specially concurring:
DPR, a limited partnership with its principal place of business in Pennsylvania, is the owner of real estate located at 2402 East Empire in Bloomington, McLean County, Illinois. Empire, a Delaware corporation with its principal place of business in Colorado, was the general contractor for a project at 2402 East Empire. Airtite is a division of an Illinois corporation with its principal place of business in Chicago. Airtite installs acoustical ceilings, raised flooring, and does related work, and was a subcontractor on the project at 2402 East Empire. The contract and revised contract here were between Empire as general contractor and Airtite as subcontractor.
When Airtite was not paid, it filed a diversity action against Empire and DPR in Federal court, the Northern District of Illinois. The Northern District apparently was chosen because Airtite resided there. Empire was sued on the contract. DPR, which was not a party to the contract, was sued in quantum meruit and to foreclose a mechanic’s lien. The district court referred the matter to arbitration, noting that the parties had agreed to the appointment of Professor Elliott Goldstein for binding arbitration. The district court then dismissed the cause, reserving jurisdiction to enforce the award. Defendants failed to appear before the arbitrator. The arbitrator found the evidence "to require an Award for the Plaintiff,” and that Empire owed damages of $62,410.68 plus statutory interest. The arbitrator stated, "No award is made against Defendant DPR.” Airtite subsequently brought suit in the circuit court of the Eleventh Judicial Circuit of Illinois, McLean County, to enforce its mechanic’s lien. The trial court ruled in favor of Airtite, and DPR has taken this appeal, arguing that the proceedings in Federal court and the arbitration constituted a bar to any further proceedings.
It has been held that a suit to enforce a mechanic’s lien and a suit on the underlying construction contract are merely different aspects of a single cause of action. (Thorleif177 Ill. App. 3d at 660-61, 532 N.E.2d at 426.) In the present case, however, there are separate causes of action and res judicata does not apply, because there are separate parties. (Torcasso, 157 Ill. 2d at 490, 626 N.E.2d at 228 (res judicata requires an identity of parties or their privies); Restatement (Second) of Judgments § 49 (1982) (judgment against one person does not terminate a claim against another person for the same loss); 3 R. Michael, Illinois Practice § 24.3, at 345-46 (1989) (Civil Procedure Before Trial) (rule against claim splitting only applies to claims against the same defendants).) Here the contract action is against Empire and the mechanic’s lien action is against DPR; in Thorleif both actions were against the same defendant.
Because the two actions are against different parties, Airtite could have filed one action in one court and the other in another, unlike the plaintiff in Thorleif Although Airtite at first chose to join the two actions in a single suit, the rules of res judicata did not prevent Airtite from changing its mind, taking a voluntary nonsuit as to one of the actions, and later refiling it. That seems to have occurred here. The district court dismissed the action before it. Airtite then proceeded to arbitration but chose not to continue with the mechanic’s lien claim against DPR.
Even assuming the claims against Empire and DPR were a single cause of action, there is an exception to the rule against splitting a cause of action, where plaintiff is unable to obtain full relief because of a restriction on the first court’s subject-matter jurisdiction. (Restatement (Second) of Judgments § 26(l)(c) (1982).) There was a restraint on the Federal court’s subject-matter jurisdiction here. The Mechanics Lien Act provides that a "contractor may bring suit to enforce his lien in the circuit court in the county where the improvement is located.” (770 ILCS 60/9 (West 1992).) Perhaps a Federal court has jurisdiction over mechanic’s lien cases, but not a Federal court in a district other than where the improvement is located. (Sexton Manufacturing Co. v. Singer Sewing Machine Co. (7th Cir. 1911), 194 F. 56.) McLean County is in the Central District of Illinois, not the Northern District.
Again assuming the claims against Empire and DPR are a single cause of action, there is a further exception to application of res judicata where the court in the first action "expressly reserved” the plaintiff’s right to maintain the second action. (Restatement (Second) of Judgments § 26(l)(b) (1982).) The arbitrator’s order could have been clearer, but it appears he simply chose not to consider the question of mechanic’s lien foreclosure. There is certainly no indication the arbitrator intended to rule in favor of DPR on the merits. Every statement made by the arbitrator regarding the merits favors Airtite.
Where it is possible for parties to join all their claims in a single action they should be forced to do so, if those claims form a convenient trial unit. Where the claims are unusual, however, and there is substantial question whether they are appropriately a part of the first case at all, a judge’s or arbitrator’s choice to leave the claims for another day should be respected.