Karen King Mitchell, Judge
George Massood, Interstate Signs, Inc., and Lynn Oak Court Company, L.P., appeal the trial court’s judgment ordering the trustees of the Donald E. Hutchison Trust (“the Trust”) and the Estate of Donald Hutchison (“the Estate”) to transfer all of their interest in' Interstate Sign and Lynn Oak to Lester Massood.
We reverse and remand.
Facts
George and Hutchison were business associates, and both owned interests in two businesses: Interstate Signs and Lynn Oak. George and Hutchison were the sole and equal general partners of Lynn Oak. They were also limited partners, of which there were several others. George and Hutchison were also the sole and equal stockholders of Interstate Signs. Both businesses were subject to agreements setting forth the manner in which an owner could transfer his interest in the business.
The partnership agreement for Lynn Oak requires that “[a]ny transfer ... of the interest of any [p]artner ..., other than upon the death or adjudication of incompetency of [the pjartner ... shall be made only in compliance with the” agreement’s provisions. Specifically, for the transfer of general partnership interests, the partner must first obtain the prior written consent of the partners owning an aggregate two-thirds of the partnership; and for the transfer of limited partnership interests, the limited partner must first tender an offer to the general and limited partners to purchase the interest.
The stockholders’ agreement for Interstate Signs contained the following limitation on the transfer of interest:
No shares of Stock and no interest in any shares of Stock shall be voluntarily transferred by a Stockholder except in accordance with this Agreement, unless all of the parties hereto consent in writing to such transfer. Any transfer not in accordance with this Agreement or without such consent shall be null and void.
The agreement gives Interstate Signs and the remaining shareholder the right to purchase the stock before either shareholder transfers any interest.
On November 24, 2008, Hutchison created the Trust. The parties agree for purposes of appeal that Hutchison purported to transfer all of his interests in Interstate Signs and Lynn Oak to the Trust. In May of 2009, Hutchison amended the Trust to transfer, upon Hutchison’s death, all of his interest in Interstate Signs and Lynn Oak held in the Trust to Massood. Hutchison died in November of 2013. On January 15, 2015, George created and signed a notarized statement indicating that: “I George Massood want the shares from Don Hutch-ison to transfer to Lester Massood as per Don Hutchison’s will[
] and desires.” Approximately a month later, George executed a second notarized document, this time stating that “I, George Massood, do hereby declare and state that I approve of the transfer of all business assets of Don Hutchison in whatever state of ownership they are currently in to Lester G. Mas-sood.”
Upon Hutchison’s death, Massood began receiving Hutchison’s half of the monthly proceeds from Interstate Signs and was made a signatory of the business’s checking account.
In September or October of
2014, Interstate Signs stopped payment on Massood’s monthly distribution cheek and moved the business’s funds to a new account, over which Massood was not a signatory.
Procedure
In April of 2014, John and Shirley Aaron, as personal representatives of the Estate, filed suit against Massood for unjust enrichment and conversion and against Lynn Oak and Interstate Signs for accounting, alleging,
inter alia,
that in the years before his death, Hutchison did not receive all distributions from the businesses to which he was entitled, and that the distributions went to Massood when they should have gone to the Estate. Massood counterclaimed against the Aar-ons in their capacity as trustees of the Trust,
alleging that they had failed to transfer Massood’s interest in Lynn Oak and Interstate Signs to him upon Hutchi-son’s death, in accordance with the terms of the Trust. Massood sought relief in the form of compensatory and punitive damages.
In November of 2014, Massood filed an application for temporary restraining order and petition for preliminary injunction, alleging that the Aarons were dissipating the assets of the Trust and requesting that the trial court order them to “immediately release [to Massood] all shares of stock in Interstate Signs, Inc. and any interest in Lynn Oak” held by the Trust.- George, Interstate Signs, and Lynn Oak
then moved to intervene as plaintiffs. Attached to the Intervenors’- motion was a petition for declaratory judgment. Intervenors claimed that Hutchison’s attempt, during his life, to transfer his shares in Interstate Signs and his partnership interest in Lynn Oak into the Trust was null and void because the transfer was inconsistent with the terms of the shareholder and partnership agreements. They sought intervention as of right and alternatively, permissive intervention, arguing that Massood could not represent their interests. The trial court granted the motion to intervene.
The trial court set the hearing on the request for preliminary injunction for June 4, 2015, and set the trial on the merits for September 18, 2015.' At the preliminary injunction hearing, Massood, the Estate, and the Aarons (as trustees) announced that they had reached an
agreement settling the various issues between them, and that- they wished “to present evidence both on the preliminary injunction and on the settlement that’s been reached.” ■ They also requested that the trial court approve the settlement. Counsel for Intervenors objected .to the trial court holding a hearing on “ultimate issues,” when . a preliminary, injunction hearing had been scheduled; they also objected to what they deemed an effort to “circumvent [the preliminary injunction] process through some settlement agreement which obviously isn’t binding upon the” Intervenors. After acknowledging that the hearing was to address the preliminary injunction and stating that the court did not intend to approve the settlement, the trial court determined that it would “go ahead and proceed,” noting that, if Intervenors “feel that [the trial court] has no power to go forward, they certainly have the ability to file a writ of prohibition.” Intervenors responded that there was “no such intent.”
Massood testified regarding the background of the dispute generally, as well as the details of the settlement, which included the Estate and Trust transferring to Massood all interest they had in Interstate Signs and Lynn Oak. Massood’s evidence included the Lynn Oak partnership agreement, .the Interstate Signs- stockholders’ agreement, Hutchison’s will, the amendment to the Trust granting Massood the interests in Lynn Oak and Interstate Sign, and the two approval documents signed by George. Massood also testified, without objection, that George had never expressed any objection-to Massood receiving the interests and that, at a hearing on a different matter several weeks earlier, George had specifically testified that he had no objection to Massood receiving Hutchison’s interests 'in both companies.
During cross-examination of Massood, counsel for Intervenors handed Massood a document, titled Revocation of Declarations and Statements, in which George purportedly revoked the prior “approvals, declarations and consents of George Mas-sood” as they pertained to the transfer of interest in Interstate Signs and Lynn Oak. The document was dated the same day as the hearing and was purportedly signed by George on behalf of himself, Interstate Signs,, and Lynn Oak. When questioned about the signature, Massood testified, “I can’t tell if it’s [George’s] signature. It doesn’t look like his normal signature.” George did not testify, and Intervenors offered no other testimony.
Following the hearing, the trial court'determined that the limitations on transfer contained in the Lynn Oak partnership agreement did not apply to prohibit transfers out of the Trust because the restrictions were inapplicable when the transfer was due to the death of the partner, and the transfer that Massood sought here was “caused by the death of Don Hutchison.”
The court also found that, in
any event, George’s consent to the transfers to Massood met the conditions for transferring a partner’s interests under the partnership agreement. Additionally, the court found that George, the only other shareholder of Interstate Signs, had consented in "writing to the transfer out of the Trust to Massood, in accordance with the conditions of the stockholder’s agreement. Finally, the trial court found Inter-venors’ objections to be “invalid and not lawful objections,” and that Intervenors “have agreed that they have presented their claims here in open court ... and that [Intervenors] agree that the judgment of the court shall be binding on [Interve-nors] and that [Intervenors] will follow any ruling ... with respect to the alleged restrictions of the transfer of the interest in Interstate Signs” and Lynn Oak. The trial court.entered judgment in accordance with the settlement agreement,
ordering,
inter alia,
that the Estate
and Trust transfer all interests in Lynn. Oak and Interstate Signs to Massood and that Interstate Signs “show in its official stock transfer book that [Massood] is now the owner of 725 shares.”
Intervenors timely filed this appeal.
Standard of Review
“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.”
Cook v. McElwain,
432 S.W.3d 286, 289 (Mo.App.W.D.2014) (quoting
City of Greenwood v. Marietta Materials, Inc.,
311 S.W.3d 258, 263 (Mo.App.W.D.2010)).
Analysis
In addressing Intervenors’ points, we must focus on the claims each party had pending at the time of the preliminary injunction hearing and how the Judgment resolved those claims. Claims pending-at the time of the hearing included: (1) the Aarons’, .claims, as. personal representatives, -against Massood for unjust enrichment and conversion, as well as their claims against Lynn Oak and Interstate Signs for accounting; (2) Massood’s counterclaims against the Aarons, as trustees, alleging that they had failed to transfer Massood’s interest in Lynn Oak and Interstate Signs to him upon Hutchison’s death and seeking damages; (3) Massood’s petition for preliminary injunction, seeking immediate , transfer of the business assets from the Trust; and (4) Intervenors’ declaratory judgment action, seeking a declaration that Hutchison’s attempt, during his life, to transfer his shares in Interstaté Signs and his partnership interest in Lynn Oak into the Trust was null and void because the transfer was inconsistent with the terms of the shareholder and partnership agreements.
The parties to the settlement agreement are the Aarons (as both trustees and personal representatives) and Massood. A settlement is a contract.
While parties to a settlement are allowed to settle any and all issues between them, “a contract generally binds no one but the parties thereto, and it cannot impose any contractual obligation or liability on one not a party to it.”
Jay Wolfe Used Cars of Blue Springs, LLC v. Jackson,
428 S.W.3d 683, 689 (Mo.App.W.D.2014) (quoting
Landstar Invs. II, Inc. v. Spears,
257 S.W.3d 630, 632 (Mo.App.S.D.2008));
Matthes v. Wynkoop,
435 S.W.3d 100, 107 (Mo.App.W.D.2014) (“Settlement agreements are contracts and subject to contract law.” (quoting
Women’s Care Specialists, LLC v. Troupin,
408 S.W.3d 310, 315 (Mo.App.E.D.2013)));
Netco, Inc. v. Dunn,
194 S.W.3d 353, 358-59 (Mo. banc 2006) (declining to hold a non-signatory to an agreement subject to that agreement’s arbitration clause). Intervenors were not parties to the settlement agreement. ■ And absent specific circumstances that are not present here,
Scharf v. Kogan,
285 S.W.3d 362, 370 (Mo.App.E.D.2009), Intervenors cannot be bound by the agreement. Therefore, the Estate, the Trust, and Mas-sood could not settle claims that Interve-nors had pending. Central to resolving the issues in this ease is whether the trial court’s judgment, which purports to both resolve the petition for preliminary injunction and adopt the terms of the settlement agreement, properly resolved Intervenors’ petition for declaratory judgment and resolved, on the merits, other contested issues.
In their three points, Intervenors urge that the trial court committed reversible error in: (1) combining the preliminary injunction hearing with a trial on the merits without agreement from the parties or a clear order consolidating the preliminary injunction and trial; (2) incorrectly interpreting the Lynn Oak partnership agreement to allow the transfer of partnership interests from the Trust to Massood without first giving the remaining partners the right of first refusal; and (3) incorrectly interpreting the Interstate Signs stockholder agreement to allow transfer of ownership from the Trust to Massood without written consent from the remaining shareholders. Because we grant Intervenors’ Point I, we need not reach Points II and III.
A. The trial court improperly combined the preliminary injunction hearing and the trial on the merits.
In their first point, Intervenors argue that the trial court inappropriately consolidated the scheduled preliminary injunction hearing with the trial on the merits of the parties’ claims. We agree.
Under Rule 92.02(c)(3), “[a]t 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.” Moreover, “[a]ny 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.”
Id.
However, “[a]n order accelerating the trial on the merits and consolidating it with the preliminary injunction hearing must be clear and unambiguous.”
Cook,
432 S.W.3d at 290 (quoting
State ex rel. Cohen v. Riley,
994 S.W.2d 546, 548 (Mo. banc 1999)). And the order “consolidating] the preliminary injunction hearing with the trial on the merits must be given in sufficient time to afford a litigant
&
reasonable opportunity to marshal, and present, its evidence.”
Id.
at 291. “Absent such order, a trial court may not adjudicate the .merits of a claim for a permanent [relief] on the evidence presented at a hearing on an application for a preliminary injunction unless the parties so agree.”
Id.
at 290 (quoting
State ex rel. Myers Mem’l Airport Comm., Inc. v. City
of Carthage,
951 S.W.2d 347, 350 (Mo.App.S.D.1997)). Therefore, the question before this court is three-fold: (1) whether the trial court adjudicated at the preliminary hearing any permanent relief sought by or against Intervenors; (2) if so, whether the court clearly and unambiguously ordered that the issues on the merits be consolidated with the preliminary hearing and did so at a time that afforded Intervenors a full opportunity to present their case; and (3) if the trial court did not clearly and unambiguously order consolidation, whether In-tervenors effectively consented to all issues being resolved at the -preliminary hearing.
First, it is clear that the trial court resolved all pending issues on the merits, including Intervenors’ petition for declaratory judgment, based on the evidence presented at the preliminary hearing. Mas-sood’s petition for preliminary injunction prayed for the immediate release to him of all shares of stock in Interstate Signs and any interest in Lynn Oak owned by the Trust. In response, Intervenors argued that Hutchison’s attempted
inter vivos
transfer of business assets into the Trust was ineffective and that, if .those assets remained part of the Estate, the propriety of any transfers must be determined by the probate court, where an action regarding the Estate was pending. Similarly, in their petition for declaratory judgment, In-tervenors argued that Hutchison’s attempted
inter vivos
transfer of his shares in Interstate Signs and his partnership interest in Lynn Oak into the Trust did not comply with stockholder and partnership agreements. In their prayer for relief, In-tervenors asked for a declaration of who is entitled to the ownership of interest in the companies formerly owned by Don Hutchi-son.
In its Judgment the trial court ordered: that any interest that the Estate of Donald E. Hutchison has. or the Donald E. Hutchison Trust has in Interstate Signs, Inc. and Lynn Oak Court1 Company LP shall hereby be transferred to the Defendant Lester Massood;
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that the objections raised by intervening party Interstate Signs, Inc. to the transfer of shares from the Don Hutchison Trust or from the Estate of Don Hutchi-son to the Defendant Lester Massood are hereby found to be invalid and not lawful objections to the transfer of these interests to the Defendant Lester Mas-sood;
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that the intervening party Lynn Oak Court Company LP’s objections, to the -transfer of any interest in the partnership held by the estate of Don Hutchison or by Don-Hutchison Trust dated November 24, 2008 as amended the Court hereby finds that - those objections are not lawfully supported and that any interests that the Estate, of Don Hutchi-son and the Don Hutchison Trust had in Lynn Oak Court Company LP shall now be transferred to the Defendant Lester Massood as per the provisions of the Don Hutchison Trust dated November 24, 2008 as amended;
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that the Defendant Interstate Signs, Inc. shall show on its official stock transfer record book that Defendant Lester Massood is now the owner of 725 shares of Interstate Signs Inc.;
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that any interest in the partnership held by Don Hutchison shall be transferred to the Defendant Lester Massood.
Thus, the trial court issued a final judgment, resolving on the merits the issues raised in Intervenors’ Petition for Declara
tory Judgment, and with other matters for which relief was not sought in the petition for preliminary injunction (i.e., apparently holding, in the alternative, that the business assets could transfer from the Estate to Massood pursuant to Hutchison’s will). Massood argues that the trial court’s judgment only resolved the petition for preliminary injunction and approved the settlement between him and the Aarons (as trustees), because there were no claims for permanent relief before the court. Mas-sood’s claim is two-fold. First, he argues that Intervenors never filed their petition for declaratory judgment following the granting of the motion to intervene and that they, therefore, had no claims pending before the court. But the record shows that the petition was filed contemporaneously with the motion to intervene, which is all that ⅛ required. Rule 52.12(c) (“The motion [to -intervene] shall state the grounds therefore, and shall be accompanied by a pleading setting forth the claim or defense for which intervention' is sought.”). “Rule 52.12(c) does not require separateness, only that the pleading accompany the motion.”
Moxness v. Hart,
131 S.W.3d 441, 447 (Mo.App.W.D.2004).
‘ Second; Massood argues that he did not request a permanent injunction. If Inter-venors had not properly filed them petition for declaratory judgment, the lack of a petition for permanent injunctive relief might cast doubt on whether the trial court inappropriately resolved a request for permanent relief based solely on evidence presented at the preliminary hearing.
See Dye v. Mo. Dep’t of Soc. Servs.,
476 S.W.3d 359, 362 n. 4 (Mo.App.W.D.2015) (declining to resolve the question of “whether the introduction of evidence to secure a preliminary injunction constitutes the submission of evidence at trial ... when a preliminary (but not a permanent) injunction is the principle relief sought by a petition”). Although Rule 92.02(c)(3), on its face, appears to apply to any “trial of the action on the merits,” we need not address this issue because Massood incorrectly. characterizes his. counterclaim as merely requesting a preliminary - injunction. Massood sought, ■ among other things, “an Order directing the [Trust] to immediately release all shares of stock in Interstate Signs, Inc. and any interest in Lynn Oak ... to the Defendant. Lester Massood.” This is not a request for preliminary injunctive relief, which is available only “to.preserve the status quo and prevent irreparable injury to the plaintiff pending the disposition of a case on its merits.”
Dodson v. City of Wentzville,
133 S.W.3d 528, 537 (Mo.App.E.D.2004); § 526.050 (A preliminary injunction is appropriate to “restraint ] the commission or continuance of some act . \the commission or continuance of which, during the litigation, would produce injury to the plaintiff, or ... [to restrain] some act ... tending to render the judgment ineffectual.”). Nor is the trial court’s judgment couched in terms of'the necessary underpinning for preliminary relief, i.e., “the movant’s probability of success on the merits, any threat of irreparable harm absent the injunction, and the balance between the harm itself "and any harm the issuance of the injunction would inflict.”
Minana v. Monroe,
467 S.W.3d 901, 907 (Mo.App.E.D.2015). Rather, the judgment affords permanent relief. Thus, claims for permanent relief were pending before the trial court, and they were resolved by the court’s judgment following the preliminary injunction hearing.
Next, we must determine whether the trial court clearly and unambiguously indicated its intent to rule the merits of the case based solely on the evidence presented at the preliminary injunction hearing.
Cook,
432 S.W.3d at 290. Pursuant to Rule 92.02(c)(3), the trial court “may
order a consolidation of the preliminary injunction with the trial on the merits ‘at any time’ for whatever reason the judge may find suitable,”
Cohen,
994 S.W.2d at 550 (Wolff, J., concurring), “so long as such ruling is made
explicitly.” Id.
at 549 (emphasis added). Such a ruling may occur before or, conceivably, after the beginning of, the preliminary heáring.
Cook,
432 S.W.3d at 291. Here, the potential breadth of the preliminary hearing came up, for the first time, at the hearing. There was no explicit ruling from the trial court, and the understanding of what issues were to be tried at the hearing appears to have been, at best, unclear.
There was an extended discussion between counsel for the various parties and the court, before the presentation of evidence began, regarding what was to transpire that day. Intervenors’ counsel began by noting that, “it’s my understanding that this hearing was noticed up for the hearing on the preliminary injunction and not the underlying case.. Am I missing something?”
The court then checked the file and confirmed that the “ultimate trial [was set for] September 18, 2015, [and that the] preliminary injunction” was continued “to today’s date.” Massood’s counsel then stated, “we’re going to proceed on our preliminary injunction,” but noted that he also intended to present evidence of a settlement between Massood, the Estate, and the Aarons. The court then stated its understanding that this would “still leave[ ] open the permanent injunction, if any.” Massood’s counsel responded, “well, I guess. I suppose.” But then he indicated that Massood and the Aarons (as trustees) had settled “some of the issues that arise out of the preliminary injunction.” Specifically, he indicated that the Aarons had agreed to convey certain interest in the companies to Massood, and the settlement “resolves the claims of the plaintiff against the defendant.” Intervenors expressed concern that presenting evidence of the settlement might suggest that the trial court approved the terms of the settlement. The court responded, “Certainly, as the court, I’m not here to approve anything. If there’s a settlement that’s been reached, it’s the settlement between two parties.” In response, Massood’s counsel indicated that he did indeed intend to ask the court to approve the settlement.
There was a lengthy discussion of the settlement, with Intervenors claiming they were completely surprised by the settlement and the Aarons arguing that Interve-nors should have'ibeen aware that settlement was possible because Intervenors were invited to attend mediation between Massood and the Aarons. Without any further indicatiqn from the court of what issues would be .addressed at the hearing, the court said, “Let’s do this. Let’s go ahead and proceed. And, obviously, if [In-tervenors] feel that this Court has no power to go forward, they certainly have the ability to‘file a writ of prohibition against this Court and they have the available means. And if they intend to do that, obviously, I’ll make sure that all proper procedures are followed to allow that writ of prohibition.” Intervenors responded that, “there is no such intent, Your Hon- or.” The hearing proceeded, with Mas-sood presenting evidence of the terms, of the settlement, as wéll as how he would be harmed by not having immediate access to the interest in the companies to which he claimed to be entitled. . .
The record does not support the finding that the trial court explicitly com
municated to Intervenors its intent to resolve claims for permanent relief based on the evidence presented at the preliminary injunction hearing. The court never stated clearly or unambiguously what issues were to be resolved at the hearing. The only express statements from the court were its acknowledgement that the hearing was to address the preliminary injunction and that it did not intend to approve the parties’ settlement. At most, the court’s comments and actions suggested that it would allow Massood to put on evidence of the settlement, which, the court itself noted, “still leaves open the permanent injunction, if any.” It was not clear that this evidence would have any effect beyond the decision of whether to grant or deny the relief sought in the petition for preliminary injunction (transfer of any business assets held in the Trust), or that Intervenors would be deprived of any opportunity to provide evidence of their own should they choose not to do so at that hearing.
“The parties are entitled to a separate trial on the merits before [the ultimate merits are] ruled upon and, thus, they are not required to present their entire case at the, preliminary injunction stage.” State
ex rel. Koster v. Didion Land Project Ass’n, LLC,
469 S.W.3d 914, 918 (Mo.App.E.D.2015). “Because it is likely that one or more of the parties will not present their entire case at the unconsolidated preliminary-injunction hearing, it ordinarily is improper to decide a case solely on the basis of that type of a hearing.”
Cook,
432 S.W.3d at 291 (quoting Charles Alan Wright, Arthur R. Miller
&
Mary Kay Kane, FEDERAL PRACTICE
&
PROCEDURE § 2950 (footnote omitted)). “Entry of [judgment] without trial, and without notice of a consolidation of the trial with the preliminary injunction hearing, is akin to ⅛ sua sponte summary judgment’ entered without notice.”
Id.
(quoting Wright at § 2950). “For these reasons, the trial court may not simply adjudicate the merits of a claim for permanent [relief] on the evidence presented at a preliminary injunction hearing.”
Didion,
469 S.W.3d at 918-19.
This is particularly true where, as here, the basis for the permanent relief ordered by the court is factually and legally distinct from the basis for' the preliminary relief sought by Massood. Massood’s request for a preliminary injunction was directed at the Aarons (as trustees) and was based on the allegation that the Aarons failed to transfer business assets out of the Trust upon Hutchison’s death. In contrast, Intervenors’ petition for declaratory judgment is based on allegations that the business assets were never properly transferred into the Trust and thus were not
subject to transfer to Massood pursuant to the terms of the Trust. Further, Interve-nors argued that, if the business assets were never effectively transferred into the Trust, they remain .a part of Hutchison’s estate, and issues related to disposition of estate assets, pursuant to Hutchison’s will, must be addressed by the probate court. While these issues are intertwined, Inter-venors’ petition for declaratory judgment and any claims regarding Massood’s right to assets under the will present-factual and legal issues that are unique from those presented by Massood’s petition for preliminary injunction.
Finally, we must address whether Inter-venors agreed to have claims for permanent relief adjudicated on the merits based on evidence presented at the preliminary injunction hearing.' This court has held that, absent a clear and unambiguous order of consolidation, a court may not adjudicate the merits of a claim for permanent relief on the evidence presented at a hearing on the application for preliminary injunction, “unless the parties agree,”
Cook,
432 S.W.3d at 290, or the record indicates that the party opposing adjudication on the merits “did not plan to present a case.”
Nelson v. Brentwood Condo. Ass’n,
742 S.W.2d 233, 236 (Mo.App.W.D.1987).
Here, the trial court expressly found that:
the intervening parties have agreed that, they have presented their claims here in open court with respect to any objections to the transfer from the Don Hutchison Estate or the Don Hutchison Trust to the Defendant Lester Massood with respect to the two entities Interstate Signs, Inc. and Lynn Oak,Court Company LP and that the intervening parties agree that the judgment of-the court shall be binding on the intervening parties and that the intervening parties will follow any ruling made by this court with respect to the alleged restrictions of the transfer of the interest in Interstate Signs, Inc. to the Defendant Lester Massood or the transfer of any interest in the partnership Lynn Oak Court Company LP to the Defendant Lester Massood.
We find nothing in the record that supports this conclusion.
As noted
supra,
Intervenors began the pre-hearing discussions by stating, “it’s my understanding that this was noticed up for the hearing on the preliminary injunction and not the underlying case.” The court confirmed that the ultimate trial was set at a future date and that it was the preliminary injunction hearing that was set for trial that day. The discussion then turned to Massood’s plan to put bn evidence of a settlement between himself and the Aar-ons. Noting that the matter was set for only a preliminary injunction, Intervenors “objected] to any effort to circumvent that process through some settlement agreement which obviously isn’t binding upon us.” There is nothing in this exchange that indicates the Intervenors agreed to the entire case being tried on the merits at the preliminary injunction hearing.
Massood argues that Intervenors did consent to the' trial court’s consolidating the preliminary injunction hearing with the trial on the merits because Intervenors did not object to the trial court proceeding on the merits. Massood relies on Interve-nors’ response that they did not intend to file a writ when the trial court offered that as a possibility as well as the fact that Intervenors did not file for a writ. There are two problems with this argument. First, as noted
supra,
although the court elected to “proceed,” which suggested that Massood would be allowed to present evidence of his settlement with the Aarons, it was unclear that this evidence, would be used for anything other than the- decision
whether to grant the preliminary injunction. Further, Intervenors’ decision to exercise their right to appeal — as opposed to filing an extraordinary writ — is hardly the same as consenting to the consolidation of the preliminary injunction hearing with the trial.
A party seeking a writ has “the burden of showing that it had a clear and unequivocal right to .the ... relief requested.”
Pub. Sch. Ret. Sys. of Sch. Dist. of Kansas City v. Mo, Comm’n on Human Rights,
188 S.W.3d 35, 42 (Mo.App.W.D.2006). Moreover, a writ will issue only if there is.a lack of an adequate remedy by appeal.
State ex rel, Riederer v. Mason,
810 S.W.2d 541, 543 (Mo.App.W.D.1991). Here, since it was not clear at the time of the hearing that the trial court had decided to consolidate the hearing with the trial, it would .have been impossible for Intervenors to show any harm, much less any harm: that, could not be remedied by an appeal. Accordingly, any attempt, by Intervenors to seek a writ in this court before judgment would likely have been a futile gesture.
Massood appears to argue that, even if the trial court did not give clear and unambiguous notice of consolidation and Intervenors did not consent to consoliT dation, Intervenors were not prejudiced because they, received a full hearing at which they were allowed .to present evidence, cross-examine Massood, and offer, a number of their own exhibits. This argument has been rejected a number of times. First among “several fundamental,defects in 'this argument” is that “the elements necessary to establish a right to preliminary and permanent injunctive -relief are fundamentally different.”
Cook,
432 S.W.3d at 292. “Issuance of a preliminary injunction depends in large part on an assessment of the movant’s
likelihood
of success, and the threat rof irreparable harm if injunctive relief is riot granted
pending a final resolution
of the casé.”
Id.
By contrast, -“at the permanent injunction stage, -the trial court must finally determine the merits of the claims — not merely the probability of-prevailing — and weigh the harm caused by an order that permanently prohibits or requires a particular action.”
Didion,
469 S.W.3d at 918.
Second, because Intervenors were “not required to present their entire case at the preliminary injunction stage,”
id.,
they “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.”
Cook,
432 S.W.3d at 292 (emphasis added). “The fact that the trial court was not persuaded by the [Intervenors’] presentation at the preliminary injunction hearing does not foreclose the possibility that they would prevail after a full trial.”
Id.
Because of the substantial procedural differences between the interlocutory preliminary injunctions and judgments on the merits,- a hearing on a motion for preliminary injunction simply is not a substitute for the trial on the merits.
Point I is granted.
Conclusion
■ Because the trial court improperly consolidated the hearing on the motion for preliminary injunction with the trial on the merits, we reverse and remand to the circuit court to conduct a trial.
Victor C. Howard, Presiding Judge, and Thomas H. Newton, Judge, concur.