Hallberg v. S.D. Board of Regents

#28683-aff in pt & rev in pt-JMK
2019 S.D. 67

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

SARA HALLBERG, Plaintiff and Appellant,

v.

SOUTH DAKOTA BOARD OF
REGENTS, JEREMY REED, and
FRANCESCA LEINWALL,
Individually, Defendants and Appellees.

****

APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
BROWN COUNTY, SOUTH DAKOTA

****

THE HONORABLE SCOTT P. MYREN
Judge

****

ALEX M. HAGEN
MICHELLE I. STRATTON of
Cadwell, Sanford, Deibert & Garry, LLP
Sioux Falls, South Dakota Attorneys for plaintiff
and appellant.

REED RASMUSSEN of
Siegel, Barnett & Schutz, LLP
Aberdeen, South Dakota Attorneys for defendants and
appellees.

****

ARGUED ON
APRIL 30, 2019
OPINION FILED 12/31/19
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KERN, Justice

[¶1.] Sara Hallberg filed a complaint in circuit court against the South

Dakota Board of Regents and two of its employees, alleging retaliatory discharge.

The circuit court dismissed the case, holding that the court lacked jurisdiction and

that the Board and its employees were shielded from the suit by sovereign

immunity. Hallberg appeals. We affirm in part and reverse in part.

Facts and Procedural History

[¶2.] We relate the following facts as alleged in Hallberg’s complaint. The

Student Affairs Department at Northern State University (NSU) hired Hallberg as

its Director of the Counseling Center (Center). Her employment term ran from

September 25, 2017 to June 21, 2018, with the possibility of an annual

reappointment. Hallberg’s supervisors were Francesca Leinwall, the associate vice

president of student affairs, and Jeremy Reed, the vice president of enrollment

management and student affairs.

[¶3.] Shortly after Hallberg began working at NSU, she noticed unlicensed

student employees counseling patients and signing therapy notes which, in her

view, violated the ethical standards of the American Counseling Association.

Although she communicated her concerns about this practice to her supervisors and

discussed it with NSU’s legal counsel, both informed her that the student employees

were not required to be licensed to perform their employment duties.

[¶4.] Because she still believed the behavior was improper, Hallberg

contacted other Board of Regents institutions about their protocols. She asserted

that each informed her that it did not permit counselors to practice without a

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license. She also contacted the South Dakota Counselors and Marriage and Family

Therapist Examiners Licensing Board. The Board told her that practicing without

a license is prohibited by law.

[¶5.] Additionally, Hallberg discovered that staff members, including

student employees, had access to the Center’s Titanium program, a system used to

store patient records and counseling notes. She likewise observed that student

employees were the primary point of contact for students calling the Center to

schedule counseling services. This practice allowed student employees access to

their peers’s student identification numbers and other sensitive information.

Hallberg began restricting employee access to confidential information by assigning

the primary phone line to Jobi Gramlow, a senior secretary. Gramlow did not agree

with this staffing decision. Hallberg also challenged Gramlow’s attempt to hire a

student who was also a client of the Center.

[¶6.] At a full staff meeting of the student affairs office in December 2017,

Hallberg presented her concerns regarding the Center’s possible violation of the

American Counseling Association’s ethical standards. She discussed the option of

installing a firewall in the Titanium system to restrict access to patient records.

She also explained her decision to make Gramlow the primary phone contact to

remedy the confidentiality issues with the front desk protocol. The following day,

Hallberg received a termination letter from Leinwall for disrupting the “efficiency

or morale of the [D]epartment” in violation of the Board of Regents’s policy.

[¶7.] Hallberg filed suit in circuit court, naming The Board of Regents, along

with Reed and Leinwell individually, as defendants. Although the provisions of

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SDCL 3-16-9 appear designed to protect state employee “whistleblowers,” Hallberg,

in her complaint, claimed whistleblower status generally without citing the statute

and alleged that her termination constituted unlawful retaliation for reporting the

Center’s unethical practices. She sought compensatory damages, back and front

pay, damages for emotional distress and mental anguish, and punitive damages.

Hallberg did not file a grievance before the Civil Service Commission (Commission)

prior to filing her action in circuit court.

[¶8.] The Board of Regents, Reed, and Leinwall moved to dismiss Hallberg’s

complaint for lack of jurisdiction and failure to state a claim under SDCL 15-6-

12(b)(1) and (5). After a hearing on the motion, the circuit court dismissed

Hallberg’s complaint. In its order, it stated, “[T]he [c]ourt has determined it has no

jurisdiction because [d]efendant South Dakota Board of Regents is entitled to

sovereign immunity as the State of South Dakota has only waived sovereign

immunity with respect to claims under SDCL 3-16-9 to the extent that it has

created an administrative remedy.” The court also found Leinwall and Reed

protected by the doctrine of sovereign immunity because their decision to fire

Hallberg was a discretionary act done within the scope of their employment.

[¶9.] Hallberg appeals, raising two issues that we restate as follows:

1. Whether the circuit court erred by dismissing
Hallberg’s claims against the Board of Regents.

2. Whether the circuit court erred by dismissing the
claims against Leinwall and Reed.

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Analysis and Decision

[¶10.] We review the circuit court’s decision granting a motion to dismiss de

novo with no deference to the circuit court’s determination. N. Am. Truck &

Trailer, Inc. v. M.C.I. Commc’n. Servs., 2008 S.D. 45, ¶ 6, 751 N.W.2d 710, 712. “A

motion to dismiss under SDCL 15-6-12(b) tests the legal sufficiency of the pleading,

not the facts which support it.” Id. For purposes of this appeal, we “treat as true all

facts properly pled in the complaint and resolve all doubts in favor of the pleader.”

Id.

1. Whether the circuit court erred by dismissing Hallberg’s
claims against the Board of Regents.

[¶11.] Determining whether the circuit court erred requires that we address

the extent to which the Legislature has waived sovereign immunity against the

Board. When sued in their official capacities, the provisions of Article III, § 27 of

the South Dakota Constitution and the common law provide that the State, its

entities, and its employees are immune from suit. See Pennington Cty. v. State ex

rel. Unified Judicial Sys., 2002 S.D. 31, ¶ 14, 641 N.W.2d 127, 131; Sisney v. Reisch,

2008 S.D. 72, ¶ 12, 754 N.W.2d 813, 818 (“[S]uits against officers . . . in their

official capacity[] are in reality suits against the State itself.”). The Board of

Regents, as a State entity, is protected by sovereign immunity. See Kringen v.

Shea, 333 N.W.2d 445, 446 (S.D. 1983). Yet, sovereign immunity is not necessarily

an impenetrable shield. It, like many other defenses, may be waived. Truman v.

Griese, 2009 S.D. 8, ¶ 9, 762 N.W.2d 75, 78; see also S.D. Const. art. III, § 27.

[¶12.] We look to the basic maxims of the doctrine of sovereign immunity to

guide us in determining whether and to what extent the State has waived its

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immunity by passing SDCL 3-16-9. Because the existence of immunity is a legal

question, we make this inquiry under the de novo standard of review. Hansen v.

S.D. Dep’t of Transp., 1998 S.D. 109, ¶ 7, 584 N.W.2d 881, 883. “The [S]tate

may . . . waive sovereign immunity by legislative enactment identifying the

conditions under which lawsuits of a specified type would be permitted.” Wilson v.

Hogan, 473 N.W.2d 492, 494 (S.D. 1991). In these instances, the State waives its

immunity only to the extent the plaintiff follows the established procedure. See

CitiBank, N.A. v. S.D. Dep’t of Revenue, 2015 S.D. 67, ¶ 36, 868 N.W.2d 381, 397.

[¶13.] SDCL 3-16-9 provides:

No department, bureau, board, or commission of the [S]tate or
any of its political subdivisions may dismiss, suspend from
employment, demote, decrease the compensation of, or take any
other retaliatory action against an employee because the
employee reports in good faith to an appropriate authority a
violation or suspected violation of a law or rule, an abuse of
funds or abuse of authority, or substantial and specific danger to
public health or safety, unless the report is specifically
prohibited by law . . . . A [S]tate employee who is the subject of
retaliation under this section may file a grievance with the Civil
Service Commission pursuant to § 3-6D-22. For purposes of an
employee of a political subdivision, an appropriate authority
includes any human resources department of that political
subdivision, if any, any state’s attorney, or the attorney general.

(Emphasis added.) The purpose of SDCL 3-16-9 is to protect state employees from

retaliatory employment actions when they report suspected conduct that violates

state laws, breaks rules, or affects public safety. SDCL 3-6D-22, a related statute,

details the process a grievant must follow to file a complaint with the Commission.

At the time Hallberg filed her complaint, the statute provided:

An employee may file a grievance with the Civil Service
Commission if the employee believes that there has been
retaliation because of reporting a violation of [S]tate law

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through the chain of command of the employee’s department, to
the attorney general’s office, the State Government
Accountability Board, or because the employee has filed a
suggestion pursuant to this section. 1

(Emphasis added.)

[¶14.] Review of the plain language of SDCL 3-16-9 and SDCL 3-6D-22

reveals that neither statute expressly authorizes Hallberg to initiate her action in

circuit court. It is well established that absent “specific constitutional or statutory

authority, an action cannot be maintained against the State.” Pourier v. S.D. Dep’t

of Revenue, 2010 S.D. 10, ¶ 14, 778 N.W.2d 602, 606 (emphasis added).

[¶15.] Nevertheless, Hallberg argues she is entitled to file a direct cause of

action because SDCL 3-16-9 provides that a “state employee . . . may file a grievance

with the Civil Service Commission . . . .” (Emphasis added.) That language, she

claims, must be considered against SDCL 3-6D-4, a related statute within SDCL

Title 3 that addresses who may go before the Commission. 2 It is Hallberg’s position

1. SDCL 3-6D-22 was revised during the 2019 Legislative session to read:
A civil service employee may file a grievance with the
commission if the employee believes that there has been
retaliation because of reporting a violation of state law through
the chain of command of the employee’s agency, to the attorney
general’s office, the State Government Accountability Board, or
because the employee has filed a suggestion pursuant to this
section.

2. SDCL 3-6D-4(5) provides that chapter 3-6D procedures do not apply to the
following employees:
Presidents, deans, administrative and policy-making positions,
student health service physicians, teaching and professional
research positions under the jurisdiction of the State Board of
Regents and other directors or administrative policy-making
(continued . . .)
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that the word may in SDCL 3-16-9 should be understood to distinguish between

those who may file a grievance within chapter 3-6D and those who may not because

SDCL 3-6D-4 excludes them. Thus, in her view, those excluded from filing their

claims with the Commission under SDCL 3-6D-4 are entitled to file suit under

SDCL 3-16-9 in circuit court. In presenting this argument, Hallberg does not take a

definitive stance regarding whether she believes her job was exempted by the

provisions of SDCL 3-6D-4.

[¶16.] In Montgomery v. Big Thunder Gold Mine, Inc., we were asked to

determine the meaning of the word “may” in SDCL 20-13-29. 531 N.W.2d 577, 579

(S.D. 1995). That statute provided that those aggrieved by discrimination or unfair

practices “may file [a claim] with the division of human rights . . . .” Id. We

disagreed that the word “may” meant that “a person may file either with the

Division or in circuit court.” Id. Rather, we held that the word “may” means that “a

discrimination victim is not required to file a charge at all.” Id. Likewise, in the

instant case, the word “may” in SDCL 3-16-9 does not mean a grievant may file with

the Commission or the circuit court. Rather, “may” means a qualified grievant

“may” file a grievance with the Commission, or he or she can elect not to.

[¶17.] Our conclusion is reinforced by the language of the next statute in the

chapter—SDCL 3-16-10. This similar, but unrelated statute involving retaliation

________________________
(. . . continued)
positions of such institutions as determined by the human
resources commissioner[.]

We note that Hallberg has not claimed that she is an excluded employee.
Rather, she claims that it is “unclear” whether she falls within the exclusion
set out in SDCL 3-6D-4(5).

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for reporting the misuse of public funds was enacted the same year as SDCL 3-16-9

and provides in part, “[i]f no grievance process exists, a civil action may be filed in

circuit court.” Because SDCL 3-16-9 contains no similar language, we will not read

the words into the statute.

[¶18.] Hallberg chose not to file her claim with the Commission. Therefore,

under the current statutory framework, the fate of her claim against the State

remains unchanged regardless of whether SDCL 3-6D-4 exempts her from

appearing before the Commission. This is because if, as Hallberg cautiously

hypothesizes, her position falls within the exemptions listed in SDCL 3-6D-4, then

she is not entitled to go before the Commission at all and SDCL 3-16-9 affords her

no relief. If, on the other hand, Hallberg is not exempted and is thus permitted to

file with the Commission, she failed to do so, which is fatal to her case.

[¶19.] Should the Legislature wish to expand its waiver to allow

whistleblowers to sue a state entity beyond filing a grievance with the Commission,

it need only insert language indicating that filing in circuit court is appropriate.

See, e.g., SDCL 3-16-10; see also Cromwell v. Rapid City Police Dep’t, 2001 S.D. 100,

¶ 15, 632 N.W.2d 20, 24–25 (holding that the Legislature waived sovereign

immunity to the extent that the public entity participates in a risk sharing pool or

purchases insurance). Because no such language is found within SDCL 3-16-9, it

provides only a limited waiver of sovereign immunity to the extent that a grievance

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may be filed with the Commission. It is therefore unnecessary to address the

exhaustion of remedies doctrine. 3

[¶20.] Alternatively, Hallberg argues that she should be allowed to proceed in

circuit court under our Constitution’s mandate that every injured plaintiff “shall

have a remedy by due course of law[.]” S.D. Const. art VI, § 20. Hallberg’s reliance

on the open courts doctrine is similarly unavailing because it cannot be used as “a

sword to create a cause of action” where none exits. Wegleitner v. Sattler, 1998 S.D.

88, ¶ 33, 582 N.W.2d 688, 698. As we noted in Green v. Siegel, Barnett & Schutz,

“the remedy constitutionally guaranteed for an injury done is qualified by the words

‘by due course of law.’” 1996 S.D. 146, ¶ 26, 557 N.W.2d 396, 403. “This means that

the remedy constitutionally guaranteed must be one that is legally cognizable. The

[L]egislature has the power to define the circumstances under which a remedy is

legally cognizable and those under which it is not.” Id.

3. The recent United States Supreme Court decision, Fort Bend County v.
Davis, supports our holding that filing with the Commission was a
jurisdictional prerequisite of SDCL 3-16-9. ___ U.S. ___, ___, 139 S. Ct. 1843,
204 L. Ed. 2d 116 (2019). In that case, the United States Supreme Court held
that “the word ‘jurisdictional’ is generally reserved for prescriptions
delineating the classes of cases a court may entertain (subject-matter
jurisdiction) and the persons over whom the court may exercise adjudicatory
authority (personal jurisdiction).” Id. at 1848. Objections to jurisdiction may
be raised at any time and lack of jurisdiction requires dismissal. Id. at 1849.
In contrast, “nonjurisdictional claim-processing rules” promote orderly
litigation by requiring defined procedural steps. Id. Failure to follow these
steps may result in dismissal if properly raised, but can be waived if a party
fails to object. Id. Here, the provisions of SDCL 3-16-9 are jurisdictional
because the Legislature vested the Commission with the authority to hear
these types of claims. See also Citibank, 2015 S.D. 67, ¶ 37, 868 N.W.2d at
397 (holding that certain procedural requirements, such as a statute of
limitations, may be made jurisdictional depending on the intention of the
Legislature).

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[¶21.] There is little question that the Legislature intended to create a

remedy for whistleblowers, but that remedy is confined to the grievance procedure

before the Commission. SDCL 3-16-9 says as much when it provides that: “[a]

[S]tate employee who is the subject of retaliation under this section may file a

grievance with the Civil Service Commission pursuant to § 3-6D-22.” (Emphasis

added.) The circuit court did not err by dismissing Hallberg’s complaint against the

Board of Regents.

2. Whether the circuit court erred by dismissing
Hallberg’s claims against Leinwall and Reed.

[¶22.] The circuit court dismissed Hallberg’s complaint against Leinwall and

Reed because it found their actions were discretionary and protected by the doctrine

of sovereign immunity. Hallberg asserts the dismissal was erroneous because she

sued them in their individual capacity for tortious conduct. The Board responds

that even if Leinwall and Reed were sued individually, the decision to terminate

Hallberg’s employment was carried out as a discretionary act protected by sovereign

immunity. Additionally, the Board contends that Hallberg’s complaint fails to set

forth facts supporting a claim of an intentional tort. Hallberg replies that her

complaint was pled to the appropriate level of particularity required for notice

pleading.

[¶23.] Actions “against officers of the [S]tate in their official capacity[] are in

reality suits against the State itself.” Reisch, 2008 S.D. 72, ¶ 12, 754 N.W.2d at

818. Likewise, “state employees who are sued in an individual capacity are entitled

to immunity dependent upon the function performed by the employee. State

employees are generally immune from suit when they perform discretionary

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functions, but not when they perform ministerial functions.” Id. ¶ 12, 754 N.W.2d

at 818−19.

[¶24.] Hallberg concedes that under ordinary circumstances, the decision to

terminate an employee is a discretionary act that shields state employees from

liability even if they are sued in their individual capacities. However, she also

correctly notes that state employees are not safeguarded from liability if they

commit intentional torts or ultra vires acts that exceed the scope of their authority.

Bego v. Gordon, 407 N.W.2d 801, 808 (S.D. 1987). By firing her out of retaliation,

Hallberg argues Leinwall and Reed exceeded the scope of their official capacities

and lost their right to be shielded by the sovereign. Id.

[¶25.] We have previously acknowledged “a cause of action for wrongful

discharge [that] arises on behalf of an employee where an employer’s motivation for

termination contravenes a clear mandate of public policy.” Niesent v. Homestake

Mining Co. of Cal., 505 N.W.2d 781, 783 (S.D. 1993). Tiede v. CorTrust Bank, N.A.,

2008 S.D. 31, ¶ 10, 748 N.W.2d 748, 751. “Retaliatory discharge is a tort arising

from a breach of public policy duties independent of the employment contract.”

Tiede, 2008 S.D. 31, ¶ 15, 748 N.W.2d at 752. The public policy to be protected

must be “substantial.” Id. An employee who alleges a wrongful discharge claim is

provided a remedy in tort not just to compensate for loss of employment, but also to

preserve the underlying fundamental public policy itself.

[¶26.] Determining what is a clearly mandated public policy can be

challenging. In fact, it “has been called the Achilles heel of the principle underlying

the tort of retaliatory discharge.” Hicks v. Resolution Trust Corp., 736 F. Supp. 812,

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815 (N.D. Ill. 1990) (vacated on other grounds). Yet, we addressed this question

years prior to the enactment of SDCL 3-16-9, in Dahl v. Combined Insurance

Company, where we recognized the tort of retaliatory discharge in the context of

whistleblowers. 2001 S.D. 12, ¶¶ 13–14, 621 N.W.2d 163, 167–68. 4 Instrumental to

our holding in Dahl was our belief that a “whistleblowing activity which serves a

public purpose should be protected.” Id. ¶ 12, 621 N.W.2d at 167 (emphasis in

original). It has, therefore, been the longstanding policy of our State to protect

employees in the private sector who report illegal or improper conduct from

retaliatory discharge. This reasoning stands the test of time, for it remains true

that “[t]he law is feeble indeed if it permits an employer to take matters into its own

hands by retaliating against its employees who cooperate in enforcing the law.” Id.

¶ 14, 621 N.W.2d at 168.

[¶27.] We see no meaningful difference between private sector and public

sector employees for purposes of the intentional tort of retaliatory discharge.

Although the existence of sovereign immunity would ordinarily draw a distinction

between public and private employees, sovereign immunity is inapplicable to

intentional torts committed by State employees. Hart v. Miller, 2000 S.D. 53, ¶ 38,

4. We did not break new ground with Dahl. Many jurisdictions came before us
in recognizing the common-law tort of retaliatory discharge for protected
whistleblowing activity. See, e.g., Frobose v. Am. Sav. & Loan Ass’n of
Danville, 152 F.3d 602, 609 (7th Cir. 1998) (assessing a state law retaliatory
discharge claim); Moyer v. Allen Freight Lines, Inc., 885 P.2d 391, 393–94
(Kan. Ct. App. 1994) (holding whistleblowing is an exception to the at-will
employment doctrine); McArn v. Allied Bruce–Terminix Co., 626 So. 2d 603,
607 (Miss. 1993) (holding that employees “who refuse[ ] to participate in an
illegal act . . . shall not be barred by the common law rule of an employment
at will from beginning an action in tort . . . .”).

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609 N.W.2d 138, 148. Accordingly, the public policy considerations we first

articulated in Dahl apply to this case. With this precedent in mind, we review the

circuit court’s decision to dismiss Hallberg’s claims against Leinwall and Reed on

the grounds that Hallberg’s discharge was a discretionary act protected by

sovereign immunity. See Gruhlke v. Sioux Empire Fed. Credit Union, Inc., 2008

S.D. 89, ¶ 17, 756 N.W.2d 399, 408.

[¶28.] Pleadings may be considered to determine whether a plaintiff is

alleging a state employee has committed “wrongful acts in excess of the employee’s

official authority.” Bego, 407 N.W.2d at 809. Under notice pleading principles, we

require “a short and plain statement of the claim showing that the pleader is

entitled to relief.” St. Pierre v. State ex rel. S.D. Real Estate Comm’n, 2012 S.D. 25,

¶ 17, 813 N.W.2d 151, 157. This standard requires that Hallberg plead “more than

labels and conclusions.” Sisney v. Best, 2008 S.D. 70, ¶ 7, 754 N.W.2d 804, 808. A

complaint must put “a person of common understanding” on notice, “with

reasonable certainty of the accusations against [them] so [they] may prepare [their]

defense.” Id. ¶ 18, 813 N.W.2d at 157. While detailed factual allegations are not

necessary, Hallberg must set forth “a statement of circumstances, occurrences, and

events in support of [her] claim” that Leinwall and Reed committed acts outside the

scope of their employment. Gruhlke, 2008 S.D. 89, ¶ 17, 756 N.W.2d at 409. But

even if a complaint sets forth a detailed set of facts, a failure to plead each element

of a claim is fatal. Id. ¶ 21, 756 N.W.2d at 410.

[¶29.] In her complaint against Leinwall, Hallberg avers that: (1) she

reported the counseling center’s allegedly unlawful practices; (2) she received a

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termination letter from Leinwall shortly after she made her report; and (3) her

termination for reporting the practices was unlawful because it violated public

policy. To support her belief that the Center was engaged in unlawful activity,

Hallberg alleged that unlicensed individuals were signing therapy notes, engaging

in counseling without a license, and accessing confidential records.

[¶30.] These allegations, when taken as true, raise more than a “formulaic

recitation of the elements of a cause of action . . . .” Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007). Therefore, the

circuit court erred in dismissing Hallberg’s claim of retaliatory discharge against

Leinwall under SDCL 15-6-12(b)(5). On remand, we note that questions concerning

whether Leinwall exceeded the scope of her authority by committing an illegal act

or the intentional tort of retaliatory discharge implicate mixed questions of law and

fact. Bego, 407 N.W.2d at 812. We, therefore, “encourage the development of a full

record prior to their determination.” Id.

[¶31.] We turn next to Hallberg’s allegations against Reed. To establish her

claim of retaliatory discharge against Reed, Hallberg asserts that he served as

Leinwall’s direct supervisor. Aside from this, however, Hallberg has not pled

specific allegations regarding how Reed retaliated against her. For instance, the

complaint does not allege that Reed ordered Leinwall to send the letter terminating

Hallberg. Nor does it allege that Reed had personal knowledge of her attempts to

report the allegedly unethical or unlawful conduct.

[¶32.] Pleading that Reed served as Leinwall’s supervisor, without more, does

not include the “circumstances, occurrences, and events in support of the claim

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presented” and is, therefore, insufficient under our notice pleading standard to

establish the threshold for an intentional tort. See Gruhlke, 2008 S.D. 89, ¶ 17, 756

N.W.2d at 409. Because Hallberg did not aver that Reed was acting outside the

scope of his authority, the circuit court did not err by concluding that Reed was

acting in a discretionary capacity and shielded by the doctrine of sovereign

immunity.

Conclusion

[¶33.] The circuit court did not err by dismissing Hallberg’s claims against

the Board. The Legislature waived the Board’s sovereign immunity for

whistleblower claims only to the extent that it allowed employees to file claims with

the Commission. Additionally, Hallberg adequately pled the tort of retaliatory

discharge against Leinwall, but failed to adequately plead a cognizable tort against

Reed. We affirm the circuit court’s dismissal of Reed and reverse and remand

Hallberg’s claim against Leinwall for further proceedings consistent with this

opinion. We affirm in part and reverse in part.

[¶34.] GILBERTSON, Chief Justice, and JENSEN and SALTER, Justices,

and WILBUR, Retired Justice, concur.

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