{¶ 23} Civ.R. 65(B)(2) states that a court may consolidate a hearing on a motion for preliminary injunction with a trial on the merits with knowledge of the parties that the case is being heard on the merits. Turoff v. Stefanac, 16 Ohio App.3d 227, 228, 475 N.E.2d 189 (1984). In the instant case, the Board was present and participated in the hearing with a number of witnesses.

Further, "Civ.R. 65(B)(2) * * * require[s] that a court order the consolidation of a hearing on the application for a preliminary injunction with a trial on the merits, thus providing the parties with notice that the case is, in fact, being heard on the merits." Turoff v. Stefanac (1984), 16 Ohio App.3d 227, 228. Defendants contend that they were prejudiced by the manner in which the trial court consolidated the preliminary injunction hearing with a trial on the merits.

"Where a hearing on an application for a preliminary injunction is to be consolidated with a trial on the merits, Civ.R. 65(B)(2) requires the court to issue a 'consolidation' order before the hearing, thus providing the parties with notice that the case is, in fact, being heard on the merits." Turoff v. Stefanac, 16 Ohio App.3d 227 (8th Dist.1984), paragraph two of the syllabus. {¶29} For example, in Ohioans for Concealed Carry v. Columbus, ,2019-Ohio-3105, 140 N.E.3d 1215 (10th Dist.), the Tenth District held that the city was prejudiced by the trial court's failure to give clear and unambiguous notice that it intended to consolidate the preliminary injunction hearing with the trial on the merits, where gun rights activists did not disclose their expert's opinions before hearing; the city was unable to effectively cross-examine the activists' expert; the city made the strategic decision based on procedural status of the matter to not present expert or factual evidence; and the trial court relied on the activists' expert testimony in its resolution of the issues.

Before the trial court may order such consolidation or resolve the case on its merits, the trial court must give notice to the parties of its intent to consolidate the matters. Turoff v. Stefanac (1984), 16 Ohio App.3d 227, 228-229. We first note that the record does not contain any indication that either party or the trial court sought to consolidate the hearing on the motion for a preliminary injunction with a hearing on the merits of the Township's claim.

Thus, the general rule is that a court must " order the consolidation of a hearing on the application for a preliminary injunction with a trial on the merits, thus providing the parties with notice that the case is, in fact, being heard on the merits." Turoff v. Stefanac (1984), 16 Ohio App.3d 227, 228. See, also, City of Bexley v. Duckworth, supra.

Furthermore, this court has held that when a case is being heard on a motion for a temporary restraining order, a trial court may not consolidate that motion with a trial on the merits and enter judgment without clear and unambiguous notice of its intent to do so. Turoff v. Stefanac (1984), 16 Ohio App.3d 227, 229, 16 OBR 243, 245, 475 N.E.2d 189, 191. In Turoff the court stated that where both parties are present at the hearing for a temporary restraining order, rather than it being an ex parte proceeding, the trial court may treat the motion as one for a preliminary injunction.

Several Ohio courts have found error in such a consolidation absent a formal consolidation order prior to the hearing or some other form of notice that the trial court intends to proceed to the merits at the hearing. See id. at ¶ 10, citing Turoff v. Stefanac, 16 Ohio App.3d 227, 475 N.E.2d 189 (8th Dist.1984); Gionino's Pizzeria Inc. v. Reynolds, 7th Dist. Carroll No. 20 CA 0940, 2021-Ohio-1289, ¶ 44. This aligns with the U.S. Supreme Court's interpretation of the near-identical federal rule and its relationship to due process.

{¶ 22} "`[I]t is generally improper to dispose of a case on the merits following a hearing for a preliminary injunction without consolidating that hearing with a trial on the merits or otherwise giving notice to counsel that the merits would be considered.' Seasonings Etcetera, Inc. v. Nay (Feb. 23, 1993), Franklin App. No. 92AP-1056, 1993 Ohio App. LEXIS 1182, citing George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc. (1982), 5 Ohio App.3d 71, 5 Ohio B. 182, 449 N.E.2d 503; Turoff v. Stefanac (1984), 16 Ohio App.3d 227, 16 Ohio B. 243, 475 N.E.2d 189. `Before consolidation, the parties should normally receive clear and unambiguous notice of the court's intent to consolidate the trial and the hearing either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases.' Bd. of Edn. Ironton City Schools v. Ohio Dept. of Edn. (Jun. 29, 1993), Lawrence App. No. CA92-39, 1993 Ohio App. LEXIS 3476, citing Univ. of Texas v. Camenisch (1981), 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175; Warren Plaza v. Giant Eagle, Inc. (June 15, 1990), Trumbull App. No. 88-T-4122, 1990 Ohio App. LEXIS 2381, jurisdictional motion allowed, 55 Ohio St.3d 705, 562 N.E.2d 898, appeal dismissed (1992), 63 Ohio St.3d 497, 589 N.E.2d 23.

Civ.R. 65(B)(2) requires that a court order the consolidation of a hearing on the application for a preliminary injunction with a trial on the merits, thus providing the parties with notice that the case is, in fact, being heard on the merits. Turoff v. Stefanac (1984), 16 Ohio App.3d 227, 228. Yet, while Ohio Courts agree that a plaintiff is generally entitled to a full trial on the merits, it is clear that a court may dismiss a complaint where it finds that a plaintiff has failed to state a claim upon which relief can be granted and that plaintiff cannot state such a claim.

However, "it is generally improper to dispose of a case on the merits following a hearing for a preliminary injunction without consolidating that hearing with a trial on the merits or otherwise giving notice to counsel that the merits would be considered." Seasonings Etcetera, Inc. v. Nay (Feb. 23, 1993), Franklin App. No. 92AP1056, citing George P. Ballas Buick-GMC, Inc. v. Taylor Buick, Inc. (1982), 5 Ohio App.3d 71; Turoff v. Stefanac (1984), 16 Ohio App.3d 227. "Before consolidation, the parties should normally receive clear and unambiguous notice of the court's intent to consolidate the trial and the hearing either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases." Bd. of Edn. Ironton City Schools v. Ohio Dept. of Edn. (June 29, 1993), Lawrence App. No. CA92-39, citing Univ. of Texas v. Camenisch (1981), 45 U.S. 390, 395, 101 S.Ct. 1830; Warren Plaza v. Giant Eagle, Inc. (June 15, 1990), Trumbull App. No. 88-T-4122, jurisdictional motion allowed, 55 Ohio St.3d 705, appeal dismissed (1992), 63 Ohio St.3d 497