Brenda Tatelman v. Sara C. SmithBrenda Tatelman v. Sara C. Smith
This case involves “a silver, blonde, black & brown, female, Yorkshire Terrier ... known as Gypsy[.]” Sara Smith filed an action against Brenda Tatelman claiming that Gypsy was her dog and that Tatelman refused to return Gypsy to her. The trial court granted summary judgment to Smith and issued an order of replevin for Tatleman to return the dog. When Tatelman did not, the court entered an order holding her in contempt and commanding her incarceration for failing to produce Gypsy as ordered by the court. Tatelman appeals from the trial court‘s rulings. For the reasons that follow, we affirm the trial court‘s grant of summary judgment to Smith and the order of replevin, but we reverse the court‘s contempt order because
The record shows that Sara Smith was arrested for charges involving her operation of a cat rescue, and on December 18th, 2023, she was placed under a magistrate court bond pending trial. Under “[o]ther conditions,” the bond stated: “Do not possess any domesticated animals, livestock, or fowl. May transfer ownership possession of dog to friend or family.” On December 19, 2023, Smith gave a friend permission to reclaim Gypsy from the Cherokee County Animal shelter, which seized Gypsy and other animals in her possession at the time of her arrest. Shortly thereafter, Smith‘s friend, with Smith‘s knowledge and cooperation, permitted Tatelman to take possession of Gypsy. According to Smith, despite numerous texts and letters where she demanded the return of her dog and Tatelman acknowledged the dog belonged to Smith, Tatelman began restricting Smith‘s access to Gypsy, limited communication between the parties, and refused to allow visitation or give Gypsy to Smith. On June 18, 2024, Smith received a cease and desist letter from Tatelman that, among other
In February 2025, Smith filed an action against Tatelman in the Superior Court of Cherokee County to recover Gypsy, who Smith claimed she had owned since 2015 or 2016 and who is her emotional support animal.1 The complaint sought a declaratory judgment to determine Gypsy‘s owner, an interlocutory injunction enjoining Tatelman from harming, selling or transferring, or making medical decisions for Gypsy without Smith‘s input, and alleged claims for replevin and trover to recover Gypsy after a wrongful taking, negligent or intentional infliction of emotional distress, fraud, conversion, attorney fees, and punitive damages. Smith also moved separately for a temporary restraining order and a preliminary injunction to enjoin Tatelman from the actions listed in her complaint for an interlocutory injunction. Following a hearing, the trial court granted Smith‘s motion for temporary injunctive relief.
Tatelman subsequently filed a pro se motion to dismiss under
On September 8, 2025, the trial court held a hearing on the competing motions for summary judgment. The hearing included the “testimony of witnesses, documentary evidence, and ... oral arguments.” During the hearing, Tatelman “testified under oath that she had possession of [Smith‘s] property; Gypsy, a Yorkie,” and the court immediately issued an order of replevin, commanding Tatelman to give possession of Gypsy to Smith‘s counsel “INSTANTER.” Later that afternoon, after Tatelman asserted that Gypsy had gotten loose and was unaccounted for, the court
Thereafter, on September 11, 2025, the trial court issued a final order granting Smith‘s motion for summary judgment and denying Tatelman‘s motion for summary judgment. Among other things, the trial court found that (i) Tatelman was the foster for Smith‘s dog, Gypsy, and had accepted temporary responsibility of Gypsy; (ii) Tatelman continued to hold and refused to return Gypsy despite Smith personally and through counsel demanding the return of her dog; and (iii) Tatelman had no recorded verbal or written evidence, nor any evidence of sale, adoption, or transfer and assignment, of Smith‘s consent to a permanent transfer of Gypsy to Tatelman. Based on these findings, the trial court concluded that Smith had demonstrated without adequate rebuttal that she owned Gypsy and was entitled to judgment as a matter of law. The court‘s order awarded Smith immediate possession of Gypsy and
Tatelman filed a motion to set aside the contempt order, as well as a motion for supersedeas bond on her criminal contempt. The trial court granted her motion for supersedeas bond, and Tatelman filed a notice of appeal of the September 8, 2025 order of contempt and incarceration before any ruling on her motion to set aside was rendered.
1. Tatelman first contends that the trial court‘s order of contempt was in error because (a) it was unclear whether the order was a civil or criminal order of contempt, and (b) the order was inconsistent with the applicable legal standard for contempt. We find that the trial court‘s contempt order was civil and that the court erred in finding contempt without providing Tatelman a hearing.
We review sentences of contempt for abuse of discretion by the trial court. Wright v. Wright, 367 Ga. App. 15, 21(1) (884 SE2d 610) (2023). See also Killingsworth v. Killingsworth, 286 Ga. 234, 237(3) (686 SE2d 640) (2009) (noting that trial courts have broad discretion in ruling on contempt motions, and their decisions will be affirmed on appeal if there is any evidence to support them). However, “we remain
(a) Tatelman first argues that the trial court‘s contempt order does not indicate whether it is one for civil or criminal contempt. “Since the trial court does not specify whether it found [Tatelman] in civil or criminal contempt, we must examine the purpose of the contempt order.” Phillips v. Tittle, 261 Ga. 820 (411 SE2d 871) (1992). See also Martin v. Waters, 151 Ga. App. 149(1) (259 SE2d 153) (1979) (“The classification of contempt proceedings as civil or criminal is one depending on the facts of each case“). In doing so, we conclude that the contempt order at issue in this case is one for civil contempt.
It is well settled that “[w]here the primary purpose [of a contempt order] is to preserve the court‘s authority and to punish for disobedience of its orders, the contempt is criminal. Where the primary purpose is to provide a remedy for an injured suitor and to coerce compliance with an order, the contempt is civil.” Ensley v. Ensley, 239 Ga. 860, 861 (238 SE2d 920) (1977) (punctuation omitted).
The conditional or unconditional imposition of a fine or imprisonment indicates the purpose of an order. If the contemnor is imprisoned for a specified unconditional period ..., the purpose is punishment and thus the contempt is criminal. If the contemnor is imprisoned only until he performs a specified act, the purpose is remedial and hence the contempt is civil.
Id. at 861-62. In other words, “criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order.” Alexander v. DeKalb County, 264 Ga. 362, 364(1) (444 SE2d 743) (1994). Accord Phillips, 261 Ga. at 820. An order demanding immediate production of property could support either type of contempt sanction depending on how it is structured. If the order simply punishes a person for the failure to produce the item, it would be criminal; if it conditions sanctions on continued non-production with an opportunity to purge by producing the property, it would be civil.
In this case, the court ordered Tatelman incarcerated “until further order of this [c]ourt” and noted that “the intention of this order [is] that ... Tatelman[ ] not be released until she has complied with this [c]ourt‘s [o]rder of [r]eplevin.” We conclude that because the purpose of the contempt order was to obtain Tatelman‘s
(b) Turning next to Tatelman‘s contention that the trial court erroneously issued the contempt order in this case, we agree. Regardless of whether the contempt is characterized as civil or criminal, the critical issue remains the same: Was Tatelman entitled to a hearing before the trial court issued its contempt order? To answer this question, we must determine whether the order constitutes direct or indirect contempt because “[t]he procedures that a trial court must follow to hold a person in contempt depend upon whether the acts alleged to constitute the contempt are committed in the court‘s presence (direct contempt) or are committed out of the court‘s presence (indirect contempt).” In re Spix, 358 Ga. App. 119(2) (853 SE2d 893) (2021). See also Ramirez v. State, 279 Ga. 13, 14(2) (608 SE2d 645) (2005) (noting that direct contempt occurs when the acts alleged to constitute the contempt are committed in the court‘s presence, while indirect contempt occurs when contemptuous conduct occurs outside the presence of the court).
“If the contempt is direct, a trial court has the power, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.” Ramirez, 279 Ga. at 14(2) (punctuation omitted). This summary power is authorized “in light of the court‘s substantial interest in rapidly coercing compliance and restoring order, and because the contempt‘s occurrence before the court reduces the need for extensive factfinding and the likelihood of an erroneous deprivation[.]” Id. (punctuation omitted). See also Newton v. Golden Grove Pecan Farm, 309 Ga. App. 764, 769(1) (711 SE2d 351) (2011) (“[W]here misconduct occurs in open court, the affront to the court‘s dignity is more widely observed, justifying summary vindication.“) (punctuation omitted); Martin, 151 Ga. App. at 150(1) (noting that a direct criminal contempt does not deprive an individual of due process because the judge is aware by use of his own senses of what has transpired). That said,
although the trial judge has the authority to summarily punish for contemptuous conduct committed in his or her presence, due process requires that such punishment cannot be meted out until the contemnor is given reasonable notice of the charge and an opportunity to be heard ... because of the heightened potential for abuse posed by the contempt power.
In re Williams, 347 Ga. App. 189, 191-92 (818 SE2d 260) (2018) (reversing a direct criminal contempt order where it did not include any finding that the contemnor was given an opportunity to speak on her own behalf or attempt to explain her actions before she was found in contempt) (citations and punctuation omitted).
Indirect contempt, where the alleged contumacious acts are committed outside the court‘s presence, requires even more due process safeguards because the judge does not have first-hand knowledge of the acts and considerations justifying expedited procedures do not pertain. See In re Spix, 358 Ga. App. at 120(2). Indeed, in both indirect criminal and civil contempt, notice and an opportunity to be heard are paramount. See Ramirez, 279 Ga. at 15(2) (holding that for indirect criminal contempt an individual “must be advised of charges, have a reasonable opportunity to respond to them, and be permitted the assistance of counsel and the right to call witnesses“); Washington v. Washington, A26A0506, slip op. at 5(2) (Ga. App. June 4, 2026)
In the present case, it is undisputed that Tatelman‘s allegedly contemptuous conduct — failing to produce Gypsy because the dog allegedly had escaped — “did not occur in open court and did not threaten the court‘s immediate ability to conduct its proceedings[,]” and, thus, her conduct “cannot be said to have occurred in the court‘s presence.” Ramirez, 279 Ga. at 16(3) (punctuation omitted). Tatelman, therefore, was entitled to full due process considerations before the trial court issued an indirect contempt order. Under due process, a trial court may not order a
Indeed, “[t]he essence of civil contempt is willful disobedience of a prior court order.” Wright, 367 Ga. App. at 18(1) (reversing contempt order because the record contained no evidence authorizing a finding of willful disobedience) (punctuation omitted). See Higdon v. Higdon, 321 Ga. App. 260, 263(1)(c) (739 SE2d 498) (2013) (“To hold in contempt, the court must find that there was a wil[l]ful disobedience of the court‘s decree or judgment.“) (punctuation omitted). Tatelman‘s conduct in this case, committed outside the judge‘s presence, required extensive findings of fact to determine exactly what occurred and when it occurred to answer the question of whether Tatelman‘s failure to produce “was a wil[l]ful and contumacious flaunting of the [court‘s replevin order], whether it was accidental, or whether it was due to some unavoidable cause.” Martin, 151 Ga. App. at 150(2).
the summary contempt exception to the normal due process requirements, such as a hearing, counsel, and the opportunity to call witnesses, includes only charges of misconduct, in open court, in the presence of the judge, which disturbs the court‘s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent demoralization of the court‘s authority before the public. (Punctuation omitted.)
None of Smith‘s arguments demonstrate that the contempt order at issue is a direct contempt subject to summary adjudication without affording Tatelman due process.
Smith further argues that Tatelman was given notice of the contempt hearing but failed to appear. According to Smith, and the order of contempt that Smith‘s attorney prepared, her attorney “advised [Tatelman] he would return before the [c]ourt after lunch at 1:30 p.m.” to address Tatelman‘s purported inability to produce Gypsy, but, “[r]ather than return, [Tatelman] failed to appear and address her prior
where the alleged contumacious conduct is disobedience to a mandate of the court, not an act in the presence of the court or so near thereto as to obstruct the administration of justice, the law requires that a rule nisi issue and be served upon the accused, giving him notice of the charges against him, and that he be given an opportunity to be heard.
Barnes v. Tant, 217 Ga. 67, 72(4) (121 SE2d 125) (1961). Accord Anthony v. Anthony, 240 Ga. 155, 157(1) (240 SE2d 45) (1977).
The notice given by the rule nisi is to afford the accused a reasonable time in which to prepare his defense to the charge that he had violated the court‘s order. It was error, in the case we now review, for the judge ... to summarily hear evidence and find [Tatelman] guilty of contempt for failure to abide by the court‘s previous order, when no rule nisi had issued, and [Tatelman] was not given notice, prior to the hearing, that [s]he would be called upon to show that [s]he had not disobeyed the previous order of the court, or to show legal excuse for [her] conduct.
In summary, because Tatelman received no rule nisi or other reasonable notice from the court that a contempt hearing would occur and had no opportunity to defend herself or explain the circumstances surrounding Gypsy‘s alleged disappearance, Tatelman was denied her due process rights, and the trial court‘s contempt order must be reversed.
2. Tatelman next asserts that the trial court erred in granting summary judgment to Smith. Specifically, she claims that there are material factual disputes as to Gypsy‘s rightful owner. Tatelman “cannot prevail on this argument, however, because [she has] failed to include a transcript of the summary judgment hearing in the
It is well settled that “[t]he burden is on an appellant to show error by the record, and when a portion of the record which is necessary for our determination of one or more appellate issues is not before the court, the trial court‘s express or implicit ruling as to those issues must be affirmed.” Gill v. B & R Int‘l, 234 Ga. App. 528, 531(1)(c) (507 SE2d 477) (1998) (affirming grant of summary judgment because the court‘s order expressly referred to “submissions and arguments of counsel” at the motion hearing, but a transcript of the hearing was not included in the record on appeal). Indeed,
[i]n order for the appellate court to determine whether the trial court erred in granting summary judgment, the appellant must include in the record those items which will enable the appellate court to ascertain whether a genuine issue of material fact remains or, if the record
establishes there is no such issue of fact, whether the moving party is entitled to judgment as a matter of law.
Tanks v. Greens Owners Ass‘n, 281 Ga. App. 277 (635 SE2d 872) (2006) (punctuation omitted).
If a trial court does not hear testimony or accept documentary evidence at a summary judgment motion hearing, the lack of a transcript of that hearing might not be fatal to an appellant‘s appeal. See Johnson v. Wood, 376 Ga. App. 876, 879(1) (921 SE2d 417) (2025) (holding that a transcript of a motion for summary judgment hearing was not necessary to this Court‘s de novo review because “no new evidence was presented in the subject motion hearing [and] ... the trial court‘s order [did] not reference any alleged evidence being received at the hearing on the motion“) (punctuation omitted). See also Baker v. Brannen/Goddard Co., 274 Ga. 745, 747(1) (559 SE2d 450) (2002) (reaching merits despite missing transcript of summary judgment hearing when “the trial court limited itself to the evidence which had been filed in the case and did not consider any additional evidence“).
Here, however, the trial court‘s order on the summary judgment motions indicates that the parties “presented testimony of witnesses, documentary evidence,
Because the parties presented testimony and evidence at the hearing on their competing motions for summary judgment, a transcript is necessary for our review of the court‘s order, and its omission requires this Court to assume the judgment below was correct and affirm. Fleming v. Advanced Stores Co., 301 Ga. App. 734, 736 (688 SE2d 414) (2009) (affirming summary judgment ruling because, among other things, the appellant failed to include the transcript of the summary judgment hearing — in which testimony was taken — in the appellate record). As this Court repeatedly has stated in reviewing summary judgment orders where evidence was presented at the
Here, “[b]ecause [Tatelman] failed to have the hearing transcribed, the record before us does not show some portion of the evidence upon which the trial court relied in granting [Smith‘s] motion for summary judgment[.]” Tanks, 281 Ga. App. at 277. “Moreover, no statutorily authorized substitute for the hearing transcript was submitted.” Fleming, 301 Ga. App. at 736. We therefore must affirm the trial court‘s decision.
3. In her third enumeration of error, Tatelman argues that the trial court erred when it assessed
It is well settled that an award of attorney fees under
[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made
prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.
Here, Smith specifically pleaded to recover reasonable attorney fees and expenses of litigation under
Tatelman, however, correctly points out that
Our Supreme Court has held that attorney fees cannot be awarded by a trial court pursuant to
OCGA § 13-6-11 at the summary-judgment stage of proceedings because the very language of the statute prevents a trial court from ever determining that a claimant is entitled to attorney feesas a matter of law. Indeed, it is well established that because both the liability for and amount of attorney fees pursuant to OCGA § 13-6-11 are solely for the jury‘s determination, a trial court is not authorized to grant summary judgment in favor of a claimant therefor. And although a trial court is permitted to grant such fees when it sits as a trier of fact, it is not a trier of fact on a motion for summary judgment.
Sherman, 322 Ga. App. at 233-34(2) (citations and punctuation omitted). Accord Ga. Lottery Corp., 353 Ga. App. at 57-58(3). In short, although a trial court may grant summary judgment against a claim for attorney fees under
In an attempt to circumvent this well settled law, Smith repeatedly refers to the September 8, 2025 hearing as a bench trial — rather than a summary judgment hearing — and argues that the trial court was authorized to award
The record in this case shows that during the course of the litigation, Smith filed a motion to compel Tatelman to respond to discovery requests. While that motion was pending, Tatelman filed a motion to dismiss, which she subsequently supplemented. Smith responded to the motion to dismiss and filed a counter-motion for partial summary judgment. On July 11, 2025, the trial court issued a rule nisi for an August 4, 2025 “to show cause why the relief sought should not be granted” on Smith‘s motion to compel discovery. Tatelman moved to stay the rule nisi based on her motion to dismiss, which had not yet been ruled upon. Thereafter, the trial court issued another rule nisi for a September 8, 2025 “hearing” on Tatelman‘s motion and supplemental motion to dismiss.
The trial court held a hearing on August 4, 2025 to address the pending discovery motion, as well as other discovery matters, and found that Tatelman had willfully failed to provide legally responsive answers and discoverable materials responsive to Smith‘s discovery requests. The order noted that the court had deferred ruling on Tatelman‘s motion to dismiss and Smith‘s counter-motion for partial
As mentioned previously, the parties presented the testimony of witnesses and documentary evidence at the September 8, 2025 hearing. The trial court captioned its subsequent order “FINAL ORDER GRANTING PLAINTIFF‘S MOTION FOR SUMMARY JUDGMENT,” noted that it had converted Tatelman‘s motion to dismiss to a motion for summary judgment to allow her submission of evidence outside the pleadings, and detailed the standards for a motion for summary judgment. The court‘s order specifically denied Tatelman‘s motion for summary judgment and granted Smith‘s motion for summary judgment, but it also indicated: “[A]ll remaining claims asserted in the [c]omplaint are rendered moot as the [c]ourt advised the parties before proceeding that [the hearing] would be treated as a Final Hearing on this case.”
4. Finally, Tatelman asserts that the trial court erred when it entered its order of replevin in conflict with Smith‘s bond conditions that she not possess any domesticated animals.8 This claim fails for two reasons.
First, Tatelman‘s three-sentence conclusory argument only provides one case citation, and it is to a superior court order, to support its general proposition that “a trial court does not have the authority to act in conflict with the clear terms of a bond
Second, the trial court‘s order of replevin in this case specifically directed Tatelman to “transfer and give possession of [Smith‘s] dog, Gypsy, to [Smith‘s] counsel[.]” This order, therefore, was not “in conflict with the clear terms of [Smith‘s] bond agreement.” In fact, the bond specifically permitted Smith to “transfer ownership possession of [her] dog to [a] friend or family” member. As the owner of Gypsy, Smith has the authority to decide who should retain possession of her
5. Smith has filed a motion for frivolous appeal penalties, asserting that Tatelman‘s appeal lacks any arguable merit and was merely taken for delay and to continue a wrongful retention. Tatelman, in turn, filed a counter-motion for sanctions, arguing that Smith‘s motion for frivolous appeal penalties lacks merit or supporting precedent. This court declines to award either party sanctions for frivolous filings.
In summary, we affirm the trial court‘s grant of summary judgment to Smith and the trial court‘s order of replevin, but we reverse the trial court‘s contempt order and its award of attorney fees under
Judgment affirmed in part and reversed in part. Barnes, P. J., and Markle, J., concur.