concurring.
As the dissenting opinion points out, there is little to be said for a “peek and run” system that would allow a litigant to use a trial judge’s time and then disqualify the judge after the party gets an unfavorable ruling. However, I believe that a trial judge has sufficient discretion and flexibility under our rules to avoid and deter “peek and run” maneuvers. Our rules accommodate both the need of the judicial system for economy and expedition as well as the desirability of allowing a free change of judge where application is timely made.
The rules of civil procedure govern varying modes of practice in both urban and rural areas, and in a wide variety of civil cases. The pertinent language of Rule 92.02(c)(3) is taken directly from Rule 65 of the Federal Rules of Civil Procedure, which is adapted to the customs of courts throughout the country.
When the trial judge in this case announced, off the record, that the evidence adduced at the preliminary injunction *550hearing would not need to be repeated at the trial on the merits, he was merely restating the second sentence of Rule 92.02(c)(3), which provides: “Any evidence received upon an application for preliminary injunction admissible at the trial on the merits becomes part of the trial record and need not be repeated at the trial.” The real discretion for handling the situation in this case is that the trial judge 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. Id. In cases such as this one, the evidence produced in support of and in opposition to the motion for preliminary injunction may well be the same evidence that would be heard on the trial on the merits for permanent injunc-tive relief. A consolidation would eliminate any duplicative effort.
An order of consolidation must be clear and unambiguous. St. Louis Tele-Communications, Inc. v. People’s Choice TV, 955 S.W.2d 805 (Mo.App.1997); State ex rel. Myers Memorial Airport Comm. v. City of Carthage, 951 S.W.2d 347 (Mo.App.1997). The trial judge did not, as the principal opinion observes, order a consolidation of the preliminary hearing with the trial on the merits, as he was authorized to do by Rule 92.02(c)(3). Had he done so prior to the proceeding, the evidentiary hearing that he held for about a day and a half would have been a “trial” within the meaning of Rule 51.05, and a party’s application for change of judge would have been untimely unless it was made prior to the “trial.” In fact, after a consolidation order, an application for change of judge would have to be filed “prior to any appearance before the trial judge.” Rule 51.05(b)1
Our rules and the Federal Rules of Civil Procedure do not define the word “trial.” In the common parlance of lawyers and judges who use the rules, a trial simply is a proceeding where contested issues of fact and law are heard and decided. Rule 92 distinguishes a “trial on the merits” from a “hearing” on a request for preliminary injunction although, just as significantly, the trial judge has the flexibility and discretion to advance the matter and consolidate the two. When the trial judge does that, beyond doubt the judge has set a “trial,” which requires the litigants to decide under Rule 51.05 whether to seek a timely change of judge before proceeding with “any appearance before the trial judge.” When that consolidation occurs, it is clear that the proceeding to be held is a “trial,” or “trial on the merits.” The time for the litigant to decide whether to take the change of judge is immediate. If the litigant does not then exercise that right, the litigant’s later application cannot be sustained under Rule 51.05 because it is untimely.
There is nothing in the rules that requires a judge to hold a “trial” in any particular sequence. The judge in an equity case may hear evidence at various times over a period of weeks or months. The judge is not precluded from entering interim orders, such as the granting or denial of a preliminary injunction before the completion of the consolidated trial, for purposes such as preserving the status quo or preventing irreparable harm.
There is nothing in our rules that forbids the parties from conducting discovery during the pendency of a trial. After the merger of law and equity effected by Rule 42.01, a party in a single civil action may seek both equitable relief and damages. The action at law for damages would require preservation of the right to a trial by *551jury. Rule 92.02(c)(3)2. A “trial” also may include a proceeding where evidence is presented for the trial court judge who renders the decision on the equitable claim, and where other evidence or even the same evidence is adduced for the benefit of the jury, which acts as finder of fact on common law claims.3
The broad range of discretion as to the management of trials is also illustrated by Rule 66.02, which allows the court, for “convenience” or for reasons of “expedition and economy,” to order a separate trial of “any claim ... or any separate issue or of any number of claims ... or issues.” In this case, for instance, the judge had the discretion to consolidate the preliminary injunction with the trial on the merits and then to hold separate trials on the issues involved in the preliminary injunction matter and the issues on the request for a permanent injunction. In that situation, the proceeding before the judge would have been a trial, and Rule 51.05 would have required a change of judge before the proceeding.
I am not suggesting that trial judges should routinely consolidate a preliminary injunction hearing with the trial on the merits. To their credit, Missouri trial judges have not responded to manipulations by attorneys of Rule 51.05 by their own manipulative readings of the rules in order to escape disqualification. Cf. State ex rel. City of Berkeley v. Clifford, 976 S.W.2d 569 (Mo.App.1998). Rather, most judges have responded by expediting transfer to another judge. Even in the most rural circuits, a new, readily available judge can be assigned within a few hours, if need for immediate relief dictates. The new trial judge is free to strike motions to reconsider previous rulings of a predecessor judge, if the new judge senses that the renewed motions are part of a “free peek” scheme. If the new judge holds a hearing on a motion to reconsider the ruling of a predecessor judge and determines that the motion to reconsider was unwarranted, the new judge has appropriate sanctions available under Rule 55.03. Moreover, a Missouri trial judge has the authority to decide a matter under submission before sustaining the motion for a change of judge so that disruption of the adjudication is minimal or non-existent. Jenkins v. Andrews, 526 S.W.2d 369 (Mo.App.1975). Thus, in many, perhaps most, cases trial judges will continue to respond by simply sustaining motions for a change of judge, so that a new judge can take over immediately or at least after pending matters under submission are decided by the original judge. No act done by a trial judge is undone merely by a change of judge.
In a case like the present one, where the parties and the judge anticipate that a substantial amount of the court’s time may be used hearing evidence on a motion for a preliminary injunction, a consolidation may be ordered explicitly. This would promote economy and expedition and would avoid having two judges holding evidentiary proceedings on essentially the same evidence.
Unlike the dissent, I believe that the trial judge has sufficient authority to avoid and to deter “peek and run” maneuvers under the holding of the principal opinion, without introducing a separate concept of waiver that is not specified in the rules.
I therefore concur in the principal opinion.
. Federal rule 65(a)(2) provides that the order of consolidation may be made "before or after the commencement of the hearing of an application for a preliminary injunction,” whereas our Rule 92.02(c)(3) allows such an order "at any time.” However, in order for a party to have meaningful notice that the proceeding is a "trial” and that rule 51.05 would apply, it seems obvious that the consolidation order must be made prior to commencing the "trial.” Cf., Anderson v. Davila, 125 F.3d 148 (3d Cir.1997).
. See also, Jackes-Evans Manufacturing Co. v. Christen, 848 S.W.2d 553 (Mo.App.1993); see, generally Hammons v. Ehney, 924 S.W.2d 843 (Mo. banc 1996).
. See, Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959).