Appeal from the Circuit Court of Cook County; the Hon. Myron
T. Gomberg, Judge, presiding.
PRESIDING JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 10, 1983.
Third-party plaintiff-appellant George A. Fuller Company (Fuller) was the contractor on a project for Chicago College of Osteopathic Medicine (the college). Schmidt, Garden & Erikson was the architect (the architect.) After completion of the project, the college sued Fuller in Federal court for breach of contract; Fuller counterclaimed against the college for breach of contract and filed a claim against the college for breach of contract and filed a claim against the architect for causing it to suffer delay damages. Claims relating to damages suffered by subcontractors were withdrawn from the case by stipulation and demand of the college and the architect. The jury returned verdicts for all defendants on all the claims. Thereafter, one of the subcontractors filed a claim in State court against Fuller for damages resulting from being delayed in performing its subcontract work. Fuller then filed this third-party action against the college and the architect. The trial court dismissed on grounds of collateral estoppel and apparently res judicata and also indicated that it believed the third-party complaint did not state a cause of action. It denied a motion for leave to amend the complaint because of its belief that the State action was barred by the prior Federal action. We reverse, holding that the State action is not barred since the parties withdrew the claims in question and in light of the general verdict there is no specific finding upon which a holding of collateral estoppel could be based. Since it appears from the record that the trial court would otherwise have allowed the motion to amend the complaint, we remand the case to the trial court for further proceedings including the desired amendment of the complaint. However we believe that the present complaint does state a valid cause of action against the owner.
The college filed its suit in Federal court in 1975 seeking damages for Fuller's alleged breach of construction contract. Fuller, as already noted, filed a counterclaim against the college and a third-party claim against the architect. It claimed that due to alleged breaches of the construction contract by the college and the negligent acts, errors, omissions and breaches of contract by the architect, it was delayed and hindered in its contract; and was damaged in the amount of $1,992,944. Initially, one of its claims was that due to defendants' conduct it might be liable to subcontractors. Fuller also filed to foreclose its mechanics' lien. Accordingly, as required by law, all other lien claimants were joined as additional counterdefendants and they, in turn, filed their lien claims. It was provided by stipulation that the claims of Fuller, the college and the architect among themselves would be tried before a jury and that thereafter the issue raised by the subcontractor claims would be tried by the court. Thereupon counsel for the college and the architect demanded that:
"I also think that some of the claims that are contained in there are some of the subcontractors' claims which we are going to hear in the next portion of the trial, Mr. Hoffman, Mr. Reliable, and therefore those should not be included in any damage claim by Fuller. Those are going to be adjudicated in the subsequent hearing."
Therefore it would appear that the issue of Fuller's potential liability as it related to subcontractors was not submitted to the jury. The jury returned general verdicts for all the defendants on all the claims.
Reliable Welding, the subcontractor involved in the action, withdrew its claim and refiled it in the State court. One subcontractor, Hoffman, did proceed to a bench trial in the Federal court. The trial court found all three parties, Fuller, the college and the architect to be responsible for the delays as to Hoffman. Fuller's conduct which caused the delay apparently consisted of instructing the subcontractor to remove the backfill which ordinarily would have been there. While the Federal court denied Fuller's claim over against the college and the architect it did so only on the ground that following Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill. App.2d 158, 240 N.E.2d 5, and Talandis Construction Corp. v. Illinois Building Authority (1974), 23 Ill. App.3d 929, 321 N.E.2d 154, indemnity could not be had for contract damages. It did hold that the prior jury verdicts did not bar the contractor's claim for indemnification.
After Reliable filed its claim for delay damages, Fuller filed its present action against the college and the architect. While the complaint against the college is quite lengthy and detailed it is accurately summarized by defense counsel: "If we [Fuller] are liable to Reliable, it's because the college breached its contract with us," that is, any delays were the direct and proximate result of the college's acts in breach of its contract with Fuller and not due to any active conduct by Fuller. Fuller's claim against the architect seems to be based both on the college's contract with Fuller, to which it does not appear the architect was a party, and in tort based solely on a general duty to exercise due care to avoid harming the interests of Fuller and its subcontractors.
• 1 The doctrine of collateral estoppel bars the litigating of the same issue twice. But it is only applicable when the issue was actually and necessarily litigated and determined in the first actions. (Kemling v. Country Mutual Insurance Co. (1982), 107 Ill. App.3d 516, 437 N.E.2d 1253; Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App.3d 59, 387 N.E.2d 831; Pipitone v. Mandala (1962), 33 Ill. App.2d 461, 180 N.E.2d 33.) In order for a former judgment to operate as an estoppel, there must have been a finding of a specific, material and controlling fact in the former case and it must conclusively appear that the issue of fact was so in issue that it was necessarily determined by the court rendering the judgment; if there is any uncertainty because more than one distinct issue of fact was presented, estoppel will not be applied. (Lange v. Coca-Cola Bottling Co. of Chicago, Inc. (1969), 44 Ill.2d 73, 254 N.E.2d 467; Haack v. Lindsay Light & Chemical Co. (1946), 393 Ill. 367, 66 N.E.2d 391; Hoffman v. Hoffman (1928), 330 Ill. 413, 161 N.E. 723; Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App.3d 59, 387 N.E.2d 831; Siebach v. Pienta (1978), 60 Ill. App.3d 645, 377 N.E.2d 393.) Thus where, as here, issues of both liability and damages are sent to the jury and the jury simply returns a general verdict, estoppel will not be applied since it is not certain whether the jury found against plaintiff on liability or on damages or both. Fountas v. Breed (1983), 118 Ill. App.3d 669; Stephan v. Yellow Cab Co. (1975), 30 Ill. App.3d 996, 333 N.E.2d 223.
• 2 Normally where the parties and causes of action are the same in the two lawsuits, the claimant is barred by the doctrine of res judicata from raising those matters relating to the same cause of action which were raised or which might have been raised and determined in the first suit. (Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill. App.3d 59, 387 N.E.2d 831.) Defendants contend that the same cause of action was involved in both cases in that they arose out of a single group of operative facts (Baird & Warner); namely, whether they breached the contract causing delay and thereby injuring Fuller. Fuller, on the other hand, correctly points out that more than one action may arise from contract (Baird & Warner; Turzynski v. Liebert (1976), 39 Ill. App.3d 87, 350 N.E.2d 76), and of course the issue in the present case is not whether, as in the Federal trial, the contract was breached in such a fashion that Fuller was injured but whether it was breached in such a way as to render Fuller liable to Reliable. We need not, however, decide if this distinction is sufficient to give rise to a separate cause of action. It seems clear that where the parties agree to withdraw a particular claim from determination, the doctrine of res judicata will not be applied to bar its later litigation. (Baron v. Coronet Insurance Co. (1977), 47 Ill. App.3d 95, 361 N.E.2d 799; Schmisseur v. Rebhan (1938), 294 Ill. App. 172, 13 N.E.2d 627.) That is precisely what occurred in the Federal court. Not only did the parties stipulate that issues raised by the subcontractors' claims would not be tried by the jury, but counsel for the college and the architect demanded that Fuller's claims based on its potential liability not be included in any damage claim of Fuller going to the jury as those would be adjudicated in the subsequent hearing. Fuller may not be entitled to two days in court but it is entitled to one and to date it has not, as to particular claims, had an opportunity to litigate its rights.
The modern tendency in Illinois is to try to lace the ultimate liability for a loss in whole or in part where logic suggests such liability really belongs — usually against the more negligent party or parties. (See, for example, discussion in Kissel, Developments in Third Party Practice — Contribution and Indemnity, 71 Ill. B.J. 654 ...