# FILED
Ap ril 25, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE WESTERN SECTION AT NA SHVILLE
MARGA RET S. LEMM, ) ) Plaintiff/Counter- Defendant/ ) Davi dson Chan cery N o. 95-1308-II Appellant, ) ) VS. ) A ppeal No. 01A 01-9607-CH- 00330 ) GAR Y L. A DA MS, ) ) Defe ndan t/C ount er- Plai ntiff ) Appellee ) ) GAR Y L. A DA MS, ) ) Third-Party

Plaintiff/Appellee ) ) VS. ) ) ANNA FRIESENHAHN, ) ) Third-Party

Defendant/Appellant )
APPEAL FROM THE CH ANCERY COU RT OF D AVIDSO N COU NTY

AT NASHVILLE, TENN ESSEE THE HONORABLE ELLEN HOBBS LY LE, CHANCEL LOR

CHA RLES C. MO RROW MORROW, BO WHA N & ASSOCIA TES Nashvil le, Tennessee Attorney for Appellants BARBA RA J. PERUTELLI SCHULMAN, LeROY & BENNETT, P.C. Nashvil le, Tennessee Attorney for Appellee

AF FIRMED

ALAN E. HIGHERS , J.

CONCUR: DAVID R. FA RMER, J. HOLLY K IRBY LIL LA RD, J.2

In this boundary

dispute, Plai ntiff Margaret S. Lem m and Third-Part y Defendant Anna Friesenhahn app eal the trial court’s or der enteringsummary judg ment in f avor o f Defendant/AppelleeGary L. Adam s. In grantin g Adams’ motion for summary j udgment, the trial cour

t ruled that, a s a matter

of la w, Lem m’s a ctio n fo r tres pass and i njun ctive relief
was barred by

Adams’ adverse possession of th e disputed property for a period in excess of seven yea rs. We affirm.

FACTS

Lemm and Adams own adjoining parcels of prop erty along White s Creek Pike in Davidson C ounty. Adams acquired his property in 1981. When Adams purchased th e proper ty, a n exi stingfence ran alon g wh at Adams believed t o be the border between his property and what is now Lemm’s property. Additionally, an existing road ran more or less parallel to and just i nside the fence li ne. Since acq uiring th e proper ty, Adams continuously has used the road and the f ence. Over the years, Adams has improved the road as needed, and he also has mai ntained the fence in o rder to ke ep live stoc k on h is pro pert y. In 1986 or 1987, Adams co nstructed some new fencing beca use some of the old fence posts had deteriorat ed. While a portion of the new fence line coincided with the old f ence line, in some places

Adams moved thefence line several fee t clos er to the L emm prop erty. Adams has continued to maintain and usethe new fence s ince its con struction.

Lemm’s property, on the other hand, has been i n Lemm’s family for many year

s. Lemm first acqui red a one-thir d interest i n the property from her mother in 1987. In 1994, Lemm purchased the othe r two-t hirds interest in the prop erty from her sisters at a public auction, and s he ha d a de ed prepared co nve yi ng a lifeestate to herself and the remainder in fee to her daughter, Anna Friesenha hn. At the time of the s ale, the auction eer announced that Adams “admit ted he was ov

er the line but

th ere would b e no problem.” After the auction, Lemm i ntroduced hersel f to A d ams and asked him abou t the fence. Adamsadmitted that, when he co nstructed his fence, he did not have a leg al survey showing the l ocat ion o f th e pro pert y line. Lemm subs eque ntly h ad a s urve y per forme d3

which showed that

Adams’ fence encroac hed upon her proper ty. Adams reportedly told the surveyor “that he did not know exactly where his propert y linewas an d did n’t b elie ve that [the old fence line] necess arily r epresented the tr ue property line.” Lemm al so hired
a fence company

to construct

a fence along the surveyed boundary. When Adams learned that fence company

employeesplanned to constr uct the fence acros s his road, h e advised the employees t hat the road was his proper ty and could not be fenced.

In April 1995, L emm filed this law suit against Adams, seekinginjunctive reliefand damages for t res pass . Ad ams a nswered , ra isi ng t he aff i rmati ve defense of adverse possession and asserting a counterclaim fo r ejectment. Adams later am ended his counterclaim to add Anna Fries enhahn as a third -party defendant

.

In Oct ober 1995, Adams file d a motion for summary judgment, cont ending that Lemm’s action against him was barr ed by his ad verse poss essi on of the d ispu ted p rope rty. Adams additionall y contended that his adver

se possession entitled him t o possession of and title to the disputed property. Lemm opposed the motion, contending that summary judgmentwas prec luded by the exist ence of genuine is sues of material fact as to Adams’ defense of adverse possession. Lemm demanded that a jury trial be conducted to “try t he factual issues in this case.”

The trial court subsequently entered an order granting Adams’ motion for summa ry judgmentand dismissing Lemm’s claims. The t rial court ’s order dec lared Adams tobe the
owner in fee of, and entitled to possession of, all of the land l ying to the north of(inside) Adams’ fence line in accordance w ith a March 1996 s urvey performed by Adams’ surveyor.

Lemm filed a motion to amen d the order, which the trial court denied, and th is appeal followed. O n appeal, Lemm contends that the trial cou rt erred in three respects: (1) in granti ng Adams’ motion fo r summary judgment based on Ada ms’ defense of adverse posse ssion; (2) in denying Lemm’s demand f or a jury trial; and (3) in denying Lemm’s motion to disq ualify Adams’ attorney.4 ADVERSE POSSESSION

Lemm first contends that the trial cour t erred in granting Adams’ motion for summ ary judgmentbecause a genuine issue of material fact remains as to whether Adams intended to advers ely

poss ess the d isp uted str ip o f l an d. See Byrd v. Hall , 847 S.W.2d 208, 214 (Tenn. 1993) (indicating that summary judgment is a ppropriate “ only w hen there is no genuine iss ue as to any mat erial fact and th e moving pa rty is entitled to a judgment as a matt erof law”). I n suppo rt of th is con tentio n, Lemm p ointsto ev idencethat Ad ams maintained and improved the existi ng fence b ased on his mistaken belief that the fence line represe nted th e true bo undary lin e. Citing Buch ana n v. Nixon , 43 S.W.2d 380 (Tenn. 1931), Lemm arguesthat the intent to establish a boundary li ne is an essenti al elementof the defense of adverse pos session and that Adams’ mistaken or accidental possession of the disputed prop erty was legall y insufficient to support suc h a defense.

This argument is without merit. Beginning with our Supreme Court’s decision in Erck v. Church , 11 S .W . 794 (Tenn. 1889), th e courts of this state have continu ally adhered to the rule th at, “where a purchaser of la nd accidentall y or by mistake enclos es a contiguous strip, beli eving he is placingthe fence on the boundar y, and holds

the enclosed strip for [s even] year s, his posses sion is adverse, and w ill avai l against the true owner.” Pe oples v. H agaman , 215 S. W .2d 827 , 829 (T enn. Ap p. 1948 ) (citing Erck v. Church , 11 S.W . 794 (Tenn. 1889), and Williams v. Hewi tt , 164 S.W . 1198 (Tenn. 1914 )); accord Liberto v. Steele , 221 S.W.2d 701, 703 (Tenn. 1 949) ; Cross v. McCurry , 859 S.W.2d 349, 352 (Tenn. App . 1993). In such cases, the actua l intent to adversely possess the property of another need not be sh own; it i s sufficient that th e possession wasdue to ignorance or mistake as to the true lo cation of the boundary line. L iberto v. Steele , 221 S.W.2d at 703; Foster v. Hill , 510 S.W.2d 520, 522 (Tenn. App. 1 973); Gibs on v. Shular , 194 S.W .2d 865, 867 (Tenn . App. 1946).

We believe t hat the facts of this case fall squar ely w ithin the hol dingof Erck and its proge ny. In the present case, it was undisputed that Ad ams believed the old fence line to1 In li ght of our affirman ce of the sum m ary judgment ent ered i n favor of Adams, we need notaddress the issue of whet her t he tr ial court erred in den yi ng Lemm ’s demand fora jury trial. W e question, howeve r, whetherthe t ri al court, aft er rul ing i n favor of Ad am s o n th e d ef en se of a dv er se po ss es sio n, a cte d p ro pe rly in proceed ing to establish a boundary li ne gi vi ng Ad ams tit le t o the di sputed st ri p of l and. We agree that Adams’ adverse p ossession of the di sputed st ri p of property f or a per iod i n excess of sev en year s consti tut ed a va lid d ef en se wh ich ba rre d L em m ’s claim s to re cov er the prop erty. See W il li am s v. He witt , 164 S. W . 1198, 1199 (Te nn. 1 914 ); Erck v. Chur ch , 11 S. W . 794, 795 (Tenn. 1889); T.C.A. § 28-2-1 03 (1980) . Ci ti ng Tennessee Co de A nno tated sec tion 28 -2-1 05 (1 980 ), Ada m s co nten ded that he add itionally was entitled to legal title aft er seven y ears because hi s adverse p ossession of t he disp uted pr opert y was under col or of t it le. Contrary to t his cont enti on, Adams’ possession does no t ap pe ar to h av e b ee n u nd er co lor of t itle b ec au se his deed did no t co nta in a descri ption o f the d ispu ted s trip of p rope rty. See Bla nk en sh ip v . Bla nk en sh ip , 658 S.W .2d 125, 127 (Tenn. App. 1983) ( indi ca t ing t hat adv erse possessi on was wit hout col or of t it le beca use bounda ry li ne deed i ntro duced bydefe nda nt for title s ourc e did n ot ap pea r to inclu de d ispu ted a cre age ); see also Peoples v . Hagaman , 215 S. W .2d 827, 828 (Tenn. Ap p. 1 94 8) (af firm ing ch an ce llor’s decree whi ch rul ed thatdefendant s’ adv erse possessi on of di sputed str ip of lan d w as with ou t co lor of t itle b ec au se str ip in contr oversy

fel l wi thi n boundari es of l ot owned by plai nti ff) . Accor dingl y, in o rder t o be e nti tl ed to a decree decl ari ng him the owner in f ee of t he disp uted st ri p, Adams was requi red t o demonstrate thathis a dv ers e possession exc eed ed tw enty years . H allm ar k v . T idw ell , 849 S.W .2d 7 87, 7 92-9 3 (T enn . App . 199 2); Johnson v. City of Mt. Pleasant , 713 S.W .2d 6 59, 6 61 (T enn . App . 198 5); Moore v. Br annan , 304 S. W .2d 660, 667 -68 (Tenn. App . 195 7); Gibson v. Shular , 194 S. W .2d 865, 866 (Tenn. App. 1946) . Neverthel ess, our resol uti on of thi s que sti on does not requi re a re versal of t he tr ial court ’s or der because Lemm did not r aise t his i ssue belo w or on a ppe al. 5 be the true b oundary li ne when he purchased his pr operty in 1981. Since acq uiring th e prop erty, Adam s con tinu ousl y has u sed t he la nd in side the f ence line a s his o wn pro pert y. To this end, Adams h as maintained the existingfence and, i n some pla ces, has constructed new fencing. Un derthese circ umstances, the tr ial court pr operly ente red summary judgment in fav or of Adams based on the defense o f advers e possession because it was im mat eria l tha t Ada ms ma y have possessed Lemm’s prope rty by ignorance or mistake r

ather than by

design. Liberto v. Steele , 221 S.W.2d at 703. 1

In so holding, we concl ude that Lemm’s rel iance on Buchanan v. N ixon , 43 S.W.2d 380 (Tenn. 1931), is

misplaced becaus e the facts in Buchan an are disting uishable from those found in the prese nt case and in Erck . In Buchanan , the Court not ed that the erection of the fence there “was not by the advers e claimant at al l, but by t he owner of the adjoi ning lot for usages of his own, not onl y in ig norance of the true line, but w ithout purpose to set up a line.” Bucha nan , 4 3 S

. W. 2d at 382. Stres sing that i ntent was an essentia l element of adverse pos session, the C ourt declined to extend the r ule of law announced in Erck

to the facts of the Buchanan case, butthe Court di d not overr ule Erck

. Id

. Subsequent appel late deci sion s have reaffirmed Erck ’s holding as the “established rule of property in this State” and seemingly have restr icted Buchanan ’s holding to the facts of that case. Liberto v . Steele , 2 21 S.W.2d at 704; see also Peoples v. Hagaman , 215 S.W.2d at 829; Gibson v. Shular , 194 S.W.2d at 866.6 DISQUA LIFICA

TION OF CO UNSEL
During the co urse of this l itig ation, Lemm filed a motion to disqualify Adams’ atto rney, Barbara J. Pe rutelli, on the basis of a conflict of interest. The asserte d conflict
was that, when Le mm purchased theproperty at auction, Mi chael Bennett, an attor ney wi th Perutelli’s law

firm, performed a title search on the property. According to Lemm’s motion, Bennett’s title search revealed “that there were no exceptions , encroachments or defects with said pro perty” and “[t]his was certified th rough the Rep ublic Title C ompany for the issuance of a title policy.”

Adamsresponded by conceding that Michael Benn ett, one of the law firm’s partners , had represented Lemm i n the closing of her property in 1994. In an aff idavitfiled wit h the court, Bennett outlined the extent of his prior communications wi th Lemm. Bennett initially
was contacted by

the auction company

which sold the property. At the auction company’s request, Bennett perform ed a title search and handl ed the closingon the property. During the closing, which was transacted by mail, Bennett and Lemm had at least one t elephone conversati on in w hich L emm gave in structions concerning the names whic h would appear
on the deed. In connection w ith the closi ng, Bennett provided Lemm with an owner’s title insurance policy from Old Republi c National Ti tle Insurance Company. C ontra ry to Lemm’s assertion, the p oli cy did not cert ify that “no exceptions, encroachme nts or defects” existed with respect to theproperty. Instead, the pol icy indi cated that it did not insure against loss
or damage by reason of certain contin gencies, including , but not limit ed to, “[f]acts which would be disclosed by a comprehens ive s urvey o f the premises herein described .” Someti me after t he clo sing , Lemm contacted Bennett t o advise hi m that a neighbor ing landowner had built a fence on her proper ty and to ask him if the title polic y woul d cover this problem. Bennett informed Lemm that he doubted the pol icy woul d cover thi s prob lem, but he advised her to contact counsel for the ti tle company for a definitive answer, and he gave her the title company counse l ’s telephone number . Lemm later cont acted Bennett to inform him that she was suin g the neigh borin g lan downe r for e ncroac hment. Lemm again asked Bennett if the title poli cy wou ld cover this situati on, and Bennett again7

instructed Lemm to contact couns el for the titl e c ompany. Dur ing this l ast conver sation, Lemm advised Benn ett that a potential confli ct of interest ex isted because Per utelli was representi ng the n eighb oringlandow ner. A t this point, communi catio ns between Lemm and Bennett apparentl y ceased, and Bennett and Pe rutelli sought advice from the Board of Professional Res ponsibility

.

After conducting a hearing on this matter, the trial court entered an order deny ing Lemm’s motion for dis qualificati on. In denyi ng the motion, t he trial cour t found: [T]hat ther

e isno c onfl ict

of in terest whi ch would dis qua lify defense counsel in h er representation ofthe defendant. The Court finds that there were no confidences or secrets disclosed in Mr. Bennett’s repr

esentation of Ms. Lemm in the closing nor in the subsequent

phone c onversations with her. The Court finds that the boundary line dispute currentlybefore the Court between the par

ties did not arise out of nor is it closely as sociated with the closing of theLemm property by th e la w firm

. . . . The Court furt her finds that the current r

epresentation of the defendant wil l not undo leg al matters re sulting from the closing.

We begin with the premise that the disqualification of a litigant’s attorney is discouraged . As this court has ex plained,

Atrial cour

t has a broad r

ange of options av

ailable to insure thatits proceedings are fair both in appea rance and in fact. Disqu alifying an attorney i s the most drast ic. Schiessle v. Stephens , 717 F. 2d 417, 420 (7th C ir. 1983); Burn ette v. Morgan , 303 Ark. 150, 794 S.W .2d 145, 147-48 (1 990). It invariably

causes delay, in creases costs, and deprives parties of counsel of their

choice. Courts shou ld, therefore, di squ ali fy counsel with considerable reluctance and only w hen no other practical alt ernativ e exists. Board of Educ. v. Nyquist , 590 F.2d 1241, 1246 (2d Cir. 1979 ). In re Ellis , 822 S .W.2d 602, 605 (Tenn. App. 1 991); accord W halley Dev. Corp. v. First Citizens Bancshares, Inc. , 834 S.W.2d 328, 332 (Tenn. App. 1992) (notingthat trial courts “should be reluctant to disqualify a lit igant’s c ou nsel of choice and should grant disqualification motions spa ringly”).

In reviewing a trial court’s disqualification of counsel, this co urt previousl y has considered the thr ee-step a nalysis outlined in Schiessle v . Stephens , 717 F.2d 417 (7t h Cir. 1983), and subsequently adopte d by Tennessee’s Board of Professio nal Responsibilit y8

in Formal Ethics Opinion 89- F-118. See King v. King , 1989 WL 122981, at *7 (Tenn. App. 1989). This three-step analysis requires the court to det ermine (1) “ whether a s ubstantial relationship exists between the su bject matter of the prior an d present representations”; (2) if a substantial relationshi p does exist, “whether the presumption of shared confidences with respect to theprior repr esentati on has bee n rebutted”; and (3) if the pres umption referenced in step 2 has no t been rebutted, “ whether the presumption of shared confidences has been rebutted with res pect to the pres ent representati on.” Schiessle , 717 F.2d at 420.
App lying t he foregoing analysis to the present case, we af firm the trial court’s decision to deny Lemm’s motio n to disq ualify Adams’ attorney. With regard to the relationship between the s ubject matter of the former and present representatio ns, the trial court found that the c urrent boundary dispute did not arise ou t of, nor was it closely associated with, theservices performed by Bennettin connection with theprior cl osing of the Lemm property . More impor tantly, the trial cour

t made the specific

finding that Bennett’s representation of Le mm did not resu lt in the d isclosure of any confidences o r secrets, and w e concl ude that the evi dence does not prep onderate against this finding

. See T.R. A.P. 13(d ). Sign ific antl y, Lem m did not c onte nd be low, nor does she contend on appeal, that Bennett’s p rior clos ing of the proper ty involved any

confide nces or secr

ets which could be used ag ainst Bennett i n the present pr oceeding. According ly , ev en i f a substantial relationshi p existed between the cur rent boundary dispute and the pr ior closi ng of the L emm prop erty, the presumption of shared confidences w as sufficiently

rebutted to pe rmit Peru telli to represent Adams in this lawsuit. See King v. King , 1989 WL 122981, at *9 (Tenn. App. 1989) ( holding that trial court erred in disqual ifying defendant’ s counsel where there was no evidence t hat plaintiff ever communicated any

confidence or sec ret during prior repr

esentation); see also Autry v . State , 430 S.W.2d 808, 810 (Tenn. C r im. App. 1967) (holdingthat trial court did not a buse its dis cretion in pe rmitting atto rney t o participatein trial as spec ial prosecutor where, although defen dant sought attorney’s service s prior to tr ial, duringintervi ewattorney l earned nothing of confidential nature that would embarrass defenda nt at trial).9

The jud gment of the trial court is her eby affirmed. Costs on appeal are taxed t o Appe llan ts, f or whic h exec utio n ma y issue if ne cess ary.

HIGHERS, J.

CONCUR:

FARMER, J.

LILLARD, J.