359 So. 2d 1208 | Fla. Dist. Ct. App. | 1978
This is an interlocutory appeal from an order of the trial court denying a motion of appellant, William B. Mills (a defendant below) to dismiss and to strike a cross-claim filed by appellee, The Nemours Foundation, (a defendant below) and treating the cross-claim as affirmative defenses. This is a declaratory judgment action which was brought by Edward Ball and other trustees under the Last Will and Testament and Codicils of Alfred I. duPont, deceased, against Mills, also a trustee under said Will and Codicils. The Nemours Foundation, beneficiary under the aforesaid Will and Codicils was also made a defendant in the cause. The petition for declaratory judgment of Ball and other trustees seeks a judicial declaration as to the validity of an increase in the number of trustees and the actions of the trustees — Ball contending that the trustees were validly selected and their actions were legal and Mills contending to the contrary. By its cross-claim which the trial court designated and treated as affirmative defenses, Nemours, in support of the validity of the selection of the additional trustees and their acts subsequent thereto, raises questions of estoppel, waiver, and res judicata against Mills’ contention to the contrary. In a sense these affirmative defenses are directed to Mills, but in reality they are directed to the cause of action itself and are questions which should properly be ruled upon in this proceeding. While this pleading in this declaratory judgment action is not in compliance with strict rules of pleading, we consider, as did the trial judge, that these are questions which Nemours should be allowed to raise and have determined in this suit. The ruling of the trial court is, therefore,
AFFIRMED.
