dissenting: The majority concludes that the plaintiffs failed to preserve their challenge to the trial court’s decision to rule on the merits of their petition after only a preliminary hearing. Because I believe that the plaintiffs did preserve this issue, and because I view the trial court’s action as an egregious denial of the plaintiffs’ rights to notice and a fair hearing, I respectfully dissent.
It is axiomatic that due process guarantees “the right to be heard at a meaningful time and in a meaningful manner.” Bragg v. Director, N.H. Div. of Motor Vehicles, 141 N.H. 677, 679, 690 A.2d 571, 573 (1997) (quotation omitted). Consistent with this guarantee, *168“fair notice and an opportunity to be heard must be given the litigants before the disposition of a case on the merits.” K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 913 (1st Cir. 1989) (quotation omitted). Because preliminary injunctions serve only to preserve the status quo until a trial on the merits is held, “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.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). Accordingly, “it is generally inappropriate for a [trial] court at the preliminary-injunction stage to give a final judgment on the merits.” Id.
Superior Court Rule 161(b)(2) empowers the trial court, in an appropriate case, to decide the case on the merits at the preliminary injunction phase. That rule states: “Before, or after, the commencement of the hearing of an application for a preliminary injunction, the Court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.” SUPER. CT. R. 161(b)(2). Federal courts that have construed the identical federal rule have concluded that the trial court must give “clear and unambiguous notice” of its intent to consolidate the proceedings “either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases.” Woe by Woe v. Cuomo, 801 F.2d 627, 629 (2d Cir. 1986) (quotation omitted). Such notice is demanded by due process, see K-Mart Corp., 875 F.2d at 913, and implicit in the rule’s use of the term “order,” see T.M.T. Trailer Ferry v. Union De Tronquistas, P.R., Loc. 901, 453 F.2d 1171, 1172 (1st Cir. 1971); Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651, 652 (4th Cir. 1971).
The trial court in this case notified the parties that it would conduct a hearing to consider the plaintiffs’ request for a preliminary injunction at which the parties would be limited to offers of proof and fifteen minutes to present such offers. After the hearing, however, the trial court did not simply rule on the preliminary injunction, but denied the plaintiffs’ petition on the merits. Although the majority characterizes the trial court’s order as merely dismissing the petition for failure to allege facts sufficient to constitute cognizable claims, the conclusion is inescapable that the trial court denied the petition on the merits. The trial court did not, as suggested by the majority, dismiss the plaintiffs’ taking claim “[b]ecause the plaintiffs made no factual allegations that would allow the court to conclude that RSA 674:16, V . . . effected a taking.” Rather, the court found that the plaintiffs “presented no evidence which would allow the court to invalidate the statute under *169the takings clause.” (Emphasis added.) After determining that the plaintiffs failed to present sufficient evidence, the court ruled that their “Petition for Declaratory Judgment and Injunctive Relief is DENIED.”
The record reveals that the trial court gave no indication that it would rule on the merits of the petition prior to issuing its order. Having received no notice that the court would consolidate the merits hearing with the temporary hearing, the plaintiffs were “effectively denied . . . any opportunity to develop [their] evidence and arguments for declaratory relief.” N.H. Right to Life Political Action Com. v. Gardner, 99 F.3d 8, 16 (1st Cir. 1996). Even more egregious was the trial court’s determination that the plaintiffs’ substantive due process challenges to the statute were “without merit.” Without providing any opportunity to present evidence on such claims, the trial court, citing Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595, 596 (1993), simply declined to address them.
The majority concludes that the plaintiffs failed to preserve this issue because they did not notify the trial court of its error in their motion for reconsideration. I respectfully disagree. Not having received the notice that Superior Court Rule 161(b)(2) requires, the plaintiffs had no reason to anticipate that the trial court would deny their petition prior to a final hearing. Understandably surprised, the plaintiffs appropriately moved to clarify the court’s order to reflect that only their request for injunctive relief was denied. Cf. State v. Farnsworth, 126 N.H. 656, 660-61, 497 A.2d 835, 837 (1985). Moreover, the plaintiffs asserted that they “assume[d] that only their request for temporary relief was denied since a final evidentiary hearing ha[d] not been held,” and that they would present at a final hearing evidence on their taking claim that the court found to be absent at the temporary hearing.
Thus, the plaintiffs squarely raised, albeit unartfully, the propriety of denying the petition without a final hearing on the merits. Given the unique circumstances presented in this case, I would hold that this was sufficient to apprise the court of its constitutional error. Cf. Appeal of SAU #16 Coop. Sch. Bd., 143 N.H. 97, 101, 719 A.2d 613, 616 (1998). To hold as the majority does essentially punishes the plaintiffs for appropriately moving to clarify the trial court’s order and not preemptively accusing the court of constitutional error. Even if the motion to clarify was insufficient to raise constitutional error, however, it certainly was sufficient to raise the nonconstitutional dimensions of the plaintiffs’ argument. See, e.g., State v. Cole, 142 N.H. 519, 521-22, 703 A.2d 658, 659-60 (1997). Failure to give notice that the trial court was consolidating the *170temporary hearing with the final hearing violated not only due process but also Rule 161(b)(2). Cf. T.M.T. Trailer Ferry, 453 F.2d at 1172. Because the plaintiffs clearly put the trial court on notice that it was denying their petition without the benefit of a final hearing, I would hold that the plaintiffs preserved at least the Rule 161(b)(2) basis of their argument.
For the foregoing reasons, I would reach the merits of the plaintiffs’ argument that the trial court improperly denied their petition without a final hearing, reverse the trial court’s order, and remand for a hearing on the merits.