concurring in part and dissenting in part:
Although the majority has not mentioned it, this case came before us under Rule 316 (155 Ill. 2d R. 316). That rule authorizes this court to review a decision of the appellate court where the appellate court certifies that the decision involves a question of such importance that it should be decided by us. Because there was no concurrence of two judges here, however, and therefore no "decision,” the predicate for a Rule 316 appeal was absent and a certificate of importance should not have issued. People ex rel. Director of Finance v. Young Women’s Christian Ass’n, 74 Ill. 561, 567 (1979). There being no other basis for this court to assert jurisdiction, this appeal should be dismissed. To this extent I am in full agreement with my colleagues.
I dissent because I do not believe that the case should be sent back for further proceedings. In effect, the majority’s disposition enables Upjohn to obtain a second rehearing before a newly constituted appellate court panel. This is wholly improper. The purpose of a motion for rehearing is to provide litigants with the opportunity to direct the reviewing court’s attention to matters that it may have overlooked or misapprehended. 155 Ill. 2d R. 367. Upjohn has already been afforded this opportunity. Its contentions received full consideration, and it is not entitled to have its case considered again simply because the two members of the appellate court panel who remained in office could not agree on how the case should be decided.
The situation here is no different from any other case where the required concurrence of two judges cannot be obtained. Where, as here, the necessary majority is absent and the appellate court is left evenly divided, the litigants are not entitled to reargue their cases before different judges. Rather, this court has expressly held that the appellate court should affirm the judgment of the circuit court. People ex rel. Director of Finance v. Young Women’s Christian Ass’n, 74 Ill. 2d at 567. There is no basis for deviating from that precedent here.
For the foregoing reasons, I would dismiss the appeal and remand the cause to the appellate court with directions to affirm the circuit court’s judgment.