# Opposition Brief — Union Camp Corp. v. Dyal

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 849

## Text

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——
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_ v

Supreme Courses

of the

Gnited States

OCTOBER TERM, 1971

NO. 71-1600

UNION CAMP CORPORATION,
Petitioner,
v8.

JAMES E. DYAL, JR., et al. JOHN M. MURRELL,
et al., and LEON A. WILSON, II, et al.,
Respondenis.

On Petition for Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

DON G. NICHOLSON
THOMAS G. SPICER
221 Security Trust Building
Miami, Florida 33131
Telephone: (305) 358-2783
Attorneys for Respondents

EDWIN G. BARHAM

Valdosta, Georgia and

NICHOLSON, HOWARD,

BRAWNER & LOVETT

Miami, Florida 33131

Of Counsel

MIAMI REVIEW — 371-4853 — 377-3721

INDEX

STATEMENT OF THE CASE ___...

REASONS FOR DENYING THE WRIT

I.

II.

III.

Under Georgia law an agent without
written authority of his principal may
not contract for the conveyance of lands
of the principal, even under the guise of
compromise, and settlement of litigation
wherein the title to the lands are not in
dispute, and the principal neither author-
izes, approves, nor ratifies such action

The law of Georgia does not empower
attorneys with written authority from
their clients “to take such steps as you
deem necessary to protect our interests
in this litigation” to contract, in compro-
mise and settlement of litigation or other-
wise, for the conveyance of lands of the
client, where the title to the lands are
not in dispute, and the client does not
authorize, approve or ratify the action

The rule that courts should favor com-
promise does not require enforcement of
unauthorized and unwanted commitments
by others to sell real property owned by
the clients .

Page

be

12

ee ee a ee a

II

INDEX (cont.)

Page
IV. The “clearly erroneous” rule does not re-
quire a reviewing court to accept the con-
clusions reached by the trial court from
Oe I I i ice mene eardoninen 13
CONCLUSION ........ anchheehdaamieensasatanesite 15
CERTIFICATE OF SERVICE .............--.--------------- 16

III
TABLE OF AUTHORITIES CITED

Case Page

Boswell v. Gillen,
131 Ga. 310, 62 S.E. 187 (1908) 8

Cord v. Smith,
338 F.2d 516 (9th Cir. 1964) 10

Davis v. First National Bank of Blakely,
139 Ga. 702, 78 S.E. 190 (1913) 11,12

Erie Railroad Co. v. Tompkins,
304 U.S. 64, 58 S.Ct. 817, 82 L.Ed, 1188 (1938) 9

Fulford v. Fulford,
225 Ga. 9, 165 S.E.2d 848 (1969) 4,6, 7,8

Sperry v. Florida,
373 U.S. 379, 83 S.Ct. 1322,

10 L.Ed.2d 428 (1963) 10
Wade v. Powell,
31 Ga. 1 (1860) 10
RULES

Fed.R.Civ.P.:
eens es ea 13

in the

Supreme Court

of the

Gnited States

OCTOBER TERM, 1971

NO. 71-1600

UNION CAMP CORPORATION,
Petitioner,
vs.

JAMES E. DYAL, JR., et al. JOHN M. MURRELL,
et al., and LEON A. WILSON, II, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

The history of the relationship among the parties,
and the facts involved are extensively recited in the deci-
sion of the Court of Appeals for the Fifth Cireuit (A. 1-
21), and in the decision of the District Court (A. 23-57).

2

This is a diversity of citizenship action for a declara-
tory judgment and for the payment of inverse damages to
redeem ‘against a forfeiture of two 99 year timber land
leases, containing options to purchase the lands exercisable
in the future. The action was filed in the Southern District
of Georgia by Union Camp Corporation, as lessee, against
twelve defendants, as lessors. Union Camp caused a tem-
porary restraining order to issue restraining the defend-
ants from interfering with its possession of the lands;
restraining the defendant, J. Edgar Dyal, from prosecuting
an action then pending in the Southern District of Florida
for breach of the leases, damages, and forfeiture; and
restraining the defendants, parties to an action then pend-
ing in Appling County, Georgia, from prosecuting the
action challenging the validity of the options to purchase
the lands. The latter action was in the process of voluntary
dismissal when the Union Camp suit was filed.

With the action in the posture noted, the Executive
Vice President and the attorney for Union Camp met in
Miami, Florida, with counsel for the defendant, Willie
Eason Dyal, counsel for six other defendants, who held
written authority to “take such steps as you deem neces-
sary to protect our interests in this litigation”, and with
the defendant, J. Edgar Dyal, whose authority to represent
the other defendants was oral. J. Edgar Dyal announced
at the meeting that he was not authorized to discuss other
lands under lease from the defendants to Union Camp
‘known as the Fargo Tract!, which are not involved in
this litigation, but that he was authorized to “speak” for
the whole title of the lands involved, which are known as
the Dyal +1, or Surrency Tract.

3

After extensive negotiations, the parties present and
counsel agreed to a settlement amount for the damage claim
of J. Edgar Dyal, and agreed that all defendants would
convey their fee interests in the Surrency Tract to Union
Camp for the price fixed in the option to purchase, plus an
additional sum as premium for acceleration of purchase
option. The agreement was reduced to writing and signed
by counsel. The defendant, Willie Eason Dyal, also agreed
to convey her fee interests in the Fargo Tract to Union
Camp for an agreed sum, plus an additional sum for her
attorneys’ fee; and has since fully performed her agree-
ments by conveying her interests in the Surrency and
Fargo Tracts to Union Camp.

After the meeting, J. Edgar Dyal, became dissatisfied
with the stipulation and notified his counsel he did not
intend to carry it out. He and his counsel immediately
thereafter notified Union Camp and its counsel of his
intention. All other defendants have repudiated the stip-
ulation of counsel and object to its enforcement.

Upon failure of the eleven defendants to perform in
accordance with the stipulation, Union Camp moved to
enforce the stipulation. After an extensive evidentiary
inquiry, the District Court ordered that the stipulation be
enforced against the eleven defendants (App. A. 23-57).
On appeal by the eleven defendants, the Court of Appeals
for the Fifth Cireuit (App. A. 1-21) affirmed the order
requiring enforcement of the stipulation against the de-
fendant, J. Edgar Dyal, and reversed the order as being
unenforceable against the remaining ten defendants.

Union Camp petitions for a writ of certiorari to review
the decision of the Court of Appeals. The defendants, except
Willie Eason Dyal, respond here in opposition.

4
REASONS FOR DENYING THE WRIT

I. Under Georgia law an agent without written
authority of his principal may not contract for the con.
veyance of lands of the principal, even under the guise of
compromise and settlement of litigation wherein the title
to the lands are not in dispute, and the principal neither
authorizes, approves, nor ratifies such action.

Union Camp asserts the holding (that an agent’s com-
promise settlement of a pending action which provides for
the conveyance of real property must be in writing unless
ratified by the principal) is in conflict with the law of the
State of Georgia. In support of its assertion, Union Camp
contends that the Court of Appeals misinterpreted the
decision of the Supreme Court of Georgia in the case of
Fulford v. Fulford, 225 Ga. 9, 165 S.E.2d 848 (1969) on
this point.

Union Camp’s assertion is miscast, and its contention
is in error.

The Court of Appeals characterized the stipulation, as
follows:

“The stipulation did not purport merely to
settle the law suit. It neither confirmed the va-
lidity of the leases and the option, nor declared
their invalidity. It was silent as to all other
issues raised in this litigation except Dyal’s re-
quest to share in the stumpage based on a com-
promise as to value. In no other way did it
compose the issues by determining some of them
in favor of one party and others in the favor of
another. It did not provide for a cash payment to

5

dispose of some of the contentions made. Instead,
as it recites, it settled all issues between the par-
ties, not merely those in litigation.

“When the conference was arranged, counsel
for Union Camp promised that one of its officers
who could speak authoritatively for the company
would attend, but it agreed to participate only on
condition that the persons representing the Dyal
interests ‘were prepared to speak for the whole
title and deliver titles to the whole property of
Surrency No. 1.’ That was the purpose and the
result of the conference.”

(App. A. 11)

The Court held that the stipulation provided for the
transfer of title to real property situated in Georgia, and
thus the District Court was obliged to follow the Georgia
law in determining the validity and effect of the stipula-
tion, as well as the power of agents to execute it.

The basic rule of law in Georgia was correctly noted,
as follows:

“A Georgia statute gives attorneys ‘authority
to bind their clients in any action or proceedings,
by any agreement in relation to the cause, made
in writing, . . .” Ga. Code 9-605. But the stipula-
tion in this case was not an agreement ‘in relation
to the cause.’ Nor was it a settlement that dis-
posed of the issues in the proceeding. Cf. Ingalls
rv. Ingalls, N.D. Ala. 1959, 177 F.Supp. 151, Cir.
1960, 280 F.2d 423: Cia Anon Venezolana De
Naregacion v. Harris, 5 Cir. 1967, 374 F.2d 33.
It was a contract to sell lands.

6

“A contract for the ‘sale of lands, or any inter-
est in, or concerning them,’ Ga. Code 20-401
<(4)4, ‘must be in writing, signed by the party
to be charged therewith, or some person by him
lawfully authorized. .. .’ Jd. at 201-401. To im-
plement this statute of frauds, Ga. Code 4-105
provides, ‘the Act creating the agency shall be
executed with the same formality ... as the law
prescribes for the execution of the act for which
the agency shall be created.’ This evidently re-
quires that the agent’s power to sell land must
be in writing absent later ratification of his acts,
Baxley Hardware Co. v. Morris, 1927, 165 Ga.
309, 140 S.E. 869, or estoppel of his principal to
deny his authority. See Wade v. Powell, 1860, 31
Ga. 1: Fulford v. Fulford, 1969, 225 Ga. 9, 165
S.E.2d 848... .”

(App. A. 12, 13)

The Court reviewed the cases in Georgia following the
rule that written authority to the agent must be shown
to support his sale or lease of the principal's lands and
that one dealing with such agent is charged with knowl-
edge of the rule and is under a duty to inquire and ascer-
tain whether such written authority exists. It then
proceeded to consider whether the exception to the rule
followed in Fulford v. Fulford, supra at page 4, applies
in the instant case.

Fulford involved an action among members of the
same family, which under Count 1 sought to set aside a
conveyance of lands by one of the members to another.
Count 2 was described as follows:

7

“It was alleged in this court that on March 29,
1967, while the instant case was pending, all of
the parties with their counsel met in the court-
room of the Wheeler County courthouse and made
an agreement which was an accord and satisfac-
tion (compromise settlement) of the action re-
ferred to in Count 1...”

(165 S.E.2d 848, 852)

Count 2 sought to enforce the oral agreement providing,
among other things, for the reconveyance of the lands in
issue. On this point the Court held:

“* | The compromise of a contention as to
the property rights, the final outcome of which,
if settled by litigation, the parties consider to be
doubtful, furnishes a consideration sufficient to
support the compromise contract. It is well set-
tled that in equity the termination of family
controversies affords a consideration which is
sufficient to support a contract made for such
purpose.’ Belt v. Lazenby, 126 Ga. 767, 56 S.E.
_, rs

(165 S.E.2d 848, 853)

and

‘Where an agreement for the compromise of
a pending cause is made by a party and his coun-
sel on the one hand, and by counsel of the opposite
party and ratified by his client, whereby one of
the parties is to do certain acts, such agreements
upon performance or offer to perform according
to its terms within a reasonable time, becomes

Ae aS we

8

binding on the parties, and puts an end to the

original subject-matter of the controversy * * *

Such an agreement need not be in writing... .’”
(165 S.E.2d 848, 854)

citing, inter alia, Boswell v. Gillen, 131 Ga. 310, 62 S.E,
187 (1908).

The Court of Appeals, in its decision now under attack,
distinguished Fulford from the instant case thus:

“... The Court's opinion quoted with approval
an earlier observation that the requirement of a
written power of attorney be in writing has ‘no
application to an oral agr2ement and compromise

of a pending suit... in Fulford, however, title
to the property was —¢ issue in the litigation, and
all the parties exp’: =<!) racified their attorney’s

settlement. That, coo, was the basis for enforcing
the stipulation 'y counsel in a land dispute, Dean
v. Jackson, 1964, 219 Ga. 552, 134 S.E.2d 601,
where the court found that the client gave express
assent to the action taken by his attorney.”
(App. A. 15)

The Court of Appeals noted that in the instant case
the stipulation was not an agreement “in relation to the
cause”. “Nor was it a settlement that disposed of the
issues in the proceedings. . . . It was a contract to sell
lands.” (App. A. 12). “There is no evidence that the Dyal
family (the ten defendants! desired him (J. Edgar Dyal)
to sell their interests in the land.” (App. A. 16). “Here
there can be no question of ratification or delay on the part
of any of the Dyals after the stipulation was signed.” (App.

9

A. 18). “The sale of Surrency was not incidental or reason-
ably necessary to settling the litigation. Indeed the reverse
is true: the litigation was incidental to ownership of the
fee...” (App. A. 16).

The Court of Appeals correctly interpreted the deci-
sion in Fulford, and followed it by ordering the stipulation
enforced against J. Edgar Dyal, who “expressly authorized
his lawyers to execute the stipulation”; and “ratified it by
acquiescing in it after it was signed.” (App. A. 19). The
Court of Appeals correctly interpreted the decision in hold-
ing the exception does not apply to the other defendants,
and followed the basic rule, in ordering:

“As to all the defendants, other than J. Edgar
Dyal and Mrs. Willie Eason Dyal, the suit may
continue. Determination of their rights will abide
the outcome of the litigation.”

(App. A. 21)

The decision of the Court of Appeals fully accords
with the law of Georgia.

Il. The law of Georgia does not empower attorneys
with written authority from their clients “to take such
steps as you deem necessary to protect ovr interests in
this litigation” to contract, in compromise and settlement
of litigation or otherwise, for the conveyance of lands of
the client, where the title to the lands are not in dispute,
and the client does not authorize, approve or ratify the
action.

In passing we question whether the rule in Erie Rail-
road Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed.
1188 (1938) compels that, in diversity of citizenship cases

10

in Georgia, attorneys admitted to practice in the United
States courts, who are also admitted to practice in the
state courts of Georgia, come into federal courts cloaked
with the plenary powers of attorneys of record in the courts
of Georgia. See: Sperry v. Florida, 373 U.S. 379, 83 S.Ct.
1322, 10 L.Ed.2d 428 (1963) and Cord v. Smith, 338 F.2d
516 (9th Cir. 1964).

Even the plenary powers of attorneys of record in
Georgia do not rise to the heights suggested by the peti-
tioner. Union Camp asserts that Georgia law vests plenary
power in attorneys of record to permit them to agree to
convey lands of their clients, without the consent of their
client, unless the opposing counsel is advised of an express
limitation in the contract of employment restricting the
attorney from so agreeing. The assertion is overbroad.

The plenary power of attorneys of record in Georgia
under a general retainer contract is limited. These powers
are limited to the scope of the action in which they are
retained to represent their client. In Wade v. Powell, 31
Ga. 1 (1860), at page 22, it was said: “(a)n attorney may
confess a judgment against his client, and this involves
every thing.” As the Court of Appeals noted: “(a) Georgia
statute gives attorneys ‘authority to bind their clients in
any action or proceedings, by any agreement in relation to
the cause, made in writing, . . .’ Ga. Code 9-605.” (App.
A. 12).

_ Had the defendants’ attorneys confessed judgment in
this declaratory judgment action by Union Camp, as lessee,
against the defendant, as lessors, the title to the lands
would not be adversely affected, but would be reaffirmed
in the defendants. The Court of Appeals held, as follows:

11

“The stipulation did not purport merely to
settle the law suit. It neither confirmed the valid-
ity of the leases and the option, nor declared their

invalidity. . . . Instead, as it recites, it settled all
issues between the parties, not merely those in
litigation.”

(App. A. 11)

. But the stipulation in this case was not
an agreement ‘in relation to the cause.’ Nor was
it a settlement that disposed of the issues in the
proceedings. (Citations omitted.) It was a con-
tract to sell lands.”

(App. A. 12)
and noted:

“The lawyers representing the Dyals never
purported to act on their own authority as law-
yers, express or implied. bad made it clear in
the presence of Union Camp’s representatives that
they were seeking authorization from J. Edgar
Dyal, and would sign only if he instructed them.

. But Dyal’s authority was more tenuous
than the lawyers’: they at least had a written
letter of employment. His authority was purely
oral.” (App. A. 15)

The case at bar falls squarely within the limitations
noted by the Court in Davis v. First National Bank of
Blakely, 139 Ga. 702, 78 S.E. 190 (1913), related by peti-
tioner in brief at page 15, wherein the Court held that the
statute:

12

‘.. . does not mean that when a client employs
an attorney to bring or defend a suit, it ceases
to be the client’s litigation, that he has no power
to say whether he will litigate or compromise his
suit, and that the attorney becomes the owner or
absolute master of the litigation, so as to be able
to sell or give away his client’s property rights
by contract, in spite of his client.”

(139 Ga. 702, 710, 78 S.E. 190, 194)

III. The rule that courts should favor compromise
does not require enforcement of unauthorized and un-
wanted commitments by others to sell real property owned
by the clients.

Compromises of disputed claims are favored by the
courts where the parties acting in good faith settle a con-
troversy.

Courts favor compromise, but not at the expense of
forcing an unwanted sale of their real property, the title
to which is not in controversy, upon unwilling parties to
litigation who neither participated in the negotiations nor
authorized, approved nor ratified the stipulation.

In the decision sub judice, the Court of Appeals has
ordered the stipulation enforceable against J. Edgar Dyal,
the only party defendant who authorized it; and has or-
dered the stipulation unenforceable against the ten defend-
ants who neither participated in the negotiations, nor
authorized, approved nor ratified the stipulation.

13

IV. The “clearly erroneous” rule does not require a
reviewing court to accept the conclusions reached by the
trial court from the facts as found.

Petitioner contends that the failure of the Court of
Appeals to follow findings of fact held not to be clearly
erroneous is in disregard of Rule 52, Fed.R.Civ.P. and
warrants this Court’s review under its power of super-
vision. Petitioner is in error. The Court of Appeals accepted
the facts but disagreed with the conclusion reached there-
from by the trial court, stating:

“The trial court concluded also that Dyal was
in fact ‘the agent of all the defendants in this
case’ except Mrs. Willie Eason Dyal, and ‘pos-
sessed authority to act for them in all matters
pertaining to the litigation including the settle-
ment thereof.’ But Dyal’s agency was more tenu-
ous than the lawyers’; they at least had a written
letter of employment. His authority was purely
oral.

“While the evidence with respect to Dyal’s
actual authority is contradictory, we are not left
with the firm conviction that the trial court’s
finding was clearly erroneous. (Citations omit-
ted.) But the conclusion reached from this fact
does not follow: because J. Edgar Dyal had au-
thority to settle the law suit does not mean that
he had power to agree to convey a fee interest in
the real property. . . . There is no evidence that
the Dyal family desired him to sell their interests
in the lands... .

14

“The sale of Surrency was not incidental or
reasonably necessary to settling the litigation.
Indeed the reverse is true: the litigation was
incidental to ownership of the fee. Nor does au-
thority to sell a fee in real property usually ac-
company authority to negotiate for settlement of
the type of claim the Dyals were presenting.
Authority to act in the principal’s business does
not usually imply authority to sell the principal’s
interest in lands. Restatement of Agency 2d
$52(b). Dyal’s acts suffer from the same defects
as his counsels’: he acted beyond his authority,
and he agreed to convey lands without written
authority from his principals. Indeed it does not
appear that he had even oral authority to do so.”

(App. A. 15, 16)

15
CONCLUSION

It is therefore respectfully submitted that the petition
for a writ of certiorari should be denied.

Dated at Miami, Florida, this 30th day of June, 1972.

DON G. NICHOLSON

THOMAS G. SPICER
221 Security Trust Building
Miami, Florida 33131

Telephone: (305) 358-2783
Attorneys for Respondents

EDWIN G. BARHAM
Valdosta, Georgia and
NICHOLSON, HOWARD,
BRAWNER & LOVETT
Miami, Florida

Of Counsel

16 ae
CERTIFICATE OF SERVICE

I, THOMAS G. SPICER, one of the attorneys jor
JAMES E. DYAL, JR. and CHARLES SMITH DYAL,
each individually and both as surviving Substitute Co-
‘rustees under a Trust Deed dated December 15, 1941,
JAMES E. DYAL, MRS. IRENE VAUGHAN DYAL,
MRS. ELIZABETH DYAL SAMMONS, MRS. DORO-
THY DYAL BRISCOE, ERNEST EUGENE DYAL,
FORREST LEE DYAL III, MRS. BARBARA DYAL
ROBINSON, MRS. KAY DYAL MILLER, and MRS.
HILIA STRANDEN LAHDE, Respondents herein, and a
member of the Bar of the Supreme Court of the United
States, hereby certify that, on the 30th day of June, 1972,
I served three copies of the foregoing BRIEF IN OPPO-
SITION on each other party separately represented in the
proceeding, by mail in a duly addressed envelope, with air
mail postage prepaid, to counsel of record as follows: To:
George W. Williams, Attorney for Union Camp Corpora-
tion, Bouhan, Williams & Levy, 47 Bull Street, Savannah,
Georgia 31402. To: Anthony A. Alaimo, Attorney for Mrs.
Willie Eason Dyal, individually and as Administratrix of
the Estate of Milton Dyal, deceased, Alaimo & Taylor,
1803 Norwich Street, Brunswick, Georgia 31521. To: Mal-
berry Smith, Jr., Attorney for John M. Murre] and Julian
F. Corish, Corish, Smith & Remler, P.O. Box 8123, Savan-
nah, Georgia 31402. To: Leon A. Wilson II, pro se., Albany
Avenue, Waycross, Georgia. To: C. Edwin Rosier, pro se.,
P.O. Drawer 1327, Waycross, Georgia.

THOMAS G. SPICER
Attorney for Respondents
221 Security Trust Building
Miami, Florida 33131

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0954%3A2. Public record. Not legal advice.