Polly Spann Kershaw v. Jeffrey L. Levy

09/18/2019

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

February 6, 2019 Session

POLLY SPANN KERSHAW v. JEFFREY L. LEVY

Appeal by Permission from the Court of Appeals

Circuit Court for Davidson County

No. 07C1757 William B. Acree, Senior Judge

___________________________________

No. M2017-01129-SC-R11-CV

___________________________________

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

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.

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

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

OPINION

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 court2 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.

1

Because the procedural history in this case is convoluted, we include only the case history that is

pertinent to the issue in this appeal. Mr. Levy admits many of the facts only for purposes of the summary

judgment motion. He denies any negligence or malfeasance in his representation of Ms. Kershaw.

2

We refer to the trial court in the underlying divorce action as the “divorce court,” to distinguish

it from the trial court in this appeal.

3

Generally, the contempt proceedings related to allegations that Ms. Kershaw forged checks on

her husband’s bank account and used the proceeds to gamble. The criminal contempt judgments were

later vacated as part of the divorce settlement. The parties’ briefs include arguments related to Ms.

Kershaw’s contempt convictions, but we have determined that we need not discuss them to resolve the

issue in this appeal.

-2-

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 entered into mediation on her divorce.

Before the divorce was finalized, Ms. Kershaw filed the instant legal malpractice

action against Mr. Levy. The trial court temporarily stayed the legal malpractice action,

pending resolution of Ms. Kershaw’s divorce. It lifted the stay when the divorce was

settled and finalized.

In the malpractice action against Mr. Levy, Ms. Kershaw contended that the

divorce court reinstated the sanctions against her because Mr. Levy failed to timely file

the discovery responses and then misrepresented when he mailed them. She asserted that

Mr. Levy’s actions caused her to lose possession of her home, lose primary custody of

her children, owe various judgments and fees to the husband, and face the prospect of a

divorce trial with no prayer for relief. She claimed that Mr. Levy’s actions so

compromised her position that she had no negotiating leverage; as a result, she was left

with little choice but to agree to an unfavorable divorce settlement.

In settling her divorce, Ms. Kershaw and her husband signed a marital dissolution

agreement (MDA). The MDA included the following provision:

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

-3-

acknowledges that the Agreement is fair and equitable and that it is being

entered into voluntarily and with advice of counsel.

The MDA also vacated the contempt judgments and sentences against Ms. Kershaw. The

signatures of both Ms. Kershaw and her husband were notarized. The MDA was

incorporated into the November 21, 2007 final decree of divorce.

After Ms. Kershaw settled her divorce, Mr. Levy filed a motion for summary

judgment in the instant legal malpractice action. The motion argued that the trial court

should apply the doctrine of judicial estoppel to Ms. Kershaw’s claim that his negligence

forced her to agree to unfavorable divorce terms because the above-quoted MDA

acknowledgment attested to the fairness and equity of the settlement. If Ms. Kershaw

were unable to claim that her divorce settlement was unfair, Mr. Levy’s theory went, she

could not establish that she had been harmed by his alleged negligence in representing

her.

The trial court granted summary judgment to Mr. Levy. It reasoned that Ms.

Kershaw “signed the marital dissolution agreement under oath. [Ms. Kershaw]

voluntarily agreed to a divorce settlement which she acknowledged to be fair and

equitable. Thus, she is judicially estopped from claiming in this suit that the settlement

was not fair and equitable.” On this basis, the trial court dismissed Ms. Kershaw’s

complaint.

Ms. Kershaw appealed, and the Court of Appeals affirmed. Kershaw v. Levy, No.

M2017-01129-COA-R3-CV, 2018 WL 2126808 (Tenn. Ct. App. May 8, 2018), perm.

app. granted (Sept. 18, 2018). Ms. Kershaw sought permission to appeal to this Court,

arguing that the trial court erred in dismissing her complaint on the basis of judicial

estoppel. We granted Ms. Kershaw’s application for permission to appeal in order to

address that issue. See Hodge v. Craig, 382 S.W.3d 325, 333–34 (Tenn. 2012) (footnote

omitted) (“The scope of our review . . . depends, in large part, on the issues that the

parties have presented to this Court.”).

STANDARD OF REVIEW

In this appeal, Ms. Kershaw asks us to determine whether the trial court properly

granted summary judgment to Mr. Levy. We review a lower court’s decision on a

summary judgment motion de novo with no presumption of correctness. Beard v.

Branson, 528 S.W.3d 487, 494–95 (Tenn. 2017) (citations omitted). “Summary

judgment is proper where ‘the pleadings, depositions, answers to interrogatories, and

-4-

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.’” Id. (quoting Tenn. R. Civ. P. 56.04).

Ms. Kershaw argues in this appeal that the trial court misapplied the doctrine of

judicial estoppel; this issue presents a question of law, which is also reviewed de novo.

Frazier v. Pomeroy, No. M2005-00911-COA-R3CV, 2006 WL 3542534, at *10 (citing

Carvell v. Bottoms, 900 S.W.2d 23, 30 (Tenn. 1995); Terrell v. Terrell, 292 S.W.2d 179,

182 (Tenn. 1956)) (Tenn. Ct. App. Dec. 7, 2006) (“A trial court’s application of the

doctrine of judicial estoppel presents a question of law which this court reviews de

novo.”).

ANALYSIS

The doctrine of judicial estoppel has long been applied in Tennessee.4 McLemore

v. Memphis & C.R. Co., 69 S.W. 338, 344 (Tenn. 1902) (“The law of judicial estoppel is

firmly established in this state . . . .”). In general, “[u]nder the doctrine of judicial

estoppel ‘a party will not be permitted to occupy inconsistent positions or to take a

position in regard to a matter which is directly contrary to, or inconsistent with, one

previously assumed by him, at least where he had, or was chargeable with, full

knowledge of the facts. . . .’” Marcus v. Marcus, 993 S.W.2d 596, 602 (Tenn. 1999)

(quoting Obion County v. McKinnis, 364 S.W.2d 356, 357 (Tenn. 1962)).

The purpose of judicial estoppel “is not to protect the parties from allegedly

dishonest conduct by the adversary.” John S. Nichols, Safeguarding the Truth in Court:

The Doctrine of Judicial Estoppel, 13 S.C. Law. 32, 34 (2002) (citations omitted).

Rather, “the doctrine acts to ensure the integrity of the judicial process.” Id.; see also

Allen v. Neal, 396 S.W.2d 344, 346 (Tenn. 1965) (citation omitted) (describing judicial

estoppel as “not [based] on prejudice to adverse party by reason thereof, as in the case of

4

Apparently, Tennessee was the first state to apply the doctrine of judicial estoppel, in Hamilton

v. Zimmerman, 37 Tenn. (5 Sneed) 39 (1857). See Whitacre P’ship v. Biosignia, Inc., 591 S.E.2d 870,

879 (N.C. 2004) (citing William Houston Brown, Debtor’s Counsel Beware: Use of the Doctrine of

Judicial Estoppel in Nonbankruptcy Forums, 75 Am. Bankr. L.J. 197, 200 (2001)) (“[L]egal scholars

generally agree that the concept of judicial estoppel was first applied in Hamilton v. Zimmerman, 37

Tenn. 39 (1857).”); Randy G. Boyers, Precluding Inconsistent Statements: The Doctrine of Judicial

Estoppel, 80 Nw. U.L. Rev. 1244, 1245 (1986) (the doctrine was “originally formulated by the Tennessee

Supreme Court”); Douglas W. Henkin, Judicial Estoppel—Beating Shields into Swords and Back Again,

139 U. Pa. L. Rev. 1711, 1713 (1991) (same). The United States Supreme Court recognized judicial

estoppel in New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

-5-

equitable estoppel.”); Sartain v. Dixie Coal & Iron Co., 266 S.W. 313, 317 (Tenn. 1924)

(“[J]udicial estoppel . . . has nothing to do with other parties to the suit; nor does it matter

whether they even knew of the sworn statement.”). Thus, unlike equitable estoppel,

which “focuses on the relationship between the parties,” judicial estoppel “focuses on the

relationship between a litigant and the judicial system.” 31 C.J.S. Estoppel and Waiver §

189 (June 2019 Update); see also Cracker Barrel Old Country Store v. Epperson, 284

S.W.3d 303, 315 (Tenn. 2009) (comparing judicial estoppel with equitable estoppel).

In general, “[e]stoppels are not favored in the law.” Sturkie v. Bottoms, 310

S.W.2d 451, 453 (Tenn. 1958). Tennessee has narrowed application of judicial estoppel

to circumstances in which “a party has attempted to contradict by oath a sworn statement

previously made.” Cracker Barrel Old Country Store, 284 S.W.3d at 315 (citing Allen,

396 S.W.2d at 346).5 Tennessee cases describe judicial estoppel as based on “public

policy which upholds the sanctity of an oath. . . .” Sartain, 266 S.W. at 317 (adding that

the doctrine “might well be termed ‘estoppel by oath.’”).

Thus, the doctrine of judicial estoppel prohibits litigants from “contradict[ing] by

oath a sworn statement previously made.” Cracker Barrel Old Country Store, 284

S.W.3d at 315 (citing Allen, 396 S.W.2d at 346). “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.” Sartain, 266 S.W. at 318.

Judicial estoppel is an equitable doctrine, so the circumstances under which it

applies “are probably not reducible to any general formulation of principle.” New

Hampshire, 532 U.S. at 750. At the very least, however, the statements being compared

must be “clearly inconsistent.” Id. The doctrine of judicial estoppel does not apply when

there is “an innocent inconsistency or apparent inconsistency that is actually

reconcilable.” 28 Am. Jur. 2d Estoppel and Waiver § 68 (footnote omitted). The two

sworn statements “must be totally inconsistent—that is, the truth of one . . . must

necessarily preclude the truth of the other. . . .” Id.; see, e.g., Brown v. Brown, 281

5

Not all states do so. See 31 C.J.S. Estoppel and Waiver § 192 (collecting cases). The United

States Supreme Court describes judicial estoppel as applicable when a party “assumes a certain position

in a legal proceeding,” succeeds in that position, and then “assume[s] a contrary position” in a later

proceeding. New Hampshire, 532 U.S. at 749. North Carolina has described Tennessee as an outlier in

this regard. Whitacre P'ship, 591 S.E.2d at 879 (citations and internal quotation marks omitted)

(“Although the Tennessee courts continue to apply this narrow version of the doctrine, most modern

authorities agree that the purpose of judicial estoppel is to protect the integrity of the judicial process, not

just the sanctity of the oath. . . .”).

-6-

S.W.2d 492, 502 (Tenn. 1955) (citing Sartain, 266 S.W. 313); Hamilton, 37 Tenn. at 43

(“It is . . . impossible to reconcile the statements of either [litigant], made prior to this

suit, with his own allegations in the pleadings.”); Barnes v. Barnes, No. E2003-00070-

COA-R3-CV, 2004 WL 115148, at *1, 6 (Tenn. Ct. App. Jan. 23, 2004) (judicial estoppel

not applicable because party had reasonable explanation for asserting that he divorced his

first wife in 1950 and also in 1988); Davis v. Mitchell, 178 S.W.2d 889, 897 (Tenn. Ct.

App. 1943) (“[Judicial estoppel] can never find application unless there has been what is

equivalent to a specific and cat[e]gorical denial of that which has been affirmed,

unaccompanied by any reasonable explanation of the discrepancy.”).

Moreover, because Tennessee limits judicial estoppel to sworn statements, its

application in this State is usually warranted only if there are directly contradictory

statements of fact.6 See Brown, 281 S.W.2d at 502 (“[I]n order for [judicial estoppel] to

be applicable the party against whom the estoppel is urged must have made a statement

of fact under oath which he later seeks to contradict.”); Tate v. Tate, 148 S.W. 1042, 1053

(Tenn. 1912) (“[J]udicial estoppel arises . . . where one states on [o]ath, in a former

litigation, either in a pleading, or in a deposition, or in oral testimony, a given fact as true,

he will not be permitted to deny that fact in a subsequent litigation.”); Werne v.

Sanderson, 954 S.W.2d 742, 745 (Tenn. Ct. App. 1997) (citing Brown, 281 S.W.2d at

502)) (“[T]he party against whom the estoppel is urged must have made a statement of

fact under oath that he or she later seeks to contradict.”).

For instance, in Cleveland v. Policy Management Systems Corp., 526 U.S. 795

(1999), the Supreme Court held that judicial estoppel should not be applied because the

petitioner’s statements about whether she was disabled did not “involve directly

conflicting statements about purely factual matters, such as ‘The light was red/green,’ or

‘I can/cannot raise my arm above my head.’” Id. at 802;7 see, e.g., Brown, 281 S.W.2d

6

When the inconsistency relates to matters “other than the purely factual,” such as purely legal

positions and mixed questions of fact and law, courts are divided on “whether judicial estoppel applies.”

Kira A. Davis, Judicial Estoppel and Inconsistent Positions of Law Applied to Fact and Pure Law, 89

Cornell L. Rev. 191, 193 (2003).

7

Courts make fact-law distinctions in other contexts. For example, one commentator on double

jeopardy describes factual determinations as “assessments of what actually occurred, in a historical or

scientific sense. ‘[Factual] assertions . . . generally respond to inquiries about who, when, what, and

where—inquiries that can be made ‘by a person who is ignorant of the applicable law.’” Forrest G.

Alogna, Double Jeopardy, Acquittal Appeals, and the Law-Fact Distinction, 86 Cornell L. Rev. 1131,

1154–55 (2001); see also Thomas v. Gen. Motors Acceptance Corp., 288 F.3d 305, 307 (7th Cir. 2002)

(describing, in the context of a discussion of standards of review, “a pure question of fact” as a “‘who did

-7-

at 502 (holding judicial estoppel not applicable because the party against whom estoppel

was urged did “not seek to deny any statement of fact made in the original divorce suit.”);

Willis v. Willis, 62 Tenn. (3 Baxt.) 183, 184–85 (1873) (judicial estoppel applicable

where claimant first made sworn statement regarding his brother’s estate that a debt had

already been paid, and then filed suit to collect same debt from the brother’s widow);

Hamilton, 37 Tenn. at 40–41, 47–49 (judicial estoppel applied where claimant first made

sworn statement that he was merely defendant’s clerk, and then filed suit alleging he was

defendant’s secret partner); Boyce v. LPP Mortgage Ltd., 435 S.W.3d 758, 771 (Tenn. Ct.

App. 2013) (inappropriate to apply judicial estoppel to changed legal position rather than

inconsistent sworn statements); Chandler v. D. Canale & Co., No. W2000-02067-COA-

R3-CV, 2001 WL 568027, at *1, 4–5 (Tenn. Ct. App. May 25, 2001) (judicial estoppel

barred plaintiff from asserting partnership interest in disputed entity after denying

existence of such partnership interest under oath in two prior lawsuits).

Here, Mr. Levy compares Ms. Kershaw’s sworn statement in her MDA,

acknowledging that her divorce settlement was fair and equitable, with the sworn

discovery responses and deposition testimony in support of her malpractice claim, in

which she asserts that Mr. Levy’s actions forced her to agree to unfavorable divorce

settlement terms. He argues that Ms. Kershaw’s sworn statements in the legal

malpractice action are “directly contrary” to the sworn statement in the MDA, so the

doctrine of judicial estoppel should bar her from asserting that her divorce settlement was

unfavorable. Because Ms. Kershaw suffered no damage from his alleged negligence, Mr.

Levy asserts, the trial court properly granted summary judgment in his favor.

In response, Ms. Kershaw maintains that her statements are not contradictory. In

the malpractice action, Ms. Kershaw’s affidavit claims that Mr. Levy’s negligence caused

the trial court to reinstate the considerable sanctions imposed on her. She argues that this

action left “Ms. Kershaw’s position materially changed due to Mr. Levy’s negligence”

and as a result she “did not have any options.” By the time she hired a new lawyer to

replace Mr. Levy and entered the divorce mediation, Ms. Kershaw said in her affidavit, “I

was facing 28 days in jail on the contempt; had not seen my children in nearly a year; had

no pleadings before the Court; and knew there had been gross dissipation of assets.

These circumstances limited [m]y ability to negotiate.” Ms. Kershaw argues that she

“was compelled to resolve her divorce in a compromised position after [Mr.] Levy

damaged her case.”

what where when and to whom’ kind of question, ‘pure’ in the sense that no legal knowledge or

instruction is necessary to answer it”).

-8-

The statements by Ms. Kershaw are not the type of sworn statements that are proscribed

under the doctrine of judicial estoppel. First, her acknowledgment in the MDA that the

divorce settlement was “fair and equitable” is not a factual assertion such as “The light

was red” or “The light was green.”8 Cleveland, 526 U.S. at 802; see e.g., Lockhart v.

Lockhart, No. W2000-02922-COA-R3CV, 2002 WL 1349500, at *5–6 (Tenn. Ct. App.

2002) (applying judicial estoppel where litigant first made sworn statement that her ex-

husband was father of child at issue, and later denied ex-husband was father of same

child); Johnson v. Tramell, 15 Tenn. App. 607, 608, 611–12 (1932) (applying judicial

estoppel where complainant first swore piece of land was owned by another, and then

filed suit asserting ownership of same land).

Ms. Kershaw’s acknowledgment that the MDA is fair and equitable “differs from

a purely factual statement in that it . . . implies a context-related legal conclusion.”

Cleveland, 526 U.S. at 802; see also Tate, 148 S.W. at 1054 (“[Judicial] estoppel does

not apply to mere conclusions of law upon undisputed facts.”). In the MDA, Ms.

Kershaw acknowledged that the agreement was “fair and equitable” given the

circumstances in which she found herself. Those circumstances, however, she lays at Mr.

Levy’s feet; she contends that Mr. Levy’s actions severely compromised her divorce

negotiating position.

Moreover, the acknowledgment in the MDA and Ms. Kershaw’s assertions in her

legal malpractice claim are not totally inconsistent. The truth of the acknowledgment in

the MDA does not “necessarily preclude the truth of” Ms. Kershaw’s statements in her

legal malpractice action. Am. Jur. 2d Estoppel and Waiver § 68 (citations omitted).

Instead, this is an “apparent inconsistency that is actually reconcilable.” Id. (citations

omitted).9 Ms. Kershaw in fact gives a “reasonable explanation of the discrepancy.”

Davis, 178 S.W.2d at 897. Thus, the MDA acknowledgment and the legal malpractice

claim “can comfortably exist side by side.” Cleveland, 526 U.S. at 803.10

8

Cf. Am. Inst. of Certified Pub. Accountants v. Internal Revenue Serv., 746 F. App’x 1, 19 (D.C.

Cir. 2018) (citation omitted) (“Further, ‘competency’ . . . is a ‘vague or vacuous term[ ]—such as “fair

and equitable,” . . . and the like . . . .’”).

9

Cf. Walden v. Walden, 13 Tenn. App. 337, 342 (1930) (declining to apply judicial estoppel

because sworn statement valuing a particular property as $50,000 was not contradicted by subsequent

sworn statement valuing same property at $65,000, because both estimates were based on then-available

information).

10

See Parnell v. Ivy, 158 S.W.3d 924, 927 (Tenn. Ct. App. 2004) (“[T]he injuries suffered by a

plaintiff in a legal malpractice suit are separate and distinct from those suffered in the underlying suit.”).

-9-

For these reasons, we respectfully conclude that the trial court erred in applying

the doctrine of judicial estoppel to Ms. Kershaw’s legal malpractice claim against Mr.

Levy. Accordingly, we reverse the grant of summary judgment to Mr. Levy.

CONCLUSION

We hold that the doctrine of judicial estoppel does not apply to the statements at

issue in this appeal. Thus, the trial court erred in holding that judicial estoppel precluded

Ms. Kershaw’s legal malpractice claim against Mr. Levy. We reverse the trial court’s

grant of summary judgment to Mr. Levy and remand for further proceedings. Costs of

this appeal are taxed to Mr. Levy, for which execution may issue if necessary.

_________________________________

HOLLY KIRBY, JUSTICE

- 10 -