
    Warren Plaza Company, Appellant, v. Giant Eagle, Inc. et al., Appellees.
    [Cite as Warren Plaza Co. v. Giant Eagle, Inc. (1992), 63 Ohio St.3d 497.]
    (No. 90-1526
    Submitted September 11, 1991
    Decided April 15, 1992.)
    
      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.

Herbert R. Brown, J.,

concurring. 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.  