Dissenting Opinion
Staton, P.J.I dissent. The trial court’s judgment should be affirmed, since a determination by the trial court under Ind. Rules of Procedure, Trial Rule 23(C) (1) does not touch upon the merits of any issue contemplated by TR. 76(7). TR. 23(C) (1) provides:
“As soon as practicable after the commencement of an action brought as a class action, the court, upon hearing or waiver of hearing, shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits.”
This determination by the trial court is neither final in nature nor a determination of the merits on the claim as contemplated by TR. 76(7). The preliminary action contemplated by the trial court under TR. 23(C) (1) is- less than the preliminary action contemplated by the trial court under City of Fort Wayne v. State ex rel. Hoagland (1976), 168 Ind. 262, *154342 N.E.2d 865 where a preliminary injunction was held not to be a trial. The Rule, 23(C) (1), by its own terms denies any finality on the merits.
I would affirm the judgment of the trial court.
Note. — Reported at 363 N.E.2d 223.