author: GUIDRY, J.

text:
    Christy Jenkins SCHMIDT v. Timothy W. SCHMIDT
    NUMBER 2018 CA 0202
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: January 3, 2019
    Brian J. Prendergast, Baton Rouge, LA, Counsel for Plaintiff/Appellee, Christy Jenkins Schmidt
    Marcus T. Foote, Baton Rouge, LA, Counsel for Defendant/Appellant, Timothy Schmidt
    BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
   GUIDRY, J.

Defendant, Timothy Schmidt, appeals from a judgment of the trial court finding him guilty of contempt of court and ordering him to pay $110,758.38, representing his pro rata share of medical expenses found by the court to be medically necessary for the parties' minor child and which were not covered by insurance, $15,000.00 in attorney's fees, and $2,470.50 in costs. For the reasons that follow, we amend in part and as amended, affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Timothy and Christy Schmidt were married on February 3, 1996, and one child was born of the marriage on February 7, 2003. Thereafter, Christy filed a petition for divorce on November 4, 2004. On March 1, 2005, the trial court signed a judgment, stipulated to by the parties, regarding custody and support. In particular, the judgment provided:

each party shall be responsible for his or her pro rata share of any medical expenses paid by such party and not covered by insurance. The pro rata share of each party is as follows: Christy Jenkins Schmidt-22%; Timothy Schmidt-78%. Each party shall submit proof of payment of medical expenses not covered by insurance to the other party within 60 days of payment and request reimbursement from the non-payor for the non-payor's pro rata share. The other party shall reimburse the payor his or her pro rata share of such expenses within 30 days thereafter. If either party does not submit proof of medical expenses paid and not covered by insurance within the 60 days of payment, then such party will not be entitled to claim reimbursement for such expense.

A judgment of divorce was entered on June 13, 2005.

Thereafter, on August 26, 2005, Christy filed a rule to show cause, claiming the March 1, 2005 judgment ordered Timothy to pay his 78% pro rata share of any medical expenses not covered by insurance within thirty days of request by her, that she had timely submitted proof of payment of these medical expenses, and that Timothy had continuously failed and refused to timely or fully reimburse her for his share of the medical expenses paid by her. Christy requested that the trial court order Timothy to show cause as to why he should not be held in contempt of court for failing and refusing to reimburse her his pro rata share of medical expenses paid by her; why he should not be ordered to reimburse her his pro rata share of medical expenses previously submitted by her immediately and without delay; and why he should not be ordered to reimburse her his pro rata share of medical expenses for therapy and treatment that are recurring and ongoing within five days of notification by her of the amount invoiced for such therapy.

At a September 27, 2005 hearing, the parties stipulated that Timothy was not required to reimburse Christy his pro rata share of $1,500.00 advanced by her to Mississippi Behavioral Clinic for additional therapy for the child, with the parties reserving the right to have determined if such additional therapy is a medical necessity. This stipulation was reduced to judgment; however the judgment was never signed. The unsigned judgment was filed into the trial record on March 20, 2007, and also provided that Timothy shall place a credit card with Abilities for Speech and Language (Abilities) for payment of treatment for the minor child.

On March 13, 2008, Christy filed a rule to show cause, seeking an increase in child support and contempt for Timothy's failure to reimburse her his pro rata share of medical expenses not covered by insurance. Particularly, Christy asserted that because of the child's medical conditions, there are extraordinary expenses that should be taken into consideration in establishing child support, including but not limited to: cost of special dietary requirements; cost of prescribed over-the-counter medications that are not covered by health insurance; cost of specific air purifiers, feeding utensils and equipment for feeding environment; specialized bedding; special paraphernalia required by treating physicians and therapists that are not covered by health insurance; and educational expenses to assimilate the child into a school setting. Furthermore, Christy asserted that Timothy had refused to reimburse her his pro rata share of medical expenses not covered by insurance within thirty days of submission by her. Christy asserted that she had repeatedly provided Timothy with proof that the child's physicians and therapists had prescribed or ordered medications, equipment, special foods, feeding utensils, food preparation tools, therapy tools, etc., which are medically necessary and are not covered by insurance. Christy further asserted that Timothy had been provided with reports from the child's medical caregivers substantiating the medical necessity of the foregoing, but that he has still failed or refused to reimburse Christy for his pro rata share. The matter passed without date, and on May 7, 2008, the trial court signed an order appointing a parenting coordinator to assist the parties in resolving disputes and in reaching agreements regarding the minor child.

Thereafter, on February 10, 2009, Christy filed a motion to modify custody and other ancillary matters, including a rule for contempt regarding Timothy's removal of his credit card from Abilities and failure to pay Abilities after June 24, 2008. The trial court held a hearing on all pending matters on March 24, 2009, wherein the trial judge told Timothy to bring Abilities up to date and further stated that Christy needed either depositions from doctors or she needed the doctors to testify regarding the medical necessity of the requested expenses.

Timothy subsequently filed a petition to modify custody on January 20, 2015. Christy responded by filing an answer and reconventional demand on March 10, 2015, seeking an increase in child support, tuition, and extracurricular expenses due to Timothy's increase in income and an increase in the educational and medical expenses of the child. The parties entered into a consent judgment on July 27, 2015, wherein Timothy agreed to pay 50% of the minor child's school tuition commencing with the 2015 fall semester and 50% of any mutually agreed upon extracurricular activities, including trumpet lessons. The parties reaffirmed that Timothy is responsible for 78% of any medical expenses not covered by insurance and further provided that both parties "reserve the right to seek a judicial determination of any issue not addressed in this judgment."

On December 7, 2015, Christy filed a rule for contempt, stating pursuant to the March 1, 2005 stipulated judgment, Timothy was ordered to pay 78% of medical expenses not covered by insurance and that since the judgment was rendered, Timothy has failed and/or refused to reimburse her for his pro rata share of medical expenses incurred on behalf of the minor child in the amount of $184,970.68. Christy attached a spreadsheet of expenses to her rule for contempt. Christy also sought attorney's fees and costs. Following a January 5, 2016 status conference, the trial court signed an order, ordering that Christy's rule for contempt, attorney's fees and other ancillary matters shall be set for trial with the court to determine which claims for reimbursement shall be deemed a medical necessity for the minor child.

Following a three day trial on Christy's rule, the trial court issued a judgment finding Timothy guilty of contempt of court for willfully violating the provisions of the stipulated judgment agreed to by the parties on January 12, 2005 and signed by the court on March 1, 2005, namely that "each party shall be responsible for his or her pro rata share of any medical expenses paid by such party and not covered by insurance." The judgment further ordered that Timothy shall pay Christy the sum of $59,099.02, representing Timothy's pro rata share of the medical expenses incurred by Christy, which the trial court found to be medically necessary for the parties' minor child.

Christy subsequently filed a motion to amend judgment or in the alternative, motion for new trial, asserting that certain medical expenses, which were clearly granted by the trial court, were not included in the judgment. The motion was submitted on briefs only. Thereafter, on August 14, 2017, the trial court signed a judgment finding the May 8, 2017 judgment to be contrary to the law and evidence and granting Christy's motion for new trial only as to the missing expenses. The trial court further found that Timothy was in contempt of court for willfully violating the provisions of the stipulated judgment agreed to by the parties on January 12, 2005 and signed by the court on March 1, 2005, and ordered Timothy to pay the sum of $110,758.38, representing Timothy's pro rata share of the medical expenses incurred by Christy, which the court, considering all expenses entered into evidence, found to be medically necessary for the parties' minor child. The trial court also ordered Timothy to pay $15,000.00 in attorney's fees and $2,470.50 in court costs and fees.

Timothy now appeals from the trial court's August 14, 2017 judgment.

DISCUSSION

A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice or to impair the dignity of the court or respect for its authority. La. C.C.P. art. 221. Willful disobedience of any lawful judgment, order, mandate, writ, or process of the court is constructive contempt of court. See La. C.C.P. art. 224. Proceedings for contempt must be strictly construed, and the policy of our law does not favor extending their scope. Estate of Graham v. Levy, 636 So.2d 287, 290 (La. App. 1st Cir. 1994), writ denied, 94-1202 (La. 7/1/94), 639 So.2d 1167. The decision to hold a party in contempt of court for disobeying the court's orders is within the trial court's great discretion. Only if the appellate court finds an abuse of that discretion will a trial court's contempt ruling be reversed. Leger v. Leger, 00-0505, p. 3 (La. App. 1st Cir. 5/11/01), 808 So.2d 632, 635. However, the predicate factual determinations underlying the finding of civil contempt of court are reviewed under the manifest error standard of review. See Rogers v. Dickens, 06-0898, p. 7 (La. App. 1st Cir. 2/9/07), 959 So.2d 940, 945 ; see also Mitchell v. Risher, 11-1008 (La. App. 1st Cir. 12/21/11), 2011 WL 6780131 (unpublished opinion).

A proceeding for contempt for refusing to obey a court's order is not designed for the benefit of the litigant, though infliction of punishment may inure to the benefit of the mover in the rule. Welborne v. Welborne, 29,479, p. 10 (La. App. 2nd Cir. 5/7/97), 694 So.2d 578, 585, writs denied, 97-1800 (La. 10/13/97), 703 So.2d 621 and 97-1850 (La. 10/13/97), 703 So.2d 623. Rather, the object of a contempt proceeding is the vindication of the dignity of the court. Short v. Short, 12-312, p. 5 (La. App. 5th Cir. 11/13/12), 105 So.3d 892, 895. In order to find a party guilty of constructive contempt, the trial court must find that he or she violated the order of the court intentionally, knowingly, and purposely, without justification. Smith v. Pillow-Smith, 10-0167, p. 4 (La. App. 4th Cir. 11/17/10), 52 So.3d 264, 267-68.

The March 1, 2005 judgment provided, in pertinent part:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that each party shall be responsible for his or her pro rata share of any medical expenses paid by such party and not covered by insurance. The pro rata share of each party is as follows: Christy Jenkins Schmidt-22%; Timothy W. Schmidt-78%. Each party shall submit proof of payment of medical expenses not covered by insurance to the other party within 60 days of payment and request reimbursement from the non-payor for the non-payor's pro rata share. The other party shall reimburse the payor his or her pro rata share of such expenses within 30 days thereafter. If either party does not submit proof of medical expenses paid and not covered by insurance within 60 days of payment, then such party will not be entitled to claim reimbursement for such expense.

Timothy asserts on appeal that the trial court abused its discretion in finding him in contempt of court for failing to pay his pro rata share of various expenses, including therapy with Abilities; Applied Behavioral Analysis (ABA), including therapy, use of shadows, and summer programs; daycare; private school tuition; food; and trumpet lessons. Timothy contends that these costs are not medical expenses, that he was never ordered by the court to pay these costs, and that the sole issue before the court was a rule tor contempt and not a hearing to determine medical necessity.

With regard to Timothy's argument that the sole issue before the court was a rule for contempt, we note that following a January 5, 2016 status conference, the trial court signed an order, ordering that Christy's rule for contempt, attorney's fees, and other ancillary matters shall be set for trial with the court to determine which claims for reimbursement shall be deemed a medical necessity for the minor child. Clearly, in order to determine if Timothy was in contempt of court for failing to pay his pro rata share of 78% of medical expenses not covered by insurance, it must first be determined if the claimed expenses for which Christy sought reimbursement from Timothy are medical expenses as contemplated by the judgment. Furthermore, Timothy did not raise any objection either at the status conference or at trial to consideration of this issue. Therefore, we find that the issue of whether the expenses for which Christy sought reimbursement from Timothy, and which Timothy refused to pay, are medically necessary was properly before the trial court, and Timothy's argument in this regard is without merit.

Accordingly, we now address each of the expenses that Timothy claims the trial court erred in finding were medically necessary, and as such were medical expenses not covered by insurance pursuant to the March 1, 2005 judgment for which he owed Christy reimbursement of his pro rata share of 78%, and abused its discretion in finding him guilty of contempt of court for failing to pay.

Abilities

Abilities consists of speech and occupational therapy for the minor child, who has autism. The medical records admitted into evidence show that Dr. Charlotte Hollman, the child's pediatric neurologist, diagnosed the minor child with autism in April 2005 and recommended speech therapy at least three times a week and occupational therapy four times a week. At trial, Timothy admitted that he had paid Abilities until June 24, 2008, when he withdrew his credit card information from Abilities. According to Timothy, he stopped paying for Abilities because he could no longer afford it, and he had to make a choice between continuing the therapy program that the child had been in for three years or getting to spend more time with his son. Furthermore, Timothy stated that the judgment ordering him to place a credit card on file with Abilities was never signed.

However, Timothy did not contest that Abilities was a medical expense not covered by insurance and did not dispute that at the 2009 hearing, where his contempt for failing to pay Abilities was one of the issues before the court, the trial court ordered him to bring Abilities up to date.

Additionally, Timothy admitted that Christy had sent him monthly accounting spreadsheets for Abilities between July 2008 and September 2010, that he had refused to pay his pro rata share, and that he owed Christy $11,000 or $12,000 for the Abilities program.

Accordingly, based on the foregoing, we find no error in the trial court's finding that Abilities was medically necessary and in ordering Timothy to pay his pro rata share of $11,385.77, representing 78% of the total cost for Abilities in the amount of $14,597.14. Furthermore, because Timothy did not contest that Abilities was a medical expense not covered by insurance, acknowledged that he owed Christy for the minor child's therapy with Abilities, and was aware of the trial court's subsequent order following his withdrawal of his credit card from Abilities to make Abilities current, we find no error in the trial court's finding that Timothy willfully disobeyed the trial court's March 1, 2005 judgment ordering him to pay his pro rata share of medical expenses not covered by insurance and furthermore, find no abuse of the trial court's discretion in finding Timothy guilty of contempt of court.

ABA

According to the record, ABA is recognized as a treatment for autism in young children and involves one-on-one intervention and teaching. The medical records and deposition testimony of Dr. Charlotte Hollman admitted at trial indicate that in April 2005, she recommended that the minor child participate in an ABA approved therapy program. According to Dr. Hollman, ABA is the most clearly recognized and most effective treatment for autism in young children. Dr. Hollman further stated that it was medically necessary for Christy to begin the child on a course of ABA treatment in order to assist the child in his development. According to Dr. Hollman's medical records from July 25, 2005, she strongly recommended that the child receive 30-40 hours a week in an ABA approved program due to the child's hypotomia (low muscle tone), sensory issues, and delay in language development. Furthermore, when the child approached school age, Dr. Hollman stated that shadows are customary, standard treatment for a child who had been receiving as much ABA therapy as this minor child had. Dr. Hollman stated that a shadow provides therapy in the school setting and was medically necessary.

From our review of the record, we find no manifest error in the trial court's factual determination that the ABA treatment recommended by Dr. Hollman to treat the minor child's medical condition of autism, including the use of shadows, was medically necessary, and as such, is a medical expense for purposes of the March 1, 2005 judgment.

However, as detailed above, the March 1, 2005 judgment provides that in order for a party to be entitled to claim reimbursement for such an expense, the party must submit proof of payment and request reimbursement from the non-payor for the non-payor's pro rata share within sixty days of payment of the medical expense. In the instant case, the parties do not dispute that Christy sent Timothy a bill for the initial $1,500.00 consultation fee with the TCLC/Mississippi Behavioral Clinic, the ABA consultant, within sixty days of payment. Christy also stated that when the child attended preschool, she separated out the shadow expenses from his other ABA expenses and forwarded Timothy proof of payment of those shadow expenses, for which Timothy acknowledged receipt.

However, according to Christy's trial testimony, other than these reimbursement requests, she did not forward any more bills for ABA to Timothy. Christy stated that she did so pursuant to direction from the preceding trial court judge, who told her at the September 27, 2005 hearing to hold all ABA bills until a determination was made regarding medical necessity. However, there is no support in the record, either by way of minute entry, order, judgment, or trial transcript, to support Christy's contention that she was relieved from complying with the requirements of the March 1, 2005 judgment. Furthermore, Timothy testified that he had not received anything from Christy regarding ABA expenses, other than the initial $1,500.00 consultation fee and the aforementioned preschool shadowing expenses.

Accordingly, other than the initial $1,500.00 consultation fee and expenses for preschool shadowing, the record does not support that Christy submitted proof of payment of ABA related medical expenses and requested reimbursement of said expenses from Timothy of his pro rata share of those expenses within sixty days of payment. Therefore, the trial court erred in finding that she was entitled to reimbursement from Timothy for his pro rata share of ABA expenses other than the initial $1,500.00 consultation fee and preschool shadowing expenses in the amount of $9,645.01. As such, we find Christy is entitled to $1,170.00, representing 78% of the consultation fee, and $7,523.11, representing 78% of the preschool shadowing expenses.

However, while Christy may be entitled to reimbursement for these specific ABA expenses, we find that the trial court abused its discretion in finding Timothy guilty of contempt of court for his failure to pay these expenses. As acknowledged by the parties, the unsigned, stipulated judgment filed into the record following the September 27, 2005 hearing states:

IT IS ORDERED, ADJUDGED AND DECREED that Timothy is not required to reimburse Christy his prorata [sic] share of the $1500.00 advanced by Christy to Mississippi Behavioral Clinic for additional therapy for [the minor child], the parties reserving the right to have determined if such therapy is a medical necessity.

The parties do not dispute that while this judgment is unsigned, it was the order of the court pursuant to their stipulation. Accordingly, the trial court erred in finding that Timothy willfully disobeyed the March 1, 2005 judgment by failing to pay the $1,500.00 consultation fee and preschool shadowing costs, when the parties agreed and the court ordered, approximately six months after entry of the March 1, 2005 judgment, that Timothy was not required to pay these expenses until the parties sought determination from the trial court that this therapy was a medical necessity. Therefore, the trial court erred in finding that Timothy willfully disobeyed the trial court's March 1, 2005 judgment and as such, abused its discretion in finding Timothy guilty of contempt of court as to these ABA expenses.

In addition to the foregoing ABA expenses, Christy also claimed reimbursement for expenses related to summer enrichment programs and a summer program with Behavioral Intervention Group (BIG). The minor child attended these programs in 2012, 2013, and 2014. The record does not contain any evidence regarding the summer enrichment programs other than Christy's testimony regarding the BIG program, which was attended by the minor child in the summer of 2014. Christy stated that the BIG program is the ABA program, as it is run by the same people who work for TCLC/Mississippi Behavioral Institute. Christy stated that the program was recommended for socialization by the school the minor child was attending, and she believed Dr. Hollman concurred. However, Dr. Hollman did not mention the BIG program or its medical necessity in her deposition testimony. Therefore, because the evidence in the record demonstrates that the BIG program was recommended by the minor child's school for socialization, and not by a physician for medical reasons, we find that the trial court erred in finding that the BIG summer program was medically necessary and likewise abused its discretion in finding Timothy guilty of contempt of court for failing to reimburse Christy his pro rata share of these expenses.

Preschool Tuition

The minor child attended preschool at University Presbyterian and/or Broadmoor Presbyterian from February 2007 to May 2009. According to Christy's testimony, she worked part time during that period and the minor child attended preschool for two hours a day. Christy stated that the minor child's treating physicians were in agreement that due to the minor child's autism, he needed to be enrolled in a preschool program so that he could start learning to interact with other children and to facilitate, with the use of shadows, his transition to kindergarten. However, this statement is not only uncorroborated by any medical testimony or evidence in the record, there is no medical evidence in the record that it was medically necessary for the minor child to be enrolled in a preschool program.

Furthermore, preschool tuition is properly characterized as child care costs under La. R.S. 9:315.3 or, given the particular facts of this case, an extraordinary expense under La. R.S. 9:315.6(3), as an expense intended to enhance the "health...social, or cultural development of a child." Both of these types of expenses are added to the basic child support obligation. See La. R.S. 9:315.3(A) and 9:315.6(3).

Therefore, based on our review of the applicable law and evidence in the record, we find that the trial court was manifestly erroneous in finding that preschool tuition was a medical expense for purposes of the March 1, 2005 judgment and abused its discretion in finding Timothy guilty of contempt of court for failing to reimburse Christy his pro rata share of these expenses.

Private School Tuition

After preschool, Christy enrolled the minor child in Country Day School, a private elementary school. Christy stated that due to the minor child's medical conditions, including autism, life-threatening peanut allergy, and digestive/feeding issues, she had a difficult time finding a school that could accommodate all of the minor child's needs. According to Christy, the minor child had to be in a nut-free environment due to his life-threatening allergy to peanuts and also had to be in a school where he could continue using a shadow and receiving ABA therapy.

Private school tuition, however, is addressed in La. R.S. 9:315.6(1), which addresses extraordinary expenses and provides:

By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation:
(1) Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child.

Furthermore, we note that while the justification for addition of private school tuition to the basic child support obligation of a party may be based on medical evidence or medical necessity, it does not transform the expense into a medical expense. See Ficarra v. Ficarra, 11-569 (La. App. 5th Cir. 2/14/12), 88 So.3d 548 (where medical evidence of child's heart condition and diagnosis of attention deficit, hyperactivity disorder supported inclusion of private school tuition in basic child support obligation). Therefore, based on our review of the evidence in the record and applicable law, we find the trial court erred in finding that private school tuition was a medical expense for purposes of the March 1, 2005 judgment and abused its discretion in finding Timothy guilty of contempt of court for failing to reimburse Christy his pro rata share of these expenses.

Whole Foods Expenses

The evidence admitted at trial indicated that the minor child had feeding issues, for which he received treatment with Dr. Meeta Patel. According to Christy, pursuant to the minor child's feeding therapy with Dr. Patel and the doctor's instructions, she purchased an overabundance of food at Whole Foods so that she could prepare food at different textures as part of the minor child's therapy. Christy stated that she forwarded the Whole Foods receipts to Timothy for the times when the minor child was doing feeding therapy with Dr. Patel.

However, from our review of the record, we do not find any medical evidence substantiating Christy's testimony. There is no medical evidence or testimony from Dr. Patel with regard to the feeding therapy or that such therapy required the purchase of food at Whole Foods. As such, absent any medical evidence to support that this expense was medically necessary, we find that the trial court was manifestly erroneous in finding that the expenses for food purchased at Whole Foods were medically necessary and as such, were a medical expense for purposes of the March 1, 2005 judgment and likewise, abused its discretion in finding Timothy guilty of contempt of court for failing to reimburse Christy his pro rata share of these expenses.

Trumpet Lessons

At trial, Christy acknowledged that trumpet lessons for the minor child were not a medical necessity. Rather, Christy stated that Timothy had been ordered to pay for the trumpet lessons, and that was the basis of her contempt rule. However, Christy filed her rule for contempt solely based on the March 1, 2005 judgment wherein Timothy was ordered to pay 78% of medical expenses not covered by insurance. The trumpet lessons were the subject of a July 27, 2015 consent judgment, wherein the trial court ordered Timothy to pay 50% of any mutually agreed upon extracurricular activities, including trumpet lessons.

Therefore, while Timothy had been ordered to pay for his share of the trumpet lessons, contempt for disobeying the July 27, 2015 judgment was not before the court. As such, we find the trial court was manifestly erroneous in finding that trumpet lessons are medically necessary and as such, are a medical expense pursuant to the March 1, 2005 judgment and abused its discretion in finding Timothy guilty of contempt of court for failing to reimburse Christy his pro rata share of these expense.

Dr. Hollman Visit Vitamin Supplements, and Digestive Enzymes

The trial court found that a February 2016 consultation with Dr. Hollman was medically necessary. Timothy does not dispute this finding; rather, he contends that because the expense was not part of the original rule for contempt, occurring after the rule was filed, the trial court abused its discretion in finding him guilty of contempt of court for failing to pay it. We agree. As previously noted, contempt proceedings must be strictly construed. Estate of Graham, 636 So.2d at 290. Therefore, because the February 2016 consultation was not a subject of the rule for contempt filed by Christy on December 7, 2015, we find that the trial court abused its discretion in finding Timothy guilty of contempt of court for failing to reimburse Christy his pro rata share of this expense.

With regard to the vitamin supplements and digestive enzymes, Timothy likewise does not contest the trial court's finding that these expenses were medically necessary, and as such are medical expenses for purposes of the March 1, 2005 judgment. Rather, Timothy contends that he paid these expenses prior to trial, and as such, the trial court abused its discretion in finding him guilty of contempt of court for failing to pay these expenses. From our review of the record, it appears that both parties acknowledge that Timothy paid $625.06 for vitamin supplements and digestive enzymes in December 2015, following Christy's filing of her rule for contempt but prior to trial. However, this payment only represents a portion of the expenses presented by Christy. According to the evidence presented at trial, the total cost of vitamin supplements and digestive enzymes is $1,083.91, and Timothy's pro rata share of this cost is $845.45. Therefore, because Timothy did not pay the entire amount of his pro rata share of these expenses, we find no error in the trial court's finding that Timothy willfully disobeyed the trial court's March 1, 2005 judgment ordering him to pay his pro rata share of medical expenses not covered by insurance and furthermore, find no abuse of the trial court's discretion in finding Timothy guilty of contempt of court for failing to reimburse Christy his pro rata share of these expenses.

However, because Timothy paid Christy $625.06 toward these expenses, we find that the trial court erred in ordering Timothy to pay his pro rata share of the entire amount of these expenses. Rather, Timothy should be ordered to pay $220.39, representing the difference between his pro rata share of the total costs for these expenses and the amount Timothy already paid.

CONCLUSION

For the foregoing reasons, we affirm the portion of the trial court's judgment finding Abilities is medically necessary, ordering Timothy to pay his pro rata share of these expenses in the amount of $11,385.77, and in finding Timothy guilty of contempt of court for willfully violating the provisions of the stipulated judgment agreed to by the parties on January 12, 2005 and signed by the court on March 1, 2005, by failing to pay Abilities. We also affirm the portion of the trial court's judgment finding vitamin supplements and digestive enzymes are medically necessary and finding Timothy guilty of contempt of court for willfully violating the provisions of the stipulated judgment agreed to by the parties on January 12, 2005 and signed by the court on March 1, 2005, by failing to pay these expenses. However, we amend the trial court's judgment to order that Timothy pay $220.39 for these expenses. We further affirm the portion of the trial court's judgment finding ABA therapy and shadows are medically necessary, but limit reimbursement of those costs solely to Timothy's pro rata share of the initial $1,500.00 consultation fee and $9,645.01 in preschool shadowing expense for which Christy timely submitted proof of payment, which pro rata shares amount to $1,170.00 and $7,523.11, respectively. Finally, to the extent we affirm the trial court's judgment finding Timothy guilty of contempt of court for failing to pay his pro rata share of Abilities, vitamin supplements, and digestive enzymes, we likewise affirm the trial court's judgment ordering Timothy to pay Christy $15,000.00 in reasonable attorney's fees and to pay $2,470.50 in court costs.

However, we reverse the trial court's judgment to the extent that it finds Timothy guilty of contempt of court for failing to pay the ABA therapy and preschool shadowing expenses. Furthermore, we reverse the portions of the trial court's judgment finding that the following expenses were medically necessary: preschool expenses at University Presbyterian and Broadmoor Presbyterian; private school tuition at Country Day School; food purchased at Whole Foods; and trumpet lessons. We likewise reverse the trial court's judgment to the extent that it found Timothy guilty of contempt of court as related to these expenses and the post-rule for contempt invoice for Dr. Hollman. All costs of this appeal are assessed equally between the parties.

AMENDED IN PART AND AFFIRMED IN PART AS AMENDED; REVERSED IN PART.

      Christy filed a motion to amend and restate the judgment of divorce because the year and location noted in the judgment were incorrect. On December 21, 2005, the trial court signed an amended restated judgment of divorce.

      According to the record, the judgment was filed unsigned because the transcript of the hearing was "lost," and counsel for defendant could not verify the court's ruling. However, defense counsel in brief to this court admits that the trial court entered a ruling, as stated in the unsigned judgment, regarding Mississippi Behavioral Clinic and medical necessity.

      The court minutes indicate that the hearing was on March 29, 2009; however, the transcript admitted into evidence states that the hearing was on March 24, 2009.

      On appeal, Timothy asserts the trial court erred in finding him guilty of constructive contempt of court and in ordering him to pay $15,000.00 in attorney's fees and $2,470.50 in court costs. However, Timothy does not present any argument contesting the amount of attorney's fees and court costs awarded. Therefore, to the extent that his assignment of error raises this issue on appeal, we find that this issue was abandoned by failing to brief it. See Louisiana Commerce & Trade Association, SIF v. Williams, 14-1680, p. 6 (La. App. 1st Cir. 6/5/15), 174 So.3d 696, 699.

      We note also that the March 1, 2005 judgment does not include any requirement that a determination of medical necessity must be made by the trial court prior to a party seeking reimbursement from the other party for his or her pro rata share of medical expenses not covered by insurance. However, we do note that with regard to ABA therapy, a subsequent unsigned judgment does contain such a stipulation, as discussed infra.

      Timothy contends on appeal that the medical expenses must also be reasonable. Louisiana Revised Statute 9:315(C)(8), in defining "ordinary medical expenses," refers to the reasonableness and necessity of the medical costs. While the March 1, 2005 consent judgment does not place any such restriction on the definition of medical expenses, we nonetheless find, based on our determination infra regarding the expenses reimbursable to Christy, that these expenses are reasonable under the circumstances.

      Christy stated at trial that she did meet the sixty-day requirement as to the ABA expenses in process when she issued discovery in 2009. However, the record is devoid of any indication as to when discovery was conducted in 2009 or what was submitted in conjunction with that discovery. Therefore, we cannot substantiate Christy's assertion, nor can we determine the expenses to which she is referring.

      Timothy also asserts that Christy abandoned any claims for reimbursement by failing to seek a determination of medical necessity or exercising the reservation of rights granted in the unsigned, stipulated judgment filed following the September 27, 2005 hearing. While we agree that plaintiff waited over eleven years to seek a determination as to the medical necessity of these ABA expenses, we find that Timothy waived any claim of abandonment when he consented to the July 27, 2015 judgment, wherein the parties agreed to "reserve the right to seek a judicial determination of any issue not addressed in this judgment." See Adams v. Adams, 14-0387, p. 5 (La. App. 1st Cir. 3/11/15), 166 So.3d 1066, 1069 (a defendant waives the right to assert abandonment by taking actions inconsistent with the intent to treat the case as abandoned.)

      Christy even acknowledged in her testimony that the medical expense portion of the preschool was the shadowing, which this court discussed supra.

      Christy even acknowledged in a March 18, 2008 filing seeking an increase in child support that educational expenses to assimilate the child into a school setting are an extraordinary expense. As previously noted, this filing was passed without date, and Christy did not re-urge this issue before the trial court.

      We note that in 2015, Christy filed a reconventional demand seeking an increase in child support, tuition, and extracurricular expenses. However, the tuition was related to the minor child's attendance at Runnels, and pursuant to consent judgment, the trial court ordered Timothy to pay, commencing with the 2015 fall semester, fifty percent of the minor child's school tuition.

      We note that the record does contain evidence from Dr. James Kidd, III, the child's treating allergy physician, regarding the medical necessity of the minor child eating certain foods from Whole Foods due to his allergies. However, that is not the basis upon which Christy asserted that the Whole Foods purchases were medically necessary.


source: Caselaw Access Project

author: CHEHARDY, C.J.

license: Public Domain

text:
    Lori PELITIRE v. Craig Wayne RINKER and His Employer First English Lutheran Church and Insurer ABC Insurance Company
    NO. 18-CA-501
    Court of Appeal of Louisiana, Fifth Circuit.
    April 17, 2019
    COUNSEL FOR PLAINTIFF/APPELLANT, LORI PELITIRE, Glenn C. McGovern, Metairie
    COUNSEL FOR DEFENDANT/APPELLEE, CRAIG WAYNE RINKER, Michelle H. Hesni, Gretna
    COUNSEL FOR DEFENDANT/APPELLEE, FIRST ENGLISH LUTHERAN CHURCH AND CHURCH MUTUAL INSURANCE COMPANY, Azelie Z. Shelby, Sarah K. Lunn
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
   CHEHARDY, C.J.

This appeal arises out of the alleged sexual misconduct of an ordained Lutheran minister, which purportedly occurred during counseling sessions with a parishioner. Plaintiff, Lori Pelitire ("Pelitire"), appeals the trial court's March 21, 2018 judgment rendered in favor of defendants, Craig Wayne Rinker ("Rinker"), First English Lutheran Church ("FELC"), and its insurer, Church Mutual Insurance Company ("CMIC"), granting defendants' motion for summary judgment and dismissing all claims asserted by Pelitire against them, with prejudice, and dismissing Pelitire's cross-motions for partial summary judgment against Rinker, FELC and CMIC as moot. For the reasons that follow, we affirm the trial court's judgment in part, reverse in part, and remand for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Pelitire, a forty-six-year old, single woman, alleges that Rinker, while acting in his capacity as an ordained minister employed by FELC, committed lewd and lascivious sexual acts upon her and, thus, is liable to her for negligent counseling, negligent infliction of emotional distress, intentional infliction of emotional distress, sexual assault, and sexual battery. Pelitire further avers that FELC, and its insurer, CMIC, are liable to her for its vicarious liability, as well as its negligent hiring of Rinker and its failure to properly supervise and train him.

Rinker, thirty years Pelitire's senior, is an ordained Lutheran minister. He first retired from public ministry in 2000. From 1994 through 2011, Rinker was employed by Concordia University Wisconsin, New Orleans Center. In 2013, Rinker returned to ministry part-time and, at the time of the acts sued upon herein, was employed by FELC as one of four "supply" pastors. While working for FELC, Rinker engaged in parish ministry until his voluntary resignation in 2015, shortly before the filing of the instant suit.

Pelitire and Rinker first met in or about 2004 in connection with a seminar hosted by Pelitire's company, Y Solutions, wherein Rinker was a guest speaker. Pelitire was working as an audio-visual technician in connection with the seminar and was tasked with assisting in the preparation of Rinker's resume. Then, in 2005, Rinker reached out to Pelitire for the first time since the seminar and offered her a position as his assistant at Concordia University, an offer she declined. Subsequently, there was no contact between the parties until three years later in 2008, when Pelitire sent Rinker a friend request on Facebook, which he accepted. Over the next five years, the parties communicated intermittently on Facebook.

In June 2013, Pelitire sent a private message via Facebook to Rinker, whom she knew to be an ordained minister, asking for prayers and spiritual guidance due to an upcoming surgery she had scheduled. At this time, Rinker was retired from Concordia University and had only recently returned to active ministry working as a "supply" pastor for FELC. Following Pelitire's surgery, the parties began to regularly communicate via Facebook, email and, eventually, in person.

The record reflects that between July 2013 and August 2014, Pelitire and Rinker exchanged nearly 1,500 emails. Their email correspondence evidences a relationship where the parties freely and openly discussed an array of both personally intimate and innocuous topics. For many years prior to July 2013, Pelitire had a history of dealing with several health-related issues, chronic anxiety, and panic attacks. At some point, both parties began to refer to Rinker as Pelitire's "life coach."

In addition to their voluminous email correspondence, Rinker weekly visited Pelitire at her home where together they would watch television, share meals, and grocery shop. There were weeks when Rinker would visit Pelitire's home, whom she shared with her 88-year-old aunt, up to three times. During one visit, Pelitire voluntarily removed her shorts and allowed Rinker to inspect a boil on her buttocks located near her anus. On another occasion, they discussed the possibility of Rinker taking artistic nude photographs of Pelitire so that she could "memorialize" her 42-year-old body. Pelitire and Rinker also spoke often on the phone. The parties exchanged gifts with one another. Rinker purchased a vibrator for Pelitire. Once, the parties accompanied one another to a blood lab where they both had tests pending. On another occasion, Pelitire met Rinker at a car dealership in order to take his photograph for use at a local civic event. Rinker would sometimes give money to Pelitire, bring her food, and run errands for her and/or her elderly aunt.

In early August 2014, Rinker was gambling and failed to appear on time for a scheduled home visit with Pelitire, who was then experiencing extreme anxiety relating to her terminally ill cat. According to Pelitire, Rinker's failure to timely show up caused her to "awaken" to the truth that Rinker was a "fraud" and that his counseling had turned into sexual abuse. Shortly thereafter, the parties ceased all communication.

On April 2, 2015, Pelitire filed suit against Rinker, FELC, and its insurer, CMIC, seeking damages and alleging that, while still a virgin and in an emotionally vulnerable state of mind, she was sexually assaulted and battered by Rinker. Pelitire alleged that on each occasion of sexual misconduct, Rinker was acting in the course and scope of performing his duties as a Lutheran minister for FELC, where Pelitire averred she was a parishioner. Specifically, Pelitire claimed that while calling on her at her home to provide "counseling," administer communion, and offer prayers, Rinker abused his position as a minister by exerting undue influence over her and committing lascivious sexual acts upon her all at a time when she "sought the comfort, guidance and religious counseling of a Lutheran Minister who she had reason to trust and [to whom] she reached out for assistance." Pelitire asserted that FELC was aware that Rinker was counseling her and was paying him to do so.

Though these "counseling sessions" commenced during the summer of 2013, in her petition Pelitire stated that Rinker "committ[ed] his sexual acts from April 2, 2014 through August 8, 2014," during which time he claimed to be helping her to build up her self-esteem and self-confidence. According to Pelitire, as a part of Rinker's counseling and acting as her "life coach," Rinker would "touch [her] breasts and commit oral sex on her in what he claimed was part of her religious counseling and recovery," and he "assured her these were valid methods of counseling" and that he was "grooming" her for a future mate. In short, Pelitire alleged that "during religious 'counseling' appointments" Rinker abused his position of authority as her minister and counselor to gain sexual favors from her and exploited her preexisting anxiety disorder and physical ailments about which Rinker was aware.

As to Rinker, Pelitire sought damages for his negligent counseling, negligent infliction of emotional distress, intentional infliction of emotional distress, sexual assault, and sexual battery. As to FELC, Pelitire sought damages for its vicarious liability and for its negligent hiring, training and supervising Rinker.

On February 16, 2018, Pelitire filed motions for partial summary judgment against Rinker and against FELC averring there was no genuine issue of material fact as to their respective liability. To support her motions, Pelitire attached several of the approximately 1,500 emails exchanged between herself and Rinker from July 2013 to August 2014, FELC's responses to discovery, and excerpts from FELC's 1442 corporate deposition. Pelitire also attached monthly emails from Rinker to FELC dating from July 2013 to August 14, 2014, wherein Rinker reported his monthly hospital visits, home visits, communion calls and the other monthly activities he performed for FELC. Additionally, Pelitire attached excerpts from Rinker's deposition and her affidavit, as well as the report of her expert, Gary R. Shoener, a clinical psychologist, and excerpts from his deposition.

On February 17, 2016, Rinker, FELC, and CMIC filed a cross motion for summary judgment alleging they were entitled to summary judgment as a matter of law dismissing Pelitire's claims against them because the allegations in Pelitire's petition set forth a claim for clergy malpractice, a cause of action which Louisiana does not recognize. FELC posited that absent a viable negligence claim against Rinker, Pelitire's claims against FELC for its vicariously liability and negligence likewise fall. Additionally, as to Pelitire's claims for intentional infliction of emotional distress, defendants argued that the undisputed evidence showed that Pelitire would not be able to carry her burden of establishing all of the elements necessary in order to prove this claim. Lastly, as to Pelitire's claims for sexual assault and battery, defendants averred that even if she were able to show that a sexual relationship existed between herself and Rinker, the undisputed evidence established that she was a consenting participant barring recovery for her claims of sexual assault and/or battery. To support its motion, defendants attached the complete deposition transcripts of Pelitire, Rinker, and the corporate deposition of FELC, as well as several of the emails exchanged between the parties. Defendants also attached a copy of Pelitire's petition for damages, her answers to requests for admissions, photographs, and the affidavit of Rinker.

In opposition to defendants' motion for summary judgment, conceding that Louisiana does not recognize a cause of action for "clergy malpractice," Pelitire stated that she had "abandoned" her clergy malpractice claim and argued that her petition adequately sets forth a claim against Rinker for "negligent secular counseling." In addition to attaching all of the exhibits she previously attached in support of her motion for partial summary judgment, Pelitire attached some additional emails exchanged between the parties, photographs, her revised affidavit, and excerpts from the depositions of her treating psychiatrist, Dr. Chris Lartigue, and her boyfriend, Shing Wong. Further, Pelitire denied that she ever consented to any of Rinker's sexual advances and, thus, claimed that a genuine issue of material fact remained precluding summary judgment in favor of defendants regarding her consent. Pelitire argued that FELC was liable for Rinker's negligent secular counseling and for its failures to have a sexual prevention program in place, to conduct a background check prior to hiring Rinker, and to adequately train and supervise Rinker.

The cross-motions for summary judgment came for hearing on March 16, 2018, after which the trial court took the matter under advisement. On March 21, 2018, the trial judge issued judgment, with written reasons, granting summary judgment in favor of Rinker, FELC, and CMIC, and dismissing all of Pelitire's claims against them, with prejudice. Additionally, the trial court denied Pelitire's motions for partial summary judgment against Rinker and against FELC as moot.

It is from this judgment that Pelitire files the instant appeal.

ASSIGNMENTS OF ERROR

On appeal, Pelitire contends the trial court erred: (1) in granting defendants' summary judgment when there remain "multiple disputed issues of material fact;" (2) in ruling that clergy members are immune from general tort liability in light of Louisiana jurisprudence holding that "negligent counseling" is an available remedy for an offending pastor that holds himself out as a "trained secular counselor;" (3) in finding that Pelitire consented to Rinker's sexual advances; and (4) in determining that FELC is not vicariously liable for Rinker's actions "by failing to supervise, train, and had no rules for sexual misconduct of employees."

LAW AND ANALYSIS

Summary Judgment

Appellate courts review the granting of summary judgment de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate. Larson v. XYZ Insurance Company , 16-0745 (La. 5/3/17), 226 So.3d 412, 416 ; Gutierrez v. State Farm Fire & Cas. Ins. Co. , 13-341 (La. App. 5 Cir. 10/30/13), 128 So.3d 509, 511. A motion for summary judgment "shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3) ; Adams v. Grefer , 17-250 (La. App. 5 Cir. 12/13/17), 234 So.3d 201, 205. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2).

In ruling on a motion for summary judgment, the judge's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead, to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party's favor. Hines v. Garrett , 04-0806 (La. 6/25/04), 876 So.2d 764, 765. A fact is material if it potentially ensures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of a legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate. Id. at 765-66. Conclusory allegations and unsupported speculation will not support the finding of a genuine issue of material fact. Trench v. Winn-Dixie Montgomery LLC , 14-152 (La. App. 5 Cir. 9/24/14), 150 So.3d 472, 476.

Although it may appear unlikely from the record that one party can prevail, summary judgment cannot be granted once the court detects the existence of a material fact. Dearie v. Ford Motor Corp. , 583 So.2d 28, 29 (La. App. 5th Cir. 1991), writ denied , 588 So.2d 1117 (La. 1991). If the evidence presented is subject to conflicting interpretations, or reasonable minds might differ as to its significance, summary judgment is not proper; only when reasonable minds must inevitably concur is summary judgment warranted and any doubt should be resolved in favor of a trial on the merits. Id. at 30. The mere belief that the litigant is unlikely to prevail upon the merits is not sufficient to warrant summary judgment, thus depriving the litigant of a trial. Boye v. Daiquiris & Creams No. 3, Inc. , 11-118 (La. App. 5 Cir. 11/15/11), 80 So.3d 505, 507, writ denied , 11-2778 (La. 2/17/12), 82 So.3d 290. The weighing of conflicting evidence and making evaluations of credibility have no place in the summary judgment procedure. Dearie , 583 So.2d at 30.

On a motion for summary judgment, the burden of proof remains with the movant. La. C.C.P. art. 966(D)(1). However, if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the non-moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the opponent of the motion fails to do so, there is no genuine issue of material fact and summary judgment will be granted. Id. ; see also Schultz v. Guoth , 10-0343 (La. 1/19/11), 57 So.3d 1002, 1006 ; Adams v. Grefer , 234 So.3d at 206.

When a motion for summary judgment is made and supported as provided in La. C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in La. C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967(B) ; see also Darr v. Marine Elecs. Solutions, Inc. , 11-908 (La. App. 5 Cir. 5/22/12), 96 So.3d 527, 533, writ denied , 12-1442 (La. 10/8/12), 98 So.3d 860.

Pelitire's General Negligence Claims Against Rinker

Negligent Counseling

Conceding that Louisiana does not recognize a claim for "clergy malpractice," Pelitire contends that her petition adequately states a claim against Rinker for "negligent secular counseling." As such, Pelitire avers the trial court erred in ruling that clergy members are immune from general tort liability in light of Louisiana jurisprudence holding that "negligent counseling" is an available remedy for an offending pastor that holds himself out as a trained secular counselor. We disagree and find that under the particular facts presented in this case, the trial court did not err.

Unlike licensed practical counselors and professional mental health counselors, Louisiana law does not impose a requirement upon priests and/or members of the clergy who offer pastoral or spiritual counseling to be licensed, and they are not subjected to the same standards of care applicable to state-licensed counselors acting under the same or similar circumstances. See Lann v. Davis , 34,892 (La. App. 2 Cir. 8/22/01), 793 So.2d 463, 466. There is currently no professional standard of care in Louisiana that applies to pastoral or spiritual counselors that are not licensed counselors or licensed mental health professionals. Thus, while clergy who provide pastoral counseling through the aegis of the church-and not as licensed professional counselors -may owe a moral and/or ethical duty to their parishioners, Louisiana courts have declined to impose a legal duty upon the clergy to exercise ordinary care in providing pastoral counseling.

If, however, the clergyman or minister is also a licensed professional counselor, a licensed marriage and family therapist, a licensed clinical social worker, a clinical psychologist or a psychiatrist, and engages in counseling in his/her licensed professional capacity , the clergyman may be held to the same legal standards required of a state-licensed professional counselor under the same or similar circumstances. See Lann , 793 So.2d at 466-467 ; Roppolo v. Moore , 93-2361 (La. App. 4 Cir. 7/27/94), 644 So.2d 206, fn 4, writ denied , 04-3032 (La. 2/17/95), 650 So.2d 253 ; Sanders v. Casa View Baptist Church , 134 F.3d 331, 336 (5th Cir. 1998). To date, no Louisiana court has imposed liability upon a clergy member, who was also a state-licensed counselor, or held himself out to be a "duly qualified person engaged in providing psychological counseling," for the negligent acts he/she committed while engaged in professional counseling with a parishioner.

In the case sub judice , because a cause of action for clergy malpractice or negligent pastoral counseling is untenable, the viability of Pelitire's claim for "negligent secular counseling" rests on her ability to prove that Rinker, who was indisputably not a state-licensed counselor, held himself out to her to be a "duly-qualified person engaged in providing psychological counseling" when he purportedly counseled her. This Pelitire failed to do.

From our de novo review of the voluminous record, including Pelitire's petition for damages-which was never amended-exhibits, depositions, and the affidavits of the parties, we find reasonable minds could reach only one conclusion: in "counseling" Pelitire, Rinker never held himself out to her as either a "trained secular counselor," a "professional counselor," a "duly-qualified person engaged in providing psychological counseling," or licensed in any capacity to provide psychological counseling. To the contrary, the evidence unequivocally shows that Pelitire had actual knowledge (having helped Rinker prepare his resume in or about 2004) that Rinker's education, training and experience in counseling was limited to "pastoral counseling," which he received while attending Concordia Seminary.

Moreover, Pelitire's responses to request for admissions contradict her claim for negligent secular counseling. In particular, Pelitire specifically denied that there was ever an occasion "that she invited [Rinker] to her home that did not involve his capacity as a minster for [FELC ]." [Emphasis supplied.] Pelitire's deposition testimony confirms that she believed Rinker was acting in his capacity as a Lutheran minister-a position she argued he exploited and used to exercise undue influence over her-when he counseled her and committed the alleged nonconsensual sexual acts upon her. For example, Pelitire testified as follows:

Q. What is it that makes you believe [Rinker] did these things to you in his capacity as a Lutheran minister as opposed to Craig Wayne Rinker? ...
A. Because when he came over, he brought over communion and wine, and then he took me into the bedroom and did those things and he prayed.

Additionally, we disagree with Pelitire that the allegations set forth in her petition pertaining to Rinker's purported negligence state a claim for "negligent secular counseling." For example, as to each "lascivious sexual act" and omission Pelitire avers Rinker committed against her, she alleged such acts occurred while he was working in the course and scope of his "duties in ministering and counseling" as "a Lutheran Minister and employee and agent for FELC." Pelitire alleged that "as a parishioner of FELC," when Rinker made visits to her home to administer communion to her, he committed various sexual acts upon her when she "sought the comfort, guidance, and religious counseling of a Lutheran Minister ..." Pelitire also alleged that Rinker's "abusive, deviant, sexual behavior occurred during religious counseling appointments" where Rinker "abused his position as a minister ... to gain sexual favors from" Pelitire. Lastly, Pelitire alleged that Rinker used his authority as a Lutheran minister to exploit her "fragile emotional" state and did so "in violation of Lutheran Minister and parishioner/patient Ethical Rules, and in violation of [Lutheran] guidelines that hold that sexual contact that occurs concurrent with the minister patient relationship constitutes sexual misconduct."

Nowhere in Pelitire's petition does she aver that Rinker breached the standard of care owed by a licensed professional counselor. Instead, she alleged that Rinker's sexual advances towards her violated the Lutheran Church's guidelines, which prohibit ministers from engaging in sexual conduct while performing the duties of their ministry. As the Court in Roppolo stated:

This Court has no right to interpret religious doctrine, nor standards of religious behavior. What may be viewed as sexual misconduct by one religion may be permitted or encouraged by another. To do as plaintiff requests would require this Court to apply different standards to different litigants depending on their religious affiliations. This is a secular court. If sexual or other conduct of a priest violates secular standards, e.g., child molestation, this Court will impose whatever civil or criminal sanctions may be appropriate. But this Court has no authority to determine or enforce standards of religious conduct and duty. [Internal citations omitted.] [Emphasis in original.]

Roppolo , 644 So.2d at 208.

Thus, as to the allegations of Pelitire's petition pertaining to Rinker's negligent counseling, we find these allegations state a claim for clergy malpractice and not for "negligent secular counseling" as Pelitire contends. Further, we find that the undisputed evidence submitted on summary judgment shows that there is no genuine issue of material fact that Rinker did not hold himself out to Pelitire as a "duly qualified person engaged in psychological counseling" and, thus, we decline to impose upon him the same standard of care applicable to state-licensed counselors under the same or similar circumstances. In short, Pelitire offered no evidence that Rinker breached any legal duty owed to her unrelated to his role as a Lutheran minister or pastoral counselor. While Rinker's actions may have been unethical, they do not support a claim for negligence under Louisiana law. The trial court did not err in dismissing Pelitire's general negligence claims against Rinker. This assignment is without merit.

Negligent Infliction of Emotional Distress

Louisiana does not recognize an independent tort of negligent infliction of emotional distress; however, a plaintiff may recover for unintentional or negligent infliction of emotional distress unaccompanied by physical injury under La. C.C. art. 2315, which provides, in pertinent part, that "[e]very act whatever of man that causes damages to another obliges him by whose fault it happened to repair it." Covington v. Howard , 49,135 (La. App. 2 Cir. 8/13/14), 146 So.3d 933, 937, writ denied , 14-1927 (La. 11/21/14), 160 So.3d 973. See also Gonzales v. Ochsner Clinic Foundation , 14-873 (La. App. 5 Cir. 5/14/15), 170 So.3d 1099, 1106.

To recover for negligent infliction of emotional distress without an accompanying physical injury, a plaintiff must prove the underlying cause of action, i.e. , the negligence claim. Gonzales , 170 So.3d at 1106. There must be proof that the defendant violated some legal duty owed to the plaintiff, and the plaintiff must meet the heavy burden of proving outrageous conduct by the defendant. Simmons v. State , 18-0174 (La. App. 4 Cir. 8/29/18), 255 So.3d 701, 705, writ denied , 18-1613 (La. 12/17/18), 259 So.3d 345. Additionally, recovery is limited to facts constituting "special circumstances" involving the "especial likelihood of genuine and serious mental distress, arising from the special circumstances ...." Moresi v. State Through Dep't of Wildlife and Fisheries , 567 So.2d 1081, 1096 (La. 1990) ;

Covington , 146 So.3d at 937. Louisiana courts have limited recovery to those cases involving factual circumstances where the defendant's conduct was declared outrageous because the defendant was found to have breached a "special direct duty to the plaintiff and where the resulting mental distress the plaintiff suffered was easily associated with the defendant's conduct." Covington , 146 So.3d at 938.

In Gonzales , supra , the plaintiffs filed suit alleging negligence surrounding a delayed diagnosis of Mr. Gonzales' Merkel cell carcinoma claiming that an earlier diagnosis and removal would have resulted in a less invasive surgery and a better prognosis. Gonzales , 170 So.3d at 1103. This Court affirmed the trial court's grant of summary judgment in favor of the defendant finding that the plaintiffs failed to present evidence upon which reasonable minds could differ as to whether Mr. Gonzales sustained any harm as a result of the delayed diagnosis. Id. at 1106. Absent proof of harm, the plaintiffs failed to show they would be able to carry their burden of proving the requisite elements to support a medical malpractice claim at trial. In failing to first prove the underlying malpractice claim, we found the plaintiffs also could not prove their entitlement to damages for negligent infliction of emotional distress. Id.

We reach the same result in the case sub judice . As discussed infra , Louisiana law does not recognize a cause of action for clergy malpractice and, for the reasons discussed above, the record does not support a claim against Rinker for negligent secular counseling. Consequently, under Louisiana law, which does not impose a minimum standard of care upon ministers who engage in pastoral counseling, Rinker did not owe a legal duty to Pelitire that would support a claim for negligent infliction of emotional distress. Moreover, regarding Pelitire's claims for sexual assault and battery (discussed infra ), these claims involve intentional torts, not negligence , and likewise do not support a claim for negligent infliction of emotional distress. Consequently, we find the trial judge did not err in dismissing Pelitire's claim against Rinker for negligent infliction of emotional distress.

Pelitire's Intentional Tort Claims Against Rinker

Pelitire's petition alleged that Rinker is liable to her for the intentional infliction of emotional distress and for the intentional torts of sexual assault and sexual battery. On appeal, Pelitire argues the trial court erred in finding that no genuine issue of material fact remains regarding these claims.

Intentional Infliction of Emotional Distress

In dismissing Pelitire's claim against Rinker for intentional infliction of emotional distress, the trial court determined that Pelitire failed to present sufficient evidence establishing that she would be able to prove all of the necessary elements to establish her claim. We agree.

A cause of action for intentional infliction of emotional distress is viable in Louisiana; one who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress. White v. Monsanto Co. , 585 So.2d 1205, 1209 (La. 1991). To recover, a plaintiff must establish: (1) that the conduct of the defendant was extreme and outrageous, (2) that the emotional distress suffered by the plaintiff was severe, and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.

Scamardo v. Dunaway , 96-1036 (La. App. 5 Cir. 4/29/97), 694 So.2d 1041, 1042, writ denied , 97-1395 (La. 9/5/97), 700 So.2d 517 ; White , 585 So.2d at 1209. The plaintiff's burden is a heavy one. Scamardo , 694 So.2d at 1042. Conduct which is merely tortious or illegal does not rise to the level of being extreme or outrageous. Nicholas v. Allstate Ins. Co. , 99-2522 (La. 8/31/00), 765 So.2d 1017, 1025. In White v. Monsanto Co. , the Supreme Court explained that the conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. White , 585 So.2d at 1209.

On appeal, Pelitire has identified four events involving Rinker which she contends rise to the level of "extreme and outrageous," which include: (1) exposing his vasectomy scars and penis to Pelitire while in her kitchen; (2) either licking her anus or performing oral sex upon her under the guise of inspecting an infected boil located near her anus; (3) providing Pelitire with a vibrator and sending her pornographic photos of nude women; and (4) suggesting to Pelitire that she "auction off her technical virginity." Pelitire contends that these four events were not exclusive, but represent Rinker's most "egregious" and "outrageous" acts.

Pelitire claims that when Rinker allegedly exposed his penis to her-an act Rinker denies-this caused her to be "shocked" and that she "did not know how to react." The record, however, belies this contention. Specifically, the record shows that Pelitire continued to email Rinker almost daily in the weeks and months following the incident. She continued to allow Rinker into her home and continued to spend copious amounts of time with him suggesting that Rinker's alleged exposure of his penis did not cause her extreme distress, if any distress at all.

Rinker admitted in his deposition that he requested to inspect a boil on Pelitire's buttocks located near her anus because Pelitire was concerned it had become infected. According to Pelitire, this incident occurred on April 2, 2014 in Rinker's FELC office when she stopped by on her way home from a doctor's appointment. Though Pelitire conceded in her deposition that she voluntarily removed her shorts and permitted Rinker to observe the boil, she argued that he then proceeded to lick her anus. Pelitire testified that she told Rinker to stop, and that he did. From the time this alleged "outrageous" and "egregious" incident occurred and the next time Pelitire and Rinker saw one another two weeks later, the record reflects that over forty emails were exchanged between the parties. However, nothing whatsoever about this incident, which purportedly caused Pelitire "extreme emotional distress," was even mentioned.

Regarding Pelitire's contention that Rinker's suggestion to her that she "auction off her technical virginity" was "outrageous" and caused her "extreme distress," our review of the record shows that it was an August 1, 2014 email from Peltire to Rinker that actually precipitated his suggestion:

You would not believe the crazy ideas that have been running through my head to make money. Kickstarter campaigns, Rite Aid Videos. Rite Aid Books.
But I don't have the time to even do that and it will take months before I see any income from any of that. Maybe I should just auction off my semi-virginity....
[Signed] Stressing ... Moonbeam

In response to Pelitire's apparent joke about her "semi-virginity," and apparently commiserating regarding her financial plight, Rinker responded that same day in kind by writing:

I sure do understand that you want the world to stop so that you can get off, right now. I am here with you. I can perceive that you are in serious trouble with income, let alone pulling out of your sock $ 1,600 right now. That would drive me to drink or gamble to get the money, neither of which ever works.
Hum, even auctioning off your technical virginity will take time. Make sure not to accept bids under $ 100K after taxes and that will be for one night only. Actually, of course, I know you won't go that route, because you will need to show some of the goods on your Internet ad, at least you in a skimpy bikini. It's not you at all!

Similarly, Rinker's sending Pelitire photographs of nude women was also initiated by Pelitire. In her deposition, Pelitire testified that after she had lost weight, Rinker made a comment to her about her body and she "jokingly" mentioned wanting to have some nude photographs taken of herself, "but when [she] said that, [she] meant artsy nude ... [n]ot pornographic nude." In response to her comment, Rinker emailed Pelitire three photographs of nude women, to which she replied:

I like the first one the best. Probably the youngest girl. I'm not sure I like the poses, though. I had something a little different in mind. I will try to find a photo of what I'm looking for. Can I send it to you? Or not? The last one (the tan girl) has tiny breasts, but HUGE nipples. My nipples were never that huge.... Love, Lori.

In her deposition, Pelitire explained her response and why she did not tell Rinker that she was actually "extremely distressed" and offended by the nude photographs he sent to her:

I was trying to be polite. I don't think he should have sent those as a pastor. When I saw them, I was shocked, but because he was a pastor, I was being polite.

Pretermitting consideration of whether reasonable minds might reach different conclusions as to whether these alleged "sexual" acts, if proven, rise to the level of "extreme and outrageous," and/or whether Pelitire can prove that she actually suffered severe emotional distress as a result of the accused conduct, based upon our de novo review of the record, we find that Pelitire has failed to present sufficient evidence establishing that she will be able to carry her burden of proving an essential element of her claim for intentional infliction of emotional distress: that Rinker intended to cause Pelitire severe emotional distress or that he knew with certainty that extreme emotional distress would result from his actions.

To the contrary, the record is replete with email evidence corroborating Rinker's deposition testimony that he cared very much about Pelitire and her well-being, and that he had no reason to believe or any indication that his presence or conduct was causing Pelitire any emotional distress, much less, extreme emotional distress. In fact, the record contains several emails from Pelitire to Rinker indicating the exact opposite. Specifically, on several occasions Pelitire emailed Rinker that his presence reduced her stress and anxiety and that his time with her was helping her. Moreover, in her deposition, Pelitire testified that whenever she did ask Rinker to stop his sexual advances, he did. Consequently, we find the trial court did not err in dismissing Pelitire's claim for intentional infliction of emotional distress on the basis that there remained no genuine issue of material fact regarding whether Pelitire would be able to carry her burden of proving the requisite elements of this claim.

Sexual Assault and Sexual Battery

Pelitire argues the trial court erred in dismissing her intentional tort claims against Rinker for sexual assault and sexual battery based on its finding that Pelitire consented to Rinker's sexual advances. Based upon our de novo review of the record, we find Pelitire's contention on this issue has merit.

In the context of Louisiana delictual law, the intentional tort of "battery" is "[a] harmful or offensive contact with a person, resulting from an act intended to cause the plaintiff to suffer such a contact." Landry v. Bellanger , 02-1443 (La. 5/20/03), 851 So.2d 943, 949. An "assault" is, generally speaking, the threat of such harmful or offensive contact. Lawson v. Straus , 95-1537 (La. App. 4 Cir. 3/14/96), 673 So.2d 223, 226. The defendant's intention need not be malicious nor need it be an intention to inflict actual damage. It is sufficient if the defendant intends to inflict either a harmful or offensive contact without the other's consent. Landry , 851 So.2d at 949. Consent is an absolute defense in a sexual assault case; if no intentional tort was committed, then no tort was committed. Doe v. Breedlove , 04-0006 (La. App. 1 Cir. 2/11/05), 906 So.2d 565, 577. Similarly, the defense of consent is a bar to recovery for the intentional infliction of harmful or offensive touching. Cole v. Department of Public Safety and Corrections , 01-2123 (La. 9/4/02), 825 So.2d 1134, 1142.

In order to succeed on a battery claim, the plaintiff must prove "all prima facie elements of the tort, including lack of consent to the invasive conduct." Landry , 851 So.2d at 954. Negligence has long been defined in terms of the reasonableness of a person's conduct or belief, based upon an objective standard. Breedlove , 906 So.2d at 573. Thus, "if a person had the reasonable belief that another consented to sexual activity, the former cannot be said to be 'negligent' in failing to secure absolute proof of such consent before engaging in the activity, since he was by definition acting reasonably, even if under a mistaken belief. But if the actor did not reasonably believe consent was given, or should reasonably have known that supposed consent was withdrawn, pursuing such activity clearly goes beyond negligence, by virtue of its inherent character; sexual contact can rightfully be characterized as the ultimate violation of personal physical integrity, short of death." Id.

In the instant case, it is apparent to us on de novo review that the trial court improperly weighed the evidence and credibility of the witnesses in order to reach its conclusion that no sexual assault or battery occurred because Pelitire and Rinker were having a consensual adulterous affair. In doing so, the trial court erred.

On the one hand, the record reflects that Rinker denied that any inappropriate sexual touching or advances ever took place. And, to the extent such conduct did occur, Rinker averred that Pelitire consented and was a willing participant. On the other hand, Pelitire adamantly argued that she did not consent to Rinker's sexual advances. Alternatively, Pelitire claimed that given Rinker's position of authority as an ordained minister, she was unable to give consent due to her vulnerable emotional state and Rinker's exercise of undue influence over her.

Faced with the competing deposition testimony and affidavits of Pelitire and Rinker, we find the trial court improperly weighed the evidence and made credibility determinations when concluding that the parties were engaged in a consensual adulterous affair. The law is well-settled that the trial court cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence in making its decision to grant or deny a motion for summary judgment. Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512 (La. 7/5/94), 639 So.2d 730, 751. Also, on summary judgment, all doubts should be resolved in the non-moving party's favor. Larson , 226 So.3d at 416. The resolution of conflicting evidence and the assessment of credibility lies with the factfinder at a trial and is not to be determined on summary judgment.

We find the competing and conflicting evidence contained in the record sufficiently raises issues of material fact regarding whether the sexual conduct occurred and, if so, whether Pelitire was able to give her consent and/or was a willing participant. We are unable to state conclusively that "reasonable minds could not differ in their interpretation of the evidence" regarding Pelitire's consent. See Dearie , 583 So.2d at 30. Accordingly, finding the trial court erred, we reverse the trial's grant of summary judgment dismissing Pelitire's intentional tort claims against Rinker for sexual assault and sexual battery, and remand the matter for further proceedings solely as to these causes of action.

Pelitire's Claims Against FELC

On appeal, Pelitire argues the trial court erred in ruling that FELC was not vicariously liable for Rinker's negligent counseling by failing to supervise, train, and having had no rules of sexual misconduct of employees in place. We disagree.

In Louisiana, vicarious liability and negligent hiring, training and supervision present separate and independent theories of liability. Vicarious liability is based upon La. C.C. art. 2320, which provides that an employer is liable for the negligent acts of its employees that occur "in the exercise of the functions in which they are employed." Thus, vicarious liability is imposed upon an employer without regard to its own negligence or fault; it is a consequence of the employment relationship. Buford v. Williams , 11-568 (La. App. 5 Cir. 2/14/12), 88 So.3d 540, 547, writ denied , 12-0624 (La. 4/27/12), 86 So.3d 630.

An employer's liability for the negligent hiring, training and supervision of its employees, however, is based upon the independent or direct negligence of the employer and its duty to exercise reasonable care in hiring, training and supervising its employees pursuant to La. C.C. art. 2315. See Roberts v. Benoit , 605 So.2d 1032, 1037 (La. 1991). The major difference between the two theories of liability is that the tort of negligent hiring is not limited to the narrow confines imposed by the respondeat superior's "scope of employment" limitation. A similar limitation, however, is imposed on the negligent hiring cause of action. This limitation is that the employee must in some respect have been engaged in furthering the employer's business when the employee crossed the line. Id. Thus, the considerations relied upon by courts in imposing liability under the two theories are similar. Id.

Initially, we note that Pelitire's ability to recover against FELC under either theory of liability-vicarious liability or its direct negligence-hinges on Pelitire's ability to prevail at trial on her claims against Rinker for sexual assault and sexual battery. Roppolo , 644 So.2d at 209. Nonetheless, we find that even if Pelitire subsequently prevails on her sexual assault and sexual battery claims, she has failed to present evidence of a material fact sufficient to warrant a trial on either the issue of FELC's vicarious liability or its direct liability. Specifically, we find that reasonable minds reviewing the evidence could arrive at only one conclusion: none of the sexual acts allegedly committed by Rinker occurred in his capacity as a Lutheran minister for FELC .

FELC'S Vicarious Liability for Rinker's Negligent Acts

In the absence of any wrongful or actionable conduct by Rinker, there can be no imposition of vicarious liability on FELC pursuant to the doctrine of respondeat superior . Thus, as to Pelitire's contention that FELC is vicariously liable for Rinker's alleged negligent secular counseling, having already determined that Rinker's actions do not support a cause of action for negligence under Louisiana law, it follows that FELC cannot be held vicariously liable without Rinker's negligent liability. See Roppolo , 644 So.2d at 209. Consequently, FELC bears no liability to Pelitire for Rinker's alleged negligent counseling.

FELC'S Vicarious Liability for Rinker's Intentional Torts

We also find that FELC does not bear liability to Pelitire for Rinker's alleged commission of the intentional torts of sexual assault and sexual battery. To determine whether an employer is vicariously liable for the intentional tortious acts of an employee, the following factors are considered: (1) whether the tortious act was primarily employment rooted; (2) whether the violence was reasonably incidental to the performance of the employee's duties; (3) whether the act occurred on the employer's premises; and (4) whether it occurred during the hours of employment. LeBrane v. Lewis , 292 So.2d 216, 218 (La. 1974).

In the instant case, the record contains undisputed testimony that the Lutheran church prohibits any of its members-especially one of its ordained ministers-from engaging in sex outside of marriage. Moreover, when a married minister such as Rinker engages in sexual activity with a parishioner, it is clearly not a part of the minister's duties performed for FELC nor customary within the business of the Lutheran church. Such conduct is contrary to the principles of the Lutheran church and is, indisputably, not incidental to the tasks assigned to Rinker as a "supply" pastor by FELC. Based upon the undisputed facts of this case, we find that as a matter of law, there is no basis for imputing vicarious liability to FELC for the alleged intentional torts, if any, committed by Rinker against Pelitire.

FELC's Liability for Negligent Hiring, Training, and Supervising Rinker

We reach the same result regarding Pelitire's claims against FELC for its alleged negligent hiring, training and supervision of Rinker. On appeal, Pelitire alleges the following acts to support her claim for FELC's direct liability: (1) FELC did not perform a background check prior to hiring Rinker; (2) FELC failed to provide sexual harassment training to Rinker; (3) FELC failed to supervise Rinker during his home visits; and (4) FELC did not investigate Pelitire's complaints of sexual abuse by Rinker.

First, because Pelitire has "abandoned" her clergy malpractice claim and contends that Rinker's negligence was allegedly rooted in his providing "secular" counseling to her, we fail to see how FELC could be liable for the "negligent hiring, training, or supervision" of Rinker because it indisputably did not employ Rinker in a secular capacity to perform "secular counseling." The record shows that FELC is a Lutheran church governed by the constitution and bylaws of the Lutheran Missouri Synod and its religious principles. There is no evidence in the record that FELC was ever in the business of providing secular counseling. The uncontroverted evidence shows that FELC hired Rinker as one of four "supply" pastors to perform home visits, make communion calls, provide pastoral counseling, lead Bible studies and give homilies-duties solely related to the ministry of FELC.

Next, the testimony of the parties establishes that Pelitire met Rinker prior to his employment with FELC. When Pelitire contacted him in 2013 seeking "prayer and spiritual guidance," she did so wholly unrelated to any affiliation or employment Rinker had with FELC. Though Pelitire may have contacted Rinker, her old acquaintance, seeking spiritual guidance because he happened to be someone whom she knew to be a minister, Pelitire presented no evidence that she contacted Rinker for reasons in any way related to his employment with FELC.

The following facts are undisputed:

• Pelitire never contacted FELC seeking pastoral counseling, a home visit or communion;
• FELC never directed Rinker to provide counseling, home visits or communion to Pelitire;
• Pelitire never attended a single church service or activity held at FELC;
• While Pelitire was encouraged to join FELC and received a card welcoming her, she never became a member of FELC;
• Pelitire never contacted FELC to advise of Rinker's alleged sexual advances towards her; and
• Pelitire never contacted FELC to advise that Rinker was making unwanted visits to her home.

And, though there is evidence that Rinker initially charged FELC for several home visits and communion calls on behalf of Pelitire, the admissible evidence shows that to the extent these charges were incurred for "religious services" performed on FELC's behalf, they were incurred prior to April 2, 2014, the date Pelitire's petition avers Rinker began his sexual advances towards her and increased his weekly visits to her home. Moreover, Pelitire failed to present admissible evidence to refute the sworn testimony of FELC's corporate representatives that FELC was unaware that Rinker was billing the church for visiting Pelitire or giving her communion, or that Rinker was only authorized to bill the church for home visits, communion calls, and pastoral counseling of FELC's members , which Pelitire was not. Pelitire also presented no admissible evidence establishing that FELC was aware that Rinker was providing her with pastoral counseling or visiting her home numerous times a week.

Furthermore, Pelitire presented no evidence showing that FELC was required to conduct a background investigation of Rinker prior to hiring him, or that had such an investigation ensued, it would have revealed a criminal background or the unsuitability of Rinker for holding a part-time pastoral position with the church. Pelitire also presented no evidence of any prior complaints made by parishioners or other members of the public regarding alleged sexual misconduct by Rinker, and FELC's representatives testified they were unaware of any such complaints. The uncontroverted evidence shows that Rinker received his training from the Missouri Synod, who ultimately ordained him, and that Rinker received supervision from the Missouri Synod's regional director. The evidence also shows that Rinker did actually receive sexual abuse and sexual harassment training prior to his employment with FELC.

FELC's representatives testified that Pelitire never contacted anyone at FELC to report any alleged misconduct by Rinker, and that their first notice of Pelitire's allegations of Rinker's sexual misconduct occurred after Rinker voluntarily resigned his position with the church and was no longer within its authority. Pelitire presented no evidence regarding whether the Missouri Synod has instituted an investigation of her claims.

A claim against an employer for the torts of an employee based on the employer's alleged direct negligence in hiring, training, or supervising the employee is generally governed by the same duty-risk analysis used for all negligence cases in Louisiana. That is, in order to recover against an employer for its own negligence, the plaintiff bears the burden of proving each of five separate elements: duty, breach of duty, cause-in-fact, scope of liability or scope of protection, and damages. See Kelley v. Dyson , 08-1202 (La. App. 5 Cir. 3/24/09), 10 So.3d 283, 287.

Under the specific facts of the instant case and the uncontroverted evidence contained in the record, we find there is no evidence establishing a connection between FELC and Pelitire that would give rise to any duty owed by FELC to Pelitire regarding its hiring, training and/or supervision of Rinker. Absent the existence of a legal duty, Pelitire's claim for FELC's direct negligence falls. This assignment of error is without merit.

MOTION TO STRIKE

FELC and its insurer, CMIC, filed a motion to strike Pelitire's non-conforming brief claiming it exceeds the allowable page limit pursuant to Uniform Rules-Courts of Appeal 2-12.2(D)(1), and that it is not typed in the required font pursuant to Rule 2-12.2(D)(2). Finding no merit to the motion, the motion is denied.

CONCLUSION

For the foregoing reasons, we affirm, in part, the trial court's grant of summary judgment in favor of Rinker dismissing Pelitire's claims against him, with prejudice, for negligent counseling, negligent infliction of emotional distress, and intentional infliction of emotional distress; and we reverse, in part, the trial court's grant of summary judgment in favor of Rinker on Pelitire's claims for sexual assault and sexual battery, and remand the matter for further proceedings solely as to these causes of action.

Further, we affirm the trial court's grant of summary judgment in favor of FELC and CMIC dismissing Pelitire's vicarious liability and negligence claims against them, with prejudice. Lastly, we deny the motion to strike filed by FELC and CMIC.

AFFIRMED IN PART, REVERSED IN PART, REMANDED; MOTION TO STRIKE DENIED.

      Pelitire obtained a bachelor's degree in marketing from the University of New Orleans, a private investigator's certificate from Delgado, and has owned and operated several on-line businesses. She also has appeared as an "extra" in several movies and worked as a courier. Pelitire has not been gainfully employed since 2010 due to mental and physical health issues, including numerous surgeries, chronic anxiety, agoraphobia, and panic attacks.

      Pelitier was then the vice president and co-owner of Y Solutions.

      Rinker was working for FELC as a "supply" pastor approximately 20 hours per week. He was paid on a "per service" basis for each of the various activities he performed on FELC's behalf, which included holding Bible study classes, preaching sermons, making communion calls, hospital visits, visiting homebound parishioners, and pastoral counseling.

      Though Rinker encouraged Pelitire to become a member of FELC, and FELC welcomed her to join the church, Pelitire never once attended a FELC church service and never participated in a single FELC activity.

      Although Pelitire-who had no previous affiliation with FELC-never contacted FELC requesting a pastoral visit or to be administered communion, between July 2013 and February 2014, at least two of Rinker's numerous visits to Pelitire's home were made by Rinker in his capacity as a minister working on behalf of FELC. Unbeknownst to FELC, Rinker charged FELC for the two "official" visits and the several communion calls he made to Pelitire's home in the months following Pelitire's July 2013 surgery. It is undisputed that Rinker did not charge or receive remuneration from FELC related to any of his visits and/or activities involving Pelitire following February 2014.

      Specifically, Pelitire alleged that FELC employed Rinker and "sent him out to the homes of vulnerable individuals seeking help and paid [Rinker] to provide counseling services on behalf of and under the guise of the Church. By taking no action to ensure the safety of its members and the public from it's [sic] pastors' conduct, the Church is and should be liable for the harm Rinker caused [Pelitire]."

      Mr. Shoener prepared a report in this case based on his experience in "assist[ing] churches and other organizations with the problem of sexual misconduct and boundary violations by clergy, staff, volunteers, and others."

      Rinker, FELC, and CMIC also attached these exhibits in their opposition to Pelitire's motion for partial summary judgment.

      According to Ms. Pelitire, her "core argument" is that Mr. Rinker, who "held himself out to be a trained counselor and secular life coach," "should be held to and violated secular standards as a counselor."

      See La. R.S. 37:1103 et seq. (requirements for licensure as a licensed practical counselor and licensed marriage and family therapist), La. R.S. 37:2703 et seq. (requirements for licensure as a licensed clinical social worker) and La. R.S. 37:2352 et seq. (requirements for licensure as a licensed clinical psychologist).

      This was the only occasion that Pelitire was ever on the property of FELC.

      There is some indication that on a separate occasion (prior to the April 2, 2014 incident), while lying on a towel on the floor in Pelitire's bedroom, Rinker inspected her boil and performed oral sex on her.

      "Moonbeam" was a nickname Rinker purportedly gave to Pelitire.