specially concurring:
I agree that Epperson’s third-party claims are not untimely under section 13 — 204 of the Code of Civil Procedure, as amended in 1995, and that the judgment of the circuit court dismissing those claims based on the statute of limitations should therefore be reversed. I write separately because I do not believe that this conclusion is dependent on whether Epperson acted seasonably in asserting its claims following the statute’s amendment.
Section 13 — 204 of the Code of Civil Procedure, as amended in 1995, required Epperson to assert its indemnity claims within two years of when it was served with process in the underlying action. In applying this requirement, the majority takes as the service date the date on which Epperson was served in the original proceeding. The problem with my colleagues’ approach is that it fails to give effect to the Guzmans’ decision to dismiss the original proceeding and to refile later.
Had Epperson advanced its indemnity claims in the original action prior to its dismissal, the third-party defendants could have challenged the timeliness of those claims, and the reasonableness inquiry called for by my colleagues would have been appropriate. If the court determined that Epperson had not acted reasonably in filing its third-party claims following the amendment of section 13 — 204, it could then have dismissed those claims as time-barred. The entry of such an order prior to the Guzmans’ voluntary dismissal of the underlying action on March 28, 1996, would have precluded Epperson from asserting indemnity claims in the Guzmans’ subsequently refilled action. The indemnity claims would be barred under principles of res judicata. See Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 336 (1996); Avery v. Auto-Pro, Inc., 313 Ill. App. 3d 747, 750-51 (2000).
As my colleagues’ recitation of the facts indicates, that did not happen. When the Guzmans voluntarily dismissed their original complaint in March of 1996, Epperson had not yet asserted its indemnity claims. The circuit court therefore had no occasion to rule on the timeliness of those claims before allowing the Guzmans to take their voluntary dismissal without prejudice. Because the court made no such ruling, there was nothing to bar Epperson from asserting its indemnity claims when the Guzmans refiled their action.
Whether or not Epperson delayed too long in asserting its indemnity claims in the original proceeding, that delay cannot be transferred to the second action. The refiled complaint was not a continuation or reinstatement of the prior action. It commenced an entirely new and separate proceeding. Dubina v. Mesirow Realty Development, Inc., 178 Ill. 2d 496, 504 (1997). Whatever obligation Epperson had to assert its indemnity claims in the first proceeding ended when that proceeding ended. Dismissal of the underlying complaint eliminated Epperson’s potential liability, and without the prospect of liability, it had no grounds for seeking indemnification. Any claim it might have asserted for indemnification up to that point became moot.
Epperson had no need to seek indemnity again until the Guzmans refiled their cause of action on April 12, 1996. It was that refiled action, not the preceding one, against which the timeliness of Epperson’s indemnity claims must be measured. Under a straightforward reading of section 13 — 204, Epperson had two years from the date on which it was served with process in the new underlying action to assert those indemnity claims. The company waited less than six months. Its indemnity claims were therefore timely. Based on these considerations, rather than for the reasons set forth by the majority, I agree that we should reverse the judgment of the circuit court and remand the cause for further proceedings.
JUSTICE THOMAS joins in this special concurrence.