concurring in part and dissenting in part:
While I agree with the majority’s resolution of counts I and II, I disagree that the trial corut’s decision dismissing count III of Adkins’s complaint must be reversed.
In count III Adkins sought a declaration that Delta-T had no right to compensation from Adkins for expenses that Delta-T had incurred in connection with the ethanol plant. The letters sent to Adkins by Delta-T reflect that Delta-T was requesting compensation in some manner for its “efforts.” As such, Delta-T sought to enter into a contractual agreement with Lurgi PSI, one of Adkins’s entities, or in the alternative, to be compensated “for the services it has provided to Adkins and Adkins’ predecessors since 1995.” Based on these representations, it appears that Delta-T was seeking compensation for services that it had provided in the past on behalf of Lurgi PSI, a related entity of Adkins.
The purpose of a declaratory judgment is “ ‘to settle and fix rights before there has been an irrevocable change in the position of the parties that will jeopardize their respective claims of right.’ ” Beahringer, 204 Ill. 2d at 373, quoting First of America Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d 165, 174 (1995). In this case, whatever compensation Delta-T may be entitled to for services and other expenses that it previously incurred is already fixed, and Adkins is not now attempting to avoid liability for a future course of conduct. I believe that an action sounding in contract would be a more appropriate forum in which to litigate Delta-T’s claim of compensation owing for past services. I further believe that Delta-T, as the allegedly aggrieved party, should have the opportunity to seek relief at a time and in a forum of its choosing. See Roland, 339 Ill. App. 3d at 1102, citing Cunningham Brothers, Inc. v. Bail, 407 F.2d 1165, 1168-69 (7th Cir. 1969).
Accordingly, I would have affirmed the trial court’s dismissal of count III of Adkins’s complaint. I therefore respectfully concur in part and dissent in part.