author: SABERS, Justice. MEIERHENRY, Justice

text:
    2005 SD 49
    Jeremy Joseph BOEHRNS, Appellant, v. SOUTH DAKOTA BOARD OF PARDONS AND PAROLES, Appellee.
    No. 23318.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 15, 2005.
    Decided April 20, 2005.
    Nichole A. Carper, Sioux Falls, SD, for appellant.
    Lawrence E. Long, Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, SD, for appellee.
   SABERS, Justice.

[¶ 1.] Jeremy Boehrns appeals the Board of Pardons and Paroles decision to classify him as a violent offender for parole eligibility under SDCL 24-15A-32. We affirm.

FACTS

[¶ 2.] On December 23, 1999, Boehrns pleaded guilty to one count of vehicular homicide. While under the influence of alcohol and drugs, Boehrns ran a stop sign while traveling more than fifty miles an hour in a busy intersection in Sioux Falls, South Dakota. He was involved in a violent collision and Curtis Abrahamson was killed. Boehrns was sentenced on February 9, 2000 and received a fifteen year prison sentence. In pronouncing sentence, the sentencing court indicated:

Mr. Boehrns, I am going to tell you that because this is a class 3 felony and because I believe it would be classified as a violent offense or a crime of violence that you have to serve fifty percent of that sentence, which is seven years and six months, before you can be eligible for parole.

Upon arriving at the penitentiary, Boehrns was classified as a nonviolent offender. In fact, the record established that no other prisoner in the South Dakota system was classified as a violent offender for a conviction related to vehicular homicide. However, on October 16, 2000, Minnehaha County Deputy States Attorney Gail Eies-land sent a letter and a portion of the sentencing transcript to the Department of Corrections (Department). In that letter she indicated that Boehrns’ conviction was deemed a crime of violence by the circuit court. Boehrns’ classification was then changed by the Department to “3V” or a class 3 violent offender for the purpose of calculating his parole eligibility. The effect of this classification was that Boehrns was required to serve fifty percent, rather than thirty percent, of his sentence before becoming parole eligible.

[¶ 3.] Boehrns challenged that classification before the Board of Pardons and Paroles (Board). After a hearing on the matter, the Board rejected Boehrns’ argument that this was a nonviolent offense and he remained classified as a class 3 violent offender. The Board’s findings of fact indicated:

Boehrns was driving drunk on alcohol and marijuana on June 20, 1999, and caused a violent collision in which Curtis Abrahamson was thrown through the windshield of his car and killed.
The sentencing judge told Boehrns on the occasion of sentencing on February 9, 2000, that the Court viewed this offense as an offense of violence and accordingly 1/2 of the sentence would need to be served before he would become eligible for parole.
Normally a vehicular homicide charge is classified as a non-violent offense by the Department of Corrections and Central Records.
In this case, however, when the Department of Corrections was made aware of the sentencing judge’s intentions regarding this being a crime of violence, the initial classification was changed from a class 3 nonviolent to a class 3 violent category.
The facts of the vehicle homicide in this case warrant the determination that this is a crime of violence.
The sentencing court found and determined that this is a case which meets the definition of a crime of violence.

Furthermore, the Board concluded as a matter of law that “vehicular homicide may be categorized as a crime of violence if the facts of the case warrant it” and “an automobile can be properly included within the definition of a dangerous weapon if the facts of the case justify it.”

[¶ 4.] Boehrns appealed that decision to the circuit court. On appeal, the circuit court determined that the classification was not clearly erroneous because “under the facts of this case where drugs, alcohol and high speed were involved in the incident, the use of the automobile did rise to the level of the use of a dangerous weapon likely to inflict death or serious injury.” Boehms appeals.

STANDARD OF REVIEW

[¶ 5.] It is well settled that “[o]ur standard of review from decisions of administrative agencies is governed by SDCL 1-26-37.” Grajczyk v. State, 2003 SD 74, ¶ 7, 666 N.W.2d 472, 474. This statute provides:

An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the circuit court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

SDCL 1-26-37. Under this standard, “[t]his Court ‘makes the same review of the administrative agency’s decision as did the circuit court, unaided by any presumption that the circuit court’s decision was correct.’” Cheyenne River Sioux Tribe Tel. Auth. v. Public Util. Comm. of South Dakota, 1999 SD 60, ¶ 12, 595 N.W.2d 604, 608. When the issue is a question of fact, we review the agency’s actions under the clearly erroneous standard. Id. Issues involving questions of law are fully renewable by this Court. Id. Further, “ ‘[mjixed questions of law and fact are also fully reviewable.’ ” Id.

ANALYSIS

ISSUE

[¶ 6.] Whether the Department erred in classifying Boehrns’ offense as a crime of violence under SDCL 24-15A-32.

[¶ 7.] Boehrns was convicted of vehicular homicide in violation of SDCL 22 — 16—41. That statute provides:

Any person who, while under the influence of an alcoholic beverage, any controlled drug or substance, or a combination thereof, without design to effect death, operates or drives a motor vehicle of any kind in a negligent manner and thereby causes the death of another person, including an unborn child, is guilty of vehicular homicide. Vehicular homicide is a Class 3 felony. In addition to any other penalty prescribed by law, the court may also order that the driver’s license of any person convicted of vehicular homicide be revoked for a period of two years subsequent to release from incarceration.

SDCL 22-16-41. Although the sentencing court made statements indicating its belief that this offense would generally be classified as a crime of violence, the record established the Department did not in fact routinely classify it as such. Only later, when instructed by a Minnehaha County Deputy States Attorney that “Judge Neiles pronounce[d] that vehicular homicide is a crime of violence” did Boehrns’ classification change. However, parole is “an executive branch function.” Bergee v. South Dakota Board of Pardons and Paroles, 2000 SD 35, ¶ 8, 608 N.W.2d 636, 640. As such, the sentencing court’s opinion on parole classification was not determinative in this situation. State v. Pu- thoff, 1997 SD 83, ¶ 10, 566 N.W.2d 439, 442. This Court has recognized:

Sentencing is a judicial act, while parole is a function of an appointed board administered under the direction of the [Board], It is the parole board’s duty to evaluate the inmate’s conduct and rehabilitative progress in deciding his eligibility for parole consideration. This is a totally different criteria of thought process than- that which confronts a sentencing judge.

Roden v. Solem, 411 N.W.2d 421, 422 (S.D.1987),

[¶ 8.] Therefore, this Court is required to look to the dictates of SDCL ch. 24-15 “the code chapter governing paroles from the penitentiary, an executive branch function.” Puthoff, 1997 SD 83, ¶ 10, 566 N.W.2d at 442. SDCL 24-15A-32 governs classification of prisoners for parole. That statute provides in relevant part:

Each inmate sentenced to a penitentiary term, except those under a sentence of life or death, or an indeterminate sentence which is not yet set to a term of yeaxs by the board, shall have an initial parole date set by the department. This date will be calculated by applying the percentage indicated in the following grid to the full term of the inmate’s sentence pursuant to §§ 22-6-1 and 22-1-2(9):
Felony Convictions
Felony Class First Second Third
Nonviolent
⅜ ⅜ ⅜
Class 3 .30 .40 .50
Violent
* * *
Class 3 .50 .60 .70
* * *

Each inmate shall serve at least sixty days prior to parole release. Inmates with life sentences are not eligible for parole. An initial parole date through the application of this grid may be applied to a life sentence only after the sentence is commuted to a term of years. A class A or B felony commuted to a number of years shall be applied to the Class 1 violent column of the grid. SDCL 24-15A-32 (emphasis added). Turning to SDCL 22-1-2(9) that statute provides:

(9) “Crime of violence,” any of the following crimes or an attempt to commit, or a conspiracy to commit, any of the same: murder, manslaughter, rape, aggravated assault, riot, robbery, burglary in the first or second degree, arson, kidnapping, felony sexual contact as defined in §§ 22-22-7 and 22-22-19.1 or any other felony in the commission of which the ‘perpetrator used force, or was armed with a dangerous iveapon, or used any explosive or destructive device;

Utilizing this definition, the Board concluded that “vehicular homicide may be categorized as a crime of violence within the above definitions if the facts of the case warrant it.” Furthermore, “an automobile can be properly included within the definition of a dangerous weapon if the facts of the case justify it.” The Board then found that “the facts of this case warrant the determination that this is a crime of violence.” This is consistent with this Court’s prior holdings that a vehicle can constitute a dangerous weapon within the meaning of this statute. See State v. Seidschlaw, 304 N.W.2d 102, 105 (S.D.1981); State v. Koester, 519 N.W.2d 322, 325 (S.D. 1994); State v. Barrientos, 444 N.W.2d 374, 377 (S.D.1989).

[¶ 9.] Although this case creates some cause for concern, namely the use of the sentencing court’s statements to change the parole classification, the record nevertheless reveals that Boehriis was provided an opportunity to challenge the change in classification before the proper authority. He received a full hearing before the Board where he was represented by an attorney. Significantly, the findings indicate that the Board independently determined this was a crime of violence as defined in their statutory directives. On appeal, the circuit court found that the Board was not clearly erroneous in that determination considering the facts surrounding this felony. Under the circumstances of this case, this decision was not clearly erroneous and we affirm.

[¶ 10.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

[¶ 11.] MEIERHENRY, Justice, dissents.

MEIERHENRY, Justice

(dissenting).

[¶ 12.] I respectfully dissent. The majority points out that this case creates cause for concern. With this, I completely agree. It is cause for concern because (1) vehicular homicide is not defined in the statutes as a crime of violence, (2) the legislature did not intend vehicular homicide to be considered a crime of violence, and (3) no specific findings of fact were made .to support its reclassification as a crime of violence. Tellingly, this has been the only time the Department of Corrections has classified vehicular homicide as a crime of violence when determining parole eligibility.

Vehicular Homicide, By Definition, Is Negligent Operation of a Vehicle

[¶ 13.] In order for a vehicle to become a “dangerous weapon,” we have consistently required it to be operated in more than a negligent manner. We have said that an automobile can be considered a dangerous weapon only in those instances where “the use of the automobile [is] of such a nature that death or serious bodily harm [is] a probable result.” State v. Stetter, 513 N.W.2d 87, 92 (S.D.1994) (citing State v. Seidschlaw, 304 N.W.2d 102, 106 (S.D.1981)). See also State v. Barrientos, 444 N.W.2d 374, 377 (S.D.1989); State v. Koester, 519 N.W.2d 322, 325 (S.D.1994).

[¶ 14.] The cases wherein we have approved of a vehicle being considered a dangerous weapon involved either aggravated assault or manslaughter, and the crimes as charged included the specific allegation that the crime was committed with the use of a-dangerous weapon. Consequently, the cases relied upon by the majority are clearly distinguishable because in all of those cases the defendants were specifically charged and convicted of crimes that included use of a dangerous weapon as one of the elements of the crime. In other words, in those cases, the judge or jury had to find beyond a reasonable doubt that the defendant committed the crime by using the vehicle as a dangerous weapon.

[¶ 15.] In State v. Seidschlaw, a jury convicted the defendant specifically of first-degree manslaughter “ ‘perpetrated: (3) [without a design to effect death, but by means of a dangerous weaponQ’ 304 N.W.2d at 105 (citing SDCL 22-16-15) (emphasis added). In State v. Koester, a jury convicted the defendant of the crime of aggravated assault by attempting “ ‘by physical menace with a deadly weapon to put another in fear of imminent serious bodily harm.’ ” 519 N.W.2d at 324 (citing SDCL 22-18-1.1(5)) (emphasis added). In State v. Barrientos, the defendant was found guilty of aggravated assault by attempting “ ‘to cause, or knowingly causing], bodily injury to another with a dangerous weapon” 444 N.W.2d at 375 (citing SDCL 22-18-1.1(2)) (emphasis added). See also Stetter, 513 N.W.2d at 91-92 (defendant convicted of first-degree manslaughter for killing by means of a dangerous weapon). Additionally, in each case the defendant was ultimately convicted of a crime that the statute expressly designated as violent. See SDCL 22-1-2(9).

[¶ 16.] In this case, Boehrns pleaded guilty to vehicular homicide. Vehicular homicide by definition involves only negligent operation of a vehicle. Vehicular homicide, as defined by the legislature, is when a person causes the death of another “while under the influence of an alcoholic beverage, ... without design to effect death, operates or drives a motor vehicle of any kind in a negligent manner[.]” SDCL 22-16-41 (emphasis added). Bo-ehrns was not adjudicated of using the vehicle in a manner “that death or serious bodily harm was a probable result;” he was adjudicated of driving “in a negligent manner.”

[¶ 17.] Additionally, our prior cases are distinguishable because they did not involve the parole eligibility statute at issue here. Unlike the cases cited to by the majority, here the Department and Board (not a judge or jury) had to engage in its own fact finding to determine whether the crime was a. violent offense. The Department or Board would have had to conclude that Boehrns’ use was “of such a nature that death or serious bodily harm was a probable result.” Seidschlaw, 304 N.W.2d at 106. In effect, the Department and Board would be making a post-conviction determination that Boehrns had been more than negligent in the operation of the vehicle and thereby had committed the higher level felony of manslaughter or aggravated assault. This is contrary to our prior cases or statutory directive.

Legislature Did Not Intend to Define Vehicular Homicide as a Violent Crime

[¶ 18.] There was no language in the parole eligibility statutes in effect at the time of this conviction that indicated the legislature intended to give the Department or the Board discretion to enhance a felony from nonviolent to violent after the conviction. The parole eligibility scheme was designed to be mandatory and conclusive, in order that anyone could read thé statute and know just how long the inmate would have to serve. In fact, the judge was required to announce the parole eligibility at sentencing. SDCL 23A-27-48. The list of violent crimes for purposes of setting parole eligibility was specific. Vehicular homicide was not listed. The following were listed: “murder, manslaughter, rape, criminal pedophilia, aggravated assault, riot, robbery, burglary in the first or second degree, arson, kidnapping, felony sexual contact as defined in §§ 22-22-7 and 22-22-19.1, felony child abuse as defined in § 26-10-1.” SDCL 22-1-2(9). The majority claims that vehicular homicide can be considered as a violent crime because it falls under the general clause of the statute, which further defined a violent crime as “any other felony in the commission of which the perpetrator used force, or was armed with a dangerous weapon,....” Id. Even if this were the case, the statute does not give the Department or the Board authority to look beyond the conviction, judgment and sentence. Here, Boehrns was not convicted of committing the felony “armed with a dangerous weapon.” This cannot be tacked on post-conviction.

Findings of Fact Not in the Record

[¶ 19.] The majority affirms the reclassification because the Board made an independent determination that this was a crime of violence. The Board' entered one conclusory finding that this was a crime of violence. The Board did not make an independent determination that Boehrns drove the vehicle in a manner that death or serious bodily harm was a probable result, as our prior cases require. The only finding by the Board that dealt with the facts of the case was as follows:

Mr. Boehrns was driving drunk on alcohol and marijuana on June 20, 1999 and caused a violent collision in which Curtis Abraharason. was thrown through the windshield of his car and killed.

The Board took no testimony or evidence concerning the underlying facts of the accident at the hearing. The main argument presented to the Board was based upon the trial court’s intentions.

[¶ 20.] There is no dispute in this case that the only reason the Department changed its initial classification from nonviolent to violent was because of a letter it received from the prosecuting Deputy State’s Attorney. In the letter, the prosecutor characterized the judge’s comment at sentencing as a “pronounce[ment] that vehicular homicide is a crime of violence.” The Board’s findings indicate that it was relying to a great extent on the trial court’s findings. The trial court, however, made no findings. All the trial court did was to inform the defendant at the sentencing hearing of how much time the defendant would have to serve before being eligible for parole, as he was required to do under SDCL 23A-27-48. After imposing the 15 year sentence, the judge told the defendant that the family wanted the judge to impose a sentence of “a term of years without parole;” however, he had no authority to enter such a sentence. The judge then wept on to say, “Mr. Boehrps, I’m going to tell you that because this is. a Class 3 felony and because I believe it would be classified as a violent offense or a crime of violence that you have to serve 50 percent of that sentence, ..., before you can be eligible for parole.” The judge made no further reference to the classification as a crime of violence. He gave no reason for his statement and provided no basis for his belief that it was a crime of violence. Even if the judge believed this case warranted a reclassification, he had no authority under the law to reclassify it. The statute only gives the Department the authority to set a parole eligibility date and it must do so according to the grid laid out by SDCL 24-15A-32. Consequently, the judge’s misstatement at sentencing could not and did not turn the vehicular homicide conviction into a violent crime, nor did it give the Department or Board the authority to reclassify the conviction.

[¶ 21.] The Department has consistently classified vehicular homicide as a nonviolent offense pursuant to statute, except for this one case. The only reason it went against its own procedure was because of a letter from the prosecutor overstating the trial court’s actions. To affirm this process is contrary to law. I would reverse the Board and trial court.

      . SDCL 23A-27-48 provides that the sentencing court "shall state the legal maximum time of imprisonment and the estimated minimum period the defendant must serve before being eligible for parole.” The sentencing court here indicated its belief that this would be classified as a crime of violence when informing the defendant of his parole eligibility. However, that was not the final statement on the matter because SDCL 23A-27-48 also recognizes that the ultimate authority for parole eligibility is vested with the Department.
      It appears that the Minnehaha County Deputy States Attorney overstated the sentencing court's determination when corresponding with the Department. The sentencing court indicated "I am going to tell you that because this is a class 3 felony and because I believe it would be classified [by the Board] as a violent offense or a crime of violence that you have to serve fifty percent of that sentence.” The Deputy States Attorney represented to the Department that "Judge Neiles pronounce[d] that vehicular homicide is a crime of violence.”

      . The Board of Pardons and Paroles administrative rules provide:
      17:60:07:01. Application for board review of established parole date. An inmate who is aggrieved by the parole date established by the Department of Corrections may apply to the board for a review by the board and a determination of the true parole date. The application must be in writing and must specify the inmate's factual and legal contentions concerning the application.
      17:60:07:02. Hearing on application. Before determining the inmate’s true parole date, the board shall provide the inmate with an opportunity to present the inmate's factual and legal arguments at a hearing. Notice of the hearing before the board shall be given to the inmate at least ten days before the hearing.
      17:60:07:04. Evidence at hearing. The board may consider at the hearing any evidence, affidavit, testimony, letter, or other material not ordinarily admissible in a criminal or civil proceeding.

      . This is the version of SDCL 24-15A-32 in effect when Boehms was sentenced. It has since been modified in 2001 and 2004. Significantly, the modification in 2001 eliminated the reference to SDCL 22-1-2(9) which defines "crime of violence” to generally include "any other felony in the commission of which the perpetrator used force or was armed with a dangerous weapon.” The statute now more specifically provides that:
      The following crimes or an attempt to commit, or a conspiracy to commit, any of the following crimes shall be considered a violent crime for purposes of setting an initial parole date: ... commission of a felony while armed as defined in § 22-14-12 and § 22-14-13.1.

        SDCL 22-14-12 applies only to sentencing for the commission of felonies while armed with a firearm. SDCL 22-14-13.1 applies only to the commission of felonies while armed with a stun gun.

      . This statute was also modified in 2001 and 2002.

      . The dissenting opinion's argument that the Department or Board transformed this into a more severe offense by considering the use of the vehicle as a dangerous weapon appears persuasive at first blush. However, this argument does not appreciate the fact that neither the Department nor the Board has, nor do they maintain they possess, any authority whatsoever to change Boehrns' conviction to anything other than vehicular homicide. That is the crime to which he pleaded guilty and was sentenced to fifteen years in the penitentiary. Rather, the parole eligibility determination reflects a consideration of the facts of that crime within the mandates’ of SDCL 24-15A-32, as discussed herein, to determine when Boehrns should be parole eligible for that conviction. Contrary to the dissent’s assertion, considering the facts of this felony vehicular homicide in light of the statutory definition of "crime of violence” is not the same as determining if he "committed the higher felony of manslaughter or aggravated assault.” Dissent ¶ 6.

      . The amendment in 2002, which specifically limited the phrase "armed with a dangerous weapon” to those crimes the defendant committed while armed with a firearm or stun gun, supports the conclusion that the legislature did not intend that setting the date of eligibility would involve discretion.

      . It should be noted that this clause is no longer applicable to the violent crime statute. In 2002, shortly after this case was decided by the Board, the legislature amended the statute by removing the reference to violent crimes as defined at 22-1-2(9) and instead, specifically listed the violent crimes within the statute itself. The amended statute still does not include vehicular homicide as a violent offense. Further, "armed with a dangerous weapon,” was replaced with armed with a firearm,-including a machine gun, short shotgun or a stun gun. SDCL 24-15A-32; SDCL 22-14-12; -13.1. Therefore, under the current law, Boehrns’ crime unquestionably could not be classified as violent.

      . The relevant finding of fact states:
      In this case, however, when the Department of Corrections was made aware of the sentencing judge's intentions regarding this . being a crime of violence, the initial classification was changed from a Class 3 Nonviolent to a Class 3 Violent category.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2005 SD 54
    The PEOPLE of the State of South Dakota in the Interest of C.W., Minor Child and concerning J.R. and G.W., Respondents.
    No. 23325.
    Supreme Court of South Dakota.
    Considered April 14, 2005.
    Decided April 27, 2005.

      Lawrence E. Long, Attorney General, Ann M. Holzhauser, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee State of South Dakota.
    Dana J. Frohling and Jason A. Campbell of Spiry & Frohling, Britton, South Dakota, Attorneys for appellant J.R.
    Tracy Niemann of Sutton and Bauer Law Office, Watertown, South Dakota, Attorneys for minor child C.W.
   PER CURIAM.

[¶ 1J J.R. appeals the termination of her parental rights over her two-year-old daughter (child). We affirm.

FACTS

[¶ 2.] Child was born out of wedlock to Watertown residents J.R. (mother), age twenty-one, and G.W. (father) on January 8, 2003. On May 9, the Department of Social Services (DSS) received a call from the hospital reporting that child, then age four months, had fractured both bones in one of her arms and that the parents had no idea how the injury occurred. Child was removed from the parents’ custody on May 10,- but DSS was unable to determine how child’s arm was broken. Child was returned to the parents’ custody on June 23.

[¶ 3.] On July 8, 2003, the parents took child to her doctor for a regular checkup. Apparently due to the fracture of child’s arm, father asked the doctor for a bone evaluation to determine if there was some sort of problem with child’s bone structure. The examination of child was normal and the doctor saw no evidence of any problem.

[¶ 4.] On July 17, 2003, the parents took child to a Wal-Mart store to have her picture taken. The two photographers were familiar with child from having taken her picture during the time she was in foster care and noticed that child had a bruise on her arm and scratches on her back. Although the photographers made no mention of child’s injuries, father explained that child had been bruised when he and mother took her to the swimming pool. The day after their encounter with mother and father, the photographers met child’s former foster mother who had brought her son to Wal-Mart to have his picture taken. The photographers mentioned seeing child and the bruising and scratches on child’s body. The foster mother immediately reported the matter to DSS.

[¶ 5.] DSS sent one of its workers and a law enforcement officer to the home to check on child. The home was in disarray. There was mold in some scattered pots and pans, there were “lots” of dirty dishes, the floor had not been vacuumed, there was garbage and dirt on the floor and the situation appeared to be “chaotic.” On examining child, the officer found a very deep dark bruise on the same arm that child had fractured previously. Mother then contacted the DSS office and informed one of the workers that child’s bruise was caused by her crib. Father later contacted the same worker and told her the bruise resulted from taking child swimming. Based upon the parents’ inconsistent explanations for child’s bruises, child’s prior unexplained injury and the state of the home, DSS took child into custody.

[¶ 6.] After removing child from the home, DSS took her to her doctor for a physical examination. The doctor identified seven different areas of bruising and lesions on child’s body. The largest and worst bruise was on child’s forearm close to her elbow. Notwithstanding her injuries, child was not showing distress, moved her arms and legs well and did not evince any other evidence of abnormality.

[¶ 7.] On July 21, DSS took child to the hospital for a skeletal survey. The results and X-rays were reviewed by a child abuse medical screening team in Sioux Falls. A further examination of child, including a bone scan and CT scan, was conducted by the team on August 1. Results of the bone scan showed evidence of healing fractures in child’s ribs on both sides of the back of her body. The fractures were approximately two to four weeks old and consistent with the areas of bruising previously identified by child’s physician. One of the medical experts later testified at the adjudicatory hearing that it would have required an extreme amount of force to cause the fractures because child’s bones were soft and not “fully calcified.” Specifically, the doctor testified:

So when you see a fracture in an infant, it requires an extreme amount of force, specifically when you see rib fractures, especially in the • back, it requires an extreme amount of force. Even a fall from a one story building of a baby does not usually result in rib fractures.

[If 8.] Both parents admitted that they had been the sole care takers for child. However, the parents failed to provide any consistent explanation for child’s injuries. Mother suggested the rib injuries resulted from numerous incidents where father cleared congestion from child’s nasal passages by blowing into child’s mouth until mucus was ejected from her nose. However, father denied treating child in this manner and medical experts at the adjudicatory hearing dismissed the “treatment” as a source of child’s injuries. Father only speculated that the injuries were caused by child rolling over some toys on the floor or bouncing in a “child saucer.”

[¶ 9.] The State filed its petition alleging abuse and neglect on July 21, 2003. The adjudicatory hearing was held on October 15, 2003 and, on October 28, the trial court entered findings of fact, conclusions of law and an order adjudicating child to be abused and neglected. The dispositional hearing was held on April 14, 2004 and, on April 30, the trial court entered findings of fact, conclusions of law and an order terminating mother and father’s parental rights. Mother appeals.

ISSUE ONE

[¶ 10.] Was the trial court clearly erroneous in finding child to be abused and neglected?

[¶ 11.] In its adjudicatory findings of fact and conclusions of law, the trial court entered the following finding concerning abuse and neglect of child:

The above-named minor child is abused and neglected through the actions or omissions of the parents, [mother] and [father], within the meaning of SDCL 26-8A-2 based on the following:

The minor child sustained bruises and broken ribs while in the care of her respondent parents. Parents were not forthcoming about the injuries. The force required to sustain the injuries to this six (6) month old child was either deliberate or at the least negligent. The parents subjected the child to mistreatment and/or abuse and failed to provide proper care.

Mother argues there is insufficient evidence to support the finding of abuse and neglect.

The State must prove a child is abused and neglected by clear and convincing evidence. The trial court’s findings of fact will not be set aside unless they are clearly erroneous and “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”

People ex rel. D.T., 2003 SD 88, ¶ 5, 667 N.W.2d 694, 697 (citations omitted). In applying the clearly erroneous standard of review, “this Court does not determine whether it would have made the same findings the trial court did, but whether on the entire evidence it is left with a definite and firm conviction that a mistake has been committed.” People ex rel. C.G., 2003 SD 78, ¶ 12, 667 N.W.2d 279, 282.

[¶ 12.] Mother argues the evidence is insufficient to support the finding of abuse and neglect because child was cheerful and evinced no distress during her July 18, 2003 medical examination despite the State’s evidence indicating that child’s ribs were fractured at that time. Mother apparently suggests that child’s lack of distress on July 18 shows that child’s injuries occurred after that time while child was no longer in the parents’ care. However, the child’s lack of distress at the July 18 exam was adequately explained by child’s doctor during the adjudicatory hearing. The doctor gave the following answer to a question concerning the distress a six-month-old might exhibit as a result of a rib injury:

There’s not a straight yes or no answer to that question. It again depends upon how old the injuries may be at that time, how much injury and in children that age you don’t necessarily — you’re observing more subtle signs and sometimes you don’t see overt distress related to that kind of a fracture. Breathing is a, it depends on a number of different factors but I guess the easiest factor is no, you won’t always observe distress related to injured ribs.

[¶ 13.] The physician who screened child for abuse further confirmed that the location of child’s broken ribs would not necessarily have caused her any difficulty in breathing. In that regard, the doctor stated:

the rib fractures were located in the back, okay, they were located on the sides and in the back, not in the front, okay, and so they don’t necessarily have breathing difficulties at this age when they are in the back or towards the back, so they may have breathing difficulties but more than likely they will not.

[¶ 14.] Based upon this medical testimony, child’s lack of apparent distress during her July 18, 2003 medical examination yields no definite or firm conviction that the trial court was mistaken in its findings concerning the parents’ abuse and neglect of child and no basis for reversal of its findings.

ISSUE TWO

[¶ 15.] Was the trial court clearly erroneous in finding that DSS made reasonable efforts to reunite mother and child?

[¶ 16.] Under SDCL ch 26-8A, DSS must make reasonable efforts to rehabilitate the family and make possible the child’s return to the home of the parents. See SDCL 26-8A-21; 26-8A-26. In its dispositional findings of fact and conclusions of law, the trial court entered the following findings:

The Department of Social Services has made reasonable efforts to reunite and rehabilitate the family including but not limited to the following; Establishing a family service agreement and case plan, setting up visits, setting up a psychological evaluation and drug and alcohol evaluation for the Mother, common sense parenting classes and bright start parenting classes, requesting a homestudy on Mother’s parents.

A trial court’s findings as to the issue of reasonable efforts are reviewed under the clearly erroneous standard of review. See Matter of J.Y., 502 N.W.2d 860, 862 (S.D.1998).

[¶ 17.] The record clearly supports the trial court’s findings as to the services and programs made available to mother by DSS. However, mother relies strongly on her compliance with the case service plan and her cooperation with the services and programs provided to argue there is clear error in the determination that DSS’s efforts at reunification were unsuccessful and that further efforts would be fruitless.

[¶ 18.] Unlike many abuse and neglect cases, there is no dispute that mother did cooperate with all of the requirements that DSS imposed upon her. However, the level of mother’s cooperation is in dispute. While mother may have been overtly cooperative, her heart was not in the effort. As found by the trial court, “[m]other’s psychological evaluation resulted in a fake good which made the results invalid. Mother has a history of denial and blame -.and further services would be unavailing and contrary to the best interest of the child.” •

[¶ 19.] In support of these findings, mother’s psychologist testified at the dis-positional hearing that mother’s psychological evaluation was so skewed by her faking that it was “simply noninterpretable.” When confronted with that result, mother turned her interview into “an hour of excusing and blaming.” Thus, it was the psychologist’s conclusion that he would not be able to produce any beneficial results from psychotherapy with mother and that mother had a “deeply entrenched pattern of refusing to take any responsibility or blame or seeing any need for therapy[.]” The psychologist believed it would be “quite a long haul” before he could even get past mother’s defensiveness.

' [1120.] Mother’s DSS case-worker corroborated this testimony. Although the case-worker agreed that mother completed or participated in the things that DSS asked her to do, he noted that mother had not been open and honest in all areas and never offered a plausible explanation for how child’s injuries occurred or what could be done to correct the problem. Though mother took parenting classes, she questioned their importance and indicated they were unnecessary. The worker also found mother argumentative and testified that she would attempt to shift blame for her mistakes to the worker or to others. For these reasons, the case-worker became concerned as mother progressed through the case service plan and concluded that unless mother could explain child’s injuries it would be DSS’s position to seek termination of her parental rights.

[¶ 21.] Based upon the foregoing evidence and testimony, the trial court was clearly supported in its findings concerning reasonable efforts by DSS and that, despite those efforts, the conditions that led to the removal of child were still in existence, that there was little likelihood conditions would be remedied so as to permit child to be returned to the custody of the parents, that further efforts would be fruitless and that it would be contrary to child’s best interests and welfare to return child to mother or father’s care.

ISSUE THREE

[¶ 22.] Was the trial court clearly erroneous in finding that the conditions that led to the removal of child still existed?

[¶ 23.] Under SDCL 26-8A-26, if the court finds that all reasonable efforts have been made to rehabilitate the family and that the conditions that led to the removal of the child still exist with little likelihood of a remedy, the court may enter its order terminating parental rights.

[¶ 24.] Here, the trial court found:

8. The conditions which led to the removal of the child still exist. Father is in the South Dakota State Penitentiary and has been there since August of 2003. Mother has indicated that her relationship with father has ended; however, the Court does not find either parent credible. There is a strong likelihood that the parents will reconcile upon Father’s release from prison. [Child] sustained a broken arm on one occasion and broken ribs on another occasion while in the care of both Mother and Father and both were responsible for the injuries.
9. There is little likelihood these conditions will be remedied to allow the child to be returned to the custody of the child’s parent. The court finds extensive services have been provided to attempt to rehabilitate the family. Mother’s psychological evaluation resulted in a fake good which’ made the results invalid. Mother has a history of denial and blame and further services would be unavailing and contrary to the best interests of the child.

[¶25.] These findings are clearly supported by evidence and testimony previously discussed. While mother contends the findings are clearly erroneous because father was incarcerated at the time of the dispositional hearing and she had terminated her relationship with him, the record reflects that mother maintained contact with father during his incarceration and that father was not even aware of the alleged termination of the relationship when he testified during the dispositional hearing. Moreover, father was expecting his release on parole approximately a month after the dispositional hearing. Thus, the trial court found that mother’s testimony concerning a change of conditions regarding father and the termination of her relationship with him was self-serving and not credible.

[¶ 26.] The numerous findings of fact challenged by mother are not clearly erroneous. Although child’s attorney objected to termination of parental rights during the trial court proceedings and on appeal, his objection was based on mother’s alleged compliance with the case service plan and her completion of the “things DSS wanted her to do.” Mother’s compliance with the ease service plan has been previously discussed in this decision and was an issue fully litigated before the trial court. Despite her claimed compliance, the trial court entered its findings concerning a lack of changed conditions and concluded it would be “gambling with the future health and safety of [child] if she were to be returned to the custody of the parents.” Notwithstanding the position of child’s counsel on appeal, we hold that this conclusion is supported by the record.

[¶ 27.] Affirmed.

[¶ 28.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . 1. Father's age is not made clear by the record.

      . 2. After child's removal, father was incarcerated in a Trustee Unit in Yankton for reasons that are not entirely clear in the record. Father remained incarcerated throughout the course of the trial court proceedings and testified by telephone during the adjudicatory and dispositional hearings. Father has not appealed the termination of his parental rights over child.


author: GILBERTSON, Chief Justice.

text:
    2005 SD 56
    James F. ANDERSON and Dorothy Anderson, Plaintiffs and Appellees, v. David AESOPH, Defendant, and Robert Aesoph, Intervenor and Appellant.
    Nos. 23338, 23352.
    Supreme Court of South Dakota.
    Considered on Briefs March 21, 2005.
    Decided May 4, 2005.

      Wally Eklund of Johnson Eklund Law Office, Gregory, SD, for plaintiffs and ap-pellees.
    Drew C. Johnson, Aberdeen, SD, for intervenor and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] James Anderson and Dorothy Anderson (Andersons) sold 1,040 acres of farmland to David Aesoph (David) under a contract for deed. Andersons refused two requests seeking their approval for Robert Aesoph (Robert) to assume David’s interest under the contract. David assigned his interest in the contract for deed to his brother Robert as partial payment for a personal debt without the written consent of Andersons as required by the contract. David eventually quitclaimed the land to Robert on November 8, 2000. Andersons accepted Robert’s tender of David’s 2000 year contract payment, but refused tender by Robert of the 2001-and 2002 payments. Andersons also refused Robert’s November 28, 2001, offer of payment for the full balance due under the contract. Finally, Andersons filed suit against David on December 24, 2001, seeking cancellation and discharge of the contract for deed and forfeiture of the land; with all annual payments to be considered rent. Robert moved to intervene, and his motion was granted by the trial court. The trial court held the contract was in default, but subject to foreclosure rather than forfeiture. Therefore, Robert had the right to comply with the terms of the foreclosure and redeem the contract for deed by paying the outstanding principal and interest. Robert eventually redeemed the contract. Robert appeals the calculation of interest and imposition of costs. Andersons appeal, contending the trial court erred when it allowed Robert to redeem the contract for deed under foreclosure.

[¶ 2.] Affirmed in part, and reversed and remanded in part.

FACTS AND PROCEDURE

[¶ 3.] James Anderson and Dorothy Anderson (Andersons) entered into a contract for deed with David Aesoph (David) on October 16, 1998, for the sale of 1,040 acres of farmland located in Hyde County near Highmore, South Dakota. The contract contained the following provision restricting David’s ability to assign the contract: “It is stipulated that the Buyer may not assign or sell interest in the said real property to any other person without the express written consent of the Sellers which consent shall not [be] unreasonably withheld.”

[¶ 4.] The terms of the contract required David to make a $5,000 down payment on or before execution of the contract. The first payment of $45,000 was due on or before December 1, 1998.. The remaining balance was to be financed at a rate of seven percent beginning January 1, 1999, with a payment of $25,000 due on or before June 1, 1999, and a second payment of $25,000 due on or before December 1, 1999. The remaining balance was to be paid in equal payments of $47,880.43, the first due on or before December 1, 2000, “and a like sum on or before December 1st of each of the succeeding five years which payments shall constitute amortized principal and interest payments.”

[¶ 5.] David made the down payment, the first $45,000 payment, and the two $25,000 payments due in 1999 as required under the terms of the contract. On-November 18, 1999, David murdered his wife, was convicted by a jury on October 5, 2000, and sentenced to life in prison on November 8, 2000. State v. Aesoph, 2002 SD 71, 647 N.W.2d 743. During the course of the criminal proceedings, David borrowed $224,000 from his brother Robert Aesoph (Robert) for payment of farming operation debts and for other personal needs. Robert took mortgages on David’s real estate, including David’s interest in the contract for deed with Andersons.

[¶ 6.] On October 30, 2000, Robert’s sons asked Andersons to consent to the assignment. Andersons declined to do so. Later that same day, David’s lawyer requested consent from Andersons for Robert to assume the contract for deed. Again, Andersons declined to do so despite the provision in the assignment clause that “consent shall not [be] unreasonably withheld.”

[¶ 7.] On November 8, 2000, the same day David was sentenced to life in prison, David quitclaimed his interest in the land under the contract for deed to Robert. The quitclaim deed was exchanged for $100,000, which Robert credited against the $224,000 debt David owned him. Robert filed the quitclaim deed the same day.

[¶ 8.] On December 1, 2000, Robert tendered David’s 2000 payment to Andersons in the amount of $47,880.43 as required under the contract. Andersons accepted payment without knowledge of the assignment between David and Robert. Robert’s tender of the 2001 payment was refused by Andersons.

[¶ 9.] In a letter dated November 28, 2001, Robert tendered payment in full for the balance due on the contract in return for a deed from Andersons. Andersons refused the tender. Finally, Robert tendered the December 2002 payment, and in the alternative the entire balance due plus interest, in a letter from his attorney dated October 10, 2002. Again, Andersons refused the tender of the 2002 annual payment and the tender of the full unpaid balance due under the contract for deed.

[¶ 10.] On November 15, 2001, Andersons filed a Notice of Default and Forfeiture against David. On December 24, 2001, Andersons commenced an action against David for cancellation and discharge of the contract for deed, seeking forfeiture and return of the property. The summons and complaint were twice served on David at the state penitentiary. David timely filed an answer on February 6, 2002. Robert moved to intervene. On May 1, 2002, the trial court entered an order allowing Robert to intervene,

[¶ 11.] On October 3, 2003, the trial court issued its first memorandum opinion and entered a judgment in favor of Andersons. The trial court held the contract for deed was in default once David violated the prohibition against sale. The trial court also concluded Andersons unreasonably withheld their consent to the assignment of the contract from Robert to David. However, the trial court held the forfeiture clause in the contract was void and treated the matter as a foreclosure under SDCL 21-50-1. In its first memorandum opinion, the trial court held Robert had the right to comply with the terms of the foreclosure and redeem the property upon payment of the full unpaid balance and interest due within the time fixed by the trial court. The date by which Robert was required to redeem the contract was set as January 15, 2004. The trial court held SDCL 20-5-18, which provides that an offer of payment or other performance stops the running of interest on the obligation, did not apply in this case because the contract was in default at the time Robert made his offer.

[¶ 12.] The trial court issued a second memorandum on December 5, 2003, concerning the calculation of interest on the balance owing on the contract for deed. The- trial court noted that Andersons were not aware of the assignment from David to Robert at the timé'they accepted the December 1, 2000 payment. The trial court deviated from its findings of fact, and stated that the provisions of SDCL 20-5-18 did not apply in this case as Robert failed to tender the full amount, instead tendering the annual payments. Therefore, the trial court held the running of interest did not stop. The trial court noted the running of interest would not stop until full compliance with the redemption terms. Finally, the trial court moved the redemption date back to March 15, 2004, given that it took more than 60 days to resolve the matter concerning the interest due.

[¶ 13.] In its findings of fact and conclusions of law dated March 19, 2004, the trial court again changed its position regarding Robert’s tender of the full unpaid balance. The trial court noted that such a tender was made by Robert, but that it was not a valid tender because it was made after the contract was violated by the assignment from David to Robert and the contract was in default. The trial court calculated the interest due at seven percent per annum from December 1, 2000, the date of the last payment, until the final date of judgment and decree of March 19, 2004, as $45,196.54. It further calculated the daily interest at seven percent per annum after March 19, 2004, at $37.65 per day.

[¶ 14.] Robert tendered payment of a total of $241,898.50 to redeem the contract under the foreclosure order within the time frame set by the trial court. The amount included $196,306.54 of principal; interest from December 1, 2000 to March 15, 2004, in the amount of $45,327.98; and $263.98 in daily interest from March 19, 2004 to March 22, 2004, the date the final payment was tendered.

[¶ 15.] Andersons requested costs and attorney fees in the amount of $11,327.05. The trial court granted the amount per SDCL 21-50-4. Robert objected, contending Andersons prolonged the case with their unreasonable refusal to consent to the assignment, and their desire to litigate the case and seek forfeiture rather than foreclosure. The trial court awarded Andersons the full amount requested for costs and attorney fees. The trial court noted as the rationale for its decision that Andersons had the right to seek foreclosure and that Robert had the use of the land during the three years of litigation.

[¶ 16.] Robert appeals raising two issues for this Court’s review. By notice of review, Andersons bring forward one issue for this Court’s review. We address Andersons’ issue before proceeding to Robert’s issues, as it is a threshold issue that must be resolved first:

1. Whether the trial court erred when it allowed Robert Aesoph, a stranger to the contract, to assert rights of redemption under the contract.
2. Whether the trial court erred when it awarded interest on the balance due under the contract for deed after full payment on the contract had been tendered.
3. Whether the trial court erred when it awarded attorney fees and costs for the foreclosure litigation commenced after payment in full had been tendered on the contract for deed.

STANDARD OF REVIEW

[¶ 17.] We review the trial court’s findings of fact under the clearly erroneous standard. Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶4, 593 N.W.2d 414, 416 (citing Jasper v. Smith, 540 N.W.2d 399, 401 (S.D.1995); Muhlenkort v. Union County Land Trust, 530 N.W.2d 658, 660 (S.D.1995)). “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (citing Rabenberg v. Rigney, 1999 SD 71, ¶ 4, 597 N.W.2d 424, 425 (quoting Cleveland v. Tinaglia, 1998 SD 91, ¶ 16, 582 N.W.2d 720, 724)). “The trial court’s findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.” Lewis v. Moorhead, 522 N.W.2d 1, 3 (S.D.1994) (citing Cuka v. Jamesville Hutterian Mut. Soc., 294 N.W.2d 419, 421 (S.D.1980)).

[¶ 18.] We apply the abuse of discretion standard to a trial courts award of attorney fees. Adrian v. McKinnie, 2004 SD 84, ¶ 6, 684 N.W.2d 91, 94 (citing Osgood v. Osgood, 2004 SD 22, ¶ 9, 676 N.W.2d 145, 148). “An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” In re South Dakota Microsoft Antitrust Litigation, 2003 SD 19, ¶ 5, 657 N.W.2d 668, 671 (quoting Black v. Class, 1997 SD 22, ¶ 27, 560 N.W.2d 544). Under the abuse of discretion standard, “we do not determine whether we would have made a like decision, only whether a judicial mind, considering the law and the facts, could have reached a similar decision.” Id. (quoting State v. Wilkins, 536 N.W.2d 97, 99 (S.D.1995)). When applying the standard, “we must be careful not to substitute our reasoning for that of the trial court.” Id. (quoting State v. Larson, 512 N.W.2d 732, 736 (S.D.1994)).

ANALYSIS AND DECISION

[¶ 19.] 1. Whether the trial court erred when it allowed Robert Ae-soph, a stranger to the contract, to assert rights of redemption under the contract.

[¶ 20.] Andersons contend David failed to transfer his rights under the contract for deed when he executed a quitclaim deed in Robert’s favor. Andersons argue David’s right to redeem the contract under foreclosure was not a right that transferred under the quitclaim, as David did not specifically state in the quitclaim deed, or any other document, that any and all interests held by David in the contract for deed transferred to Robert. Andersons also argue that David did not transfer legal title to the property in question under the quitclaim deed. Andersons cite as their authority several cases that stand for the proposition that a quitclaim deed transfers - only the grantor’s interest, if any, in the property rather than the property itself. See North Dakota Workers Comp. Bureau v. Gen. Inv. Corp., 619 N.W.2d 863 (N.D.2000); Gustafson v. Gustafson, 239 Neb. 448, 476 N.W.2d. 819 (1991); Smith v. Berberich, 168 Neb. 142, 95 N.W.2d 325 (1959); Doelle v. Read, 329 Mich. 655, 46 N.W.2d 422 (1951).

[¶ 21.] A contract for deed is, in its essence, a 'financing arrangement for the purchase of real property. In re Butler, 552 N.W.2d 226, 229 (Minn.1996). In a contract for deed, the installment vendor maintains “legal title to the property while the vendee holds equitable title and has the right to use and possession of the property.” First Fed. Sav. and Loan Ass’n of Storm Lake v. Lovett, 318 N.W.2d 133, 135 (S.D.1982) (citing State Highway Comm’n. v. Miller, 83 S.D. 124, 155 N.W.2d 780 (1968); Renner v. Crisman, 80 S.D. 532, 127 N.W.2d 717 (1964); Zent v. Zent, 281 N.W.2d 41 (N.D.1979)). “[Absent an agreement to the contrary, a purchaser is free to transfer his rights under a contract for deed without the prior consent of the original vendor.” Bank of Toronto v. Lengkeek, 436 N.W.2d 271, 275 (S.D.1989) (citations omitted).

[¶ 22.] Real property must be transferred either “by operation of law, or by an instrument in writing, subscribed by the party disposing of the same[.]” SDCL 43-25-1. A transfer of real property by an instrument in writing may be accomplished by quitclaim. SDCL 43-25-8. The form found at SDCL 43-25-7 is the usual procedure for conveying an interest in real property by quitclaim. Schroeder v. Herbert C. Coe Trust, 437 N.W.2d 178, 184 (S.D.1989). We have previously held that a transfer of property by quitclaim serves to transfer all legal interests of the buyer to the assignee. MHW Ltd. Family P’ship v. Farrokhi 2005 SD 21, ¶ 5, 693 N.W.2d 66, 67 (citing BLACK’S LAW DICTIONARY 424 (7th ed. 1999)).

[¶ 23.] In the instant case, David had an equitable interest in the 1,040 acres of land under the contract for deed. David’s rights included the right to use and possession of the land. David’s right to use and possession, and by implication his right to transfer the property and any right to redeem the contract upon default, were also capable of transfer. The transfer of rights was subject only to the terms and conditions of the contract for deed David entered into with the Andersons.

[¶ 24.] Andersons attempted to advance the argument at trial that David, as the original buyer, had no right to redeem the contract upon default due to the forfeiture clause contained in the contract for deed. The forfeiture clause provided in relevant part:

in the event of the failure of Buyer to make either the payments or the interest thereon or any part thereof, or fail to perform any of the covenants on his part made and entered into, then the whole of said payments and interest shall become immediately due and payable and the Contract shall, at the option of the Sellers, be forfeited and determined and the Buyer shall pay as rent, all payment made by him on this Contract, and all his right, title, and interest and all other improvements shall be retained by the Sellers in full liquidation and satisfaction of all damages by them sustained and they shall have the right to re-enter and take possession of the premises without hindrance or delay. It is mutually understood and agreed that 30 days is a reasonable and sufficient notice to be given to the Buyer in case of his default and shall be sufficient to cancel all obligations of the Sellers and to reinvest them with all right, title, and interest hereby agreed to be conveyed.

However, the trial court correctly held the forfeiture provision was invalid. The trial court noted this Court has previously invalidated a forfeiture clause almost identical to the one in the instant case. See BankWest, N.A. v. Groseclose, 535 N.W.2d 860, 864-865 (S.D.1995). More importantly, Andersons do not contend on appeal that David did not have the right to redeem the contract for deed upon default.

[¶ 25.] Andersons’ argument that David failed to assign his right to redeem the contract upon default to Robert via the quitclaim deed is without merit. Andersons concede that David could not grant greater rights to Robert than those David had in the contract for deed. However, David effected a valid assignment to Robert of all his interests and rights under the contract for deed, including the right to redeem the contract upon default. Therefore, Robert, as the assignee of David’s rights under the contract for deed, had the same right to redeem the contract for deed as did David.

[¶ 26.] 2. Whether the trial court erred when it awarded interest on the balance due under, the contract for deed after full payment on the contract had been tendered.

[¶ 27.] Prejudgment interest has as its purpose to compensate an injured party for the wrongful detention of money owed. South Dakota Subsequent Injury Fund v. Homestake Mining Co., 1999 SD 159, ¶ 9, 603 N.W.2d 527, 529 (citing S.D. Bldg. Auth. v. Geiger-Berger Assoc., 414 N.W.2d 15, 19 (S.D.1987) (citing Bunkers v. Guernsey, 41 S.D. 381, 170 N.W. 632 (1919))). SDCL 20-5-18 provides:

An offer of payment or other performance, duly made, though the title to the thing offered be not transferred to the creditor, stops the running of interest on the obligation, and has the same effect upon all its incidents as a performance thereof.

In the context of a contract for deed, interest on the debt will stop running when the buyer tenders an unconditional offer of payment. Adrian, 2004 SD 84, ¶ 14, 684 N.W.2d at 98 (citing Schmidt v. Iowa Beef Processors, Inc., 347 N.W.2d 897, 898 (S.D.1984)). The seller’s choice to dispute the validity of the buyer’s right to pay off the . balance of the mortgage does not entitle the seller to receive interest after the time the seller rejects the buyer’s tender. Id. ¶ 17, 684 N.W.2d at 99.

[¶ 28.] Only an unconditional tender of payment sufficient to discharge the liability will toll interest under SDCL 20-5-18. Id., ¶ 15, 684 N.W.2d at 98 (citing Dougherty v. Beckman, 347 N.W.2d 587, 591 (S.D.1984)). An offer js unconditional when the amount offered is sufficient to discharge the liability and the payment does not demand something.in addition to, or outside of the original agreement. Id. ¶ 14, (citing Schmidt, 347 N.W.2d at 898). If tender of payment is accompanied by an additional requirement that is a common process for closing on real property, such as acquiring title insurance, the additional requirement is not an additional condition within the meaning of our prior opinions. Id. Therefore, in the context of a purchase of real property, the requirement that seller deliver title free and clear is not an additional condition when the original agreement called for the delivery of a warranty title upon satisfaction of the debt. Estate of Fisher v. Fisher, 2002 SD 62, ¶ 28, 645 N.W.2d 841, 849.

[¶ 29.] In the instant case, in a letter dated November 28, 2001, Robert tendered payment of the full- contract price. Robert’s offer was conditioned on receiving full and clear title. As such, Robert’s tender was unconditional for purposes of SDCL 20-5-18. Robert’s tender of payment occurred after Andersons’ filed Notice of Default and Forfeiture against David on November 15, 2001, but before Andersons began the action by serving the Summons and Complaint on David on December 24, 2001. Therefore, the contract for deed was in default at the time of Robert’s tender. Acceptance of Robert’s tender would have cured the default and made litigation unnecessary. The fact that Andersons elected to pursue a default and forfeiture action against David and dispute the validity of Robert’s right to redeem the contract for deed upon default, does not entitle Andersons to prejudgment interest from the date of Robert’s tender to the date of judgment.

[¶ 30.] The trial court correctly found Robert tendered full payment on the balance due under the contract for deed in its findings of fact dated March 19, 2004. However, the trial court erred in its finding of fact when it stated that the tender was not valid as it was made after the contract was violated by the assignment between David and Robert. The contract was in default as a result, but Robert’s right to redeem the contract was unaffected and still available to him. The trial court then held prejudgment interest was due from the date of the last payment made on December 1, 2000, until the date of judgment and decree of March 19, 2004.

[¶ 31.] The trial court relied on our holding in Dougherty v. Beckman, 347 N.W.2d at 591, for the proposition that a “vendor is not required to waive a hen, a default, interest or other contract or legal rights simply because the vendee offers to pay what the vendee believes is payment of the contract in full.” However, the trial court misapplied the holding in Dougherty. In that case, the buyer tendered $172,739, an amount less than the full price of $202,195.93 demanded by the builder as final payment for the construction of a townhouse. Id. The parties in Dougherty were in dispute as to the full price due to significant and numerous changes to the original construction project. Id. at 589. We held the tender was not unconditional, as it required the builder to accept an amount less than it had demanded as final payment. Id. at 591. We held that the vendor “has the right to test the validity of his further claim, and the condition attached to the tender must be such as to leave him free to contest such right.” Id. (citing Pittsburg Plate Glass Co. v. Leary, 25 S.D. 256, 126 N.W. 271, 274-75 (1910); Am. Fed. Sav. and Loan Ass’n of Madison v. Mid-Am. Serv. Corp., 329 N.W.2d 124, 127 (S.D.1983)). If the vendor had accepted the vendee’s payment as payment in full, vendor would not have been able to contest the disputed claim for the difference between the price tendered by vend-ee, and the price demanded by vendor. Id. For that reason, we held prejudgment interest did not toll .upon the offer by vendee of an amount less than that demanded by the vendor. Id.

[¶ 32.] In the instant case there was no dispute as to the amount due under the contract for deed at the time of default, or at the time Andersons filed their Notice of Default and Forfeiture against David on November 15, 2001. The contract itself provided the amount of principal and interest due, which neither party contested. The only dispute was whether Robert had the right to redeem the contract for deed. Andersons’ choice to dispute the validity of Robert’s right to pay off the balance of the contract for deed did not entitle Andersons to receive interest after the time they rejected Robert’s tender. See Adrian, 2004 SD 84, ¶ 17, 684 N.W.2d at 99.

[¶ 33.] The trial court did not have the benefit of our decision in Adrian v. McKinnie, 2004 SD 84, 684 N.W.2d 91, at the time of trial on the matter in 2003. In its conclusion of law, the trial court overestimated the amount of prejudgment interest, due. Therefore, we reverse the trial court’s award of prejudgment interest from the date of the last payment on December 1, 2000, until the judgment date of March 19, 2004. We remand to the trial court for calculation of prejudgment interest from the date of the last payment made on December 1, 2000, until December 1, 2001, the date of Robert’s tender of the full contract price as communicated to Andersons in the letter dated November 28, 2001.

[If 84.] 3. Whether the trial court erred when it awarded attorney fees and costs for the foreclosure litigation commenced after payment in full had been tendered on the contract for deed.

[¶ 35.] Generally, attorney fees are awarded by contract or when authorized by statute. Adrian, 2004 SD 84, ¶ 19, 684 N.W.2d at 100 (citing O’Connor v. King, 479 N.W.2d 162, 166 (S.D.1991)). Attorney fees in a foreclosure action may be awarded at the discretion of the trial court. SDCL 21-50-4. However, a vendor of real estate “should not receive attorney’s fees for a foreclosure action created by his own refusal to accept tender.” Adrian, 2004 SD 84, ¶ 20, 684 N.W.2d at 100.

[¶ 36.] Andersons twice unreasonably refused consent to the assignment of the contract for deed from David to Robert. Andersons then refused to accept Robert’s tender of full and final payment on November 28, 2001. Instead, Andersons attempted to force forfeiture under the contract for deed and regain possession of the land. The trial court held the proper cause of action was that of foreclosure. However, it was the intransi-gency of Andersons that forced the matter to trial. At trial and on appeal, Andersons remained steadfast in their erroneous contention that Robert did not have the right to redeem the contract for deed upon default. They should not be rewarded for their actions by an award of attorney fees. The trial court did not have the benefit of our holding in Adrian v. McKinnie, 2004 SD 84, 684 N.W.2d 91, on the issue of attorney’s fees. We therefore reverse the trial court, as Andersons were not entitled to attorney fees when Andersons themselves forced the matter into foreclosure by refusing Robert’s unconditional and full tender of the contract price.

[¶ 37.] Affirmed in part, and reversed and remanded in part.

[¶ 38.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . The trial court's October 3, 2003, memorandum opinion and its March 19, 2004, findings of fact and conclusions of law reviewed the three reasons proffered by Andersons for withholding consent to the assignment. First, Andersons contended they did not want to get into litigation fostered by David’s' murder of his wife and any subsequent claims of fraudulent conveyances. The trial court held the concern was unreasonable because continuing the contract for deed with David instead of consenting to the assignment to Robert would make litigation more likely rather than less likely. Next, Andersons argued they made the original contract with David and wanted to continue to deal with David. The trial court held this reason would be valid only if the proposed assignee, Robert, was not responsible. The trial court found Robert to be a good farmer and a long-standing mem- , her of the community, and therefore responsible. Finally, Andersons contended they were concerned about adverse tax consequences. The trial court found this proffered reason to be without merit and unreasonable grounds for withholding consent, as the tax consequences to Andersons would be the same whether they were dealing with David or Robert.

      . The language of the forfeiture clause in BankWest, N.A. v. Groseclose, 535 N.W.2d 860, 864-865 (S.D.1995), provided:
      In the case of the failure of the Purchasers to make any of the payments or any part thereof, or to perform any of the covenants on Purchaser's part hereby made and entered into, then the whole of said payments shall become immediately due and payable [FN3] and this contract shall, at the option of the Sellers, be forfeited and determined, and thereupon, Sellers shall be fully reinvested with all right, title and interest hereby agreed to be conveyed, and Purchasers shall forfeit all payments by Purchasers made on this contract and shall further forfeit all right, title and interest in and to all improvements located thereon, and such payments and improvements shall be retained by Sellers in full satisfaction and in liquidation of all damages by Sellers sustained, and Sellers shall have the right to re-enter and take possession of the premises as aforesaid.
      FN3. This emphasized language with the use of the mandatory term "shall,” certainly indicates that upon the vendee’s default the balance of the amount due and payable under the contract is immediately due. This provision clearly indicates that, even if Groseclose does not demand acceleration, the Buyers are entitled to tender the full balance in satisfaction of the contract. Even under the authority cited by Groseclose, Buyers had the right to prepayment of the contract balance. See discussion, infra, p[p]. 865-866.