(concurring in part and dissenting in part).
[¶ 24.] I concur with all of the Court’s opinion except for its reinstatement of the advisory jury’s verdict. The Court relies upon Nizielski v. Tvinnereim, 453 N.W.2d 831 (S.D.1990) for authority to reinstate an advisory jury’s verdict. In my judgment, neither Nizielski nor SDCL 15-6-39 (RCP 39) warrant reinstatement of an advisory jury verdict under the facts of this case.
[¶ 25.] Although Nizielski reinstated a jury verdict, it actually supports the conclusion that reinstatement of this advisory verdict is not warranted. In Nizielski, this Court held that fundamental fairness required reinstatement of a binding jury verdict that had been set aside after trial. However, the Court’s holding was expressly premised on the facts that (1) those parties had consented to trial by jury, (2) the parties reasonably expected the jury’s verdict to be binding, and (3) the trial court did not treat the jury’s verdict as advisory until after the jury had returned its verdict. Nizielski noted that the timing of a trial court’s notification to treat the jury’s verdict as advisory is the critical issue in determining whether to reinstate a jury verdict. Nizielski, 453 N.W.2d at 834. Significant to this appeal, Nizielski stated that notification was required “to ensure fair notice to the litigants of the arena in which they find themselves in; and, further so that they can knowledgeably proceed with a mental determination as to how they can effectively conduct voir dire examination having a basic viewpoint of the role of the jury in the proceeding.” Id. That pre-trial notice of the type of jury to be used in the trial, a prerequisite for reinstatement, is absent in this case. Because these parties were given notice that jury verdict would be advisory, we should not, on appellate review, now change the nature of the verdict without the opportunity of the parties to retry their case.
[¶ 26.] The federal courts apply this reasoning under Fed.R.Civ.P. 39, the counterpart to our advisory jury statute, SDCL 15-6-39. In Pradier v. Elespuru, 641 F.2d 808 (9th Cir.1981), the Court of Appeals considered a remarkably similar case. In that case, a defendant had demanded a jury trial. However, like the case before us, the trial court impaneled an advisory jury, and the plaintiff acquiesced in that trial to an advisory jury. After trial, the trial court overturned the advisory verdict, and the defendant appealed. The Court of Appeals concluded that even though the trial court erred in denying the defendant a jury trial as a matter of right, the advisory verdict, which favored the successful defendant/appellant, could not be reinstated. The Court of *775Appeals held that the ease had to be remanded for retrial before a non-advisory jury. It did so even though the advisory verdict was the verdict the successful de-fendanVappellant sought, and even though the plaintiff/appellee had acquiesced to the advisory jury. It reasoned:
The advisory jury verdict may not be substituted. The entire trial took place with the understanding that the jury’s verdict would be advisory only. There are frequently significant tactical differences in presenting a case to a court, as opposed to a jury. The parties are entitled to know at the outset of the trial whether the decision will be made by the judge or the jury.
Pradier, 641 F.2d at 811 (further citations omitted). See also 88 FedProc, LEd § 77:151 (stating, “[wjhere a court improperly substitutes an advisory jury for a jury trial and an entire trial takes place with the understanding that the jury’s verdict would be advisory only, the entire case must be remanded for a retrial before a regular jury.”)
[¶ 27.] This rule and its underlying reasoning apply in the case we are considering. At the outset, it is conceded that Sohler’s liability for breach of contract is the same issue to be determined in both trials. However, Rindal’s and Shape’s strategy, including the evidence and theories they will present, will very likely differ in an action for damages for breach of contract than in their ostensible claim for the “equitable relief’ that they submitted to the advisory jury. This is evident from their arguments to Judge Rusch on the first morning of the advisory jury trial. At that critical time, Rindal and Shape adamantly indicated that they were not prepared to try a breach of contract case seeking damages. They then proceeded to try their case to the advisory jury as a matter of equity. We should not, therefore, reinstate the advisory jury verdict. We should remand this legal claim for breach of contract damages to a non-advisory jury.