IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff, the Illinois State Toll Highway Authority (ISTHA), appeals fromthe dismissal of its complaint against Amoco Oil Co. (Amoco) and Mobil Oil Corp.(Mobil). ISTHA sought a declaration that Mobil and Amoco, while operatinggasoline stations on ISTHA's property under written agreements with ISTHA,violated the terms of those agreements by spilling petroleum products onto theproperty. ISTHA also asked that Mobil and Amoco be ordered to contribute to thecosts of remedying the petroleum contamination. We reverse the trial court'sdismissal of ISTHA's complaint.

The complaint dismissed by the trial court was ISTHA's fourth amendedcomplaint against Amoco and Mobil. ISTHA alleged therein that it owns variousrest stops or "Oases" along the Illinois toll highways. Under leases andoperating agreements with ISTHA, Amoco and Mobil have operated gasoline stationsat the Oases. Amoco operated the stations from 1957 to November 1985. Mobil hasoperated the stations from November 1985 to the present. The gasoline storage anddispensing equipment that was the subject of the agreements included undergroundpetroleum storage tanks (USTs) and underground pipe systems and fuel dispensers(collectively, UST systems). ISTHA attached to its complaint copies of thevarious leases and operating agreements it entered into with Amoco and Mobilduring their respective tenures.

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

ISTHA alleged that Amoco and Mobil caused spillage and leakage of petroleumproducts while they operated the Oases.

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[The preceding material is nonpublishable under Supreme Court Rule 23.] ISTHA alleged that Illinois health and environmental authoritiesinvestigated the contamination at the Oases and ordered a cleanup. ISTHA averredthat it has "expended significant sums of money to assess, monitor and remediate"the contamination. Specifically, ISTHA alleged that it has incurred "siteassessment costs" as low as $200,000 and as high as $500,000 at each Oasis wherecontamination was found. ISTHA alleged that the Illinois Environmental ProtectionAgency, pursuant to its authority under the Illinois Environmental Protection Act(Environmental Act) (415 ILCS 5/1 et seq. (West 2000)), has demanded that ISTHApropose a remediation plan for the contamination at each Oasis. Each plan, ISTHAasserted, will involve "substantial" additional sums. ISTHA alleged that it,Amoco, and Mobil are jointly liable under the Environmental Act for thecontamination of the Oases. ISTHA averred that, despite its demands, Amoco andMobil have neither acknowledged their duty to assist in the remediation norcompensated ISTHA for the sums it has expended so far.

ISTHA brought claims for declaratory relief and contribution. In its claimsfor declaratory relief, ISTHA requested a declaration of "the rights andobligations of the parties with respect to the remediation and cleanup" of theOases. Specifically, ISTHA sought a declaration that Mobil and Amoco are requiredunder the lease and operating agreements to indemnify ISTHA for past and futurecosts associated with remediation and to cooperate with state authorities untilthe remediation is complete. ISTHA also sought contribution from Mobil and Amocounder the Illinois Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS100/1 et seq. (West 2000)) for the amount it paid in excess of its pro rata shareof the parties' common liability under the Environmental Act. Finally, ISTHAsought a finding that Mobil and Amoco are "liable for their pro rata share of anyfuture liability or expense incurred by [ISTHA] stemming from" the violations ofthe Environmental Act.

Mobil and Amoco each filed a motion to dismiss ISTHA's complaint undersections 2--615 and 2--619 of the Code of Civil Procedure (Code) (735 ILCS5/2-615, 2-619 (West 2000)). The following arguments for dismissal of the claimsfor declaratory relief were presented in one or both of the motions: (1)declaratory relief was inappropriate because ISTHA sought a declaration of rightsstemming entirely from past conduct; (2) the claims for declaratory relief lackedadequate specificity, and the leases and operating agreements cited in the claimsdid not support the relief requested; (3) declaratory relief was inappropriatebecause ISTHA had recourse to an alternative remedy, namely, a cause of action forbreach of contract; and (4) the claims for declaratory relief were barred by theapplicable statute of limitations and by the doctrine of laches.

The following arguments for dismissal of the contribution claims werepresented in one or both of the motions: (1) ISTHA's claims against Amococoncerned events that occurred before the effective date of the Contribution Act;(2) ISTHA's claims for contribution against Amoco and Mobil were premature becausethe liability for which ISTHA sought contribution had not been asserted againstit in a lawsuit by a third party; and (3) ISTHA's claims for contribution for sumsit has not yet paid or even calculated were premature and nonjusticiable. Withoutproviding a rationale, the trial court dismissed ISTHA's complaint with prejudice. ISTHA appeals, and Mobil and Amoco reassert the arguments they pressed in theirmotions to dismiss. We address first the propriety of the court's dismissal ofISTHA's claims for declaratory relief.

A. The Dismissal of ISTHA's Claims For Declaratory Relief

Section 2--701 of the Code, also known as the Declaratory Judgment Act (Act)(735 ILCS 5/2--701(a) (West 2000)), provides in pertinent part:

"(a) No action or proceeding is open to objection on the ground thata merely declaratory judgment or order is sought thereby. The court may,in cases of actual controversy, make binding declarations of rights, havingthe force of final judgments, whether or not any consequential relief is orcould be claimed, including the determination, at the instance of anyoneinterested in the controversy, of the construction of any *** contract ***and a declaration of the rights of the parties interested."

Courts have construed the Act as permitting declaratory judgment only wherean actual controversy exists and the party seeking relief has a tangible, legalinterest in the controversy. In re Application of the County Treasurer & exofficio County Collector, 309 Ill. App. 3d 181, 187 (1999). An "actualcontroversy" is "a concrete dispute that admits of an immediate and definitivedetermination of the party's rights." Owner-Operator Independent Drivers Ass'nv. Bower, 325 Ill. App. 3d 1045, 1051 (2001). The central purpose of declaratoryrelief is to allow the court to address a controversy one step sooner than normalafter a dispute has arisen, but before the plaintiff takes steps that would giverise to a claim for damages or other relief. Eyman v. McDonough DistrictHospital, 245 Ill. App. 3d 394, 396 (1993). The declaratory judgment procedureallows parties to a dispute to learn the consequences of their action beforeacting. Eyman, 245 Ill. App. 3d at 396. The remedy of declaratory judgment isto be liberally applied to provide a method by which a binding declaration ofrights may be rendered before the parties make an irrevocable change in positionthat might jeopardize those rights. Midwest Petroleum Marketers Ass'n v. City ofChicago, 82 Ill. App. 3d 494, 499 (1980). The remedy is meant to afford securityand relief against uncertainty with a view toward avoiding litigation, not towardaiding it. Lihosit v. State Farm Mutual Automobile Insurance Co., 264 Ill. App.3d 576, 580 (1993).

The court provided no rationale for its dismissal of plaintiff's complaint. An order granting a motion to dismiss without specifying the ground on which itis based places before the appellate court every issue raised in the motion; ifany ground raised in the motion is a sufficient basis for the dismissal, theappellate court must affirm. Williams v. Board of Education of the City ofChicago, 222 Ill. App. 3d 559, 565 (1991). In the trial court, Mobil and Amocoproffered various reasons why ISTHA's claims for declaratory relief should bedismissed. They reassert them on appeal, and we address them successively. Inan unpublished part of this opinion, we address and reject the defendants'arguments that ISTHA's claims for declaratory relief do not present an "actualcontroversy" as defined by the Act and, alternatively, that the claims are barredunder the applicable limitations period and under the doctrine of laches.

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Amoco and Mobil also argued in their motions to dismiss that ISTHA's claimsfor declaratory relief were inappropriate because ISTHA had recourse to analternative remedy (namely, a suit in contract based on the leases and operatingagreements), and the "existence of another remedy is sufficient grounds fordismissal of a declaratory judgment action." Assuming that ISTHA could havesought the relief it requests in an action for breach of contract, we must decidewhether the availability of such other relief was a sufficient ground for thedismissal of ISTHA's complaint for declaratory relief.

To support their position, Mobil and Amoco cite a case from this district,Outboard Marine Corp. v. Chisholm & Sons, Inc., 133 Ill. App. 3d 238 (1985). InOutboard Marine, the court said:

"A complaint for declaratory judgment which recites in sufficient detail anactual and legal controversy between the parties and prays for a declarationof rights and, if desired, other legal relief, states facts sufficient tostate a cause of action [citation], and although the court has discretionto grant declaratory relief, it has no discretion to refuse to entertain theaction as against a motion to dismiss where the complaint states a cause ofaction. [Citation.] The courts have recognized a clear distinction betweenthe trial court's discretionary power to refuse to grant declaratoryjudgment even though the statute would permit a judgment under the facts,and its refusal to entertain the action as against a motion to dismiss wherethe complaint states a cause of action. [Citation.]" Outboard Marine, 133Ill. App. 3d at 241.

The court remarked that " '[t]he discretion is not one to entertain the action butto enter or decline to enter the judgment or decree.' " Outboard Marine, 133 Ill.App. 3d at 241, quoting Meyer v. County of Madison, 7 Ill. App. 3d 289, 291(1972). The court noted--inconsistently, in our view--that "one way the courtcan exercise its discretion to decline to enter a declaratory judgment is todismiss the complaint it if appears from the face of the complaint that there hasaccrued another existing and well-recognized form of action." Outboard Marine,133 Ill. App. 3d at 241-42. Thus, while "it is well established in Illinois thatthe existence of another remedy does not preclude declaratory relief," "theexistence of another adequate remedy can constitute sufficient grounds fordismissal at the trial court's discretion." Outboard Marine, 133 Ill. App. 3d at247. Defendants rely on the latter proposition in asking us to affirm the trialcourt's dismissal of ISTHA's complaint.

We decline to follow Outboard Marine. First, it simply is internallyinconsistent. The only rationale it provides for the rule that the availabilityof another remedy is a sufficient ground for the dismissal of a claim fordeclaratory relief rests on an unfounded distinction between a "refusal toentertain" a complaint for declaratory relief and a "dismissal" of that complaint. Second, the rule is contrary to the plain text of the Act and decisionsinterpreting it.

In the quoted portions above, Outboard Marine emphasizes that a trial courtfaced with a motion to dismiss a complaint for declaratory relief may not dismissthe complaint if it states a cause of action. To dismiss the complaint wouldamount to a refusal to entertain the action, which, the court explained, is alwaysimpermissible where a complaint for declaratory relief states a cause of action. Several lines later in the opinion, the court describes an occasion where thetrial court may dismiss a claim for declaratory relief despite there being a causeof action stated in the complaint. Dismissal is appropriate, explains the court,where another remedy exists. The court describes a dismissal under thesecircumstances not as "refusing to entertain" the claim for declaratory relief butas "declining to grant" the claim. We see no basis for the distinction. Whetherthe complaint is dismissed for failure to a state of action or because anotheradequate remedy exists, the dismissal in both instances is based on the face ofthe complaint. Neither is more or less a refusal to entertain the action than theother, nor is one more or less a refusal to grant the requested relief than theother. If there is a basis for distinguishing between dismissing a faciallysufficient complaint for declaratory relief because it fails to state a cause ofaction and dismissing the complaint because another adequate remedy is available,the basis does not rest in the "refusal to entertain/refusal to grant"distinction.

Outboard Marine, however, provides no other rationale for the notion thata trial court may dismiss a facially valid complaint for declaratory relief simplybecause there is another adequate remedy available. Outboard Marine does citethree appellate court cases for the proposition: Schlossberg v. E.L. Trendel &Associates, Inc. 63 Ill. App. 3d 939 (1978), Coles-Moultrie Electric Cooperativev. City of Charleston, 8 Ill. App. 3d 441 (1972), and Meyer v. County of Madison,7 Ill. App. 3d 289 (1972). None of these cases cites adequate authority for therule. These cases each derive the rule from Goldberg v. Valve Corp. of America,89 Ill. App. 2d 383 (1967). Goldberg in turn derives the rule from Stern v.Material Service Corp., 44 Ill. App. 2d 198 (1963), and from an Illinois treatise,Illinois Law and Practice. See Goldberg, 89 Ill. App. 2d at 391, citing Stern,44 Ill. App. 2d 198, and 16 Ill. L. & P. Declaratory Judgments,