responded.

         In the prior contempt proceedings, the divorce court imposed sanctions on Ms. Kershaw. The sanctions consisted of granting Ms. Kershaw's husband a default judgment on his divorce complaint, striking all of Ms. Kershaw's pleadings, and barring Ms. Kershaw from asserting any defenses to the husband's claims.

         After Ms. Kershaw retained Mr. Levy, the divorce court extended the deadline for Ms. Kershaw to respond to the pending discovery. It also apparently agreed to lift the sanctions, provided Ms. Kershaw timely filed her discovery responses.

         Mr. Levy mailed Ms. Kershaw's discovery responses to opposing counsel. Later, Ms. Kershaw's husband claimed to the divorce court that Ms. Kershaw's discovery responses were not timely filed. Mr. Levy responded by saying that he put Ms. Kershaw's discovery responses in the mail on the day of the deadline. This representation turned out to be false. Opposing counsel provided the divorce court with Ms. Kershaw's postmarked discovery responses, which indicated that Mr. Levy actually mailed them two days after the extended discovery deadline.

         After determining that Ms. Kershaw's discovery responses were in fact not timely, the divorce court reinstated the sanctions against Ms. Kershaw. Thus, it awarded the husband a default judgment of divorce, accepted the husband's alleged facts and claims as true, struck Ms. Kershaw's pleadings, and barred Ms. Kershaw from raising any defenses. The divorce court also awarded attorney fees to the husband.

         Perhaps not surprisingly, Mr. Levy withdrew as counsel of record. Ms. Kershaw retained new counsel and ...


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