Polly Spann Kershaw v. Jeffrey L. Levy, 583 S.W.3d 544

Kershaw hired attorney Jeffrey Levy to represent her in a contentious divorce; she was already subject to contempt sanctions and an outstanding discovery deadline.
Levy mailed discovery responses two days after the extended deadline and falsely told the divorce court they were timely; the court reinstated sanctions, struck her pleadings, entered a default, and awarded the husband attorney fees.
Levy withdrew; Kershaw retained new counsel, mediated, and signed a marital dissolution agreement (MDA) incorporated into the final divorce decree. The MDA included a notarized, sworn acknowledgment that the agreement was "fair and equitable" and that each party had advice of counsel; it also vacated the contempt judgments.
While the divorce was unresolved, Kershaw sued Levy for legal malpractice, alleging his negligence forced her into an unfavorable settlement and caused specific harms (loss of house, custody disadvantage, fees/judgments).
Levy moved for summary judgment, arguing judicial estoppel barred Kershaw from claiming the settlement was unfair because she had sworn in the MDA it was "fair and equitable." The trial court and Court of Appeals granted/affirmed summary judgment on that basis.
The Tennessee Supreme Court reversed, holding judicial estoppel did not apply because the MDA acknowledgment was a context-related legal conclusion (not a sworn factual statement) and Kershaw offered a reasonable, reconcilable explanation for the apparent inconsistency.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether judicial estoppel bars Kershaw's malpractice claim that the divorce settlement was unfair because she swornly acknowledged the MDA was "fair and equitable."	Kershaw: the MDA statement is a legal/contextual conclusion entered under duress of her compromised position caused by Levy; her later sworn malpractice statements explain and reconcile the discrepancy.	Levy: the sworn MDA acknowledgment is an unambiguous oath that the settlement was fair; judicial estoppel therefore precludes her from asserting the settlement was unfavorable and defeats malpractice damages.	Court: Judicial estoppel does not apply. The MDA language is a context‑related legal conclusion, not a decisive sworn factual statement; the statements are reconcilable and Kershaw gave a reasonable explanation. Summary judgment was improperly granted.

New Hampshire v. Maine, 532 U.S. 742 (2001) (judicial estoppel is equitable and circumstances vary; statements must be clearly inconsistent)
Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999) (distinguishes purely factual sworn statements from legal/conclusion statements for estoppel)
Cracker Barrel Old Country Store v. Epperson, 284 S.W.3d 303 (Tenn. 2009) (Tennessee narrows judicial estoppel to contradictions of sworn statements)
Sartain v. Dixie Coal & Iron Co., 266 S.W. 313 (Tenn. 1924) (judicial estoppel grounded in sanctity of oath; estoppel by oath concept)
Brown v. Brown, 281 S.W.2d 492 (Tenn. 1955) (judicial estoppel requires sworn factual statement later contradicted)
Tate v. Tate, 148 S.W. 1042 (Tenn. 1912) (estoppel arises where a party swore to a given fact and later seeks to deny it)
Hamilton v. Zimmerman, 37 Tenn. (5 Sneed) 39 (1857) (early Tennessee origin of judicial estoppel)