(dissenting under Theory I; concurring in part and dissenting in part on Theory II).
THEORY I
This case was tried to the court. It should have been tried to a jury. Appellants were entitled to a jury trial under Article VI, section 6 of the Constitution of the State of South Dakota which provides: “The right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy.” See also, Nizielski v. Tvinnereim, 453 N.W.2d 831 (S.D.1990). In reviewing this, case, it appears that certain pretrial motions were made to the trial court, to include trial by jury. On August 29, 1989, appellants’ motion for jury trial was denied. In this case, appellee amended its complaint which contained 13 counts, and 11 of these counts prayed for monetary damages, //'this action began in Equity, it turned into an At Law lawsuit. “... [w]hen the action is at law, either party has a right to a jury trial.” (Emphasis supplied mine). Id. at 832-33 (citations omitted). When the trial court denied the motion for trial by jury, it indicated that this action was primarily an action sounding for injunctive or equitable relief, and, thus, a jury trial was not warranted. Not so. Trial court awarded compensatory damages, punitive damages, and attorney’s fees. A judgment was entered against appellants in excess of $400,000 and it included injunctive relief. Trial court should have granted a jury trial under these circumstances. I will concede that the Answer and Answer and Counterclaim did not request a jury trial. However, there was the August 10, 1990, motion which should be controlling. Said motion was denied by the trial court on September 7, 1990. The trial date was October 30, 1990. Another salient fact is that appellants were represented by other counsel when an Answer and Counterclaim were interposed. When attorney Coester took over this case, he moved the court for a trial by jury under the provisions of SDCL 15-6-39(b). A metamorphosis has evolved in the decisional law in this state. See, First W Bank, Sturgis v. Livestock Yards, 466 N.W.2d 853 (S.D.1991). Acting Justice Hertz, writing for this Court, reflected if a counterclaim seeks legal relief, the party raising a legal claim is entitled to a jury trial as a matter of right. “In examining the development of this rule, however we note that the United State’s Supreme Court has abolished the requirement that a legal claim must not be incidental.” (Citations omitted). First W. Bank, at 856. Certainly, when the primary action contains 13 counts, 11 of which are legal in nature, asking for damages, the legal relief requested mandates a jury trial. The majority opinion violates the State Constitution on jury trial and vaults technicality over substance and fairness. If, indeed, this conceptualization is correct, we, on this Court, should reverse this case in its entirety and permit appellants a jury trial. A gigantic error of law attends in refusing appellants a jury trial. “Error juris nocet. *900Error of law injures. A mistake of law has an injurious effect; that is, the party committing it must suffer the consequences.” Black’s Law Dictionary, 5th Edition, page 487. Here, appellee. Appellee should not lament a retrial for it wrongfully took away appellants’ right to a jury trial. Therefore, I would not reach the other issues.
THEORY II
If Theory I is posited incorrectly, I concur on that aspect of the majority opinion which affirms liability against the defendants, as their conduct and actions reflect a sustained pattern of misconduct. However, I am absolutely convinced that the affi-xation of damages and attorney’s fees are unsupported due to, simply, an error by the trial court in determining damages based upon the theory of gross revenues. This creates a trickle down outfall requiring a reversal on compensatory damages, punitive damages, and attorney’s fees.
On pages 1239 and 1240 of the Settled Record, there is a document signed by attorney William E. Coester on behalf of defendants wherein 12 specific objections were set forth to attorney’s fees for the plaintiff. These objections are specific in nature pointing out to the trial court the reasons why, item for item, attorney’s fees would not be proper. One of these items was in the amount of $32,564.35. For the majority opinion to express that defendants waived an award for attorney’s fees is incorrect. Furthermore, attorney Coester further preserved the issue of an award of attorney’s fees by briefing this issue in his initial brief and reply brief.