Ross v. Gerung

Decision Date15 January 1954
Citation69 So.2d 650
PartiesROSS et al. v. GERUNG.
CourtFlorida Supreme Court

Melvin Schaffer and James Pilafian, Miami, for appellants.

Middleton McDonald, Miami, for appellee.

SEBRING, Justice.

The defendants below have appealed from a final decree granting to the plaintiff an equitable lien upon the church property of an unincorporated religious society to secure the payment of the reasonable value of work done and materials furnished in the repair of the church building located thereon.

The facts out of which the litigation arose are virtually uncontested. There is evidence that the defendant below, Ross, Smith and Williams, are, respectively, the pastor, chairman of the Board of Trustees, and a deacon of the Friendship Missionary Baptist Church of Miami, Florida. Ross and Smith made arrangements with Gerung, the plaintiff, to have him make certain repairs to the church building. During the course of the work the City of Miami required additional work to be done on the building to meet municipal construction standards. Upon being advised of this fact, Ross and Smith instructed Gerung to proceed, and in reliance upon these instructions Gerung went forward with the work as required and directed. Upon completion of the project Gerung presented a bill for the full amount due under the contract. When payment for the work done and materials furnished was refused, Gerung instituted the present suit in equity naming as defendants the three parties above listed, 'as Trustees and as representatives of the whole membership of Friendship Missionary Baptist Church.'

Evidence was submitted upon the issues made by the complaint and answer. After the evidence was in the special master filed his report containing findings and recommendations substantially as follows: (1) Although the members of the church congregation are the beneficial owners of the property and consequently are the real parties in interest, the trustees having only the bare legal title, said members constitute a class so numerous as to make it impracticable to bring them all before the court, and they are fairly represented as a class, in compliance with Equity Rule 14, 31 F.S.A., by the three individual defendants who are members of the congregation, and the two trustees not made defendants are proper but not indispensable parties. (2) The allegations of the complaint are sufficient as a basis for the allowance of an equitable lien, notwithstanding the mention in the complaint of the Uniform Mechanic Lien Act, which act cannot be invoked against an unincorporated association incapable of making a contract upon which such a statutory lien depends.

Exceptions to the report of the special master were overruled by the chancellor. From the final decree confirming the master's report and adjudicating the amount due the plaintiff and imposing an equitable lien upon the church property to secure the payment of the same, this appeal was taken.

Only two issues are presented by the appellants for determination by this Court: First, was this a permissible class action? Second, can real property belonging to an unincorporated church organization be held liable on the basis of an equitable lien?

As to the first issue, Equity Rule 14 provides that 'When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.' In the application of this rule care must be taken to determine that the parties named truly represent the class and have the necessary community of interest; the test to be applied being whether 'the interest of persons not parties to [the] suit can be better protected [if] * * * they defend for themselves after being proceeded against.' See City of Lakeland v. Chase Nat. Co., 159 Fla. 783, 3 So.2d 833.

It is obvious that when the defendant class consists of 900 members, as in the case at bar, service upon each of the members is not merely inconvenient but is so impracticable as to justify a class or representative action. Having reached this conclusion, the only real question in the instant suit is whether the three parties who were named defendants are sufficient under the circumstances of the case to truly represent the class as to whom the suit is directed.

Certainly, the fact that only three members of a church society consisting of 900 members were made parties defendant does not in and of itself require a finding that these defendants were not fairly representative of the class sought to be reached by the suit...

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24 cases
  • Frankel v. City of Miami Beach
    • United States
    • Florida Supreme Court
    • 23 Septiembre 1976
    ...been held to be satisfied as to a single plaintiff suing the members of unincorporated associations as defendant classes in Ross v. Gerung, 69 So.2d 650 (Fla.1954) and State ex rel. Vile v. Shaw, 52 So.2d 676 (Fla.1951), whereas the complaints in 'plaintiff class actions' were found to be l......
  • In re Diamond
    • United States
    • U.S. Bankruptcy Court — Southern District of Florida
    • 30 Abril 1996
    ...such a lien out of general considerations of right or justice. See Jones v. Carpenter, 90 Fla. 407, 106 So. 127 (1925); Ross v. Gerung, 69 So.2d 650 (Fla.1954). Generally under Florida law, the imposition of an equitable lien based upon general considerations of right or justice requires so......
  • Gaffney v. Shell Oil Co., 58027
    • United States
    • United States Appellate Court of Illinois
    • 16 Mayo 1974
    ...case must be decided on its own merits. Three members of a church society were held to truly represent the 900 members in Ross v. Gerung (Fla.1954), 69 So.2d 650. The three members, however, were the pastor, the chairman of the board of trustees and a deacon of the church. The contention th......
  • In re Abrass
    • United States
    • U.S. Bankruptcy Court — Middle District of Florida
    • 28 Septiembre 2001
    ...In re Tsiolas, 236 B.R. 85, 88 (Bankr.M.D.Fla.1999) (citing Jones v. Carpenter, 90 Fla. 407, 413-14, 106 So. 127 (1925); Ross v. Gerung, 69 So.2d 650, 652 (Fla.1954)). Courts must look to applicable state law when determining whether an equitable lien should be imposed. Tsiolas, 236 B.R. at......
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1 books & journal articles
  • Lien cases
    • United States
    • James Publishing Practical Law Books Florida Causes of Action
    • 1 Abril 2022
    ...lien.”). 4. Hullum v. Bre-Lew Corp. , 93 So.2d 727, 730 (Fla. 1957). 5. Lewinson v. Shaw , 56 So.2d 449 (Fla. 1952). 6. Ross v. Gerung , 69 So.2d 650, 652 (Fla. 1954) (“[Equitable] liens may arise from written contracts which show an intention to charge some particular property with a debt ......

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