Session: February 6, 2019.
by Permission from the Court of Appeals Circuit Court for
Davidson County No. 07C1757 William B. Acree, Senior Judge.
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.
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
Reguli, Brentwood, Tennessee, for the Plaintiff/Appellant,
Polly Spann Kershaw.
Jeffrey J. Switzer, Nashville, Tennessee, for the
Defendant/Appellee, Jeffrey L. Levy.
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.
and Procedural Background
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.
time Ms. Kershaw retained Mr. Levy, the divorce proceedings
had been contentious for some time. The divorce
court had already held Ms. Kershaw in contempt
once, and a second petition for contempt was pending against
Discovery requests were outstanding, and Ms. Kershaw had not
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
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.
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.
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.
not surprisingly, Mr. Levy withdrew as counsel of record. Ms.
Kershaw retained new counsel and ...