¶1dissenting.
¶2I concur with the majority opinion in all respects except I would remand Count IV to the trial court to reconsider the matter of compensatory or resulting damages due to economic loss only. The Skyles were not entitled to proceed on the theory of negligence, Count VII, because that count was dismissed before the evidentiary hearing on damages. They are not entitled to attorney’s fees nor compensatory damages which depended upon expert medical testimony where none was presented. However, compensatory damages in a declaratory judgment suit, Count IV, may be granted in conjunction with equitable relief if supported by evidence.
¶3There was evidence which would have supported a judgment for compensatory or resulting damages if the trial court had recognized existing legal authority to consider the issue on the merits. For that reason, the possibility remains the trial court erroneously founded its judgment denying resulting damages solely on an error of law. The majority opinion concludes Skyles did not plead and did not prove general compensatory economic loss on Count IV. The trial court honored Skyles’ request for actual damages which included sums which they were required to pay over a period of time, money they would not have owed if defendants had cooperated with the full prepayment contemplated in June 1987. The judgment does not, however, compensate the Skyles for the loss of earnings which would have been available if they had not been required to make the excessive payments from 1987 until the trial in 1991. The Skyles offered testimony of J. Bernard Kolker who testified he was an accountant and real estate broker. Whether as an expert or not, his testimony alluded to the fact the loss of use of money has an economic value. Collectively, the testimony of Teresa M. Skyles and Mr. Kolker would support a judgment on Count IV of general compensatory damages relating to economic loss, not considered in the judgment for actual damages. This evidence was admitted without objection. Accordingly, I would remand to the trial court for the limited purpose of allowing reconsideration of the evidence on this issue only.