Union Camp Corporation v. Dyal
| Decision Date | 28 April 1972 |
| Docket Number | No. 71-1776.,71-1776. |
| Parties | UNION CAMP CORPORATION, Plaintiff-Appellee, v. James E. DYAL, Jr., et al., Defendants-Appellants, and John M. Murrell et al., Additional Defendants, Leon A. Wilson, II, et al., Third Party Claimants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Thomas G. Spicer, Don G. Nicholson, Miami, Fla., Edwin G. Barham, Valdosta, Ga., Nicholson, Howard, Brawner & Lovett, Miami, Fla., for defendants-appellants.
George W. Williams, Robert M. Williams, Bouhan, Williams & Levy, Savannah, Ga., for Union Camp Corp.
Anthony A. Alaimo, Brunswick, Ga., for Mrs. Willie Dyal, ind. and as admx. of estate of Milton Dyal, deceased.
Leon A. Wilson, II, C. Edwin Rozier, Waycross, Ga., for Leon A. Wilson and others.
Malberry Smith, Savannah, Ga., for Julian F. Corish, Atty. of Savannah claimants.
Before MORGAN and CLARK, Circuit Judges and RUBIN,* District Judge.
Rehearing and Rehearing En Banc Denied April 28, 1972.
An old saw recites that a bad settlement is better than a good law suit. At age 76, J. Edgar Dyal questions this folk wisdom, and seeks to avoid a stipulation that he expressly authorized his lawyers to sign on his behalf and on behalf of the other defendants, his wife and children and certain other persons who are contingent remaindermen of inter vivos trusts created by him. His wife and children disavow the agreement, Dyal's power to consent to it, and their lawyers' authority to sign it. Four contingent remaindermen of an inter vivos trust created by Dyal, who were named defendants in the suit and had not employed counsel, also object. Union Camp, the plaintiff in this litigation, seeks to enforce the agreement because it is quite clear that a good settlement is better than any law suit.
Determination of the issues concerning the enforceability of the settlement depends on facts not quickly told. Prior to 1941, Dyal had operated a naval stores business and, in connection with it, had acquired extensive lands in Georgia. Among his holdings were contiguous lands comprising 39,283.44 acres, known as Dyal No. 1 (Surrency) Tract, located in Wayne and Appling Counties. On December 15, 1941, Dyal put 10,400 acres of these lands in trust, with Citizens and Southern National Bank, as trustee, for the benefit of his former wife, Ruth, and his five children, Elizabeth Dyal Sammons, Charles Smith Dyal, James E. Dyal, Jr., Milton G. Dyal, and Dorothy Dyal Briscoe. Later that month, he and the trustee signed two agreements with Union Camp, similar in terms, one applicable to 28,883.44 acres and the other applicable to the 10,400 acres held in trust. Each agreement contained a lease for 99 years and an option to purchase the lands after Dyal's death. The purchase price was $15 per acre, and the rental was determined by taking 5% of this amount, 75¢ per acre.
The lessee was authorized, after an initial 7 year growth period to cut specified amounts of timber for commercial purposes yearly. The leases were complex, and it is unnecessary to recite their terms in detail. Each lease provided for termination upon certain specified defaults, including failure to pay rent, provided the owners ended both of them concurrently.
Thereafter, Dyal treated the property retained by him as two parcels, one of 16,000 acres, and the other of 12,883.44 acres. By various donative transfers, he conveyed interests to his children, and to his second wife, Irene Vaughn Dyal. Milton died, Dyal's other children deeded back the fee ownership of some of the property to him, and other changes in title occurred, so that immediately before this suit was filed, interests in the parcels were owned as follows:
Parcel Fee Rental
16,000 J. Edgar Dyal Irene Vaughn
acres Dyal
12,883.44 45/60 by the four surviving 45/60 same as
acres Dyal children and fee shown in
Milton's widow, in equal opposite
shares column
5/60 J. Edgar Dyal
10/60 Irene Vaughn 15/60 to Irene
Dyal, subject to contingent Vaughn Dyal
remainders. Contingent
remainders, as to
5/60, if Dyal's wife
predeceased him; Dyal's
nephews, Ernest Eugene
Dyal and Forrest Lee
Dyal III, and nieces
Mrs. Barbara Dyal Robinson
and Mrs. Kay Dyal
Miller. Contingent remainders
as to 5/60, if
Dyal's wife predeceased
him, the same contingent
remaindermen plus Mrs
Hilja Stranden Lahde,
Dyal's housekeeper
10,400 Charles Smith Dyal and
acres James E. Dyal, Jr., successor-trustees
for the
benefit of themselves
and their two sisters.
Dyal and two of his sons, Milton and Charles, continued a naval stores operation under yearly contracts with Union Camp until 1967, terminating the business only after Milton's death in October 1966. James E. Dyal, Jr., operated a pulpwood business on the Surrency tract, and contracted with Union Camp to remove and haul the yearly cut of 1/2 cord per acre from the lands.
There were many other occasions for negotiations between the Dyals and Union Camp through the years. Problems arose from time to time. When they did, Union Camp discussed them with J. Edgar Dyal, and, after they reached an agreement, Union Camp prepared supplementary documents. Every one of these was executed, without exception, by the various lessors, each on his own behalf, and by Union Camp.
Dyal and his first wife were divorced and, he subsequently married Irene Vaughn Dyal in 1935. Thereafter, Dyal's relationship with his children was not always tranquil. Some of his children have never spoken to their stepmother in these 37 years. There were other family differences, and in fact, one lawsuit between them was pending when this suit was filed.
The lands continued to increase in value over the years; indeed Dyal contends they now have a market value of $250 an acre, or a total worth of $10,000,000. Meanwhile, Dyal discovered another cause for difference with Union Camp.
The leases had two provisions regarding fuel wood. With respect to fuel wood removed after the seventh year, and during Dyal's life time, Union Camp was required to pay Dyal 1/2 the market price of the wood. When the trees were first cut, their stumps remained in the ground. Unlike the stumps of later growth, they became increasingly valuable because of a higher resin content. By the time this suit began, Union Camp valued the stumps at $300,000, and Dyal valued them at $600,000, but Union Camp had let them remain in the ground, contrary to its practice of removing and selling them on all its other properties where Dyal had no share of the proceeds. Supported by the definitions in the lease, Dyal contended that the stumps were fuel wood and that Union Camp had deliberately refrained from selling them in order to avoid paying him a share.
After Dyal had repeatedly asked that the stumps be sold and the proceeds divided with him, in 1969 Union Camp offered Dyal a letter contract with respect to them. But Dyal considered the proposal inadequate, and counsel consulted by him expressed the opinion that Union Camp's failure to harvest the stumps might be a violation of the lessee's obligations, hence cause to terminate the lease. Dyal's lawyer notified Union Camp that he was exercising his option to consider the lease terminated, that he would no longer accept rental payments, and that he would re-enter and take possession of the lands.
Dyal then sued Union Camp in a Florida state court for termination of the lease and an accounting. Union Camp removed this suit to the U.S. District Court for the Southern District of Florida. Two months later it filed this suit, in Georgia, obtained a temporary restraining order enjoining the defendants both from prosecuting the Florida suit and from molesting or interfering with plaintiff's possession and operations in the lands, except that James E. Dyal, Jr. was permitted to continue performing his pulpwood contract. The suit also prayed for a declaratory judgment that would determine Union Camp's obligations with respect to the stumps; a decree that, if its previous practice with respect to them should constitute a default, Union Camp would have the right to remedy it by paying money damages; and a declaration that Dyal did not have the right to put Union Camp in default. Union Camp additionally sought a declaration that it had the right to possession of the lands and trees, and that its option to purchase was valid. Union Camp did not seek to exercise its option, or to enforce it; only a decree that confirmed its validity.
With their forces thus formed to fight, both sides thought it might be advisable to meet at the conference table. A meeting was arranged on the assurance of the Dyals' counsel that the Dyals would be represented by someone who had authority to speak for the entire Dyal family.
On November 3, 1969, Union Camp's Senior Vice President and Union Camp's lawyers met Dyal, and the Dyals' counsel, and Milton's widow's attorney in Miami, Florida. There was some discussion about another property leased by the Dyal family to Union Camp at Fargo, but Dyal said he was not prepared to discuss the problems arising from that lease. However he represented that he was prepared "to talk as to Surrency, and the whole title at Surrency." He said he owned only 16,000 acres, but he nevertheless was prepared to speak "for the whole crowd."
After some hours of negotiations, the two lawyers representing the Dyals, the lawyer representing Mrs. Milton...
To continue reading
Request your trial
-
Thompson v. Adams
...§ 1655 aids service upon absent defendants only in proceedings in rem and does not suffice for claims in personam. Union Camp Corp. v. Dyal, 460 F.2d 678, 685 (5th Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972); Harrison v. Prather, 404 F.2d 267, 269 (5th Cir.1968) (pe......
-
Lord Day & Lord v. Socialist Repub., Viet.
...under federal common law conflict principles or under its in rem jurisdiction. See Pescatore, 97 F.3d at 14-15; Union Camp Corp. v. Dyal, 460 F.2d 678 (5th Cir.1972) (applying choice of law rules of situs of the property under federal in rem The instant action raises challenging and novel s......
-
Rohrig Invs., LP v. Knuckle P'ship, LLLP (In re Rohrig Invs., LP)
...of frauds requirement for written authority; however, that obstacle may be overcome by ratification or estoppel. Union Camp Corp. v. Dyal , 460 F.2d 678, 688 (5th Cir. 1972). Generally, an agent's title or office, by itself, will not establish apparent authority to bind a corporation. ABV E......
-
Firefighters Ret. System v. Citigroup Global Mkt.s Inc.
...matter, that the agent take the steps necessary and that the agent proceed in the usual and ordinary way ....”); Union Camp Corp. v. Dyal, 460 F.2d 678, 687 (5th Cir.1972) (invalidating sale of property by agent where sale was not incidental to the delegation and there was “no evidence that......