dissenting:
I respectfully dissent from the majority opinion in this case. In support of my dissent in the instant case, I agree with Justice Stengel in his dissent in Hagopian v. Board of Education (1980), 83 Ill. App. 3d 1097, 1104, wherein he states that:
“The law in Illinois is clear that an appellate court, on later appeal, is not bound by decision on former appeal where in another case the highest court of the same jurisdiction has decided the same matter differently.”
That is the rule of law which should govern in the instant case as well.
- In the instant case, the majority opinion concludes that the judgment in this case “must someday be unassailable as, against even the most vigorous litigant,” and it then states the majority’s belief that “that day has come.” I disagree that this matter has ever been finally determined, so that the central issues are beyond attack on direct appeal.
I believe that the error in the majority’s position in the instant case and in Hagopian v. Board of Education stems from a confusion as to the nature and application of the doctrine of res judicata. In Hanna v. Read
(1882), 102 Ill. 596, 603, the Illinois Supreme Court discussed that doctrine:
“Whether the adjudication relied on as an estoppel goes to a single question, or all the questions involved in a cause, the fundamental principle upon which it is allowed in either case is, that justice and public policy alike demand that a matter, whether consisting of one or many questions, which has been solemnly adjudicated by a court of competent jurisdiction, shall be deemed finally and conclusively settled in any subsequent litigation between the same parties, where the same question or questions arise, except where the litigation is a direct proceeding for the purpose of reversing or setting aside such adjudication.” (Emphasis added.)
Again, in Ropacki v. Ropacki (1933), 354 Ill. 502, 506-07, the Illinois Supreme Court outlined the doctrine of res judicata:
“The doctrine of res judicata is based upon the principle that a matter, whether consisting of one or many questions, which has been adjudicated by a court of competent jurisdiction, shall be deemed finally and conclusively settled, except upon direct review, in any subsequent litigation between the same parties in which the same question or questions arise.” (Emphasis added.)
This court’s statement of, and application of, the doctrine is in accordance with the above-cited authorities. (National Tea Co. v. Confection Specialties (1977), 48 Ill. App. 3d 650, 653-54, 362 N.E.2d 1150.) What these cases establish is that the doctrine of res judicata operates to prevent a party, in a subsequent or second separate action, from relitigating the same cause of action or the same questions that have been previously determined in a prior suit between the same parties. The doctrine has applicatiorrwhere there are two separate suits, and the second suit seeks to relitigate questions finally determined in the first suit. The doctrine does not apply to issues in a suit which are still subject to direct review on appeal, as the supreme court’s statements of the doctrine, above quoted, indicate. In cases where direct review is still available, no final determination of the issues has occurred, and therefore, res judicata does not, and cannot, apply. Finality, as a requisite for application of res judicata, means a conclusive determination of a question or questions, such that further review, by direct appeal, is no, longer available.
The appeals process must be exhausted in the first suit before res judicata applies to bar any subsequent attempt to relitigate the same issue or issues in a second suit. However, once there is a final decision that is no longer subject to attack on direct appeal, then, but not before then, the matter is concluded once and for all, even though the rule of law upon which the decision is based is reversed, in another case, by a higher court or by the same court. (People ex rel. First National Bank v. Russel (1918), 283 Ill. 520,119 N.E. 617.) There needs to be an end to litigation such that a judgment is unassailable even against the most vigorous litigant, but a final, conclusive end to a suit does not arrive until the direct appeal process has been exhausted. Res judicata then applies.
In the instant case, the majority opinion overlooks the fact that this case is still within the appellate process on direct appeal, and it thereby misapplies the doctrine of res judicata herein. The true res judicata question to be addressed is whether the issues involved in this case have ever been finally and conclusively litigated such that no further direct appeal concerning them is possible. The issue is not, as the majority opinion finds, whether our prior mandate in this case is a final order for the purposes of review by the Illinois Supreme Court. (McMahan v. Quinn (1892), 140 Ill. 199, 29 N.E. 731.) That question of finality is separate and completely different from the question of finality as related to and defined by the doctrine of res judicata. The McMahan case, relied upon by the majority, did not deal with res judicata at all.
Again, the question is: Has there been a final determination of the issues in this case such that there exists no possibility of change on direct review. The only answer to that question is that there has been no such final determination of the issues. The reason for this is clear. Both the instant case and, for that matter, the case of Hagopian, are still very much in the appellate process. (See Hagopian v. Board of Education (1980), 83 Ill. App. 3d 1097, 1104 (dissent of Mr. Justice Stengel).) The cases are still pending on direct appeal. The Illinois Supreme Court could hear appeals from this Court’s decisions in the second appeals in both cases, upon appropriate leave to appeal petitions. While the supreme court has, in both cases, previously denied leave to appeal, such denials, “of course, carry no connotation of approval or disapproval of the appellate court action.” (People v. Vance (1979), 76 Ill. 2d 171, 183, 390 N.E.2d 867, 872.) Neither did those denials, contrary to the majority’s assertion, finally determine the issues in the cases, for direct appeal remained a possibility, after remand.
Since the remand after the first appeal in this case necessitated further proceedings below to determine the question of damages, the supreme court, looking at the petition for leave to appeal from that decision, may have concluded our decision was interlocutory. Neither our decision nor our mandate fully disposed of all the issues involved in the case. The damages issue had never been litigated, at any level, at that point in time. The supreme court may have wished to have the case completed and fully adjudicated at the trial level, including the issue of damages, before hearing any appeal. That approach would tend to avoid piecemeal or multiple decisions at the supreme court level. Given that our decision in the instant case required a remand for a further hearing at the trial level, and since the damage issue remaining was subject to disagreement between the parties, the supreme court, when it denied the petition for leave to appeal our decision in Relph I, did not preclude hearing the case, in its entirety, on appeal from a decision reached after the damages question had been determined by the trial court. The result is that the Illinois Supreme Court, on proper petition for leave to appeal from any decision reached on this second appeal, may take the case. In that event, all questions and issues would be before it. As stated in Wetland Tool & Mfg. Co. v. Whiteny (1971), 44 Ill. 2d 105, 114, 251 N.E.2d 242:
“This is the first time the cause has been before us on the merits and our review must necessarily cover all matters properly raised and passed upon in the course of this litigation.”
Similarly, as noted in Justice Stengel’s dissent, as far as the case of Hagopian is concerned, the supreme court could grant leave to appeal from the decision of this court in that case, and it would have before it all the issues properly raised during the course of litigation. As a result of the pendency of the instant case in the direct appeal process, and the attendant potential for review, on direct appeal, by the Illinois Supreme Court, it is clear that there has been no exhaustion of direct appellate review. Therefore, there has been no final determination of the issues such that res judicata applies.
Before addressing the rule of law which should govern in the instant case, some further comment upon the majority’s authorities is necessary. The majority finds that the previous denial of leave to appeal by the supreme court renders all issues adjudicated final, citing Rubin v. Kohn (1931), 344 Ill. 166,176 N.E. 259. The key factor in Rubin v. Kohn was not the denial of the leave to appeal petitions, but rather it was the fact that by such denial the appeals process in the first suit had been exhausted. That case dealt with two separate suits where the appellate process had been concluded in the first suit. As noted, the instant case, despite prior denial of leave to appeal, remains in the appellate process and subject to supreme court review on direct appeal. The majority opinion cites McMahan v. Quinn (1892), 140 Ill. 199, 29 N.E. 731, for the proposition that res judicata effect is given to a decree of the appellate court which, in reversing a decision, necessitates the rendition of a particular new decree. McMahan v. Quinn does not in any manner support such a proposition. That case dealt only with the question of whether an appellate decree was final such that a further appeal, at that time, would lie to the supreme court. The issue addressed therein was one of finality for further direct appeal purposes, not finality in terms of res judicata. Res judicata was not involved in the McMahan decision. Neither, despite the majority’s assertion, is res judicata involved in the instant case.
The issue, as framed by the parties in this second appeal in this case, touches important considerations concerning the interplay between circuit courts, appellate courts, and the supreme court, and the doctrine of the “law of the case.” The law-of-the-case doctrine is analogous, in some respects, to the doctrine of res judicata, but the law of the case applies to cases still susceptible to further direct review, while res judicata does not. (See Hagopian v. Board of Education (1980), 83 Ill. App. 3d 1097,1104 (dissent of Mr. Justice Stengel).) Broadly speaking, the law-of-the-case doctrine requires that once a question has been determined in a case it is not subject to re-examination by the court making the determination. In the appellate context, it has been noted that “there must be an end to litigation, and under the doctrine of ‘law of the case,’ a question determined on appeal is considered settled and will not be reexamined on subsequent appeal.” (Presbyterian Distribution Service v. Chicago National Bank (1962), 36 Ill. App. 2d 1, 3, 183 N.E.2d 525.) It has also been stated that on a second appeal, “the only question properly presented is whether the order or decree is in accordance with the mandate and directions of the court.” (People v. National Builders Bank (1957), 12 Ill. 2d 473, 147 N.E.2d 42. See Martin v. Prairie Rod & Gun Club (1978), 65 Ill. App. 3d 952,382 N.E.2d 1295.) The appellate court, in Presbyterian Distribution Service v. Chicago National Bank, noted that the law-of-the-case doctrine is not without limitations, saying:
“There are exceptions, such as a case in which a higher court has in the interval between appeals announced a contrary law. Zerulla v. Supreme Lodge, supra; Awotin v. Atlas Exchange Nat. Bank of Chicago, 275 Ill. App. 530.” (36 Ill. App. 2d 1, 4.)
In Zerulla v. Supreme Lodge (1906), 223 Ill. 518, 520, 79 N.E. 160, the Illinois Supreme Court noted:
“Where the Appellate Court or this court, on the first appeal to it, announces a particular view of the law governing the case and reverses and remands the case for further proceedings in accordance with the views announced, if the case is again brought before such court for review the former decision is binding on the court making it, and the questions decided and determined by it on the first appeal are not open for reconsideration on the second appeal. But while the determination of a question of law by the Appellate Court on the first appeal may, as a general rule, be binding upon it on the second appeal, it certainly cannot be binding on this court. Nor would the Appellate Court on the second appeal, we apprehend, be obliged to adhere to a proposition of law laid down on the first appeal, when this court had, since the first appeal, decided the precise question contrary to the rule announced by the Appellate Court. To so hold would lead to most illogical results.” (Emphasis added.)
Zerulla did not deal with res judicata, for there, as in the instant case, res judicata did not apply, since the prior appeal had not finally and conclusively determined the issues. The exception set forth and applied in Zerulla for intervening decisions by the supreme court finds express restatement in Proesel v. Myers Publishing Co. (1964), 48 Ill. App. 2d 402, 404, 199 N.E.2d 73, and in Presbyterian Distribution Services v. Chicago National Bank. This court, in City of Lockport v. County Board of School Trustees (1976), 42 Ill. App. 3d 578, 580, 356 N.E.2d 420, recognized another exception to the law-of-the case doctrine, specifically relying, with approval, upon both Zerulla and Presbyterian Distribution Services. One rationale for the exception where an intervening decision by the supreme court is issued between appeals in the appellate court was noted by the court in Weiland Tool & Manufacturing Co. v. Whitney (1968), 100 Ill. App. 2d 116,124,241 N.E.2d 533, revd on other grounds (1969), 44 Ill. 2d 105, 251 N.E.2d 242:
“Subsequent correction of the decision in a former appeal by an appellate court after contrary authority from a higher court whose rulings of law are controlling makes appeal to the Supreme Court unnecessary and actually brings an end to litigation.”
The exception to the law-of-the-case doctrine set forth in Zerulla, and its underlying concern for efficiency and equity on the appellate level, calls for us to reverse our prior judgment in this case, directed by us in the previous appeal, on the basis of the intervening, and controlling supreme court decision in Lenard v. Board of Education (1979), 74 Ill. 2d 260, 384 N.E.2d 1321. The majority accepts that the decision in Lenard establishes as the law of this State a rule directly contrary to that set forth by this court in our prior decision in Relph I. The court in Lenard held that the standards for qualifications established by Circular Series A No. 160 are incorporated into the meaning of “legally qualified” as used in section 24 — 12 of the School Code. Under the exception to the law-of-the-case doctrine discussed, I would apply that holding of Lenard to the issues in the instant case and reverse our prior, erroneous judgment in Relph I. Accordingly, I dissent from the majority’s conclusions and reasoning.
A further comment is called for in this case. Because of the importance of the issues implicated in this case to the credibility, efficiency and integrity of the judicial process, and especially the appellate aspects of that process, the case is one in which supreme court consideration and resolution is appropriate and necessary. I would urge that court to accept the appeal and make a final determination of the issues raised in this cause.