Opinion
No. 90-1526
Submitted September 11, 1991 —
Decided April 15, 1992.
APPEAL from the Court of Appeals for Trumbull County, No. 88-T-4122.
Ulmer Berne and Marvin L. Karp; Richards, Ambrosy Frederick and Charles L. Richards, for appellant.
Marcus Shapira and Bernard D. Marcus; Henderson, Covington, Stein, Donchess Messenger and James L. Messenger; Kohrman, Jackson Krantz and Gregory M. Lichko, for appellees.
The appeal is dismissed as moot.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS, WRIGHT and RESNICK, JJ., concur.
H. BROWN, J., concurs separately.
I concur in the court's dismissal entry. However, I disagree as to the reasons for dismissal. This case may be factually moot, but I believe the issues it presents are capable of repetition, yet evading review.
Nonetheless I must concur in the dismissal entry because we lack jurisdiction to decide the case. Civ.R. 65(B)(2) allows a trial court to consolidate a preliminary injunction hearing with a trial on the merits. Here, the court of appeals held that the trial court consolidated without sufficient notice to all parties. The entire case was remanded for a hearing on the merits. Appellant did not timely appeal this ruling, and therefore the case is not properly before us.