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04/14/95 PETER J. PALUGHI v. MICHAEL C. DOW

April 14, 1995

PETER J. PALUGHI
v.
MICHAEL C. DOW, AS MAYOR OF THE CITY OF MOBILE, ALABAMA



Appeal from Mobile Circuit Court. (CV-94-1198). Edward B. McDermott, TRIAL JUDGE.

Released for Publication August 25, 1995.

Butts, Hornsby, C. J., and Almon, Houston, and Ingram, JJ., concur.

The opinion of the court was delivered by: Butts

BUTTS, JUSTICE.

Peter J. Palughi brought a declaratory action against Michael C. Dow, mayor of Mobile, asking the trial court to declare that a conflict of interest existed between Dow's mayoral duties and his activities as the chief executive officer of the Jobs for Alabamians Coalition, a nonprofit organization that encourages the passage of state legislation to authorize casino gambling in Mobile. Dow moved to dismiss the action, arguing that Palughi was merely seeking an advisory opinion, rather than bringing a claim that was justiciable under the Declaratory Judgments Act, Ala. Code 1975, § 6-6-220 et seq. After oral argument, the trial court dismissed the case, without prejudice. Palughi appeals.

This Court has held that the words "without prejudice," when used in an order, "mean that there is no decision of the controversy on its merits, and [that an order containing those words] leaves the whole subject in litigation as much open to another suit as if no suit had ever been brought." Vacalis v. Lowry, 279 Ala. 264, 267, 184 So. 2d 345, 347-48 (1966); see, also, Taylor v. Major Finance Co., 289 Ala. 458, 268 So. 2d 738 (1972). An appeal will ordinarily lie only from a final judgment; that is, a judgment that conclusively determines the issues before the court and ascertains and declares the rights of the parties. Rule 54(b), A.R.Civ.P. The trial court has not addressed the merits of the issues that Palughi now raises; accordingly, there is no final judgment upon which to base an appeal, and this Court has no jurisdiction over the matter. The appeal is dismissed.

APPEAL DISMISSED.

Hornsby, C. J., and Almon, Houston, and Ingram, JJ., concur.

19950414

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