author: KONENKAMP, Justice

text:
    2000 SD 112
    In the Matter of the ESTATE OF John LeLand NEISWENDER, Deceased.
    No. 21288.
    Supreme Court of South Dakota.
    Argued June 1, 2000.
    Decided Aug. 16, 2000.

      A.P. Fuller of Fuller, Tellinghuisen, Gordon and Percy, Lead, Attorneys for appellant Elaine Neiswender.
    Steven C. Beardsley and Linden R. Evans of Truhe, Beardsley, Jensen, Helmers, and Von Wald, Rapid City, Attorneys for appellee Claire Neiswender.
   KONENKAMP, Justice

[¶ 1.] In this probate action, the circuit court refused to exclude real property in New Mexico from the estate of John L. Neiswender. The deceased had bequeathed the property to his wife, but his daughter contended that a family agreement restricted the transfer to blood relatives. The court ruled that evidence of an agreement was inconclusive, and that even if an agreement existed, it was void as an unreasonable restraint on the free alienation of property. We affirm, concluding that a valid family agreement was not established.

Background

[¶ 2.] John Neiswender died on July 17, 1998. His will gave his interest in land located in New Mexico to his wife, Claire Neiswender. John’s daughter, Elaine Neiswender (Claire’s stepdaughter), contests Claire’s right to inherit this real estate. The property consists of 160 acres leased for oil and gas exploration and production. William and Lucinda Neiswen-der, John’s grandparents, originally owned the land. Later, it was held as an asset by the Neiswender Corporation and as a trust asset by the Neiswender Family Trust. Neither the corporate bylaws nor the trust instrument restricted the transfer of interests in the property to blood relatives of William and Lucinda.

[¶ 3.] The trust was dissolved in 1971 and the property was distributed to the trust beneficiaries as co-tenants, i.e., Leland Neiswender (John’s father), Chester Neiswender (John’s 'uncle), and Mildred Shryer (John’s aunt). Shortly after the trust ended, these co-tenants purportedly agreed that the property could not be transferred to anyone other than descendants of William and Lucinda Neiswender. No contemporaneous documents or memo-randa exist to confirm that agreement. In the years following, nonetheless, on two occasions the co-owners’ descendants conveyed their shares in the property to someone other than a blood relative.

[¶ 4.] In 1981, family member Philip Neiswender bequeathed his interest to his wife. One of the other co-tenants at the time, Merilyn Howard, attempted to have that share returned to the family, but admitted in a letter to her uncle Chester that her task was “especially difficult since neither the corporation bylaws nor the trust agreement stipulated sole Neiswender ownership without right of inheritance by other than blood relatives.” Although she kept her interest in the property, Philip’s widow nevertheless agreed not to transfer it to anyone other than a descendant of William and Lucinda. Similarly, in 1988, Chester’s daughter, Rosemary Neiswen-der, gave her share to a friend, Virginia Buchanan. When Merilyn learned of this gift, she asked Ms. Buchanan to renounce her right to the property so that it would remain in the family. Ms. Buchanan acceded.

[¶ 5.] When several co-tenants died intestate and without issue, the operator of the wells on the property, Yates Petroleum Corporation, suspended royalty payments to avoid liability to unknown heirs. In his letters of July 6, 1989 and September 1, 1990, John Neiswender tried to assure Yates Petroleum that Chester and his daughter, Rosemary, both deceased, had no heirs and thus their royalties should be paid to the remaining co-tenants. But Yates was reluctant to release the funds until ownership was legally settled. John referred to a letter Chester had signed on January 4, 1982 and to declarations seven family members signed stating their understanding that the property could not be transferred to “anyone other than direct descendants of William and Lucinda Neis-wender.” Although the letter John referred to is not in the record, at least one of the declarations still exists. It was signed by Carl Neiswender dated January 2, 1982, and recites the same understanding.

[¶ 6.] Merilyn Howard wrote to Yates Petroleum on February 1, 1989. Her letter is the strongest evidence of an agreement because copies of it were signed by all the living co-tenants: Merilyn, John Neiswender, Carl Neiswender, and Richard Shryer. The letter explained to Yates Petroleum that a family meeting had been held shortly after March 15, 1971, at which time it was “reconfirmed that interests in the residual property shares of the former family corporation and trust would be inheritable only by blood relatives.” Apparently, Yates Petroleum still refused to release the royalties, and a quiet title action was instituted. In 1992, a New Mexico court order quieting title granted fee simple ownership to John, Carl, Richard, and Merilyn.

[¶ 7.] As the contestant to John Neis-wender’s will, which left his interest in the New Mexico land to his wife Claire, Elaine Neiswender sought to remove the property from his estate. In her view, the family had a “long-standing agreement” that the property would not be given or transferred to anyone other than a blood relative. The parties waived appearance and oral argument in circuit court, and the matter was decided on briefs. The court found “inconclusive evidence” of an agreement to limit the transfer of the property to only blood relatives, and ruled that even if such an agreement existed, it would be void as an unreasonable restraint on the free alienation of property under New Mexico law. Accordingly, the request to remove the property from the estate was denied.

[¶ 8.] In this appeal, Elaine contends that the circuit court erred in not holding that John Neiswender contracted away his right to devise the New Mexico property. As the court made its findings from documentary evidence to decide the existence of a contract, the question was purely a legal determination. Questions of law are reviewed de novo, as are mixed questions of law and fact. In re Estate of Jetter, 1999 SD 33, ¶ 12, 590 N.W.2d 254, 257 (citations omitted); Estate of Washburn, 1998 SD 11, ¶ 8, 575 N.W.2d 245, 247 (citations omitted).

Analysis and Decision

[¶ 9.] Existence of a valid contract is a question of law. Owens v. Moyes, 530 N.W.2d 663, 665 (S.D.1995) (citing Werner v. Norwest Bank, 499 N.W.2d 138, 141 (S.D.1993)). “[A]n express contract exists only when the parties mutually express an intent to be bound by specific terms and conditions.” Id. (citing Werner, 499 N.W.2d at 141). It is an agreement arrived at by words, either oral or written. Weller v. Spring Creek Resort, Inc., 477 N.W.2d 839, 841 (S.D.1991); Anderson v. Dunn, 68 S.D. 479, 482, 4 N.W.2d 810, 811 (1942).

[¶ 10.] A family agreement is a written or oral understanding among parties having an interest in a decedent’s estate to distribute or dispose of the property in a manner different from that prescribed by law or by testamentary instrument. See M.L. Cross, Annotation, Family Settlement of Testator’s Estate, 29 A.L.R.3d 8, 18-22 (1970). Although family settlement agreements receive tolerant deference when disputes arise over the distribution of estates, these agreements are nonetheless “subject to the rules of contract formation.” In re Estate of Krause, 444 N.W.2d 4, 7 (S.D.1989). See also SDCL 53-1-2 (elements of a contract). The proponent has the burden “to prove the contract by evidence so clear and satisfactory” that no doubt remains. Neuharth v. Brunz, 85 S.D. 267, 274, 181 N.W.2d 92, 95 (1970) (citing Ward v. Melby, 82 S.D. 132, 142 N.W.2d 526 (1966)); In re Estate of Hammer, 389 Pa. 78, 132 A.2d 275, 277 (1957) (citation omitted).

[¶ 11.] In Neuharth, we held that the trial court rightly decided that the plaintiff failed to establish the existence of an agreement for the disposition of property, ruling that the evidence as a whole tended to show there was no agreement. 85 S.D. 267, 181 N.W.2d at 96. In Hammer, conversely, the evidence showing the existence of an agreement was much clearer. The agreement was partly in writing and partly oral; only the oral portion was challenged. The court concluded that the parties had entered into a family settlement agreement, basing its decision on evidence consisting of “[t]he positive, uncontradicted testimony of the participants to the agreement”- — the three surviving family members of the seven who had entered into the agreement on the distribution of their parents’ property thirty-five years earlier testified against their pecuniary interests, and were unanimous in the substance of their testimony that all family members had understood that they were making a family agreement. Hammer, 132 A.2d at 277-78. Additionally, the later conduct of the parties in interest, a failure to take action contrary to the “agreement,” and a delay of over thirty-eight years after the death of the parents before seeking an accounting tended to show that a valid family agreement existed. Id.

[¶ 12.] Elaine asserts that because her father, John, enforced this agreement against other family members to his benefit, equity requires that it be enforced against him. On the other hand, John’s estate argues that the letters written to Yates Petroleum about the ownership of the property were intended for the narrow purpose of distribution of production royalties. The estate asserts that no evidence conclusively establishes that all future transfers would be restricted to only blood relatives. Rather, the language of John’s will sets out his stated intent, and that intent was to leave his interest in the New Mexico property to his wife.

[¶ 18.] We think the circumstances are insufficient to show a clear intent to create an irrevocable agreement. See Neuharth, 181 N.W.2d at 96; E. Allan Farnsworth, Contracts § 3.7, at 200 (2d Ed. 1990). There is no direct proof of the original understanding in 1971 made by the first co-tenants after the Neiswender trust was dissolved. Some of the later owners seemed to dispose of their interest in the property without heed to this alleged agreement. Others invoked the purported understanding when it appeared advantageous to them. While the letters to Yates Petroleum might be interpreted as showing the existence of a family agreement, they might also be interpreted as merely intending the narrow purpose of inducing Yates Petroleum to release the royalty payments, attempting to avoid the expense and delay of a quiet title action. Further, the record does not show that John himself attempted to enforce the alleged agreement against non-relatives; rather, it reflects that Merilyn urged non-blood recipients to voluntarily return interests received in the property to direct descendents of William and Lucinda.

[¶ 14.] If the co-tenants thought themselves bound to keep the property in the family, they must also have believed they could terminate that obligation at will. On June 9, 1998, just before John’s death, Merilyn Howard wrote to John expressing her desire, shared by Carl Neiswender and Richard Shryer, to sell the New Mexico property. In this letter, Merilyn warned, “[i]t will be a long, long time before it will be worth more,” and encouraged John to “reconsider [his] decision not to sell.” There was apparently an offer for the property of $12,000. Elaine does not claim that the offer was from a blood relative. This attempt to sell wholly contradicts earlier declarations by the same family members that the property could not be “sold, transferred or willed to anyone other than direct descendants of William and Lucinda Neiswender.”

[¶ 15.] Elaine believes that Kuhn v. Kuhn, 281 N.W.2d 230 (N.D.1979) directly supports her position. In contrast to the case before us, the existence of the family agreement was not in issue in Kuhn; the court there was asked to decide only the validity of the agreement. Id. at 234. With the concurrence of their children, the husband and wife had made mutual promises to distribute their property, which, although not a valid joint and mutual will because certain formalities had not been followed, was held to be a legally binding contract to divide the couple’s real and personal property. Testimony established that the parents had a common plan for the distribution of their estate after their deaths. One of their sons sought to enforce the agreement when property that was to be given to him under the agreement was bequeathed to someone else in his mother’s will. The trial court ruled that the agreement was invalid for lack of consideration, but the North Dakota Supreme Court held the mutual promises made by the husband and wife “constituted adequate consideration.” Id. at 236.

[¶ 16.] Another difference between this case and Kuhn lies in the nature of the two agreements. A family agreement settles the distribution of family property among interested parties. Black’s Law Dictionary 606 (7th Ed. 1999). Equity supports family agreements because they allow a final and amicable resolution of disputes over estate distributions. See In re Vasgaard’s Estate, 62 S.D. 421, 253 N.W. 453, 456 (1934) (the law favors family compromise); SDCL 16-6-8; SDCL 29A-1-103. In Kuhn, the agreement provided for the devise of property in final distribution to family members. Here, the putative agreement goes far beyond simply distributing or disposing of estate property; it attempts to create an interminable restriction, perpetually barring transfer to anyone other than those in the Neiswender bloodline. Yet transfers by former co-tenants to non-descendants and attempts to sell the property suggest a contrary understanding. We are unable to say that proof of the alleged contract is “so clear and satisfactory” that no doubt remains on the terms of a binding agreement. Neuharth, 181 N.W.2d at 95. Furthermore, no case cited to us supports a restriction of this sort under the auspices of a family agreement. Elaine has failed to prove that this property should be excluded from the estate.

[¶ 17.] Affirmed.

[¶ 18.] MILLER, Chief Justice, and SABERS and GILBERTSON, Justices, and ANDERSON, James W., Circuit Judge, concur.

[¶ 19.] ANDERSON, James W., Circuit Judge, sitting for AMUNDSON, Justice, disqualified.

      . John’s will stated in part:
      To my wife, Claire Neiswender, I bequeath my interests in property and gas, oil and mineral rights to properties owned by the former Neiswender Corporation and the Neiswender Trust as follows:
      1. A 25 percent (25%) interest in real property in Eddy County, New Mexico as follows:
      * * * *
      2. Ownership and interest, whether royalty, mineral or otherwise, in the gas produced from the Yates Petroleum Corporation - Federal "AB” Well,....

      . As we hold that a valid family agreement was not conclusively established, we need not reach the question whether it constituted an unreasonable restraint on the alienation of property.

      . Neither side questions our jurisdiction in this appeal to decide whether the New Mexico property should be included in the estate. See SDCL 29A-1-301. Nor does anyone contend that the purported family agreement was a court-approved compromise. See SDCL 29A-3-1101.


source: Caselaw Access Project

author: KONENKAMP, Justice. SABERS, Justice

license: Public Domain

text:
    2000 SD 111
    Joaquin RAMOS, Petitioner and Appellant, v. Douglas WEBER, Warden South Dakota State Penitentiary, Appellee.
    No. 21141.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2000.
    Decided Aug. 16, 2000.
    Rehearing Denied Sept. 27, 2000.

      Steven R. Binger, Sioux Falls, Attorney for petitioner and appellant.
    Mark Barnett, Attorney General, Gary Campbell Assistant Attorney General, Pierre, Attorneys for appellee.
   KONENKAMP, Justice.

[¶ 1.] In this habeas appeal the applicant contends that (1) the sentencing court denied him due process of law in concluding that his prospects for rehabilitation were remote, and (2) his attorneys rendered ineffective assistance in not seeking psychological assessments before sentencing. We find both claims unsupported and affirm.

A.

[¶ 2.] Joaquin Jack Ramos shot his girlfriend to death during a domestic conflict and later pleaded guilty to first degree manslaughter. He was sentenced to life in prison. He twice moved for reconsideration of the sentence and then sought to withdraw his guilty plea. The sentencing court denied all his motions. He appealed, contending that his life sentence was cruel and unusual punishment in violation of the Eighth Amendment, and that he was entitled to withdraw his guilty plea because the State violated its agreement by commenting at sentencing that the death was nonaccidental. We affirmed. State v. Ramos, 1996 SD 37, 545 N.W.2d 817 [Ramos n

[¶ 3.] Ramos then sought habeas corpus relief, claiming that the sentencing court’s decision was based on the false assumption he could not be rehabilitated, that he received ineffective assistance of counsel, and that his sentence violated due process because he had no criminal intent. His habeas application was denied. He now appeals, alleging that (1) due process was violated when he was sentenced to life in prison because there was an insufficient basis for the court’s belief that he could not be rehabilitated, and (2) he had ineffective assistance of counsel because his attorneys did not request a psychological examination for sentencing purposes or offer other evidence of his prospects for rehabilitation.

B.

[¶ 4.] Habeas corpus is no substitute for direct review. Because a habeas action is a collateral attack on a final judgment, our scope of review is limited:

On habeas review, the petitioner has the initial burden of proof. We review the habeas court’s factual findings under the clearly erroneous standard.
Habeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights.

Lodermeier v. Class, 1996 SD 134, ¶ 3, 555 N.W.2d 618, 621-22 (quoting Loop v. Class, 1996 SD 107, ¶ 11, 554 N.W.2d 189, 191). Habeas applicants bear the initial burden of proof “to establish a colorable claim for relief.” Jenner v. Dooley, 1999 SD 20, ¶ 11, 590 N.W.2d 463, 468.

C.

[¶ 5.] In his direct appeal, Ramos unsuccessfully attacked his life sentence as cruel and unusual under the -Eighth Amendment. In this habeas action he argues that his sentence violates due process under the Fourteenth Amendment. He cites Wabasha v. Leapley, 492 N.W.2d 610 (S.D.1992), where we stated that “[questions of constitutional magnitude involving due process are reached when a defendant is sentenced on the basis of assumptions concerning his criminal record which are materially untrue. Sentences based upon material misinformation or erroneous assumptions violate due process.” Id. at 611 (internal and other citations omitted).

[¶ 6.] The erroneous assumption made at his sentencing, Ramos alleges, was the judge’s belief that he could not be rehabilitated. At sentencing Judge Jeff Davis remarked:

I think the danger that you represent to society is epitomized by the manner in which you handle your relationships with people[.]
This is the first time you have been charged and convicted of a felony. Your other instances with the law are misdemeanors. I will be the first to admit that.
When one looks at the nature of the offenses, however, they all have some degree of violence associated with them, Mr. Ramos, violence largely centered around those individuals that you supposedly held near and dear and, with the exception of Barry Webb, at the Blue Lantern, involve women. It appears that your argument with Mr. Webb in some manner focused on your relationship with Miss Martines.
The instances in which you lose control have become more frequent. The timewise shows that.
That night, in my mind, is a control issue, Mr. Ramos. You got home. Debbie was not there. You inquired about her presence. As you began to lose your temper more and more, not just to strangers, attempted to remove the children. John and Cindy Jibben were there. You had been with Mr. Jibben. Not taking at even full value Mr. Jib-ben’s comments because he also could only see what he saw and relate from his perspective what they were.
The control issue only had to rise to a certain point with you in your relationships with a spouse or a loved one because you had power and authority over them. You didn’t have that related to Mr. Melendez or Mr. Jibben and you thought you needed to get a gun, and that, Mr. Ramos, in my mind, is the distinction in this area.
* * *
I think, until it reaches a point in time that you are able to control those emotions, control your desire to control those people around you, that the interest of rehabilitation cannot be addressed, and it appears to me that the goal of rehabilitation in this case cannot be achieved for a very, very long time, and that you must forfeit your right to be free in society for a substantial period of time in order to protect society.

In sum, then, the judge observed only that rehabilitation was a long-term prospect.

[¶ 7.] Because the sentencing judge did not firmly assess how long it might take for rehabilitation and instead assumed it would take a long time, Ramos argues, the imposition of a life sentence violated due process. The habeas court ruled that Ramos was making the same argument in his habeas application under the Fourteenth Amendment (due process) that he made on appeal under the Eighth Amendment (cruel and unusual punishment).

[¶ 8.] The doctrine of res judicata disallows reconsidering an issue that was actually litigated or that could have been raised and decided in a prior action. SDDS, Inc. v. State, 1997 SD 114, ¶ 16, 569 N.W.2d 289, 295 (quoting Hogg v. Siebrecht, 464 N.W.2d 209, 211 (S.D.1990)). “The purpose behind the doctrine is to protect parties ‘from being subjected twice to the same cause of action, since public policy is best served when litigation has a finality.’ ” Id. (quoting Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993)). This due process challenge could have been raised in the direct appeal along with the Eighth Amendment challenge. Under the doctrine of res judicata, we will not review successive attacks on a sentence, especially when all the grounds could have been raised in the earlier proceeding. Davi v. Class, 2000 SD 30, ¶ 50, 609 N.W.2d 107, 118; Lodermeier, 1996 SD 134, ¶ 24, 555 N.W.2d at 626; Miller v. Leapley, 472 N.W.2d 517, 519 (S.D.1991). We affirm the habeas court’s ruling.

D.

[¶ 9.] Ramos argues that his attorneys were ineffective in not obtaining psychological evaluations before sentencing to show that his rehabilitative prospects were not “so unlikely” that rehabilitation should “be removed from consideration in sentencing.” Bult v. Leapley, 507 N.W.2d 325, 328 (S.D.1993). In Ramos I we wrote that amenability to rehabilitation was a fact question to be decided by the sentencing court. At sentencing, the judge found that Ramos was unprepared for rehabilitation “until he could control his desire to control the people around him.” In upholding the sentence, we also commented that “[tjhere was no expert testimony or solid evidence that Ramos was capable of rehabilitation.” Ramos I, 1996 SD 37, ¶ 19, 545 N.W.2d at 821 (emphasis omitted). Accordingly, as part of this habeas proceeding, Ramos obtained psychological evaluations from Michael J. McGrath, Ph.D. and William P. Ferguson, Ph.D.

[¶ 10.] Ferguson assessed rehabilitation potential as “fair.” His diagnosis: Axis I, Intermittent Explosive Disorder; Axis II, Mixed Personality Disorder with narcissistic, antisocial, and paranoid features. He cautioned that Ramos “has much work to do insofar as coming to terms with his narcissism, anger and relationships with women.”

[¶ 11.] McGrath’s assessment was somewhat more optimistic. He did not diagnose an Axis I disorder, although he found an Axis II, Antisocial Personality Disorder. He acknowledged that “Clearly Mr. Ramos has a long history of acting out behaviors, as well as behaving in irresponsible ways.” McGrath thought Ramos could, “more likely than not,” be rehabilitated. With “extended and stringent” parole conditions, McGrath concluded, Ramos “may well have the potential for rehabilitation, i.e., altering the previously maladaptively acting out behaviors.”

[¶ 12.] We follow the test for ineffective assistance of counsel prescribed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh’g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). See Jones v. State, 353 N.W.2d 781, 784-86 (S.D.1984). In Strickland, the United States Supreme Court stated:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The question whether trial counsel was ineffective is a legal question, reviewable de novo. Jenner, 1999 SD 20, ¶ 16, 590 N.W.2d at 470 (citing Lykken v. Class, 1997 SD 29, ¶ 6, 561 N.W.2d 302, 304-05). We presume the competence of counsel, and habeas applicants must overcome that presumption. Id. (citing Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986)). Applicants must prove that the outcome was prejudiced by inferior performance of counsel. Hofer v. Class, 1998 SD 58, ¶ 9, 578 N.W.2d 583, 585. Prejudice means “a reasonable probability that, but for the unprofessional errors of counsel, the result of the proceeding would have been different.” Phyle v. Leapley, 491 N.W.2d 429, 432 (S.D.1992), as modified by Hopfinger v. Leapley, 511 N.W.2d 845, 846-47 (S.D.1994). A “reasonable probability” is said to exist when there is proof sufficient to “undermine confidence in the outcome.” Phyle, 491 N.W.2d at 432. We are not required to decide whether counsel’s performance was sufficient before looking at whether the applicant was prejudiced by “alleged deficiencies.” Strickland, 466 U.S. at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at 699. “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed.” Id.

[¶ 18.] As suggested by the Supreme Court, we go directly to the second prong of the Strickland analysis. The question is, did the failure to request pre-sentence psychological assessments with recommendations like the ones produced in the habeas proceeding prejudice the sentencing outcome? Testifying at the ha-beas evidentiary hearing were Ramos, his two trial attorneys, the prosecutor, and the sentencing judge. The psychological reports and depositions of McGrath and Ferguson were also admitted into evidence. In explaining their approach at the sentence hearing, the defense attorneys said that they presented Ramos as a fundamentally decent person who did not intend the death of his girlfriend. As one of the attorneys explained, “We wanted the Court to see the other side of Jack. We knew the Court was familiar with the crime that occurred, but didn’t know a lot of things about Mr. Ramos that we did.” Thus portrayed as having made a tragic mistake, Ramos was depicted as genuinely remorseful. The strategy was to point out Ramos’ good characteristics and the positive parts of his relationship with the deceased. His defense attorneys felt that using psychological evidence displaying Ramos as emotionally or mentally impaired could be seen as an attempt to excuse his behavior, and might contradict their strategy. Overall, they tried to persuade the court that Ramos did not deserve a life sentence, an approach that had proved successful for them in another recent manslaughter case.

[¶ 14.] Ramos contends that his attorneys’ “strategy” was no strategy at all. In hindsight, we can now reflect that the psychological assessments from McGrath and Ferguson would not appear to have contradicted the defense strategy. But though this approach may not have been inconsistent with obtaining psychological assessments on rehabilitation, we cannot conclude that McGrath’s and Ferguson’s assessments are so unequivocal and so compelling that had they been provided to the sentencing judge a life sentence would probably not have been given. Indeed, neither expert contradicted the sentencing judge’s view that any rehabilitation would be a long-term process. Even if they had, sentencing judges are not required to accept an expert’s opinion on rehabilitation. South Dakota is neither a “trial-by-expert” nor a sentencing-by-expert jurisdiction. See Johnson v. Albertson’s, 2000 SD 47, ¶ 25, 610 N.W.2d 449, 455.

[¶ 15.] Both psychologists — even McGrath, whose opinion was more sanguine — rigorously conditioned their prognoses: if Ramos were cooperative, if he refrained from using alcohol and drugs, if he had the appropriate motivation, if stringent parole conditions could be imposed, and so on. These kinds of “ifs” are the same perilous variables judges must carefully weigh in sentencing any violent offender. Here, before sentencing, the trial judge reviewed a presentence investigation report, a psychological report prepared for competency purposes, and “a lot of correspondence” on behalf of Ramos and the victim. The judge considered all the traditional sentencing factors, including rehabilitation. His rehabilitative assessment was not materially different from Dr. Ferguson’s. Ramos has shown neither that his sentence would have been different nor that his attorneys’ purported errors were so serious that they deprived him of a fair and reliable sentence hearing. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 698.

E.

[¶ 16.] There is a second reason Ramos has failed to show prejudice. He places undue emphasis on an old and since modified standard: before a court can impose a life sentence rehabilitation must be so unlikely that it is removed from consideration in sentencing. See State v. Raymond, 1997 SD 59, ¶ 35, 563 N.W.2d 823, 830. In Ramos I we intimated that rehabilitation, though it must be considered, would not necessarily take controlling influence in sentencing. Ramos I, 1996 SD 37, ¶ 21, 545 N.W.2d at 822 (life sentence need not be only adequate punishment). We quoted Justice Potter Stewart in agreeing that “retribution is a constitutionally [permissible] ingredient in the imposition of punishment.” Ramos I, 1996 SD 37, ¶ 15, 545 N.W.2d at 821 (quoting Furman v. Georgia, 408 U.S. 238, 308, 92 S.Ct. 2726, 2761, 33 L.Ed.2d 346, 389 (1972) (Stewart, J., concurring)).

[¶ 17.] Recently, in State v. Milk, 2000 SD 28, 607 N.W.2d 14, the defendant argued that rehabilitation “is a factor that must be ruled out before a life sentence may be imposed.” Milk, 2000 SD 28, ¶ 18, 607 N.W.2d at 19. In recognizing a change in the law, we said “[c]learly there are some acts of such a criminal magnitude that they justify a life sentence whether the perpetrator is capable of rehabilitation or not.” Id. We held that “[u]pon review we will address this subject only if we initially determine that there is a gross disproportionality in the sentence.” Id. ¶ 18, 607 N.W.2d at 20 (citing State v. Bonner, 1998 SD 30, ¶ 17, 577 N.W.2d 575, 580). So too with a claim of prejudice from allegedly deficient performance by counsel during sentencing — prejudice will not be shown unless the sentence was grossly disproportionate. Our review goes no further if the circumstances do not suggest gross disproportionality. Id. In Ramos I we concluded that this sentence did not violate the Eighth Amendment, a sentence we declared res judicata today.

[¶ 18.] We are not a sentencing review court empowered to examine whether judges properly weighed every variable and whether defense counsel supplied every conceivable piece of mitigating evidence. Bonner, 1998 SD 30, ¶ 11, 577 N.W.2d at 578 (we will not micromanage sentencing in South Dakota). Nor have we ever held that counsel must obtain expert evidence on rehabilitation or that mitigation evidence must be offered at every sentencing. The authorities habeas counsel cites to support this argument are death penalty cases where defense counsel had a duty to discover and offer mitigating evidence in the sentencing phase of a murder trial. See, e.g., Turpin v. Christenson, 269 Ga. 226, 497 S.E.2d 216 (1998); People v. Ruiz, 177 Ill.2d 368, 226 Ill.Dec. 791, 686 N.E.2d 574 (1997). In most other types of cases, defense attorneys may rely on the presentence reports offered at most felony sentencings in South Dakota. SDCL 23A-27. After learning the contents of the presentence report, the defendant and counsel are entitled to an opportunity to comment on it and, “in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.” SDCL 23A-27-7.

[¶ 19.] Because Ramos has failed to show that he was prejudiced by his attorneys’ alleged deficient performance, we uphold the habeas court’s ruling on the ineffective assistance claim.

F.

[¶ 20.] Lastly, although this issue has not arisen in a habeas appeal before, and in no way reflects on the integrity of the sentencing judge who was called to testify in this habeas proceeding, there is a critical principle at stake here that we must discuss. The sentencing judge testified at the habeas hearing about his sentencing rationale, and said, among other things, that after reviewing Ferguson’s and McGrath’s reports he would still have given the same sentence. This testimony was wholly inadmissible and should have been prohibited. Just as jurors cannot be called to testify on their thought processes in deliberations, so judges cannot be summoned, even if willing, to explain then-sentences or to speculate on whether then-judgments might have been different with new evidence. Perkins v. LeCureux, 58 F.3d 214, 220 (6thCir.1995); Proffitt v. Wainwright, 685 F.2d 1227, 1255 (11thCir.1982); United States v. Crouch, 566 F.2d 1311, 1316 (5thCir.1978); Morrison v. Kimmelman, 650 F.Supp. 801, 807 (D.N.J.1986) (explaining rationale for the rule). The United States Supreme Court first announced this principle in Fayer-weather v. Ritch, 195 U.S. 276, 306-307, 25 S.Ct. 58, 67-68, 49 L.Ed. 193, 213 (1904), and it remains sound law. The integrity of the sentencing process must be preserved, which means at the least that judges should not be subjected to this type of inquiry about their sentences. Justice Black reflected five decades ago: “Such an examination of a judge would be destructive of judicial responsibility.” United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 1004, 85 L.Ed. 1429, 1435 (1941). In Washington v. Strickland, 693 F.2d 1243, 1263 (5thCir.1982) reversed on other grounds, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in an en banc reversal of a district court death penalty habeas corpus decision, the Fifth Circuit wrote:

We decide, however, that the portion of Judge Fuller’s testimony in which he explained his reasons for imposing the death sentence and his probable response to the evidence adduced at the habeas hearing is inadmissible evidence that may not be considered by the district court.

[¶ 21.] A court speaks through the record made at the time of sentencing and the parties are entitled to rely on that record and the reasons given at the time. “It is a cardinal principle of Anglo-American jurisprudence that a court speaks only through its minutes.” Perkins, 58 F.3d at 220. We do not suggest it is improper to call sentencing judges to testify purely on historical facts, i.e., identifying the defendant as the one sentenced, explaining if the defendant was represented, etc., but the practice should be limited to the most compelling circumstances, where no other evidence on a critical fact is available.

[¶ 22.] In this instance, we do not consider the admission of this testimony to be prejudicial error requiring a remand. See Strickland, 466 U.S. at 695, 700, 104 S.Ct. at 2068-69, 2071, 80 L.Ed.2d at 698-99, 701 (trial judge testimony harmless error).

[¶ 23.] Affirmed.

[¶ 24.] MILLER, Chief Justice, and AMUNDSON and GILBERTSON, Justices, concur.

[¶ 25.] SABERS, Justice, concurs in result in part and concurs specially in part.

SABERS, Justice

(concurring in result in part & concurring specially in part).

[¶ 26.] This case is very troubling from many aspects:

1. Circuit Court Judge Davis testified as to his opinion on the question of excessiveness of the life sentence, which he previously imposed on Ramos. The majority opinion properly recognizes that this evidence was improperly solicited and received.
2. Circuit Court Judge Trimble, known to be a good friend of Judge Davis, heard the evidence on the habeas corpus hearing and decided the same in favor of the position advanced by Judge Davis. Obviously, a Circuit Court Judge may properly determine, on habeas, a decision of a fellow Circuit Court Judge. While not improper, it is troubling when the real issue in this habeas hearing is the excessiveness of Judge Davis’ sentence and his opinion on Ramos’ prospects for rehabilitation; i.e. the position of Judge Davis is the real issue.
3. Point 1 may be res judicata, but point 2 is not and neither is point 4:
4. The claim of ineffective assistance of counsel at sentencing arising from trial counsel’s failure to request psychiatric reports concerning rehabilitation.
5. Finally, the majority opinion states that our scope of review on habeas action is limited:
Habeas corpus can be used only to review (1) whether the court had jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether an incarcerated defendant has been deprived of basic constitutional rights.

As evidenced by the appeal in Rennich-Craig v. Russell, 2000 SD 49, 609 N.W.2d 123, adherence to this improper standard of review is incorrect and confusing to the bench and the bar.

[¶ 27.] In Rennich-Craig, the State argued that Rennich was not entitled to ha-beas corpus relief based on a statutory violation. One can safely assume that this argument arose from this court’s insistence on repeatedly setting forth the above standard of review. We disagreed with the State’s argument and clarified that the standard of review in Security Savings Bank v. Mueller, 308 N.W.2d 761, 762-63 (S.D.1981) is the proper one for habeas corpus actions:

Although habeas corpus is not a substitute for direct appeal, appellant may assert jurisdictional errors which renders the first judgment void. In the context of habeas corpus, jurisdictional error is given an expansive construction. Of course, this includes personal and subject matter jurisdiction, but due process violations and compliance with substantive statutory procedures are also subject to challenge in habeas corpus proceedings.

Rennich-Craig, 2000 SD 49, ¶ 18, 609 N.W.2d at 127 (quoting Security Savings Bank, 308 N.W.2d at 762-63 (internal citations omitted) (emphasis added)). See also SDCL 21-27-16(3) (providing that habeas relief may be granted when “the process is defective in some substantial form required by law.”); St Cloud v. Leapley, 521 N.W.2d 118, 121 (S.D.1994) (stating that “[hjabeas corpus actions deal with such defects, ‘as render the proceeding or judgment absolutely void.’ ” (quoting State ex rel. Smith v. Jameson, 80 S.D. 333, 335, 123 N.W.2d 300, 301 (1963))); State ex rel. Ruffing v. Jameson, 80 S.D. 362, 366, 123 N.W.2d 654, 656 (1963) (noting that claims of error and irregularities that may have been grounds for reversal on direct appeal are not properly reviewable in habeas proceedings; but “those actions in which the court may lose jurisdiction by a denial of due process” are properly reviewable in habeas).

[¶ 28.] For the benefit of the bench and bar, the old standard of review set forth in the majority opinion should be withdrawn, or modified to incorporate our recent decision in Rennich-Craig. Otherwise, as it stands, it is incorrect, confusing and meaningless dicta, which could be harmful.

[¶ 29.] For these reasons, I concur in result except on point 5, where I concur specially.


author: LOVRIEN, Circuit Judge.

text:
    2000 SD 108
    ALMA GROUP, L.L.C., Plaintiff and Appellee, v. Charles W. WEISS, Defendant and Appellant, And First Federal Savings Bank, f/k/a First Federal Savings and Loan Association and Pennington County, South Dakota, Defendants.
    No. 21224.
    Supreme Court of South Dakota.
    Considered on Brief April 25, 2000.
    Decided Aug. 16, 2000.

      Paul S. Swedlund and J. Crisman Palmer of Gunderson, Palmer, Goodsell & Nelson, Rapid City, Attorneys for plaintiff and appellee.
    John H. Mairose, Rapid City, Attorney for defendant and appellant.
   LOVRIEN, Circuit Judge.

[¶ 1.] After a mortgage foreclosure action where no deficiency judgment was sought or obtained, the trial court awarded the mortgage holder, Alma Group, LLC (Alma), various rents and profits held by a receiver. Charles Weiss (Weiss) argues these rents and profits rightfully belonged to him. Weiss appeals the decision of the trial court. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Charles Weiss owned the Rushmore Plaza Motel (motel) in Rapid City, South Dakota. The motel was subject to a mortgage held by Alma as successor in interest to the original mortgage lender. Weiss was in default under the promissory notes and mortgages that financed the purchase of the motel.

[¶ 3.] A complaint filed May 30, 1996 sought foreclosure of the mortgage against the motel property for the unpaid balance. At that time, the unpaid balance was $704,-609.54. The complaint further sought the appointment of a receiver to take possession of the mortgaged property and to collect the rents and profits until the redemption period expired. On July 12, 1996, Alma also sought and obtained a default judgment of foreclosure against Weiss.

[¶ 4.] The parties attempted to negotiate a forbearance agreement and, by September 1996, stipulated to an order appointing a receiver. The receiver remained in possession of the motel for over two years until the foreclosure sale on April 30, 1999. In addition to the order appointing a receiver, Alma and Weiss agreed to vacate the earlier default judgment so that the statutory foreclosure process could proceed. This stipulation provided that Alma would not seek a deficiency judgment against Weiss.

[¶ 5.] An amended default judgment and decree of foreclosure was entered on February 12, 1999 which provided “that the Plaintiff will not proceed with any deficiency judgment against the Defendant, Charles W. Weiss.” The amended default judgment listed the unpaid balance as $843,073 with interest accruing at the rate of $181 per day.

[¶ 6.] Before the entry of the amended judgment, and while the receiver was in possession of the property, Weiss indicated to Alma that he would like to sell the property on his own. The parties entered into an additional agreement on December 18, 1998 that gave Weiss that opportunity. Alma agreed to accept “ninety percent of the purchase price net of expenses” as long as Alma received a minimum payment of $250,000. The agreement set a December 31, 1998 deadline for Weiss to sell and effect a closing on the property. Weiss failed to sell the property by this deadline. As a result, the parties entered into an addendum extending the terms of the December 18, 1998 agreement. In exchange, Weiss waived his redemption rights.

[¶ 7.] In the addendum, the parties again acknowledged that no deficiency would be sought against Weiss and agreed that, should a sale of the property take place pursuant to the second agreement, Alma would assign to Weiss any interest it might have in the funds held by the receiver. All applicable provisions of the original December 1998 agreement remained in place.

[¶ 8.] Weiss was never able to sell the property on his own. A sheriffs sale took place on April 30, 1999 and the property was sold to the highest bidder for $250,-000. Because Weiss waived his redemption rights, no redemption took place during the applicable redemption period.

[¶ 9.] At the time of the sale, the funds held by the receiver consisted of $82 in a checking account and $42,326 in a savings account for a total of $42,408. Following the sale, Weiss asked the trial court to award the balance of the receiver’s funds to him. Alma resisted this motion and filed a petition seeking the receivership funds. The trial court found that Weiss’ interest in the rents and profits was subordinate to that of Alma. The trial court awarded Alma the money held by the receiver holding that the assignment of the promissory notes and mortgages to Alma by the original lenders transferred all right, title and interest in the property to Alma.

[¶ 10.] Weiss appeals the judgment of the trial court.

ISSUE

[¶ 11.] Did the trial court err in awarding receivership funds to the mortgagee when the foreclosure sale resulted in a deficiency between the balance of the debt and the proceeds of the sale even though the mortgagee agreed not to pursue a deficiency judgment against the mortgagor and even though no deficiency judgment was obtained?

STANDARD OF REVIEW

[¶ 12.] A complaint seeking foreclosure of a mortgage is unquestionably an equitable action. See First W. Bank, Sturgis v. Livestock Yards, 466 N.W.2d 853, 856 (S.D.1991) (citing Lounsberry v. Kelly, 32 S.D. 160, 142 N.W. 180, on reh’g 32 S.D. 456, 143 N.W. 369 (1913)). “Foreclosure of a mortgage is an equitable action and a court in equity has the power and the right to grant full and complete legal and equitable relief.” American Fed. Sav. v. Mid-America Service, 329 N.W.2d 124, 126 (S.D.1983).

[¶ 13.] In their briefs to this Court, the parties argue that the standard of review should be de novo. As authority, they cite several cases from other state courts which are advisory, but not binding on this Court. These authorities agree that an action to foreclose a mortgage is an equitable one as is the remedy of receivership. Federal Land Bank of Omaha v. Victor, 232 Neb. 351, 440 N.W.2d 667, 670 (1989); GMAC Mortg. Corp. v. Gisvold, 215 Wis.2d 459, 572 N.W.2d 466, 476 (1998). However, this Court has said un equivocally that the standard of review for equitable actions in South Dakota is abuse of discretion. Englehart v. Larson, 1997 SD 84, ¶ 12, 566 N.W.2d 152, 155 (citing Eli v. Eli, 1997 SD 1, ¶ 8, 557 N.W.2d 405, 408); Mattson v. Rachetto, 1999 SD 51, ¶ 9, 591 N.W.2d 814, 817 (citing Amdahl v. Lowe, 471 N.W.2d 770, 773 (S.D.1991)). We will continue to apply that standard in this case.

[¶ 14.] An abuse of discretion occurs when “ ‘no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.’ ” Id. (quoting Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, ¶ 6, 579 N.W.2d 1, 3). See also Englehart, supra (quoting Dartt v. Berghorst, 484 N.W.2d 891, 894 (S.D.1992)). “The term ‘abuse of discretion’ refers to ‘a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Herndon v. Herndon, 305 N.W.2d 917, 918 (S.D.1981) (quoting Root v. Bingham, 26 S.D. 118, 120, 128 N.W. 132, 133 (1910)). Accord State v. Flying Horse, 455 N.W.2d 605, 608 (S.D.1990).

DECISION

[¶ 15.] The essential purpose of a foreclosure action is to have the mortgaged property applied to a debt secured by a lender, together with such other relief as may be necessary to the enforcement of the debt. 55 Am.Jur.2d Mortgages § 630 (1996). A foreclosure action has been said to be a proceeding for the legal determination of the existence of the mortgage lien, the ascertainment of its extent, and the subjection to a sale of the property pledged for the debt’s satisfaction. Id.

[¶ 16.] In South Dakota there are several statutory schemes that allow for foreclosure of a mortgage. When a default occurs on a contract for deed, for example, SDCL 21-50-1 provides that an action for strict foreclosure may be brought. Wandler v. Lewis, 1997 SD 98, ¶20, 567 N.W.2d 377, 382. However, a party is not limited to strict foreclosure under SDCL ch. 21-50. Depending on the circumstances, a lender may elect to proceed with any one of several remedies under South Dakota law including, but not limited to, a sheriffs sale as provided by SDCL ch. 21-47. In the instant case, Alma elected to proceed under this section with foreclosure by sheriffs sale.

[¶ 17.] After giving Weiss a chance to sell the property on his own, Alma prosecuted the foreclosure action, sold the property at a sheriffs sale and received $250,000 as a result. At the time, Weiss owed Alma in excess of $843,000. Alma then claimed rights to the more than $42,000 in rents and profits held by the receiver. Alma claimed this even though it had assigned its interest in the receivership funds to Weiss and had agreed in the December 1998 agreement and addendum not to pursue a deficiency judgment.

[¶ 18.] The trial court concluded that the agreement assigning the receivership funds to Weiss was inoperable because Weiss did not sell the property on his own as the agreement required. The trial court then found that the entire sum of the debt had not been paid and concluded that the receivership funds should be awarded to Alma even though a deficiency judgment against Weiss was neither sought nor obtained. Did the trial court abuse its discretion? We conclude that it did not.

[¶ 19.] Both Weiss and Alma agreed to the appointment of a receiver, an officer of the court appointed to preserve the collateral by collecting and retaining rents and profits subject to the control and disposition of the court. Todd v. Winkelman, 320 N.W.2d 525, 528 (S.D.1982); Sherman v. Wichner, 35 S.D. 436, 152 N.W. 700 (1915). While the trial court is authorized by statute to appoint a receiver to collect rents and profits, ordinarily, neither the court nor the receiver is authorized to pay rents and profits to a mortgagee to satisfy a deficiency judgment. First Nat. Bank v. Cranmer, 42 S.D. 404, 408-409, 175 N.W. 881, 882 (1920). An exception to this ordinary rule exists where the mortgage agreement expressly pledges rents and profits to the mortgagee in the event of a default. Hulseman v. Dirks Land Co., 63 S.D. 404, 407, 259 N.W. 679, 680 (1935).

[¶ 20.] Cranmer and Hulseman were decided pursuant to a statute that was repealed in 1966. First Federal Sav. & Loan v. Clark Inv. Co., 322 N.W.2d 258, 261 (S.D.1982). However, this Court has since held that a mortgagor can contract away his right to rents and profits. Aetna Life Ins. Co. v. McElvain, 363 N.W.2d 186, 191 (S.D.1985) (citing First Federal, 322 N.W.2d at 258). In addition, Aetna relied on SDCL 21-47-17, which reads in part, “a foreclosure may not be considered to be satisfaction of an assignment of rents agreement under the mortgage.” Id. The Court found Aetna, as mortgagee, was entitled to the rents and profits collected by the receiver pursuant to the assignment of rents clause in the mortgage. Id.

[¶ 21.] A similar assignment of rents and profits was made in the present case. It is undisputed that in the original mortgage agreement, as well as in a separate assignment of rentals contract entered into at the same time, Weiss pledged rents and profits as further security for the debt in the event of default.

[¶ 22.] It is also undisputed that at the time of the foreclosure, a deficiency judgment was neither sought nor obtained against Weiss. Under South Dakota law, a foreclosure ordinarily operates as a complete extinguishment, satisfaction and payment of the debt secured by the mortgage. SDCL 21-47-17. However, there are two exceptions to this general rule. The first is a deficiency judgment obtained pursuant to SDCL 21-47-16. The second is an assignment of rents agreement under SDCL 21-47-17. As noted above, a foreclosure may not be considered to be satisfaction of an assignment of rents clause in a mortgage.

[¶23.] Alma expressly agreed not to seek a deficiency judgment. Alma also expressly agreed to take the purchase price of the property, with a minimum payment of $250,000, as satisfaction of Weiss’ obligation. These terms were agreed to in writing in December 1998 following Weiss’ default on the mortgage. In an addendum to that agreement, Alma agreed to assign to Weiss its interest in the rents and profits should Weiss sell the property. Weiss did not sell the property.

[¶ 24.] The trial court properly concluded that the December 1998 agreement and addendum assigning Alma’s interest in rents and profits to Weiss was inoperable because of Weiss’ failure to sell the property on his own. This left the parties with the original mortgage agreement which contained the clause assigning rents and profits to Alma.

[¶ 25.] The trial court also properly concluded that Weiss’ interest in the property was subject to the mortgage and lien held by Alma and that the receivership account was for the benefit of the mortgage and lien holder. The trial court held the assignment clause vested all title in the receivership account to Alma. We cannot say that the trial court abused its discretion in reaching this conclusion.

[¶ 26.] A court in equity has the right to grant full and complete equitable relief. Mid-America Service, 329 N.W.2d at 126. The trial court found it equitable to grant the receivership funds to Alma pursuant to the assignment of rents clause in the mortgage agreement due to the fact that over $500,000 was never recovered by Alma on the debt. The trial court did not enter a finding on the exact amount of the debt unaccounted for after the sale of the property for $250,000. The trial court simply found that the sheriffs sale ultimately yielded less than the amount owed on the promissory note.

[If 27.] While Alma agreed not to pursue a deficiency judgment, nothing in the law requires that a deficiency judgment be secured before a court can award proceeds of a receivership to a mortgagee. SDCL 21-47-17 particularly states that a foreclosure judgment is not considered satisfaction of an assignment of rents. Thus the foreclosure judgment here did not constitute a satisfaction of the assignment of rents made in this case.

[¶ 28.] Finally, there was no inequitable windfall to Alma. The proceeds of the sale were far less than the amount Weiss owed Alma on the debt. If Alma had not given up its right to pursue a deficiency judgment, in all likelihood, Alma would have secured a judgment against Weiss for the remaining $593,078. Instead, all Alma received on the debt was $250,000 from the sheriffs sale plus $42,408 in rents and profits held by the receiver.

[II29.] An abuse of discretion occurs when “ ‘no judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.’ ” Mattson, 1999 SD 51 at ¶ 9, 591 N.W.2d at 817; Amdahl, 471 N.W.2d at 773. In view of the law and circumstances of this case, we cannot say the trial court abused its discretion in awarding these proceeds to Alma. •

[¶ 30.] Affirmed.

[¶ 31.] MILLER, Chief Justice, and AMUNDSON and GILBERTSON, Justices, and NEILES, Circuit Judge, concur.

[¶ 32.] LOVRIEN, Circuit Judge, for SABERS, Justice, disqualified.

[¶ 33.] NEILES, Circuit Judge, for KONENKAMP, Justice, disqualified.

      . The judgment provided, "that the Plaintiffs have and recover a judgment of foreclosure against the Defendant, Charles W. Weiss, plus costs in the amount of Sixty nine and 03/ioo dollars ($69.03)."

      . During this time period, Weiss unsuccessfully tried to satisfy the default judgment. The notes and mortgages continued to change hands until Alma filed its motion to be substituted as plaintiff based on an assignment of the notes and mortgages from FDIC.

      . The various mortgage foreclosure actions are as follows: SDCL ch. 21-48 provides for mortgage foreclosure by advertisement, if the parties meet certain requirements. SDCL ch. 21-48A provides for voluntary foreclosure upon written agreement between the mortgagor and mortgagee. SDCL ch. 21-49 provides parties with foreclosure alternatives for tracts of land of not more than forty acres. As noted above, SDCL ch. 21-50 provides for strict foreclosure of a contract for deed. Once a party has defaulted on a real estate contract, the court sets a certain time period in which the debtor must comply with the terms of the contract. This may include accelerated payment of the contract amount. If the debtor does not comply, the clerk of court certifies the time has expired with noncompliance. In re Carver, 61 B.R. 824 (Bankr. D.S.D. 1986) (overruled on other grounds). When the strict foreclosure process is complete, the parties are placed in the same position as if the contract had not been made. State v. Darling, 39 S.D. 558, 165 N.W. 536 (1917).

      . The parties address the issue of the monetary discrepancy in their briefs. In cases previously decided by this Court, we have discussed facts admitted by the parties in their briefs. See e.g. Melbourn v. Benham, 292 N.W.2d 335 (S.D. 1980); Big Band, Inc. v. Williams, 87 S.D. 24, 202 N.W.2d 121 (1972). Additionally, the amended default judgment and decree of foreclosure sets forth the full amount of the debt. This judgment is in the record and the parties agree the sale did not net the full amount owed to Alma. Alma sets forth the exact dollar amounts in its brief which we have relied on in setting forth the facts of this decision. Weiss has also stated that there is a "mathematical difference” in the amount of $593,073. A statement will be taken as true unless questioned in a brief filed by a party. Hepner v. Wheatley, 33 S.D. 34, 40, 144 N.W. 923, 925 (S.D.1913). Weiss has not questioned the monetary amounts and actually set out the same difference between the amount collected and the amount owed. The trial court found, and the parties agree, that Alma agreed not to pursue a deficiency judgment for any amount. However, that does not change the fact that Alma did not recover over $500,000. This is important in an equitable action as it would not have been equitable to allow Alma to collect more than it was actually owed.


author: MILLER, Chief Justice (on reassignment). SABERS, Justice KONENKAMP, Justice

text:
    2000 SD 125
    Kathy FRYER, Plaintiff and Appellee, v. Clint KRANZ, Defendant and Appellant.
    No. 20842.
    Supreme Court of South Dakota.
    Argued Oct. 19, 1999.
    Reassigned May 10, 2000.
    Decided Sept. 6, 2000.

      Rick Johnson, Stephanie E. Pochop of' Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, South Dakota, Attorneys for plaintiff and appellee.
    William C. Garry, Michael A. Henderson of Cadwell, Sanford, Deibert & Garry, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   MILLER, Chief Justice (on reassignment).

[¶ 1.] In this intermediate appeal, because the employee has shown there is no genuine issue of material fact as to whether employer’s conduct was intentional in order to except it from workers’ compensation coverage, we hold that the circuit court improperly denied the employer’s motion for summary judgment.

FACTS

[¶ 2.] In 1996, Clint Kranz was remodeling a building in Watertown, South Dakota, to convert it into a casino. He employed workers, including Kathy Fryer, to help with the project. As part of the cleanup, he wanted to remove grout and other residue from the ceramic tile floors. Cleaning the tile proved difficult, so he purchased muriatic acid for the job. Muri-atic acid, also called hydrochloric acid, is a strong, highly corrosive chemical. The product label warned that for proper use, the acid should be diluted, the vapors are harmful when the acid is used improperly, and the product is for exterior use only. These warnings were not readable when Fryer used the chemical because the label was covered with “cement stuff.”

[¶ 3.] To show Fryer how to clean the tile, Kranz poured the undiluted muriatic acid on the floor, saying “This is how we use it.” Kranz said he had used the product several times. He did not warn Fryer about any dangers, although he did say the acid is “corrosive and smells really bad,” and “try not to breathe it.” Fryer was told to wear protective gloves. Also, a small oscillating fan was positioned nearby to circulate the air, with more fans set up in the doorways to ventilate the building.

[¶ 4.] Over the course of three to four weeks, Fryer regularly cleaned with the acid. It produced a “green cloud” when poured on the floor. The vapor made her feel nauseated, lightheaded, and she coughed when she breathed it. She thought, nonetheless, that the fumes were no more toxic than those from products like fingernail polish remover or “whiteout.” Yet she “complained a lot about it.” She told Kranz, “It makes me feel weird. It makes me light-headed. I hate this shit.” Kranz responded, “Well, when that happens, then you need to take a break and you need to go get some air.” He had her continue to use the product.

[¶ 5.] On November 12, 1996, Fryer used the muriatic acid to clean a very small room where there was no ventilation. The fumes overcame her. Lightheaded and nauseated, she could not continue. She ran across the alley to a bathroom in another building and vomited. When Kranz knocked on the door, Fryer assured him that she “was fine.” She did not immediately seek medical attention, but as the day progressed, she suffered chest pains, breathing problems, and her skin “hurt real bad.” Later in the day, she was admitted to the hospital where she remained for four days. She continues to suffer health problems.

[¶ 6.] Fryer brought a personal injury action against Kranz in circuit court, alleging:

[Kranz] had experience with muriatic acid and was aware of its dangerous propensities, but nevertheless, intentionally directed [Fryer] to utilize the same in the small, unventilated area even after she had advised him that use of the product in larger ventilated areas had caused her dizziness, nausea and headaches.
* * *
[Kranz] intentionally caused the plaintiff to be exposed to the dangerous situation knowing that it was probable that serious injury would result.

She sought damages for medical expenses, emotional distress, pain and suffering, and reduced earning capacity. Kranz moved for summary judgment. The court denied the motion, concluding that there were material issues of fact on whether Fryer committed an intentional tort. We granted intermediate appeal.

STANDARD OF REVIEW

[¶ 7.] Our review of a trial court’s granting of summary judgment is well settled. See Wilson v. Great N. Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968); Millard v. City of Sioux Falls, 1999 SD 18, ¶ 8, 589 N.W.2d 217, 218; Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, ¶ 14, 581 N.W.2d 527, 531; Specialty Mills, Inc., v. Citizens State Bank, 1997 SD 7, ¶ 7, 558 N.W.2d 617, 620.

In reviewing a grant or a denial of summary judgment under SDCL 15 — 6—56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of summary judgment is proper.

Kaiser v. North River Ins. Co., 2000 SD 15, ¶ 6, 605 N.W.2d 193, 195; Schipke v. Grad, 1997 SD 38, ¶ 5, 562 N.W.2d 109, 110; Walz v. Fireman’s Fund Ins. Co., 1996 SD 135, ¶ 6, 556 N.W.2d 68, 69; Harn v. Continental Lumber Co., 506 N.W.2d 91, 94 (S.D.1993).

DECISION

[¶ 8.] Workers’ compensation covers employment-related accidental injury of every nature. No matter what form employer conduct takes, be it careless, grossly negligent, reckless, or wanton, if it is not a “conscious and deliberate intent directed to the purpose of inflicting an injury,” workers’ compensation remains the exclusive remedy. 6 Larson’s Workers’ Compensation Law (MB) § 103.03 at 103-6 (November 1999). Even when an employer’s acts entail “knowingly permitting a hazardous work condition to exist, knowingly ordering a claimant to perform an extremely dangerous job, [or] wilfully failing to furnish a safe place to work,” still they come within the ambit of workers’ compensation. Id. at 103-6 (November 1999) & 103-7 (May 2000).

[¶ 9.] In the workers’ compensation scheme, exclusivity serves two important values: (1) it maintains “the balance of sacrifices between employer and employee in the substitution of no-fault liability for tort liability,” and (2) it minimizes “litigation, even litigation of undoubted merit.” Larson, supra, § 103.05[6] at 103-44 (May 2000). Exclusiveness imparts efficiency to the workers’ compensation system. “Every presumption is on the side of avoiding superimposing the complexities and uncertainties of tort litigation on the compensation process.” Id.

[¶ 10.] When an employer intends to commit injury, as opposed to negligently or recklessly committing it, then the ratio'nale for embracing workers’ compensation disappears. Accordingly, when an employer intentionally causes a work-related injury, workers’ compensation law allows an exception to the exclusive remedies for employee work-related injuries:

The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort.

SDCL 62-3-2.

[¶ 11.] Only injuries “intentionally inflicted by the employer” take the matter outside the exclusivity of workers’ compensation coverage. Harn v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D.1993). “The worker must also allege facts that plausibly demonstrate an actual intent by the employer to injure or a substantial certainty that injury will be the inevitable outcome of employer’s conduct.” Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 372 (S.D.1991) (citations omitted). Even when an “injury is a probable ... result, [workers’] compensation is still the exclusive remedy.” Id. (emphasis in original). The intentional tort exception is narrowly construed. Benson v. Goble, 1999 SD 38, ¶ 19, 593 N.W.2d 402, 406 (citations omitted).

[¶ 12.] More than knowledge or appreciation of risk is required to establish intentional conduct. “The known danger must cease to become only a foreseeable risk which an ordinary, reasonable, prudent person would avoid (ordinary negligence) and become a substantial certainty.” Harn, 506 N.W.2d at 95 (citing Brazones v. Prothe, 489 N.W.2d 900, 906 (S.D.1992); Jensen, 469 N.W.2d at 372; Ver-Bouwens v. Hamm Wood Prod., 334 N.W.2d 874, 876 (S.D.1983)).

[¶ 13.] The statement of our law regarding the substantial certainty standard was summarized in Harn:

The substantial certainty standard requires that the employer had actual knowledge of the dangerous condition and that the employer still required the employee to perform. Substantial certainty of injury to the employee should be equated with virtual certainty to be considered an intentional tort.... If an employee worked under such conditions where the employer actually knew of the danger and that injury was substantially certain (virtually certain) to occur, and such injury did occur, the employer should not escape civil liability for placing the employee in such a dangerous position. That is the type of conduct the intentional tort exception deters.

506 N.W.2d at 100.

[¶ 14.] Fryer asserts that Kranz knew she would be injured. When she complained to him about the fumes making her feel lightheaded, he replied: “Well, when that happens, then you need to take a break and you need to go get some air.” Fryer stresses that Kranz used the word “when” rather than “if.” To Fryer, it is notable that, although Kranz had joined Fryer in working with the acid before she complained, he sent her back to the small room alone. This, she argues, shows that her adverse reaction was inevitable and that Kranz knew it. She claims Kranz knew because she had been harmed previously, though not as seriously, by the fumes when they made her light-headed and nauseated.

[¶ 15.] “The intentional tort exception to workmen’s compensation is fact specific.” Harn, 506 N.W.2d at 99. A comparison of the present facts to the factual bases of our prior cases is necessary to appreciate the allegations proffered by Fryer. Our cases thus far have described actions that do not constitute an intentional tort. This fact results from our narrow construction of the intentional tort exception. Id. at 95.

[¶ 16.] Most recently, in Harn, work was being done in an old sawmill because a new sawmill was having technical difficulties. During this work transfer, no one bothered to check whether the anti-kickback device was in place, and Harn was injured when a piece of lumber flew back out of the machine and struck him. There we held that disengaging the safety device may have made the injury probable or highly probable, but that was still not deemed to be substantially certain.

[¶ 17.] In Brazones, the plaintiffs alleged that “defendants sent the crew to clean the [petroleum] tank without proper equipment for the job; without sufficient training and instruction as to cleaning, operation of equipment and safety; and allowing potentially unsafe conditions to be present.” 489 N.W.2d at 907. Although these allegations may have amounted to knowledge of a probable risk of injury to plaintiffs on defendants’ part, we held them insufficient to show intent to injure.

[¶ 18.] In Jensen, the plaintiff was an “inexperienced, inadequately trained, 14-year-old boy ordered by his employer, without any warning of the danger, to perform a maintenance task which the employer knew from personal experience to be risky.” 469 N.W.2d at 372. Even so, we did not deem the employer’s actions to be intentionally tortious conduct.

[¶ 19.] Finally, in VerBouwens, the plaintiff was injured by a saw designed and constructed by his employer, which lacked proper safety equipment. 334 N.W.2d at 875. We hypothesized that the defendant may have known of a probable risk of injury from its saw design, yet we were unable to say that he was substantially certain injury would result.

[¶ 20.] Comparing the facts in pri- or cases to the instant action, Kranz’s conduct was no more egregious than the other employers. His supervision of Fryer may have been negligent, reckless, or even wanton, but there is simply no showing that he intended to injure her.

[¶ 21.] Even when viewed in a light most favorable to Fryer, the evidence at most proves that Kranz knew the acid vapor irritated her. Fryer contends that muriatic acid, “when used in a small, unventilated space, ... simply can not be used without causing illness.” But this was the first time the acid had been used by Kranz or any of his employees in a small, unventilated space; she has not shown in any manner that Kranz knew her injuries were virtually certain to occur.

[¶ 22.] Based on Fryer’s prior experiences with the acid, Kranz knew that it caused her to become light-headed and nauseous. However, that information alone does not automatically make it virtually certain that she would be overcome by the fumes on this occasion. Indeed, the fact that she suffered no severe adverse effects on prior occasions lends credence to Kranz’s position that he was not certain it would cause injury.

[¶ 23.] Moreover, the notation that Kranz personally suffered ill effects from the acid supports the opposite idea that he did not know how injurious the fumes could be. Had he purposely intended to injure his employees by exposing them to the noxious fumes, it is simply not rational to believe that he would have also knowingly and deliberately exposed himself to the fumes by helping his employees clean the grout. Nor is it any more rational to assume that he knowingly and deliberately inflicted upon himself the medical claims, damages, time setbacks, and lawsuits that his employees’ exposure to the acid would entail. Larson, supra, § 103.05[6] at 103-41 (May 2000).

[¶ 24.] Under these circumstances, perhaps Kranz should have known that the fumes might cause injury, or even that they would probably or likely cause injury. However, that level of knowledge was still insufficient to show intent to injure under our standard. Harn, 506 N.W.2d at 95; Brazones, 489 N.W.2d at 905; Jensen, 469 N.W.2d at 372; VerBouwens, 334 N.W.2d at 876. Kranz showed that no genuine issue of material fact existed as to his intent. To overcome Kranz’s, motion for summary judgment, Fryer needed to show that Kranz knew with virtual certainty that such exposure would cause illness, yet still required her to work. Harn, 506 N.W.2d at 100. This she failed to do.

[¶ 25.] As we stated in Brazones:

These allegations may amount to knowledge of a probable risk of injury to plaintiffs on defendants’ part. However, these facts do not come within South Dakota’s intentional tort exception to worker’s compensation coverage as a matter of law. We are unable to say that defendants were substantially certain that plaintiffs’ injuries would be the inevitable outcome of defendants’ conduct, much less to say that defendants actually intended plaintiffs’ injuries.

489 N.W.2d at 907. Given both Fryer’s and Kranz’s prior experience working with the acid with no more than irritating side effects, her being overwhelmed by the fumes was not a matter of when it would happen (a certainty), it was a question of if it would (a probability).

[¶ 26.] To decide this case differently would blur the line between cases involving only negligent or reckless conduct and those involving true intent to injure. In VerBouwens, Justice Wollman foresaw the dire results of such an outcome:

If the “intentional tort” exception was expanded as plaintiffs request, the focus would be upon the degree of risk of injury and the state of knowledge of the employer and the employee regarding the dangerous conduct or condition which caused the injury. This result undermines the balance of interests maintained by the worker’s compensation system. First, it would thwart the goal of the system to provide employers relative immunity from liability at law. Second, it would deny many employees the swift and certain compensation they now receive under the system. The system originally required employees to surrender their right to a potentially larger recovery in a common law action for the wilful or reckless misconduct of employers, in return for expeditious recovery under worker’s compensation. Employees disappointed with worker’s compensation recovery would be encouraged to seek additional compensation in a common law action, increasing the role of the courts in resolving ... accident disputes.

334 N.W.2d at 877 (Wollman, J., concurring specially) (quoting Shearer v. Homestake Mining Co., 557 F.Supp. 549, 555 (D.S.D.1983)). Moreover, with an artfully drafted complaint simply alleging that the employer intended to cause bodily harm or death, every employee would arguably be permitted to litigate his workers’ compensation claim as an intentional tort. See, e.g., Handley v. Unarco Indus., Inc., 124 Ill.App.3d 56, 79 Ill.Dec. 457, 463 N.E.2d 1011 (1984) (showing that plaintiffs withstood summary judgment by alleging that defendant intended bodily harm and/or death to plaintiffs, that defendant’s conscious purpose was that asbestos would become trapped in their lungs and bodies).

[¶ 27.] Our warning in Harn bears repeating:

Without demanding and maintaining the strict standard, South Dakota would be following Ohio’s slippery path. Ohio’s substantially certain standard seems to allow actions to go forward which are ordinary negligence actions, i.e., injury is possible, and actions describing wanton or reckless conduct, i.e., injury is probable. That is exactly what workmen’s compensation was designed to avoid. An employee should be allowed to recover from an employer if the employer hits the employee on the head with a board — that is an intentional tort. But “substantially certain” should not be allowed to be so watered down as to allow ordinary negligent conduct or reckless or wanton conduct on the employer’s part to overcome the exclusivity of workmen’s compensation. Every workmen’s compensation case would then become a common-law action.

506 N.W.2d at 99-100. Given the legislature’s considered, deliberate use of the word “intentional” in SDCL 62-3-2, we are hesitant to expand upon the accepted, traditional meaning of that word. VerBouwens, 334 N.W.2d at 877 (Wollman, J., concurring specially). Intent really means intent. Jensen, 469 N.W.2d at 371; Brazones, 489 N.W.2d at 906; Harn, 506 N.W.2d at 95.

[¶28.] Although Kranz’s conduct was clearly negligent, probably reckless and possibly wanton, it does not amount to an intentional act. Therefore, the denial of Kranz’s motion for summary judgment is reversed, and the case is remanded with directions that the trial court enter summary judgment in his favor.

[¶ 29.] AMUNDSON and GILBERTSON, Justices, concur.

[¶ 30.] SABERS and KONENKAMP, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 31.] The majority opinion confusingly refers to both “substantial certainty” and “virtual certainty” throughout its opinion. “Virtual certainty” should not be used to increase the “substantial certainty” test. The majority opinion confusingly leaves the bench and bar to wrestle with any possible implications and reaches the wrong decision by use of such test.

[¶ 32.] The majority opinion quotes from Harn v. Continental Lumber Co., 506 N.W.2d 91 (S.D.1993) throughout for support of its “virtual certainty” test. Without citing to any authority, the Harn court stated:

Substantial certainty of injury to the employee should be equated with virtual certainty to be considered an intentional tort. Any less of a showing would render our workmen’s compensation scheme a hollow shell and would encourage endless litigation in the courts. If an employee worked under such conditions where the employer actually knew of the danger and that injury was substantially certain (virtually certain) to occur, and such injury did occur, the employer should not escape civil liability for placing the employee in such a dangerous position.

Id. at 100. Up to that point, “virtual certainty” was never associated with the “substantial certainty” test. Only two members of the current court participated in that case and I restate my special concurrence therein:

In my view, the test from [Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 372 (S.D.1991)] is solid and workable and should not be altered. ‘The worker must ... demonstrate an actual intent by the employer to injure or a substantial certainty that injury will be the inevitable outcome of employer’s conduct.’ Jensen, 469 N.W.2d at 372 (citations omitted). Just as ‘substantial certainty should not be equated with substantial likelihood,’ id (citation omitted), neither should it be altered to mean ‘virtually certain.’

Id. at 100 (Sabers, J., concurring specially)-

[¶ 33.] The Florida Supreme Court recognizes that there is a distinction between “substantial certainty” and “virtual certainty:”

We recognize that some courts have elevated the standard employees must prove from ‘substantial certainty’ to ‘virtual certainty.’ Although we continue to find that ‘substantial certainty’ requires a showing greater than ‘gross negligence,’ we emphasize that the appropriate standard is ‘substantial certainty,’ not the heightened ‘virtual certainty’ standard.

Turner v. PCR, Inc., 754 So.2d 683, 687 n.4 (Fla. 2000) (internal citations omitted). Therefore, the Turner court receded from any previous language which “suggest[ed] [that] the ‘substantial certainty’ test requires a showing of ‘virtual certainty.’ ” Id. We should do the same and return to the “substantial certainty” test.

[¶ 34.] Under our settled case law of Wilson, 157 N.W.2d at 21, and Thiewes, 448 N.W.2d at 3, the burden is on the moving party to show that there is no genuine issue of material fact. Here, the moving party is Krantz and he failed to meet his burden. In addition, it is obvious here that even under the incorrect “virtual certainty” test, reasonable minds differ. Therefore, the question is for the jury, not the trial court nor this Court.

[¶ 35.] For these reasons and the reasons expressed in Justice Konenkamp’s dissent, I dissent.

KONENKAMP, Justice

(dissenting).

[¶ 36.] This is a close case, admittedly, but close cases are decided in trials, not in chambers. Well advised is the precept that summary judgment cannot replace a trial. Yet with phrases like “it is simply not rational to believe,” and the evidence “lends credence of [the employer’s] position,” the Court renders findings as if it were a jury. If we are to adhere to the strictures of summary judgment, however, this case should go to trial. Allow a jury to decide the employer’s intent when he knowingly exposed his employee to toxic acid fumes in an unventilated room and then claimed the resulting injury was an accident.

[¶ 37.] The employee’s complaint alleged an intentional tort, taking the matter outside the purview of workers’ compensation. The circuit court properly denied summary judgment because a genuine issue of fact remains on whether the employer intended his employee to suffer exposure to acid fumes, by ordering her to work with the acid in a small, unventilated space knowing that adverse consequences were substantially certain to occur. Summary judgment is -proper only when a court can conclude that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c).

[¶ 38.] If an employer-caused injury is intentional, workers’ compensation allows an exception to the exclusive remedies for employee work-related injuries:

The rights and remedies herein granted to an employee subject to this title, on account of personal injury or death arising out of and in the course of employment, shall exclude all other rights and remedies of such employee, his personal representatives, dependents, or next of kin, on account of such injury or death against his employer or any employee, partner, officer or director of such employer, except rights and remedies arising from intentional tort.

SDCL 62-3-2. Intentional torts occur when employers desire to cause the consequences of their acts, or they believe that the consequences are substantially certain to result from them. See Black’s Law Dictionary 810 (6th Ed. 1991) (defining intentionally); Restatement (Third) of Torts § 1 (1999) (defining intentional). See also Jensen v. Sport Bowl, Inc., 469 N.W.2d 370, 372 (S.D.1991) (citations omitted) (intent to injure denotes “a substantial certainty that injury will be the inevitable outcome of the employer’s conduct.”)

[¶ 39.] The term “virtual certainty,” used repeatedly in the majority writing, somehow crept into our precedent, but its lineage is obscure. See Harn v. Continental Lumber Co., 506 N.W.2d 91, 100 (S.D.1993) (first and last time the term used until now). In human behavior few things are “virtually certain” to follow any particular deed. The intentional tort exception should be narrowly construed, of course, but not to the extent of requiring proof that employers must foresee with “virtual certainty” the results of their deliberate acts. Benson v. Goble, 1999 SD 38, ¶ 19, 593 N.W.2d 402, 406 (citations omitted) (narrow construction required). Substantial certainty is the appropriate standard. (Brazones v. Prothe, 489 N.W.2d 900, 906 (S.D.1992); Jensen, 469 N.W.2d at 372; VerBouwens v. Hamm Wood Prod., 334 N.W.2d 874, 876 (S.D.1983)). See also Harn, 506 N.W.2d at 100 (Sabers, J., concurring) (citations omitted).

[¶ 40.] To commit an intentional act taking the matter out of the domain of workers’ compensation, employers must intend not only the injurious act, but the injury as well. 6 Larson’s Workers’ Compensation Law § 103.05[6], at 103-44 to -45. How can we know that injury was intended? If probability rises to the extent that employers know injury is certain or substantially certain to occur, but in willful disregard of that knowledge they still require their employees to perform, employers are deemed by law to have intended the result.

[¶41.] Kranz himself selected the acid with its warning label stating that it is “for exterior use only,” that it must be diluted, and that the vapors are harmful when used improperly. In directing his employee how to use it he disregarded each of those warnings, and then gave an impossible command: “Try not to breathe it.” When Fryer complained to Kranz about the fumes making her feel lightheaded, he replied: “Well, when that happens, then you need to take a break and you need to go get some air.” Kranz used the word “when” rather than “if.” He himself had suffered from exposure to the acid fumes. He told Fryer that he needed to “take a break” from the fumes to get some air. And although Kranz had joined Fryer in working with the acid before she complained, he sent her back to the small room alone. Certainly there is a genuine issue of fact whether Kranz knew with substantial certainty the adverse effects to come.

[¶ 42.] In Brazones the plaintiffs suffered burns after their employer sent them to clean a petroleum storage tank without proper equipment and without training on how to perform the job safely. Brazones, 489 N.W.2d at 903, 907. There, we wrote:

These allegations may amount to knowledge of a probable risk of injury to plaintiffs on defendants’ part. However, these facts do not come within South Dakota’s intentional tort exception to [workers’] compensation coverage as a matter of law. We are unable to say that defendants were substantially certain that plaintiffs’ injuries would be the inevitable outcome of defendants’ conduct, much less to say that defendants actually intended plaintiffs’ injuries.

Id. at 907. Before the mishap in Brazones took place, there was only a chance an injury could occur. It was perhaps a likely chance, but still just a chance.

[¶ 43.] Here, on the other hand, events went beyond chance. Before Fryer was hospitalized from her last exposure to the acid fumes, an earlier exposure occurred with adverse consequences that she told Kranz about. In her complaint, Fryer alleged that Kranz “had experience with mu-riatic acid and was aware of its dangerous propensities, but nevertheless, intentionally directed [Fryer] to use the same in the small, unventilated area even after she had advised him that use of the product in larger ventilated areas had caused her dizziness, nausea and headaches.”

[¶ 44.] Professor Larson’s treatise criticizes decisions eroding the intentional tort exception, but nonetheless concedes that in this type of circumstance a true intentional tort can be shown. Using as an example a manslaughter case where the employer allowed workers to be exposed to cyanide gas, Larson points out that the employer knew about the danger because the labels on the chemical containers had warnings. Moreover, the workers complained daily about the fumes. One worker eventually died and others were injured. The corporate officers were found guilty of involuntary manslaughter. In contrasting this case with others where only a high probability of injury could be shown, Larson explains that the fumes were “continuously operative, and the employer knew it.” Larson, supra, § 103.05[6], at 103-41, 103-42. In other cases, injury might or might not occur, depending on several variables. But in Larson’s example,

exposure to fumes did in fact occur. The only possible “unknown” might have been the effect of inhaling the fumes, but this unknown was removed by the plain warning on the package. The hiring of only workers who could not read warning labels confirms that the employer wanted those employees to continue to inhale these and suffer these known consequences. A court could well say that this amounted to intending the injury.

Id. at 103-42. (emphasis in original). Likewise, Kranz knew that Fryer had earlier suffered adverse effects from the fumes, knew that he himself had reacted to them, knew from the warning label that the acid should not be used as he was ordering his employee to use it, and knew that by following his direction Fryer would be exposed to concentrated fumes in the small space he ordered her to clean. See Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla.Dist.Ct.App.1990) (employer knowingly exposed workers to toxic fumes).

[¶ 45.] Contrast Larson’s hypothetical with what happened in Schefsky v. Evening News Ass’n, 169 Mich.App. 223, 425 N.W.2d 768 (Mich.App.1988). There, the employee claimed to have developed chemical asthma from using and inhaling solvents while cleaning printing presses. Id. at 769. In denying his tort claim, the court reasoned that the employee did not assert that the employer had “actual knowledge that an injury, such as chemical asthma or any other serious or permanent respiratory disease, was certain to occur following exposure to the solvents[.]” Id. at 771. In fact, the employee conceded that the “[d]efendant [employer] may not have specifically intended plaintiffs illness.” Id. That the worker might suffer any adverse consequences from the solvents remained unknown to both employer and employee.

[¶ 46.] Suppose in Harn that before any injury, the employer earlier witnessed the employee nearly being struck by a flying chunk of wood because a safety guard was not in place. And suppose, like Kranz, the employer responded, “Well, when that happens, you need to take a break.” Would there still have been no intentional tort? Or, suppose in Brazones the employees had complained about flare-ups in the storage tank they were cleaning, and the employer said, “Well, when that happens you need to get some air,” or “try not to get burned.” Even with these added facts we might well have ruled that because a flying chunk of wood or a flare-up are matters of chance, unpredictable, they would still not place the employer within the exception. But here, as in Larson’s example, the exposure and adverse effects were “continuously operative.”

[¶ 47.] While Fryer does not suggest that Kranz spitefully tried to hurt her, she does assert that Kranz knew injury was substantially certain to occur from exposure to acidic vapors. We must never forget that we view not only the facts favorably to the nonmoving party, but also the reasonable inferences from those facts. Wilson v. Great N. Ry. Co., 83 S.D. 207, 157 N.W.2d 19, 22 (1968) (citations omitted). In this light, Kranz’s familiarity with this toxic chemical, his knowledge that it was causing Fryer problems, and his direction that she continue working in the same fashion in an even more confined area, all tend to show knowledge that his conduct was substantially certain to result in injury. See Brazones, 489 N.W.2d at 907 (citations omitted). It was impossible to use the product without adverse effects under the conditions that Fryer was instructed to use it, undiluted and in a small, unventilated room where the fumes would concentrate. See Kielwein v. Gulf Nuclear, Inc., 783 S.W.2d 746, 748 (Tex.App.1990) (unprotected worker sent to clean up radioactive isotope spill).

[¶ 48.] In situations where dangerous equipment or conditions create only the probability of injury, harm may yet remain a matter of chance. On the other hand, breathing concentrated acid fumes creates a hazard where an employee cannot be exposed without suffering adverse effects. Thus injury becomes no longer accidental in nature. See Larson, supra, § 103.05[6] at 03^45. In these circumstances, we are compelled to let the fact finder decide whether injury was so certain to result from the employer’s conduct as to create an inference that it was intended. A genuine issue of material fact exists on whether Kranz acted with intent to injure.

[¶ 49.] The denial of summary judgment should be affirmed.

      . The allegation that serious injury “was probable” is insufficient by itself to take the matter out of workers’ compensation coverage. But in summary judgment cases we examine the entire record before us, including all the pleadings, depositions, and affidavits. SDCL 15-6-5 6(c).

        . Justice Konenkamp's dissent discusses a Larson example dealing with cyanide gas fumes. The example comes from the Michigan Supreme Court's discussion of an Illinois criminal case. Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986). As Justice Konenkamp points out, the Illinois case is a manslaughter case (not a workers’ compensation case). Larson also specifically notes the case did not "involve the meaning of 'intentional injury' in a compensation setting,” which is the issue this Court faces in the present suit. Larson, supra, § 103.05[6] at 103-41. Putting these two points aside, the Michigan Supreme Court stated in its obiter dictum discussion of the facts of the Illinois case "[it] is questionable, however, whether even this outrageous conduct would constitute a 'true intentional tort.' " Beau-champ, 398 N.W.2d at 893. Although Larson and Justice Konenkamp believe the facts of the Illinois case would constitute intentional conduct by the employer, the facts before this court are much less egregious than the facts underlying the Illinois case. The Illinois defendants never worked with the product they forced the workers to use, they hired workers who could not read English and therefore could not read the warning labels, their business of removing silver was a continually operating business, and they received a warning from an independent inspector "that the operation had outgrown the plant.” Id. at 892-93. In contrast, Kranz did work with the product Fryer used, Kranz did not purposefully conceal the warning labels (although they were obscured inadvertently by "cement” according to Fryer), Kranz did not hire Fryer to continually work with the product all day every day, and Kranz received no warning from an independent inspector concerning any dangerous condition at his work location. Accordingly, this Court reverses the trial court's denial of summary judgment because Kranz did show that no genuine issue of material fact existed as to whether he intended to harm or knew with virtual certainty that harm would result from Fryer's working with muriatic acid.