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12/16/88 Thorleif Larsen and Son, v. Ppg Industries

December 16, 1988

THORLEIF LARSEN AND SON, INC., PLAINTIFF-APPELLANT

v.

PPG INDUSTRIES, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

532 N.E.2d 423, 177 Ill. App. 3d 656, 126 Ill. Dec. 738 1988.IL.1825

Appeal from the Circuit Court of Du Page County; the Hon. Richard A. Lucas, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. INGLIS and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

Plaintiff, Thorleif Larsen & Son, Inc. (Larsen), appeals from a summary judgment entered in favor of defendant, PPG Industries, Inc., in which the trial court determined that plaintiff's action was barred by principles of res judicata.

On March 25, 1987, plaintiff filed an action at law against defendant in the circuit court of Du Page County seeking recovery of $649,046.97 for breach of a construction contract. On the same day, in the circuit court of Cook County, plaintiff filed suit against defendant to foreclose on a mechanic's lien on the property involved in the construction project, claiming damages in the amount of $517,407.27. Plaintiff sought a greater amount in the contract action presumably because certain damages recoverable under a contract theory are not necessarily recoverable under a mechanic's lien theory. Defendant successfully moved for dismissal of the Cook County suit on the basis that a subcontract provision prohibited any liens on the project property. In support of its motion, defendant urged the trial court in Cook County to take judicial notice that plaintiff had a legal remedy available to it in the Du Page County circuit court.

Defendant thereafter also moved for summary judgment in the Du Page County contract action on the grounds that it was now barred by the doctrine of res judicata. The trial court granted summary judgment, and plaintiff appeals. We reverse.

The pleadings in this case establish that on or about July 17, 1985, Larsen and PPG entered into a written subcontract under which Larsen was to install exterior building granite for a project located at 123 North Wacker Drive in Chicago, Illinois, for a base contract sum of $1,006,000. Plaintiff was to furnish, unload, hoist, distribute, and install the granite. Plaintiff alleged in its contract action in Du Page County that defendant was to install a granite backup or holding system in order for plaintiff to install the granite, but that defendant changed the design of the holding system and failed to provide certain equipment, causing Larsen's installation work to be more expensive and time-consuming because of the additional work entailed by the changes. Plaintiff alleged that it performed all of the original and extra work, but that defendant did not pay plaintiff in full and owed a balance of $649,046.97. Defendant answered plaintiff's complaint and raised certain affirmative defenses, including, inter alia, plaintiff's alleged failure to perform the work according to the schedule set forth in the subcontract and failure to obtain written authorization for the extra work performed. A trial date was set, and defendant initiated pretrial discovery on July 29, 1987.

Plaintiff also filed a "Complaint to Foreclose Mechanic's Lien and for Other Relief" in the circuit court of Cook County on the same date that this contract action was filed in Du Page County. In a one-count complaint, plaintiff sought to foreclose on the lien, alleging that defendant had failed to pay the plaintiff the balance due under the same subcontract as in the Du Page County action; prayed that an accounting be taken to determine the amount due to plaintiff; that the lien be declared valid; that in default of payment, the premises be sold to satisfy the amount owing; and that if the property is sold and the proceeds are insufficient to pay the amount due in full, a deficiency judgment be entered. The prayer for relief concluded with a request for such other relief as the court shall deem equitable and proper.

In lieu of answering the complaint filed in the Cook County suit, defendant moved to dismiss it under section 2-615 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-615). In its motion to dismiss, defendant argued that plaintiff could not maintain the suit to foreclose on the mechanic's lien due to a contractual provision in the Larsen-PPG subcontract requiring that the project be kept free of all liens. Defendant also asked the circuit court of Cook County to take judicial notice that plaintiff would not be without a remedy because plaintiff had filed an action for contract damages in the circuit court of Du Page County. The circuit court of Cook County dismissed the suit as to all parties on August 6, 1987, and plaintiff did not appeal that order.

On September 14, 1987, defendant filed a motion for summary judgment in the Du Page County action arguing that it was now barred by res judicata. In granting defendant's motion, the court applied the doctrine of res judicata, finding that plaintiff should have asserted all of its claims in the prior action in Cook County. This appeal followed.

Plaintiff contends that the doctrine of res judicata should not be applied to bar it from relief because: (1) the causes of action for foreclosure of a mechanic's lien and breach of contract are not the same for purposes of res judicata ; (2) the dismissal of the Cook County suit was not a decision on the merits where plaintiff sought the wrong remedy; and (3) the principle of equitable estoppel should be applied to preclude defendant from taking inconsistent positions which would unfairly deny plaintiff any remedy whatsoever.

We consider first whether the action to foreclose a mechanic's lien is the same cause as an action for breach of contract for purposes of applying the doctrine of res judicata. That doctrine provides that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action. The doctrine precludes a party from raising in a subsequent action not only every matter which was offered to sustain or defeat the claim or demand made in the ...


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