                 IN THE MISSOURI COURT OF APPEALS
                         WESTERN DISTRICT
GARY COOK and MICHAEL A.         )
COOK,                            )
                    Respondents, )
                                 )
v.                               )                WD76288
                                 )
WILLIAM D. McELWAIN and          )                FILED: June 3, 2014
SHARON E. McELWAIN, Husband and )
Wife,                            )
                     Appellants. )

                        Appeal from the Circuit Court of Bates County
                          The Honorable Michael C. Dawson, Judge

   Before Division Two: Victor C. Howard, P.J., and Alok Ahuja and Gary D. Witt, JJ.

       The Circuit Court of Bates County issued permanent injunctive relief prohibiting a

contemplated lease of farmland owned by the Millard J. Cook Trust and the Laverne K. Cook

Trust. William and Sharon McElwain, the intended lessees of the property, appeal. Because the

circuit court erroneously denied the McElwains a trial on the merits of the request for a

permanent injunction, we reverse and remand the case to the circuit court for further

proceedings.

                                      Factual Background

       In May 1998, Millard Cook and his wife Laverne established two revocable trusts, the

Millard J. Cook Trust and the Laverne K. Cook Trust (collectively the “Trusts”). Both Trusts

own undivided one-half interests in land in Bates County.
          The beneficiaries of the Trusts are the lineal descendants of Millard and Laverne Cook.

The couple‟s children have been identified as Gary Cook, Michael Cook, Marilyn Wheatley,

Thomas Cook, David Cook, Delbert Cook, and Judy Cook Transue. David Cook is presumed to

be deceased but has a daughter, Janette.

          Laverne Cook passed away in 1999. At the time of the events underlying this lawsuit,

Millard Cook and his children Thomas Cook and Marilyn Wheatley acted as co-trustees of both

Trusts.

          Sharon McElwain is Millard Cook‟s niece, but is not a beneficiary of either Trust. In the

Fall of 2010, one or more of the Trustees agreed to sell a fifteen-acre parcel of the land owned by

the Trusts, on which a house was located, to the McElwains, and to lease the remaining trust

property to the McElwains with a right of first refusal to purchase the leased property.

          Other beneficiaries of the Trusts objected to these sale and lease transactions, arguing

among other things that they had not been offered the right to purchase or lease the property on

the same terms as the McElwains, and that the terms of the sale and lease transactions were not

in the best interests of the Trusts or the Trusts‟ beneficiaries. On December 3, 2010,

beneficiaries Gary Cook and Michael Cook filed suit, seeking a temporary restraining order, and

preliminary and permanent injunctive relief, to prevent the real-estate transactions from being

consummated.

          The circuit court initially entered a temporary restraining order against both the sale and

lease transactions, conditioned on the posting of a $15,000 bond. The court conducted a hearing

on Gary and Michael Cook‟s request for a preliminary injunction on February 8, 2011. On

February 24, 2011, the circuit court entered a preliminary injunction against the performance of




                                                   2
the lease agreement, but refused to enjoin the property sale. The court retained the bond Gary

and Michael Cook had previously posted.

       On December 28, 2011, Gary and Michael Cook filed a one-sentence Motion for

Permanent Injunction, which “request[ed] that the Preliminary Injunction previously entered

herein on February [24], 2011, be made a Permanent Injunction and that the bond previously

posted by Plaintiffs be released forthwith.” At a hearing on April 2, 2012, counsel for the

McElwains objected to the entry of a permanent injunction without a further hearing. Despite

the McElwains‟ objections, and without conducting any further evidentiary hearing, the circuit

court entered a judgment permanently enjoining the lease of Trust property to the McElwains on

the terms previously agreed, and releasing the $15,000 injunction bond.

       After the resolution of other claims on April 1, 2013, the McElwains filed this appeal.

                                      Standard of Review

       An action seeking injunction is an action in equity. The standard of review in a
       court-tried equity action is the same as for any court-tried case; the trial court‟s
       judgment will be sustained unless there is no substantial evidence to support it, it
       is against the weight of the evidence, or it erroneously declares or applies the law.

City of Greenwood v. Marietta Materials, Inc., 311 S.W.3d 258, 263 (Mo. App. W.D. 2010).

Questions of law are reviewed de novo. Id.

                                           Discussion

       The McElwains assert six Points on appeal. Their first Point argues that the circuit court

erred in granting a permanent injunction against the performance of the lease agreement without

holding a trial on the merits. Because we agree that the circuit court erroneously denied the

McElwains a trial on Gary and Michael Cook‟s demand for a permanent injunction, we reverse

without addressing the McElwain‟s remaining arguments.




                                                 3
        “There are „three permissible phases‟ in an injunction proceeding: (1) a temporary

restraining order granted against a defendant with or without notice or hearing; (2) a temporary

injunction granted after notice and hearing; and (3) a permanent injunction granted after a final

disposition on the merits of the case.” St. Louis Tele-Commc’ns, Inc. v. People’s Choice TV of

St. Louis, Inc., 955 S.W.2d 805, 807 (Mo. App. E.D. 1997) (quoting Jackes-Evans Mfg. Co. v.

Christen, 848 S.W.2d 553, 556 (Mo. App. E.D. 1993)); see also Pomirko v. Sayad, 693 S.W.2d

323, 324 (Mo. App. E.D. 1985). Rule 92.02(c)(3) authorizes the court to order the consolidation

of the hearings on preliminary and permanent injunctive relief. State ex rel. Myers Mem’l

Airport Comm., Inc. v. City of Carthage, 951 S.W.2d 347, 350 (Mo. App. S.D. 1997).1 Rule

92.02(c)(3) provides:

                At any time the court may order the trial of the action on the merits to be
        advanced and consolidated with the hearing of the application for a preliminary
        injunction. Any evidence received upon an application for a preliminary
        injunction admissible at the trial on the merits becomes part of the trial record and
        need not be repeated at the trial. This Rule 92.02(c)(3) shall be so construed and
        applied to preserve any party‟s right to trial by jury.

        The Missouri Supreme Court has made clear that “[g]enerally, a preliminary injunction

hearing is not . . . considered a „trial,‟ meaning a trial on the merits.” State ex rel. Cohen v.

Riley, 994 S.W.2d 546, 548 (Mo. banc 1999).

        Although [Rule 92.02(c)(3)] provides for the preliminary hearing to become part
        of the trial record, it does not, thereby, merge the two proceedings. To the
        contrary, the fact that the rule contemplates that evidence received at the hearing
        may (if it is admissible at the trial on the merits) be received into the trial record
        indicates that the two proceedings remain separate.

Id.




        1
                Prior to amendments effective on January 1, 1998, the provision authorizing
consolidation of the preliminary injunction hearing and the trial on the merits, now codified in Rule
92.02(c)(3), was contained in Rule 92.02(a)(2).


                                                     4
       “An order accelerating the trial on the merits and consolidating it with the preliminary

injunction hearing must be clear and unambiguous.” Cohen, 994 S.W.2d at 548. “Absent such

order, a trial court may not adjudicate the merits of a claim for a permanent injunction on the

evidence presented at a hearing on an application for a preliminary injunction unless the parties

so agree.” Myers Mem’l Airport Comm., 951 S.W.2d at 350; accord, Pomirko, 693 S.W.2d at

325; Reprod. Health Servs., Inc. v. Lee, 660 S.W.2d 330, 339 (Mo. App. E.D. 1983).

       In this case, the trial court gave no indication that it intended to rule the merits of the case

based solely on the evidence presented at the preliminary injunction hearing, until it actually

entered its judgment permanently enjoining the lease transaction. Moreover, when Gary and

Michael Cook‟s Motion for Permanent Injunction was argued, the McElwains‟ counsel expressly

objected to deciding the request for a permanent injunction without a further evidentiary hearing.

As part of his objection, the McElwains‟ counsel identified specific evidence, developed during

discovery, which he desired to present at the trial on the merits.

       Given the trial court‟s failure to provide the McElwains with any advance notice of its

intent to deny them a further hearing, and their timely objection to the denial of a full trial, the

permanent injunction entered by the circuit court must be reversed. We reversed a permanent

injunction in similar circumstances in Nelson v. Brentwood Condominium Association, 742

S.W.2d 233 (Mo. App. W.D. 1987). In Nelson, as here, the trial court entered a permanent

injunction following a preliminary injunction hearing, with no notice to the parties that it

intended to finally resolve the merits without a full trial. Nelson emphasized that the defendant

was provided with “no notice of consolidation except that referenced in the [permanent

injunction] order,” and that “there was no record which would indicate that the defendant did not

plan to present a case.” Id. at 236. Nelson explained that reversal was required because, absent a




                                                   5
consolidation order or agreement by the parties, “the cause may not be finally determined on the

evidence submitted at the hearing on the application for temporary injunction.” Id.

       We recognize that Rule 92.02(c)(3) states that a consolidation order may be entered “[a]t

any time.” The trial court‟s permanent injunction order had the effect of consolidating the trial

with the preliminary injunction hearing, since the prayer for permanent injunctive relief was

decided based solely on the evidence adduced during the preliminary injunction hearing. But

even if the circuit court‟s permanent injunction order were considered a consolidation order, it

came too late. Rule 92.02 is patterned after Federal Rule of Civil Procedure 65. Under Federal

Rule 65, notice of the trial court‟s intent to consolidate the preliminary injunction hearing with

the trial on the merits must be given in sufficient time to afford a litigant a reasonable

opportunity to marshal, and present, its evidence. As explained in a leading treatise:

               Since Rule 65(a)(2) provides that consolidation may be ordered “before or
       after beginning the hearing,” the trial court can transform a preliminary-injunction
       hearing into a consolidated hearing at any time and may do so on its own motion.
       This power must be tempered by the due-process principle that fair notice and an
       opportunity to be heard must be given the litigants before the disposition of a case
       on the merits. Judge (later Justice) Stevens . . . indicated the importance of this
       point in Pughsley v. 3750 Lake Shore Drive Cooperative Building[, 463 F.2d
       1055, 1057 (7th Cir. 1972)]. He said:

               If a consolidation of a trial on the merits with a hearing on a
               motion for a preliminary injunction is to be ordered, the parties
               should normally receive clear and unambiguous notice to that
               effect either before the hearing commences or at a time which will
               still afford the parties a full opportunity to present their respective
               cases. . . .

               Accordingly, ordering consolidation during the course of a preliminary-
       injunction hearing is reversible error when little or no notice is given of this
       change and the effect is to deprive a party of the right to present the case on the
       merits.

11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, FEDERAL PRACTICE &

PROCEDURE § 2950 (2d ed. 1995) (footnotes omitted); see also Univ. of Tex. v. Camenisch, 451



                                                  6
U.S. 390, 395 (1981) (quoting Pughsley). The treatise explains that the same problems arise

where – as here – a permanent injunction is issued following a preliminary injunction hearing,

with no notice of an intent to consolidate the trial on the merits with the preliminary injunction

hearing: “Because it is likely that one or more of the parties will not present their entire case at

an unconsolidated preliminary-injunction hearing, it ordinarily is improper to decide a case

solely on the basis of that type of a hearing.” Id. § 2950 (footnote omitted). Entry of a

permanent injunction without trial, and without notice of a consolidation of the trial with the

preliminary injunction hearing, is akin to “a sua sponte summary judgment” entered without

notice. Id. § 2950.

       Because the circuit court gave the McElwains no prior notice that it intended to finally

dispose of the case based on the evidence presented at the preliminary injunction hearing, and

because they objected to the entry of final judgment without trial and identified additional

evidence they desired to present, the permanent injunction must be reversed.

       Gary and Michael Cook contend that, despite the lack of a separate trial on their request

for a permanent injunction, we should affirm the judgment because – according to them – the

evidence required to obtain a preliminary injunction is often greater than that required to obtain a

permanent injunction. Because they had already presented enough evidence to obtain a

preliminary injunction, Gary and Michael Cook contend that they had necessarily presented

sufficient evidence to support the issuance of a permanent injunction.

       There are several fundamental defects in this argument. First, the elements necessary to

establish a right to preliminary and permanent injunctive relief are fundamentally different.

Issuance of a preliminary injunction depends in large part on an assessment of the movant‟s

likelihood of success, and the threat of irreparable harm if injunctive relief is not granted pending




                                                  7
a final resolution of the case. State ex rel. Dir. of Revenue v. Gabbert, 925 S.W.2d 838, 839

(Mo. banc 1996). At the permanent injunction stage, by contrast, the trial court must finally

determine the merits of the plaintiff‟s claims, not merely the plaintiff‟s probability of prevailing.

In addition, in deciding whether to issue permanent injunctive relief, the trial court must weigh

the harms which may be caused by the entry of an order which permanently prohibits or requires

particular action. The fact that Gary and Michael Cook persuaded the trial court to issue a

preliminary injunction does not necessarily establish their right to permanent injunctive relief.

       Second, because they were entitled to a separate trial on the merits before permanent

injunctive relief was ordered, the McElwains were not required to present their entire merits case

at the preliminary injunction hearing held on February 8, 2011. The McElwains may have

chosen not to present the entirety of their defensive case at the preliminary injunction hearing for

any number of reasons: due to inadequate time to prepare; to limit their litigation expenses; or

for strategic reasons. The fact that the trial court was not persuaded by the McElwains‟

presentation at the preliminary injunction hearing does not foreclose the possibility that they

would prevail after a full trial. The McElwains argued to the trial court that they had developed

relevant evidence during discovery, subsequent to the preliminary injunction hearing; yet they

were denied any opportunity to present that evidence to the court. In concluding that a full trial

was required, it is also relevant that Gary and Michael Cook bore the burden of proof, and the

risk of non-persuasion.

       Although Gary and Michael Cook argue that the court‟s findings supporting a

preliminary injunction made a trial unnecessary, it is well established that preliminary injunction

rulings are interlocutory, meaning that they are subject to being revisited prior to the final

disposition of the case. “The purpose of [a temporary restraining order or preliminary




                                                  8
injunction] is to preserve the status quo until the trial court adjudicates the merits of the claim for

a permanent injunction.” Myers Mem’l Airport Comm., 951 S.W.2d at 350; Pomirko, 693

S.W.2d at 324. Accordingly, temporary restraining orders and preliminary injunctions “are not

final judgments on the merits,” Pomirko, 693 S.W.2d at 324 ; they are instead considered to be

interlocutory, and not appealable. Id. at 324-25; see also, e.g., State ex rel. Dir. of Revenue v.

Gabbert, 925 S.W.2d at 839; Pointer v. Washington, 185 S.W.3d 801, 803 (Mo. App. E.D.

2006); Hair Kraz, Inc. v. Schuchardt, 131 S.W.3d 854, 854-55 (Mo. App. E.D. 2004); Coursen

v. City of Sarcoxie, 124 S.W.3d 492, 498 (Mo. App. S.D. 2004). Findings made at the

preliminary injunction stage are generally not binding at trial. As the Supreme Court of the

United States has explained:

               The purpose of a preliminary injunction is merely to preserve the relative
       positions of the parties until a trial on the merits can be held. Given this limited
       purpose, and given the haste that is often necessary if those positions are to be
       preserved, a preliminary injunction is customarily granted on the basis of
       procedures that are less formal and evidence that is less complete than in a trial on
       the merits. A party thus is not required to prove his case in full at a preliminary-
       injunction hearing, and the findings of fact and conclusions of law made by a
       court granting a preliminary injunction are not binding at trial on the merits. In
       light of these considerations, it is generally inappropriate for a federal court at the
       preliminary-injunction stage to give a final judgment on the merits.

Camenisch, 451 U.S. at 395 (citations omitted); see also 11A FEDERAL PRACTICE & PROCEDURE

§ 2950 (“Based, as they usually are, on incomplete evidence and a relatively hurried

consideration of the issues, these provisional decisions should not be used outside the context in

which they originally were rendered.”).

       Therefore, the fact that the trial court may have made findings of fact favorable to Gary

and Michael Cook following the preliminary injunction hearing does not somehow make it

unnecessary to hold a trial on the merits of their request for permanent injunctive relief.




                                                   9
                                             Conclusion

       The circuit court erred by entering a permanent injunction, over the McElwains‟

objection, without conducting a trial on the merits. The judgment is reversed, and the case is

remanded to the circuit court for further proceedings consistent with this opinion.2




                                                 __________________________________
                                                 Alok Ahuja, Judge
All concur.




       2
                Given our disposition it is unnecessary to address the McElwains‟ remaining claims. We
note, however, that the trial court released the injunction bond as part of the judgment which made the
preliminary injunction permanent. Our reversal of the judgment has the effect of vacating the order
releasing the bond.


                                                  10
