Polly Spann Kershaw v. Jeffrey L. Levy

05/08/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 28, 2018 Session

POLLY SPANN KERSHAW v. JEFFREY L. LEVY

Appeal from the Chancery Court for Davidson County

No. 07C1757 William B. Acree, Senior Judge

No. M2017-01129-COA-R3-CV

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

BRANDON O. GIBSON, J., delivered the opinion of the court, in which ARNOLD B.

GOLDIN, and KENNY ARMSTRONG, JJ., joined.

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

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

OPINION

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

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The Divorce Case was filed in the Circuit Court for Davidson County, Tennessee, Case No. 02D291.

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

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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 contained in the MDA and the property

distributed thereby, Mr. and Ms. Kershaw both agreed as follows:

Each party represents to the other and acknowledges that this Agreement is

entered into without undue influence, fraud, coercion, or

misrepresentation, or for any reason not herein stated. The provisions

in this Agreement and their legal effect are fully known by each of the

parties, and each party acknowledges that the Agreement is fair and

equitable and that it is being entered into voluntarily and with the

advice of counsel.

(Emphasis added). The MDA also contained the following provision related to the

contempt judgments and sentences against Ms. Kershaw:

VACATION OF ALL CONTEMPT JUDGMENTS AND CONTEMPT

SENTENCES AND DISMISSAL OF APPEAL. All contempt judgments

and contempt sentences currently in effect against Ms. Kershaw shall be

vacated, made void and no longer of any force in effect; and the Court shall

find that there is no current contempt judgment outstanding against Ms.

Kershaw and no current sentence for any such contempt current or pending

against Ms. Kershaw. To carry out the intent of this provision, the parties,

upon entry of the Final Decree of Divorce incorporating into this Marital

Dissolution Agreement, shall file a joint motion in the Tennessee Court of

Appeals requesting that the Tennessee Court of Appeals dismiss the current

appeal of Ms. Kershaw with costs taxed to Ms. Kershaw and with any

further ordering or instruction, if needed, which is consistent with the

parties agreement and the terms of this paragraph. A supplemental order

may be entered by the trial court to insure the aforementioned court finding

once the appeal is dismissed.

Mr. and Ms. Kershaw signed the MDA, and their signatures were notarized by a notary

public who verified that the parties, “after being duly sworn, acknowledged that [they]

executed the foregoing Agreement for the purposes contained therein.” The trial court

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approved the MDA on November 21, 2007, and incorporated it by reference into the final

divorce decree.

In this malpractice case, Mr. Levy filed an answer to Ms. Kershaw’s complaint

and a counter-complaint against Ms. Kershaw on February 7, 2008, alleging that she still

owed him legal fees in the amount of $13,983.78 plus pre-judgment interest.2 On March

1, 2017, Mr. Levy filed a motion for summary judgment contending that Ms. Kershaw

should be judicially estopped from claiming in the malpractice case that her damages

from Mr. Levy’s negligence resulted from an inequitable settlement agreement with

Elliot Kershaw when she previously claimed under oath that the settlement had been

equitable. Further, Mr. Levy argued that Ms. Kershaw should not be allowed to pursue

any malpractice claim against him based on her criminal contempt convictions because

they had been vacated and she voluntarily relinquished her right to pursue any post-

conviction relief related to them in the MDA. Ms. Kershaw responded in opposition to

the motion for summary judgment, asserting the damage resulting from Mr. Levy’s

alleged negligence left her with no bargaining power in her settlement negotiations with

Mr. Kershaw, and the fact that she entered into an agreement several months after Mr.

Levy’s involvement that stated the settlement with Mr. Kershaw was fair and equitable

was irrelevant.

The trial court granted Mr. Levy’s motion on May 1, 2017, finding that there were

no genuine issues of material fact for a jury to decide and that Ms. Kershaw’s legal

arguments failed as a matter of law. Among other things, the trial court held that Ms.

Kershaw was judicially estopped from claiming that she was damaged by receiving an

inadequate settlement in the Divorce Case when she had sworn in the MDA that her

settlement was fair and equitable. Further, the MDA served to vacate criminal contempt

findings and sentences against Ms. Kershaw, and she agreed to dismiss her appeal of the

criminal contempt findings. The trial court determined that this precluded Ms. Kershaw

from subsequently seeking damages in her legal malpractice case based on the results of

the contempt proceeding. On May 4, 2017, an order of voluntary dismissal was entered

on Mr. Levy’s counter-claim against Ms. Kershaw. Ms. Kershaw timely filed a notice of

appeal on June 2, 2017.

II. ISSUES PRESENTED

Ms. Kershaw presents the following issues, as slightly reworded, for review on

appeal:

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There is a considerable amount of procedural history in this case that spanned the course of

approximately nine years, including bankruptcy filings and a substantial amount of discovery. Much of

this, however, is not relevant to the outcome of this appeal and will therefore not be discussed herein.

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1. Whether the trial court erred in dismissing Ms. Kershaw’s case on

summary judgment findings that she had an insufficient claim for

damages and in reliance on the doctrine of judicial estoppel?

2. Whether the trial court erred in failing to disqualify Mr. Levy’s expert

witness, Judge Muriel Robinson?

3. Whether the trial court erred in bifurcating the case, which denied Ms.

Kershaw a jury trial on all issues?

Mr. Levy presents the following additional issues for review on appeal:

4. [Whether] the trial court erred in failing to completely disqualify [Ms.

Kershaw’s] expert witness, T. Verner Smith? However, the trial court

properly prohibited Mr. Smith from giving certain testimony pursuant to

the Order entered on April 17, 2017.

5. [Whether] the trial court erred in refusing to grant Mr. Levy’s 2013

motion for summary judgment on the issue of estoppel in the context of

multiple sworn statements made by [Ms. Kershaw] in two bankruptcy

proceedings?

III. STANDARD OF REVIEW

We review a trial court’s ruling on a motion for summary judgment de novo

without a presumption of correctness. Estate of Brown, 402 S.W.3d 193, 198 (Tenn.

2013). Summary judgment is appropriate when “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 the moving party is entitled to a

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The party moving for summary

judgment may satisfy its burden of production either (1) by affirmatively negating an

essential element of the nonmoving party’s claim or (2) by demonstrating that the

nonmoving party’s evidence at the summary judgment stage is insufficient to establish

the nonmoving party’s claim or defense. Rye v. Women’s Care Ctr. of Memphis,

MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). When a motion for summary judgment is

properly supported as provided in Tennessee Rule of Civil Procedure 56, in order to

survive summary judgment, the nonmoving party may not rest upon the mere allegations

or denials of its pleading but must respond, and by affidavits or one of the other means

provided in Rule 56, set forth specific facts at the summary judgment stage showing that

there is a genuine issue for trial. Id. at 265. “Summary judgment should be granted if the

nonmoving party’s evidence at the summary judgment stage is insufficient to establish

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the existence of a genuine issue of material fact for trial.” Id. (citing Tenn. R. Civ. P.

56.04, 56.06).

IV. DISCUSSION

The first issue raised by Ms. Kershaw is the propriety of the trial court’s decision

to grant summary judgment in favor of Mr. Levy based upon “finding[s] that she had an

insufficient claim for damages and in reliance on the doctrine of judicial estoppel.”3 A

trial court’s application of the doctrine of judicial estoppel is a question of law and is

reviewed de novo on appeal. See State ex rel. Kimbrough v. Hales, No. E2011-02539-

COA-R3-CV, 2012 WL 3025712, at *6 (Tenn. Ct. App. July 25, 2012) (citing Carvell v.

Bottoms, 900 S.W.2d 23, 30 (Tenn.1995); Terrell v. Terrell, 200 Tenn. 289, 295-96, 292

S.W.2d 179, 182 (1956); Bubis v. Blackman, 58 Tenn. App. 619, 632-33, 435 S.W.2d

492, 498 (1968)). This Court has explained the doctrine of judicial estoppel as follows:

The distinctive feature of the Tennessee law of judicial estoppel (or

estoppel by oath) is the expressed purpose of the court, or broader grounds

of public policy to uphold the sanctity of the oath. The sworn statement is

not merely evidence against the litigant, but (unless explained) precludes

him from denying its truth. It is not merely an admission but an absolute

bar.

Terox Corp. of Am. v. Carr, 376 S.W.2d 735, 738-39 (Tenn. Ct. App. 1964) (citing

Sartain v. Dixie Coal & Iron Co., 266 S.W. 313 (Tenn. 1924)). “The doctrine

of judicial estoppel seeks to ensure that parties do not ‘play[ ] fast and loose with the

courts’ by contradicting a previous sworn statement or testimony.” Schutt v. Miller,

W2010-02313-COA-R3-CV, 2012 WL 4497813, at *11 (Tenn. Ct. App. Sept. 27, 2012)

(quoting Woods v. Woods, 638 S.W.2d 403, 406 (Tenn. Ct. App. 1982)). Our Tennessee

Supreme Court also opined that the doctrine of judicial estoppel is proper when a party is

attempting to take a position contrary to a position previously taken under oath:

[W]e take this opportunity to clarify that the doctrine of judicial estoppel is

applicable only when a party has attempted to contradict by oath a sworn

statement previously made. See Allen v. Neal, 217 Tenn. 181, 396 S.W.2d

344, 346 (1965) (noting that “[j]udicial estoppels arise from sworn

statements made in the course of judicial proceedings, generally in a former

litigation, and are based on public policy upholding the sanctity of an oath

and not on prejudice to adverse party by reason thereof, as in the case of

equitable estoppel”).

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This is the issue on appeal as phrased by Ms. Kershaw.

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Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303, 315 (Tenn. 2009).

In the present case, Ms. Kershaw swore under oath that her settlement in the

Divorce Case was fair and equitable, that she entered into the MDA voluntarily and with

the advice of counsel, and that she was not under any form of fraud, coercion, undue

influence, or misrepresentation. She also swore that she was not entering into the MDA

as a result of any other reason not stated therein. She now seeks damages against Mr.

Levy for allegedly receiving an inequitable settlement with her ex-husband – a position

that is diametrically opposed to her representations under oath in the Divorce Case.

Ms. Kershaw’s defense to the application of judicial estoppel is essentially that she

only stated in the MDA that the settlement agreement was “fair and equitable” because

her negotiating power had been severely diminished as a result of Mr. Levy’s prior

conduct. In support of her position, Ms. Kershaw relies on the case of Parnell v. Ivy, 158

S.W.3d 924 (Tenn. Ct. App. June 7, 2004). In Parnell, the plaintiff brought a legal

malpractice case against her former attorneys for allowing the statute of limitations to run

out on a wrongful death case she filed against the City of Trenton, Tennessee, pursuant to

the Tennessee Governmental Tort Liability Act (TGTLA). See Parnell, 158 S.W. 3d at

925. In that case, the trial court held that the plaintiff’s settlement with the City of

Trenton on the basis of a section 1983 claim barred her from seeking damages against her

former attorneys on her TGTLA claim because the damages she sought were the same

under both theories of liability. See id. This Court reversed the trial court, holding that

“the damages sought in the legal malpractice lawsuit are separate and distinct from the

damages sought in the underlying lawsuit, and therefore settlement of the underlying

lawsuit does not shield the former attorneys from liability.” Id. Parnell is

distinguishable from the case at bar because it turned on the issue of damages – not

judicial estoppel. The defendants in Parnell attempted to rely on the release of one party

in the underlying case as a defense to their malpractice, arguing that recovery in the legal

malpractice case as well as the underlying case would result in double recovery for the

plaintiff. Id. Nothing in the Parnell case discusses any prior testimony of the plaintiff or

that she unequivocally stated that what she received was a fair and equitable settlement.

Again, the Parnell case did not turn on the theory of judicial estoppel.

We determine, however, that the elements of judicial estoppel are present in this

case. Ms. Kershaw made a sworn statement in a judicial proceeding – the MDA in the

Divorce Case ̶ in which she swore that the settlement she was entering into with Mr.

Kershaw was fair and equitable. We agree with the trial court that Ms. Kershaw cannot

now take a contrary position and seek damages against Mr. Levy by alleging that the

settlement was not fair and equitable. We also note that the instant malpractice case was

filed by Ms. Kershaw on June 19, 2007, which was five months before she entered into

an MDA in the Divorce case on November 19, 2007. Although Ms. Kershaw’s

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complaint was already filed in the malpractice action, she made no caveats and did not

include any language in her MDA to the effect that she was entering the settlement

agreement as a result of Mr. Levy’s malpractice or that the settlement was only fair and

equitable under the circumstances given her decreased bargaining power.

With respect to Ms. Kershaw’s convictions for criminal contempt, we again agree

with the trial court’s conclusion that Ms. Kershaw is without recourse against Mr. Levy.

Ms. Kershaw was found in contempt by the trial court for forging checks and using the

proceeds to gamble. In the MDA, Ms. Kershaw was not only relieved of “[a]ll contempt

judgments and contempt sentences currently in effect,” but she also agreed to forego any

right to appeal the merits of her criminal contempt convictions. To that end, on

November 25, 2007, Mr. and Ms. Kershaw entered a stipulation for voluntary dismissal

of the appeal of the criminal contempt conviction. Much of the trial court’s reasoning for

holding Ms. Kershaw in contempt in November 2006 was her testimony that she engaged

in the contemptuous conduct of which she was accused. She may not now, particularly in

light of her failure to appeal the conviction, assert that she was not guilty of this conduct

and attempt to recover damages from Mr. Levy on this basis.

Although both parties raise additional issues on appeal, we determine that all of

those issues are pretermitted in light of our conclusion that summary judgment in favor of

Mr. Levy was proper. The judgment of the trial court is, therefore, affirmed in all

respects.

IV. CONCLUSION

For the foregoing reasons, we affirm the order of the trial court. Costs of this

appeal are taxed to the appellant, Polly Spann Kershaw. Because Polly Spann Kershaw is

proceeding in forma pauperis in this appeal, execution may issue for costs if necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

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