APPEAL from the Circuit Court of Whiteside County; the Hon.
ROBERT W. CASTENDYCK, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 6, 1980.
Mary E. Foley, a school teacher, was on March 26, 1976, given notice that her services with the Tampico School District were to be terminated at the end of the 1975-1976 school term. Subsequently Foley commenced a mandamus action in the circuit court of Whiteside County in which she sought to be assigned as full-time teacher in the Tampico district for the school year 1976-1977 and that she further be awarded damages in the amount of salary loss incurred by Tampico's action. Judgment was entered on December 3, 1976, by the circuit court of Whiteside County denying Foley's prayer for a writ of mandamus and dismissing her case with prejudice. An appeal to this court was perfected by Foley (such appeal hereinafter designated Foley I) and on January 23, 1978, the judgment of the trial court was reversed as to Foley and it was ordered that a writ of mandamus should issue. (Hagopian v. Board of Education (1978), 56 Ill. App.3d 940, 372 N.E.2d 990.) The record discloses that a writ of mandamus was never issued. Tampico reemployed Foley shortly after our supreme court denied Tampico leave to appeal from the Foley I decision. Subsequently a writ of mandamus was presented to the trial court which contained directions for the payment of damages and costs to Foley but the trial court refused to approve of the same.
On November 17, 1978, Foley had filed a motion in the original proceedings which she had instituted in the circuit court, which prayed for award of damages (being loss of income suffered) and costs. The trial court refused to conduct a hearing on the motion and predicated its refusal on the grounds that the mandate issued by the court ordered only that Foley be reemployed and that it contained no directions in regard to damages. The trial court entered an order denying Foley's motion for an award of damages and this appeal ensued.
In this appeal the Board of Education calls attention to a recent supreme court decision which holds that a teacher's "legal qualification" is not determined solely by the teaching certificate but in addition standards promulgated by the Illinois Office of Education are to be considered. The case referred to is Lenard v. Board of Education (1979), 74 Ill.2d 260, 384 N.E.2d 1321. It is Tampico's contention that in light of the Lenard decision this court's reasoning was erroneous in arriving at the decision set forth in Hagopian v. Board of Education (1978), 56 Ill. App.3d 940, 372 N.E.2d 990, and consequently Foley is not entitled to reinstatement or damages. We agree that the Lenard decision establishes additional standards which must be considered in determining the "legal qualifications" of a teacher; however, we do not agree that the decision affects the status of Foley. The underlying and basic issue which was the "legal qualifications" of Foley was determined by this court's opinion dated January 23, 1978 (rehearing denied March 6, 1976). Leave to appeal from this decision (Hagopian v. Board of Education) was denied by our supreme court on September 23, 1978, and mandate certifying the denial for leave was issued on October 20, 1978. Foley was reemployed by Tampico and resumed her teaching duties on November 13, 1978. The decision in Lenard was not forthcoming until sometime after the qualifications of Foley had been completely litigated and she had resumed her employment. It is our considered opinion that the trial court incorrectly held that our mandate contained no directions in regard to damages. Further, it is our opinion that the doctrine of res judicata prevents, because of changes in the law wrought by the Lenard decision, any renewed consideration of the issue of damages.
Regarding the effect of the Lenard decision on the award of damages to appellant Foley, our attention has been directed to the precedent set by Zerulla v. Supreme Lodge (1906), 223 Ill. 518, 79 N.E. 160. It is argued that according to Zerulla, where the supreme court in a separate matter alters the pertinent law in the period between appeals, the appellate court on the second appeal may not follow its contrary prior judgment and must apply the law as clarified by the Illinois supreme Court. While generally Zerulla stands for this proposition, a closer reading reveals a qualification affecting cases where the appellate court's first decision exhibited the necessary finality. The qualification turns on the distinction between the legal doctrines of res judicata and of the law of the case.
The general rule laid down by Zerulla is set forth by Justice Farmer as follows:
"[W]hile 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." (Zerulla v. Supreme Lodge (1906), 223 Ill. 518, 520, 79 N.E. 160, 161.)
However, this general rule is qualified by a prefatory portion of the Zerulla opinion which describes the nature of the determination made on the "first appeal." The nature of the mandate on the "first appeal" determines whether the issues are once and for all finally determined, i.e., res judicata. Before reaching the conclusion set forth in the passage previously quoted, the supreme court recited this factual background:
"The judgment and order of the Appellate Court reversing and remanding the case was general in its terms and contained no directions to the trial court. It was neither final nor conclusive between the parties, no appeal could have been prosecuted from it, and it was, therefore, not res judicata. [Citations.]" 223 Ill. 518, 519-20, 79 N.E. 160, 161.)
The unpublished negative implication is that where the appellate court mandate is final and conclusive, the result is res judicata.
Such a negative implication was apparently gleaned by at least one appellate court. Justice Gridley of the First District observed:
"In Zerulla v. Supreme Lodge, 223 Ill. 518, it was decided that a proposition of law laid down by an Appellate Court of Illinois, upon reversing a judgment generally and remanding the cause, is not binding upon that court upon a second appeal, where the Supreme Court has since the first appeal decided the point involved contrary to the proposition laid down." (Awotin v. Atlas Exchange National Bank (1934), 275 Ill. App. 530, 547.)
We believe it noteworthy that the emphasis on the word "generally" added by Justice Gridley is not present in the original Zerulla opinion of Justice Farmer.
The difference between the "general" remand and the remand with directions to the trial court is the difference between establishing the law of the case and establishing conclusively by final judgment the issue before the court. The former, the law of the case, is subject to change according to the rule set forth in Zerulla. The latter issues are outside the rule of Zerulla and are res judicata. "The doctrine of res judicata is based on requirements of justice and public policy and reflects a public policy that requires an end to litigation after each party has had a full opportunity to present all pertinent facts." (23A Ill. L. & Prac. Judgments § 281 (1979).) In other words, at some point legal disputes must cease without opportunity for revival upon subsequent changes in the law.
1 To determine whether the case at bar is appropriate for application of the doctrine of res judicata, two inquiries are necessary. One, was the appellate court decision in Foley I "general in its terms" or did it contain "directions to the trial court"? Two, was the decision final and conclusive? With regard to the first inquiry, this court held that:
"For the reasons stated, the judgment of the circuit court of Whiteside County is * * * reversed as to the plaintiff-appellant Foley. The writ of mandamus as to the plaintiff-appellant Foley should issue, and this individual should be reinstated as a tenured teacher with the defendant-appellee Board of Education of Tampico Community Unit School District No. ...