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JUSTICE KAPALA delivered the opinion of the court:

Plaintiff, Adkins Energy, LLC (Adkins), sought declaratory relief in response to allegedlitigation threats by defendant, Delta-T Corporation (Delta-T), in connection with an ethanol plantthat Adkins was building. The trial court granted summary judgment for Delta-T on count I ofAdkins's amended complaint. It also granted Delta-T's motion to dismiss counts II and III, holdingthat the parties' rights were fixed and not subject to determination in a declaratory judgment action. Adkins timely appeals. We dismiss in part, reverse in part, and remand the cause.

Adkins owns a corn-to-ethanol processing plant, which, at all times pertinent to this cause,was being built in Lena, Illinois. Delta-T is a provider of technology and engineering services. Beginning in July 2001, a dispute arose between Adkins and Delta-T regarding whether a contractualor other relationship existed between them. In November 2001 Adkins filed a four-count complaintfor declaratory relief. Delta-T moved to dismiss the complaint, and the trial court stayed discoveryuntil it resolved the motion. The trial court denied the motion to dismiss count I but granted themotion to dismiss counts II through IV. The trial court permitted Adkins to replead and orderedDelta-T to respond to Adkins's discovery request. Adkins submitted an amended complaint withthree counts, seeking declarations that Delta-T was not and had no right to be a member of Adkinsor an equity participant in Adkins in relation to the ethanol plant (count I); had no contractual rightsagainst Adkins, including the right to be a subcontractor in the ethanol plant project (count II); andhad no right to compensation from Adkins for expenses that Delta-T allegedly incurred in connectionwith the ethanol plant (count III).

Adkins attached to the complaint three letters it received from Delta-T. In a July 6, 2001,letter, Delta-T stated that, if a satisfactory subcontract agreement could not be arranged with LurgiPSI, one of the entities comprising Adkins, then "Adkins is bound to enter into a contract directlywith Delta-T, or to pay Delta-T a fair amount to compensate for Delta-T's efforts." Delta-T repeatedthis assertion in a letter dated July 12, 2001, stating, "[w]e firmly believe that Adkins, and one ormore of its members, do have an obligation to Delta-T to include it in the project, or to compensateit for the services it has provided to Adkins and Adkins' predecessors since 1995." Finally, Delta-T'sowner wrote in an October 26, 2001, letter, "[m]y attorneys feel we have a strong legal case to provethat we were wronged and financially damaged." He also stated that he had written the letter "to seeif there was a way to work this situation out in a civilized manner" and hoped Adkins would "do theright thing" to avoid a "legal battle."

Delta-T's discovery response admitted the substance of count I. Delta-T moved for summaryjudgment on that count, admitting that it was not entitled to be an equity participant in Adkins or theethanol plant. In its motion, Delta-T averred, "Count I involves no actual controversy for the Courtto adjudicate and the Court should grant summary judgment in favor of Delta-T." Adkins filed across-motion for summary judgment. Delta-T also filed a motion to dismiss counts II and IIIpursuant to section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615 (West 2002)). Thetrial court granted Delta-T 's motion for summary judgment on count I. The trial court also grantedDelta-T's motion to dismiss counts II and III, holding that Adkins was seeking a finding of nonliabilityfor past conduct between the parties. The court determined that the parties' rights were fixed and notsubject to determination in a declaratory judgment action.

Adkins appeals, arguing that the trial court (1) erred when it granted summary judgment forDelta-T on count I; (2) erred when it dismissed counts II and III, which, Adkins claims, sought theresolution of an actual controversy and did not seek a declaration of nonliability for past conduct; and(3) abused its discretion when it stayed discovery until it determined whether Adkins's initialcomplaint stated a cause of action.

A declaratory judgment action requires (1) a plaintiff with a tangible, legal interest; (2) adefendant with an opposing interest; and (3) an actual controversy between the parties concerningsuch interests. Beahringer v. Page, 204 Ill. 2d 363, 372 (2003); see 735 ILCS 5/2--701 (West 2002). For an actual controversy to exist, the case must present a concrete dispute admitting of an immediateand definitive determination of the parties' rights, the resolution of which will aid in the terminationof the controversy or some part thereof. Howlett v. Scott, 69 Ill. 2d 135, 141-42 (1977), citingUnderground Contractors Ass'n v. City of Chicago, 66 Ill. 2d 371, 375 (1977). The declaratoryjudgment process exists so that the court may address a controversy after a dispute has arisen butbefore steps are taken that would give rise to a claim for damages or other relief. Beahringer, 204Ill. 2d at 372-73. In other words, a suit for declaratory judgment is premature if no actualcontroversy exists, but as long as the case is not one in which the controversy has progressed so farthat there is nothing left for the parties to do except file suit for damages or other consequential relief,the controversy may still be resolved by declaratory judgment.

We first examine count I of the amended complaint, in which Adkins sought a declaration thatDelta-T was not and had no right to be a member of Adkins or an equity participant in the ethanolplant. Adkins argues that the trial court erred when it granted Delta-T summary judgment on countI. Delta-T maintains that the issue is moot because Delta-T admitted the substance of count I.

Appellate jurisdiction is based upon the existence of a real controversy, and this court willdismiss an appeal involving only moot questions. La Salle National Bank, N.A. v. City of LakeForest, 297 Ill. App. 3d 36, 42-43 (1998). An issue is moot if the interests and rights of the partiesare no longer in controversy and the resolution of the issue will have no practical effect. La SalleNational Bank, N.A., 297 Ill. App. 3d at 43. Even assuming, arguendo, that the trial court erred inentering summary judgment for Delta-T on count I, the issue is moot. The parties agree that Delta-Tis not and has no right to be a member of Adkins or an equity participant in the ethanol plant. Therefore, any resolution of the summary judgment issue would have no practical effect. Adkinscontends that the issue is not moot because Delta-T's admissions apply only to this case, and Delta-Tcould later plead that it has an equity interest in Adkins. However, as both parties recognize, sucha claim would be subject to the doctrine of judicial estoppel, which prohibits a party from taking inconsistent positions in separate legal proceedings. McDonald's Corp. v. American MotoristsInsurance Co., 321 Ill. App. 3d 972, 986 (2001). Accordingly, we dismiss this portion of the appeal.

We next turn to counts II and III. In count II, Adkins sought a declaration that Delta-T hasno contractual or other rights against Adkins, including the right to be a subcontractor. In count III,Adkins sought a declaration that Delta-T was not entitled to any compensation from Adkins forexpenses that Delta-T allegedly incurred in connection with the ethanol plant. A trial court's grantof a section 2--615 motion to dismiss a declaratory judgment action is subject to de novo review. Beahringer, 204 Ill. 2d at 369.

Delta-T first maintains that Adkins's declaratory judgment action lacked an actual controversybecause it was premature, citing Howlett. In Howlett, the Secretary of State sought a declaratoryjudgment that his receipt of consulting fees was not a conflict of interest with his position on theVehicle Recycling Board. An investigation by the Attorney General's office had found that a conflictof interest existed, but the investigative report recommended delaying any action until the supremecourt had reviewed two relevant appellate court decisions. The Howlett court concluded that theSecretary's legal action was premature because the Attorney General did not indicate an intent toprosecute and the declarations sought depended on the future outcome of the two pending cases. Howlett, 69 Ill. 2d at 142; see also Delano Law Offices, P.C. v. Choi, 154 Ill. App. 3d 172, 174(1987) (action seeking declaration that medical record charges were unreasonable was prematurebecause defendant had not sought to enforce payment).

Adkins contends that Miller v. County of Lake, 79 Ill. 2d 481 (1980), is more applicable tothis situation. There, the Lake County State's Attorney issued a formal opinion that Miller hadviolated corruption laws by serving as a county board member while owning stock in and serving asa director for a bank used as a depository for county money. The State's Attorney also indicated thathe intended to prosecute Miller for these violations. Miller filed a complaint for declaratory relief. The supreme court held that the indication of an intent to prosecute, along with the continuation ofthe relationship forming the basis of the suit, showed that an actual controversy existed. Miller, 79Ill. 2d at 488.

In the present case, Delta-T repeatedly asserted its belief that Adkins had to either include itin the ethanol project or compensate it for expenses. Delta-T also indicated that, if an agreement wasnot reached with Adkins, Delta-T would file a lawsuit. Unlike the circumstances in Howlett, Adkins'srights were not dependent on future events. Further, as in Miller, Delta-T clearly threatened litigation, thus creating an actual controversy. See also Roland Machinery Co. v. Reed, 339 Ill. App.3d 1093, 1099 (2003) ("An expression of intent by one party to take legal action against another canbe the basis of an actual controversy ripe for declaratory relief").

Delta-T also maintains that the trial court was correct in granting Delta-T's motion to dismissbecause Adkins sought declarations of nonliability for past conduct, which are not obtainable underthe declaratory judgment statute. See Howlett, 69 Ill. 2d at 143 (plaintiff, who had alreadyterminated relationship at issue, not entitled to declaratory judgment because his rights were fixed).

Adkins argues that this doctrine is applicable only when the plaintiff's past conduct is at issue and thatin this case Adkins did not allege any actions on its part giving rise to the question of liability. Delta-T responds that the declarations Adkins sought would necessarily involve the past conduct of bothparties. Adkins further maintains that Howlett was limited by the supreme court in Miller tosituations where the defendant never threatened litigation. Both Adkins and Delta-T misconstrue thedoctrine of nonliability for past conduct.

The doctrine of nonliability for past conduct bars an action for declaratory judgment when theconduct that makes a party liable, that is, amenable to suit, has already occurred. The fact that theamount allegedly owed under a contract is already fixed does not preclude a declaratory judgmentaction, because a party is not amenable to suit until a breach occurs. Therefore, declaratory judgmentcould guide future conduct in such a situation because a court could determine whether or not a validcontract exists and, thereby, inform the party that potentially owes the money whether or not it wouldbe in breach of contract should it refuse to pay. In such a situation, only when a party refuses to paydoes a declaratory judgment action become improper because, at that point, the refusal to pay eitheris or is not a breach of contract and there is no future action to guide. A close examination of thecase law in this area supports our interpretation.

The court in Miller found that Howlett was distinguishable because, unlike in Howlett, therewas clear intent to prosecute and the relationship forming the basis of the suit was still ongoing. Miller, 79 Ill. 2d at 488. We believe that the fact that the relationship was still ongoing in Miller wasrelevant because that meant that the plaintiff could avoid future liability. The purpose of a declaratoryjudgment action is to determine the rights of the parties so that the plaintiff can alter his futureconduct to avoid liability. Beahringer, 204 Ill. 2d at 373. In Miller, the plaintiff could be liable forfuture acts related to the bank involved in the controversy because he was still involved with the bank. Conversely, in Howlett, the plaintiff was no longer involved with the entity that was involved in thecontroversy and, hence, could be liable only for past acts related to that entity.

In Eyman v. McDonough District Hospital, 245 Ill. App. 3d 394, 396 (1993), the appellatecourt held that a declaratory judgment that the plaintiff properly terminated her employmentagreement and could keep money advanced to her was not obtainable because the plaintiff was notseeking to learn consequences of future acts. In Chicago & Eastern Illinois R.R. Co. v. ReserveInsurance Co., 99 Ill. App. 3d 433, 437 (1981), the appellate court reversed the declaratory reliefawarded to the plaintiff by the trial court, because the plaintiff sought a declaration that its pastconduct did not breach certain insurance policies rather than a declaration that it would not incurliability for a future course of conduct. These cases turned on whether the act that could beconsidered the breach of contract had already occurred, not whether the acts that formed the contracthad already occurred.

The recent decision in Roland, demonstrates that when the potentially breaching act has notyet occurred, a declaratory judgment action is proper. In Roland the plaintiff had contracted to sellthe defendant a bulldozer. Roland, 339 Ill. App. 3d at 1095. The plaintiff delivered the bulldozer,which the defendant accepted. Roland, 339 Ill. App. 3d at 1095. After complaining of variousdefects in the bulldozer, the defendant attempted to revoke his acceptance and obtain a refund of thepurchase price. Roland, 339 Ill. App. 3d at 1096. Instead of denying the defendant's request, theplaintiff brought a declaratory judgment action seeking a declaration that it was not obligated toaccept the return of the bulldozer and refund the purchase price. Roland, 339 Ill. App. 3d at 1096. The Roland court held that the doctrine of nonliability for past conduct was not applicable in that casebecause, inter alia, the plaintiff was seeking guidance on whether he would be obligated under thecontract to accept the return and issue a refund. Roland, 339 Ill. App. 3d at 1102-03.

This case involves the determination of whether Adkins has any obligations to Delta-T. Therefore, Adkins would be liable to Delta-T only if it breached any such obligations. The instantsituation is similar to that of an insurance company that seeks to determine whether it must pay aninsured under an insurance contract. Although there is scant Illinois case law on the application ofthe doctrine of nonliability for past conduct to insurance cases, we may look to foreign jurisdictionsfor guidance. Beahringer, 204 Ill. 2d at 373 (holding that "[i]n interpreting the Illinois declaratoryjudgment statute, Illinois courts may look to the decisions of other states in interpreting the UniformDeclaratory Judgments Act (12 U.L.A. 309 (1996))"). In interpreting its declaratory judgmentstatute, which is based on the Uniform Declaratory Judgments Act (Williams v. Kaylor, 218 Ga. 576,577, 129 S.E.2d 791, 792 (1963)), the Georgia Supreme Court held that it is proper for an insurancecompany to bring a declaratory judgment action to seek a determination that it need not pay theinsured. See Atlanta Casualty Co. v. Fountain, 262 Ga. 16, 18, 413 S.E.2d 450, 452 (1992). However, if the insurance company has already denied the claim, then declaratory judgment isimproper because the insurance company would be seeking a determination that its denial of theclaim, that is, past conduct, did not constitute a breach of contract. See Atlanta Casualty, 262 Ga.at 18, 413 S.E.2d at 452. In this case, Delta-T essentially seeks to be made a subcontractor or, in lieuof such an appointment, be paid for its expenses incurred in connection with the Adkins plant. Consequently, Adkins would not have breached any such agreement until it has not made Delta-T asubcontractor and has refused to pay Delta-T's expenses. There is no indication that Adkins hasalready refused either of Delta-T's demands. Analogous to an insurance company seeking adetermination of its obligations under an insurance contract, Adkins is using declaratory judgmentto determine whether it will be liable for breach of contract if it refuses to comply with Delta-T'sassertions. Therefore, we hold that the doctrine of nonliability for past conduct does not bar eithercount II or count III of Adkins's amended complaint.

Delta-T points out that a court must refuse to enter a declaratory judgment if it will notterminate the controversy or some part of the controversy. See 735 ILCS 5/2--701(a) (West 2002). Delta-T contends that this doctrine should bar count II because, if the trial court concludes that Delta-T is entitled to a subcontract, the controversy will continue. However, Delta-T misapplies the rule. If the trial court grants the relief sought in count II, a declaration that Delta-T does not havesubcontractor rights, this portion of the controversy will be resolved.

Accordingly, we reverse the trial court's dismissal of counts II and III and remand for furtherproceedings.

Lastly, Adkins asserts that the trial court erred when it stayed discovery until it ruled onDelta-T's first motion to dismiss. Adkins contends that the case could have been resolved earlier oreven settled if discovery had not been postponed. A trial court has great latitude in ruling ondiscovery matters. Mutlu v. State Farm Fire & Casualty Co., 337 Ill. App. 3d 420, 434 (2003). Atrial court's rulings on such matters will not be disturbed absent a manifest abuse of discretion. Mutlu, 337 Ill. App. 3d at 432. Since we have already dismissed the portion of the appeal relatingto count I, which was the same in the initial and amended complaints, we need not determine howthe stay of discovery may have affected summary judgment on that count.

Counts II through IV of Adkins's original complaint were disposed on Delta-T's motion todismiss. A trial court may properly quash a discovery request when it has sufficient information uponwhich to decide a defendant's motion to dismiss. Mutlu, 337 Ill. App. at 434. However, it shouldnot refuse a discovery request and grant a motion to dismiss when it reasonably appears thatdiscovery may assist the nonmoving party. Mutlu, 337 Ill. App. 3d at 434. We cannot say it was amanifest abuse of discretion for the trial court to stay discovery until it ruled on the motion to dismiss,because if a cause of action had not been stated, discovery would have been unnecessary. Adkinsdoes not assert that discovery would have assisted it to successfully resist the motion to dismiss and,therefore, has not indicated that the stay harmed it in any manner. Therefore, the trial court did notabuse its discretion in staying discovery until it resolved whether Adkins's initial complaint stated acause of action.

Accordingly, we dismiss the portion of the appeal challenging the trial court's grant ofsummary judgment in favor of Delta-T on count I of Adkins's amended complaint. With respect tocounts II and III, we reverse and remand the cause for further proceedings consistent with thisopinion.

Dismissed in part and reversed in part; cause remanded.

O'MALLEY, P.J., concurs.

JUSTICE HUTCHINSON, 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 court'sdecision 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 fromAdkins for expenses that Delta-T had incurred in connection with the ethanol plant. The letters sentto 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 ofAdkins's entities, or in the alternative, to be compensated "for the services it has provided to Adkinsand Adkins' predecessors since 1995." Based on these representations, it appears that Delta-T wasseeking compensation for services that it had provided in the past on behalf of Lurgi PSI, a relatedentity of Adkins.

The purpose of a declaratory judgment is " 'to settle and fix rights before there has been anirrevocable 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. 2d165, 174 (1995). In this case, whatever compensation Delta-T may be entitled to for services andother expenses that it previously incurred is already fixed, and Adkins is not now attempting to avoidliability for a future course of conduct. I believe that an action sounding in contract would be a moreappropriate forum in which to litigate Delta-T's claim of compensation owing for past services. Ifurther believe that Delta-T, as the allegedly aggrieved party, should have the opportunity to seekrelief 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'scomplaint. I therefore respectfully concur in part and dissent in part.