                                                                                                       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

1
    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:


2
 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”).


3
    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
                                             7
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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