specially concurring.
While I concur with the result in this case, I am concerned that we have not sufficiently focused our analysis on the concept of claim preclusion and the transactional concept of a claim. In my opinion, this analysis would be more consistent with the law as it has developed in this state, and would not require the creation of “a narrow exception to our traditional interpretation of the doctrine of res judicata,” as stated in our opinion here. This analysis would demonstrate that Nash’s claim for assault and battery was not part of the transaction out of which the divorce action arose.
In Aldape v. Akins, 105 Idaho 254, 258-59, 668 P.2d 130, 134-35 (1983), rev. den. (1983) our Court of Appeals adopted the reformulation of the doctrine of res judicata contained in Restatement (Second) of Judgments (1982) (the Second Restatement). A petition for review of the unanimous opinion of the Court of Appeals in Aldape was filed with this Court pursuant to I.C. § 1-2409 and I.A.R. 118. I.C. § 1-2409 states that this Court “may, in its discretion grant” a petition for review of a decision of the Court of Appeals, and that this review “shall be governed by the rules of the supreme court.” Our appellate rules relating to the Court of Appeals contain the following criteria for granting petitions of review:
(b) Criteria for Granting Petitions for Review by the Supreme Court. Granting a petition for review from a final decision of the Court of Appeals is discretionary on the part of the Supreme Court, and will be granted only when there are special and important reasons and a majority of the Justices direct that the petition be granted. The following, while neither controlling nor fully measuring the Supreme Court’s discretion, are factors that will be considered in the exercise of the Court’s discretion:
(1) Whether the Court of Appeals has decided a question of substance not heretofore determined by the Supreme Court;
(2) Whether the Court of Appeals has decided a question of substance probably not in accord with applicable decisions of the Idaho Supreme Court or of the United States Supreme Court;
(3) Whether the Court of Appeals has rendered a decision in conflict with a previous decision of the Court of Appeals;
(4) Whether the Court of Appeals has so far departed from the accepted and usual course of judicial proceedings or so far sanctioned such procedure by a trial court as to call for the exercise of the Supreme Court’s power of supervision;
(5) Whether a majority of the judges of the Court of Appeals, after decision, certifies that the public interest or the interests of justice make desirable a further appellate review.
I.A.R. 118(b).
In my opinion, the result of the failure of this Court to grant a petition for review is *464that the decision of the Court of Appeals becomes the law of this state with regard to any new principles of law announced in the decision. Prior to the denial of review in Aldape this Court followed the formulation of the doctrine of res judicata set forth in Joyce v. Murphy Land & Irrigation Co., 35 Idaho 549, 208 P. 241 (1922). E.g., Houser v. Southern Idaho Pipe & Steel, Inc., 103 Idaho 441, 446, 649 P.2d 1197, 1202 (1982). The decision of the Court of Appeals in Aldape has, since the denial of review by this Court, constituted the law of this state on the subject of res judicata.
In Aldape the Court of Appeals stated:
The Second Restatement expressly recognizes the difference between claim preclusion and issue preclusion. The bar of claim preclusion is succinctly stated at § 19: “A valid and final personal judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim.” The limits of this rule of bar are determined by the dimensions of the concept of a “claim.” The Second Restatement adopts a transactional view toward claims.
When a valid and final judgment rendered in an action extinguishes the plaintiff’s claim ... the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction ... out of which the action arose.
What factual grouping constitutes a “transaction” ... [is] to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.
Second Restatement at § 24. Comment a to § 24 makes it clear that the transactional concept of a claim is broad, and that the bar of claim preclusion is similarly broad:
[I]n the days when civil procedure still bore the imprint of the forms of action and the division between law and equity, the courts were prone to associate claim with a single theory of recovery, so that, with respect to one transaction, a plaintiff might have as many claims as there were theories of the substantive law upon which he could seek relief against the defendant____
The present trend is to see claim in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff____
Accordingly, the bar of claim preclusion may apply even where there is not a subsantial overlap between the theories advanced in support of a claim, or in the evidence relating to those theories. Comment b to § 24. This conclusion is more fully stated in § 25 of the Second Restatement:
The rule of § 24 applies to extinguish a claim by the plaintiff against the defendant even though the plaintiff is prepared in the second action
(1) To present evidence or grounds or theories of the case not presented in the first action, or
(2) To seek remedies or forms of relief not demanded in the first action.
Comment d in this section further explains the effect of claim preclusion:
Having been defeated on the merits in one action, a plaintiff sometimes attempts another action seeking the same or approximately the same relief but adducing a different substantive law premise or ground. This does not constitute the presentation of a new claim when the new premise or ground is related to the same transaction or series of transactions, and accordingly the second action should be held barred.
There are exceptions to the bar of claim preclusion. However, they are narrowly defined in § 26 of the Second *465Restatement. Such exceptions are recognized where the parties themselves have agreed that the plaintiff may split his claim, where the court in the first action has expressly reserved the plaintiffs right to maintain the second action, where there are limitations on the subject matter jurisdiction of the court hearing the first action, or where the judgment in the first action was inconsistent with the implementation of a general statutory or constitutional scheme. Exceptions may also exist in special types of cases where a plaintiff is permitted to sue more than once for recurrent wrongs, and where there are extraordinary reasons for allowing a second action —such as the protection of personal liberty, or the need to bring coherency to disparate judgments in prior litigation.
We believe the Second Restatement, with its definitive treatment of claim preclusion, clarifies the scope of res judicata. We adopt it, subject to the ripeness limitation and mandamus exception which have been enunciated by our Supreme Court.
Id. at 258-59, 668 P.2d at 134-35. See also Makin v. Liddle, 108 Idaho 67, 68, 696 P.2d 918, 919 (1985), rev. den. (1985).
In my opinion, this cáse would be more appropriately disposed of by holding that the assault and battery claimed by Nash is not part of the transaction that was involved in her divorce action. As § 24 of the Second Restatement points out, whether a factual grouping constitutes a transaction is “to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” Using these considerations, I am persuaded that pragmatically the assault and battery did not constitute part of the transaction out of which the divorce action arose.
It would be illogical to conclude that every event that occurred during the marriage of Nash and Overholser was part of the transaction of their marriage, and that any action for the dissolution of the marriage would necessarily require the joinder of all claims growing out of these events. For instance, if Nash had loaned Overholser an amount from her separate funds, and if it were due when her divorce was filed, the debt should not be considered to be part of the transaction of the marriage.
The transaction involved in the divorce action was the marriage. The transaction involved in the present action was the assault and battery. They are not part of the same transaction according to the factual grouping provided for in the Second Restatement as adopted in Aldape. I would affirm the trial court on this basis and avoid the necessity to create “a narrow exception to our traditional interpretation of the doctrine of res judicata,” as our opinion today does. In so doing, we continue to ignore that the Second Restatement was adopted as the law of this state by the denial of review in Aldape.
BISTLINE and HUNTLEY, JJ„ concur.