Railey v. Skaggs, 68--573
| Decision Date | 04 March 1969 |
| Docket Number | No. 68--573,68--573 |
| Citation | 220 So.2d 689 |
| Parties | Lilburn R. RAILEY, Jr., Appellant, v. Alpha Railey Milam SKAGGS and Mary Wells Milam, Individually and as Trustees under the Will of Fleming G. Railey, Deceased; Alpha W. Railey and Marcus A. Milam, Appellees. |
| Court | Florida District Court of Appeals |
Hendricks & Hendricks, Miami, for appellant.
Smathers & Thompson, and Guy Stewart, Jr., for Skaggs and Milam, Richard R. Paige, for Railey and Milam, Miami, for appellees.
Before CHARLES CARROLL, C.J., and PEARSON and HENDRY, JJ.
This is an appeal from an order entered by the Circuit Court of Dade County in which the second count of a Second Amended Petition of the appellant was dismissed with prejudice. The issues presented are predicated on a complex set of factual and procedural circumstances, those pertinent hereto being as follows.
The appellant's uncle, Fleming G. Railey, deceased, was the settlor of a certain set of trusts established by his will. The appellant, by this action, has sought to remove certain of the trustees of those trusts. The allegations which formed the grounds for such removal were contained in his Second Amended Petition. The trial court predicated its dismissal of that petition upon three reasons, each of which we shall now examine separately. An order of the trial court, while not stating the grounds for dismissal, was entered upon the appellee's Motion To Dismiss the second count for failure to state a cause of action. Count II (which incorporates the allegations of Count I) need not be set forth in complete detail here; however, suffice it to say that we have examined the allegations contained therein, and find them to be sufficient to state a cause of action for the removal of the trustees. Broadly speaking, Count II relates to certain wrongful and coercive activities alleged to have been carried on by the trustees. 1 These allegations certainly present a charge of failure by the trustees to comply with that standard of good faith which is universally applied to fiduciary officers administering trusts. See 54 Am.Jur. Trusts § 311.
Also contained in the appellee's Motion To Dismiss Count II of the Second Amended Petition is the defense that the Second Amended Petition is defective for failure to comply with F.R.C.P. 1.130(a), 30 F.S.A., in that the Petition failed to identify or attach a copy of a certain proposed agreement, supra, note 1, which the appellant contends is representative of a breach of fiduciary responsibility. However, Rule 1.130(a) does not relate to the proposed agreement because that rule of pleading, by its very words, is meant to include those documents upon which an action is being brought. Here, the proposed agreement is material as evidence of the alleged abuse of fiduciary power; the document upon which the cause of action is premised is the trust instrument itself. Thus, the Second Amended Petition was not defective with regard to F.R.C.P. 1.130(a).
As a third means of attack on the court's order, appellant has raised the issue of whether the court abused its discretion by dismissing with prejudice.
Although this point becomes moot with regard to Count II of the Second Amended Petition, when viewed with our holding as to the validity of the cause of action stated in Count II, supra, it is nevertheless important for another reason. The record shows that the court entered two separate orders, both dated May 13, 1968, one directed to Count II of the Second Amended Petition, and the other dismissing the entire cause with prejudice. The appellant did not directly raised issue as to the court's disposition of Count I of the Second Amended Petition, but since the appellant did question the propriety of that order dismissing the entire cause, we may therefore rule on the validity of Count I. 2 Count I is hereby held to state a valid cause of action, requiring the court to construe a certain provision of the trust instrument, and rule on the disbursements of assets in connection therewith.
Finally, appellant has asked that we determine whether his beneficial position in relation to the trust...
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