¶1dissenting:
¶2I respectfully dissent from the majority’s decision for the following reasons. First, the majority concludes that there is a conflict between section 13 — 204 and section 13 — 207. In my opinion, there is no conflict; section 13 — 204 is a statute of limitations; section 13 — 207 is not. Section 13 — 207 is a specific exception to the statute of limitations. Bethelem Steel Corp. v. Chicago Eastern Corp., 863 F.2d 508, 512 (7th Cir. 1988). Our courts have continually referred to section 13— 207 as a “savings” clause. Benckendorf, 112 Ill. App. 3d at 663; Ogg, 121 Ill. App. 3d at 34; In re Estate of Rice, 154 Ill. App. 3d 591, 593, 507 N.E.2d 78 (1987); Cameron, 289 Ill. App. 3d at 506.
¶3Under section 13 — 207, a party waives its statute of limitations defense against a counterclaim brought by an opponent, as long as the counterclaim was not barred when the cause of action forming the basis of the claims in the primary complaint arose. Cameron, 289 Ill. App. 3d at 506. The savings clause of section 13 — 207 opens the door and exposes the initiating party to otherwise stale claims. In re Estate of Rice, 154 Ill. App. 3d at 593.
¶4Second, the language of section 13 — 207 is broad and it applies to “any action” (735 ILCS 5/13 — 207 (West 2000)). In re Estate of Rice, 154 Ill. App. 3d at 593. It should therefore be applied in this case.
¶5Third, the majority dismisses the reasoning of Benckendorf and Ogg because they were decided before the amendment to section 13— 204. However, those decisions involved contribution claims and specifically whether the statute of limitations barred those otherwise stale contribution claims. These cases are on point and, in my opinion, control. Further, we can presume that prior to enacting the contribution statute of limitations, the legislature acted with knowledge of the prevailing case law. Hansen v. Caring Professionals, Inc., 286 Ill. App. 3d 797, 805-06, 676 N.E.2d 1349 (1997); Clark v. Han, 272 Ill. App. 3d 981, 989, 651 N.E.2d 549 (1995). This is further evidence that the legislature never intended to have section 13 — 207 preempt section 13 — 204.
¶6More recently, another division of the First District held that a defendant’s counterclaim was not barred by the one-year statute of limitations contained in section 13 — 217 of the Code of Civil Procedure (735 ILCS 5/13 — -217 (West 1994)), for actions voluntarily dismissed but not refiled within one year of that voluntary dismissal. Mermelstein v. Rothner, 349 Ill. App. 3d 800 (2004). Mermelstein reaffirmed that section 13 — 207 “is based on the theory that plaintiff waives application of the statute of limitations with regard to potential counterclaims.” Mermelstein, 349 Ill. App. 3d at 804.
¶7The majority says section 13 — 204 “preempts” section 13 — 207. It further holds that section 13 — 204 cannot be overridden by a different limitations provision. 352 Ill. App. 3d at 37. Although the language of the statute states “no action for contribution … may be commenced more than 2 years after the party seeking contribution has been served with process” (735 ILSC 5/13 — 204 (West 2000)), it only preempts other statutes of limitations. Because section 13 — 207 is not a statute of limitations, it is not preempted by section 13 — 204. The majority’s analysis is flawed because it has made section 13 — 207 something that it is not, a statute of limitations.
¶8Therefore, I would reverse the decision of the trial court dismissing Osman’s counterclaim, and I dissent.