specially concurring.
I fully concur in the Court’s opinion. Although ABC cannot be faulted for having concerns about CAG’s intentions, based on its 2/9/12 letter, that does not necessarily create a real and substantial controversy justifying a declaratory judgment action. After the action was filed, CAG may have stoked ABC’s concerns by raising its “potential” merger defense. However, that issue was raised in a hypothetical sense and still did not produce a justiciable controversy.
In the event that CAG tries to dispose of the property in contravention of the restrictive covenant, ABC will have a genuine justiciable dispute to pursue in court and can at that time seek preliminary injunctive relief. If CAG then raises the merger defense, there will be an opportunity to squarely address it in the judicial process. At that time, the parties can present evidence on the question of whether the restrictive covenant was merged into the terms of the deed or whether it was a collateral stipulation. See Fuller v. Callister, 150 Idaho 848, 853, 252 P.3d 1266, 1271 (2011). While each alleged collateral stipulation must be considered on its own merits, CAG’s successful invocation of the attorney fee provision in the option agreement may complicate any contention that the option agreement was merged. ABC may well contend that CAG is judicially estopped from claiming merger of the restrictive covenant after receiving the benefit of the fee provision. However, considering such theoretical arguments at this time demonstrates the necessity for having an actual controversy at hand in order to pursue a declaratory judgment action. It is best not *787to issue hypothetical decisions based on hypothetical claims or defenses.