Indiana Trial Rule 65(A)(2) allows a trial court to advance and consolidate a trial on the merits with a preliminary injunction hearing. The rule explicitly authorizes this action either “[b]efore or after the commencement of the hearing.” A trial court must ordinarily provide notice to the parties when it intends to exercise this authority. Consolidation without notice is not reversible error, however, absent a showing of prejudice, which requires identification of evidence that was not adduced at the hearing and might reasonably affect the outcome. Identification of steps the party might have taken in hopes of producing unspecified new evidence is insufficient where the parties have been afforded reasonable opportunity to develop the facts through discovery or access to relevant witnesses and documents.
Conclusion (slip op. at 14): The trial court’s consolidation pursuant to Trial Rule 65(A)(2) and entry of final judgment are affirmed.
Key Analysis (slip op. at 14): We prefer to resolve cases on the merits if in doubt, and we therefore find no waiver in this case but observe that Community’s argument finds support in the foregoing federal authority. In the future, of course, parties should be mindful that a request for relief available only in a final judgment after a preliminary injunction hearing may invite consolidation under Trial Rule 65(A)(2) and waive any objection to lack of notice.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.