specially concurring:
The court today states that “[ajlthough the appellate court and the parties frame the issue in this case as one involving the preclusive effect of a denial of a Rule 306(a)(1) petition for leave to appeal, under the facts and circumstances of this case, this issue is not dispositive.” 207 Ill. 2d at 222. The court then proceeds to identify what it believes to be the dispositive issue in this case— the fact that plaintiff asked for a new trial and, having received one, should not now be heard to complain. 207 Ill. 2d at 222. Although I do not disagree with the ultimate use of that rationale in this case, I would point out that this court customarily does not accept a discretionary appeal in order to speak to such a well-known and uncontroverted legal concept. The petition for leave to appeal in this case presented this court with a question regarding whether a denial of a petition for leave to appeal under Rule 306 has res judicata effect. The petition noted that, since 1992, our appellate court has reached conflicting answers with respect to this question. The appellate court in the present case, in its published opinion, noted the questions that have arisen in this area. In light of the confusion that exists on this subject and because the parties have briefed the issue, I believe that this case provides a vehicle for this court to, at the least, acknowledge the conflict, if not attempt to bring some clarity to this area of law. I, therefore, write separately to address the issue.
Rule 306 provides a mechanism for parties to seek interlocutory appeals from certain orders entered by the circuit court, such as orders which inter alia (i) grant a new trial, (ii) allow or deny a motion to dismiss on grounds of forum non conveniens, (iii) allow or deny a motion to transfer to another county. 166 Ill. 2d R. 306(a). The party seeking review must file in the appellate court a petition which sets forth the grounds for the appeal. The appellate court then determines, as a matter of discretion, whether to hear the interlocutory appeal. 166 Ill. 2d R. 306(a).
In Robbins v. Professional Construction Co., 72 Ill. 2d 215 (1978), this court held that the appellate court’s denial of a Rule 306 petition for interlocutory appeal on the question of whether a new trial order was proper precluded further review of that question in a subsequent appeal. Notwithstanding the holding in Robbins, this court, in Kemner v. Monsanto Co., 112 Ill. 2d 223 (1986), ruled that the denial of a petition for interlocutory appeal is not “ ‘an exotic form of res judicata,’ ” but instead, “ ‘means only that a majority of the upper court could not be mustered’ ” to support the petition. Kemner, 122 Ill. 2d at 241, quoting Lowe v. Norfolk & Western Ry. Co., 124 Ill. App. 3d 80, 90 (1984). In light of this conclusion, the court considered the propriety of a trial court order denying a motion to dismiss based on forum non conveniens even though the order had previously been the subject of a denied Rule 306 petition. In the aftermath of Kemner, our appellate court has struggled to find' consistency in this area of the law.
In In re Marriage of Clark, 232 Ill. App. 3d 342 (1992), the Second District followed Robbins, holding that the court’s “denial of [petitioner’s] earlier petition for leave to appeal the trial court’s order for a new trial pursuant to the provisions of Supreme Court Rule 306 is not subject to relitigation before this court.” Clark, 232 Ill. App. 3d at 346, citing Robbins, 72 Ill. 2d at 222. The court, however, did not discuss the issue further and did not acknowledge the Kemner opinion.
In Koenig v. National Super Markets, Inc., 231 Ill. App. 3d 665 (1992), the Fifth District declined to follow Robbins when deciding whether the court’s prior denial of the defendant’s Rule 306 petition foreclosed the defendant from raising the same issues on appeal following a second trial. The appellate court found significant that, subsequent to Robbins, this court held in People v. Vance, 76 Ill. 2d 171 (1979), that:
“Our denials of leave to appeal, of course, carry no connotation of approval or disapproval of the appellate court action, and signify only that four members of this court, for reasons satisfactory to them, have not voted to grant leave.” Vance, 76 Ill. 2d at 183.
The appellate court in Koenig found the same logic to apply in the Rule 306 situation and determined that its previous order denying the defendant’s Rule 306 petition denoted “only that at least two members of a three-member panel voted not to grant leave ‘for reasons satisfactory to them.’ ” Koenig, 231 Ill. App. 3d at 667. For that reason, the appellate court did not give its previous denial of the Rule 306 petition res judicata effect in the later appeal.
The Fourth District confronted the question in Craigmiles v. Egan, 248 Ill. App. 3d 911 (1993). The court, after noting both Koenig and Clark, determined that the rationale of Kemner was more persuasive in settling the confusion in this area. Craigmiles, 248 Ill. App. 3d at 917. The court deemed the following language from Kemner to be dispositive as to whether the denial of a Rule 306 petition has preclusive effect:
“The res judicata effect for which the plaintiffs here argue was explicitly rejected in Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, a case which arose out of the same occurrence as the present case. In Lowe, the defendant railroad filed a petition for mandamus and a petition for leave to appeal to this court concerning the forum non conveniens rulings of the circuit court. Plaintiffs argued that since both petitions were denied by this court, the forum non conveniens issue was foreclosed. The Lowe court disagreed, reasoning that ‘the denial of a petition for an extraordinary writ, or the denial of a petition for interlocutory review, means only that a majority of the upper court could not be mustered in favor of the petition. ***’ [Citation.] We agree ***.” Kemner, 112 Ill. 2d at 240-41.
The court then noted that Rule 306 provides for discretionary appeals from not only grants of new trials and denials of forum non conveniens motions, but also from a variety of other interlocutory orders. Craigmiles, 248 Ill. App. 3d at 918. “Giving res judicata effect to denials of appeal from certain of those orders and not as to others would not appear to be sensible.” Craigmiles, 248 Ill. App. 3d at 918. With respect to the differences between Robbins and Kemner, the court concluded that “the Kemner opinion overruled Robbins sub silentio.” Craigmiles, 248 Ill. App. 3d at 918.
The Third District of our appellate court acknowledged the conflict between Robbins and Kemner in Cronkhite v. Feeley, 251 Ill. App. 3d 868 (1993). The court distinguished the two cases on the basis that, in Robbins, the court was concerned with a new trial order and, in Kemner, the court was concerned with a motion to dismiss on forum non conveniens grounds. The order at issue in Cronkhite was a new trial order, and for that reason, the court chose to follow Robbins and did not review the propriety of the trial court’s order for a new trial after having earlier declined review under Rule 306.
The Third District, in the present case, declined to follow Cronkhite. Instead, the court noted the following:
“Upon further consideration, we find the reasoning in Kemner more persuasive. Parties are entitled to one appeal from an order of the trial court granting a new trial. See 134 Ill. 2d R. 306(a)(1). If parties do not appeal the grant of a new trial, they forever waive their rights. [Citation.] If a petition for leave to appeal is denied without reaching the merits of the petition and then the petition is treated as if it were res judicata, the parties will effectively have been deprived of the one review to which they are entitled. Accordingly, we hold that this court has jurisdiction over this appeal and [plaintiff] is not precluded from raising the issue that the trial court erroneously granted the Housing Authority’s judgment n.o.v. motion after the first trial. To the extent that Cronkhite is inconsistent with this opinion, it is overturned.” 331 Ill. App. 3d at 511.
Accordingly, the court did not give res judicata effect to its previous denial of the Rule 306 petition despite the holding in Robbins.
After considering the matter, I believe the concerns voiced in Craigmiles have been realized in that some courts are giving res judicata effect to certain interlocutory orders based on the reviewing court’s denial of leave to appeal, and not to others. However, as the court in Craigmiles aptly noted, to give res judicata effect to some denials of Rule 306 appeal but not to others does not make sense, because the preclusive effect would be derived solely from the reviewing court’s decision not to grant permissive review — a decision that may be made without regard to the relative merits of the order sought to be reviewed. In my view, just as this court’s denial of a Rule 315 petition for leave to appeal signifies nothing more than that a majority of the court could not be persuaded to hear an appeal, so too should be the significance of the denial of a Rule 306 petition.
My conclusion in this matter finds support in the interpretation of Rule 306’s counterpart in the federal rules. Rule 5 of the Federal Rules of Appellate Procedure provides for the permissive appeal of certain interlocutory orders pursuant to section 1292(b) of the United States Code (28 U.S.C. § 1292(b) (2000)) — a procedure substantially similar to that set up under our Rule 306. Compare Fed. R App. Proc. 5 with 166 Ill. 2d R. 306. In rejecting a party’s attempt to give preclusive effect to the circuit court of appeals’ earlier denial of leave to appeal under Rule 5, one federal court explained:
“The discretion afforded the courts of appeals in reviewing petitions for leave to bring § 1292(h) appeals has been likened to that of the Supreme Court in controlling its certiorari jurisdiction. 16 C. Wright & A. Miller, Federal Practice and Procedure § 3929, at 141 (1977) (citing S. Rep. No. 2434, 85th Cong., 2d Sess. (1958)). This court’s denial of such a petition may be for any of a number of reasons largely unrelated to the perceived merits of the order sought to be appealed from, particularly in the context of interlocutory appeals from orders granting new trials. See id. § 3930, at 163-64.” Gallimore v. Missouri Pacific R.R. Co., 635 F.2d 1165, 1168 n.4 (5th Cir. 1981).
I note that this rationale mirrors that outlined in our decision in Kemner.
One of our responsibilities as the highest court in the state is to speak definitively on subjects of conflict amongst the various districts of the appellate court. Due to the nature of our discretionary review, we cannot resolve all of the conflicts that exist in the lower courts. As a result, when an appeal is granted in a case that contains an issue of conflict, and the parties have devoted time to addressing the issue, we should stand ready to render the needed guidance to bench and bar. The present case is such a case, as it provided this court with the opportunity to resolve a question that has arisen in our lower courts with respect to one of this court’s own rules. Given that, I find it unfortunate that a majority of the court could not see fit to even acknowledge the question that is present in this case and which has so divided our appellate court. After considering the matter, I believe that Kemner represents the approach that should be followed on the question of whether denials for leave to appeal under Rule 306 should be given preclusive effect.
In all other aspects, I join in the court’s opinion.