Hello, Chad.

You asked: "I have a question about this... in whose opinion was the pastor
engaging in "secular" counseling?  We have licensed counselors on staff who
counsel at the church.  This "sounds like" an allegation made by the
woman... to own a counseling license is to be a secular practitioner?"

Here we fall into one of those areas that are unclear in reading appellate
opinions.

The court states (in the background facts): "In addition to being CCBC's
pastor, Westbrook also holds himself out and works as a licensed
professional counselor. Thus, over the same period Westbrook served as the
pastor of CCBC, he also engaged in the practice of providing secular
professional marriage and family counseling services to individuals facing
marital difficulties."

My experience is that when an appellate court cites a fact without noting
which party is asserting the fact, the court does so because both parties
stipulate to the truth of the assertion. In other words, if there had been a
dispute about the fact, the court would have noted that the statement was an
allegation or assertion and would not have stated it as a fact. For this
reason, I suspect that it was a stipulated matter.  In addition, I note that
the court later states that Westbrook did not dispute the allegation that he
functioned as secular counselor.

That being said, however, the procedural status of the case is such that the
dispute you mention does not really matter. As the court notes: "Thus, under
Miranda, we examine the substance and effect of Penley's pleadings to
determine whether she alleged sufficient facts that affirmatively
demonstrate the court's jurisdiction to hear her professional negligence
claim against Westbrook. "

On a motion to dismiss, the question is whether the facts *as alleged* would
support a claim. In other words, the court did not hold that she should win
or even could win, but only that, if her allegations are correct, then she
is entitled to continue her lawsuit. At the motion to dismiss stage of
proceedings, a court is required to determine only whether "the allegations"
are sufficient to support continuing the action. If, ultimately, the
evidence shows that he was not doing secular counseling, then, under this
opinion, she would lose the lawsuit.

It will be interesting to see how the evidence ultimately comes in.

James W. Allen
jallen@...