dissenting.
Plaintiffs must allege sufficient facts to show the existence of an actual or justiciable controversy to invoke the jurisdiction of the court under the Declaratory Judgment Act. Kirkman v. Kirkman, 42 N.C. App. 173, 256 S.E. 2d 264, disc. rev. denied, 298 N.C. 297, 259 S.E. 2d 300 (1979). A contract cannot form the basis for jurisdiction pursuant to G.S. 1-254 absent an actual controversy about legal rights and liabilities arising under the contract. Gaston Bd. of Realtors, Inc. v. Harrison, 311 N.C. 230, 316 S.E. 2d 59 (1984).
*284While the Declaratory Judgment Act is to be liberally construed, it is not without limitation, Kirkman v. Kirkman, 42 N.C. App. 173, 256 S.E. 2d 264 (1979). In Lide v. Mears, 231 N.C. 111, 56 S.E. 2d 404 (1949), our Supreme Court discussed the scope of this Act as follows:
... it does not undertake to convert judicial tribunals into counsellors and impose upon them the duty of giving advisory opinions to any parties who may come into court and ask for either academic enlightment or practical guidance concerning their legal affairs. . . . This observation may be stated in the vernacular in this wise: The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice.
Id. at 117, 56 S.E. 2d at 409.
In Consumer Power v. Power Co., 285 N.C. 434, 206 S.E. 2d 178 (1974), the Supreme Court noted that although it is not necessary that one party have an actual right of action against another to satisfy the Act’s jurisdictional requirement of an actual controversy, it is necessary that litigation appears unavoidable. It was clear in that case that the defendant would have opposed any effort by anyone to operate an electric generation and transmission system in competition with it. Since the complaint revealed that there was no practical certainty that plaintiffs had the power or capacity to perform the acts which would inevitably create a controversy with defendant, the court held that it did not appear that litigation between the parties was unavoidable.
In the present case, litigation between the parties does not appear unavoidable. The complaint discloses that there is no certainty that plaintiffs will engage in acts which the promissory note purports to prohibit, since they allege that their intent to enter the newspaper business is conditioned on a variety of factors other than their rights and liabilities under the note. Additionally, the note seeks to prevent competition against defendant without its prior written consent and plaintiffs did not allege that they requested and were denied such approval. Plaintiffs’ argument that an actual controversy exists because Mr. Park, president of defendant, declined to give them permission to enter the newspaper business in response to hypothetical questions posed in his deposition and at trial, is without merit. Plaintiffs’ questions were an attempt to create a justiciable issue after the com*285plaint had been filed, and the determination of whether the court had jurisdiction to enter a declaratory judgment in a particular proceeding is made from the pleadings filed in the cause. See, Kirkman v. Kirkman, 42 N.C. App. 173, 256 S.E. 2d 264 (1979). It is possible that defendant would consent to a request from plaintiffs to enter a specific aspect of the newspaper publishing business, and litigation between the parties would be unnecessary.
The facts here alleged present an abstract question and any decision from the trial court would have been purely advisory. Plaintiffs have failed to allege sufficient facts to show the existence of an actual controversy with regard to the promissory note and thus I feel that the trial court properly dismissed the claim for lack of jurisdiction under the Declaratory Judgment Act.
For the foregoing reasons, I respectfully dissent and vote to affirm.