Case of the Day – Tuesday, August 24, 2021


contempt150729Contempt of court is the mechanism by which a court enforces compliance with its orders. Punishment can range from a reprimand to jail time. Regardless of whether the contempt is civil or criminal, it’s something that litigants and lawyers would agree is best avoided.

Some people, like George Reece and Gerry Smith, just can’t help themselves. The neighbors squabbled for years over boundaries and an old hemlock tree. Finally, in 2005, they buried the hatchet, agreeing to a settlement where Reece gave Smith some property, and Smith gave Reece some property. The settlement specifically provided that Reece got property next to a pond that included his beloved hemlock tree.

So much for congeniality. It wasn’t long before they were back at it. Smith accused Reece of trespassing, harassing him, assaulting him, and diverting rainwater to flood Smith’s land. Reece countered that Smith had cut down his beautiful hemlock and destroyed a custom wrought-iron gate. The court threw up its hands, found them both in contempt and sent them off to jail for 20 days – presumably not as cellmates – to contemplate their misdeeds.

Reece and Smith could have been the inspiration for Mad Magazine's famous warring spies.

Reece and Smith could have been the inspiration for the late Mad Magazine’s famous warring spies.

Both of them appealed. The Court of Appeals sided with Smith for procedural reasons, holding that the act of asking that the other party be held in contempt was a motion, not a new civil action. That being the case, Reece wasn’t entitled to counterclaim for contempt himself. If he felt strongly enough about the destroyed gate and hemlock tree, Reece could file his own motion for contempt, or start a separate lawsuit for trespass to trees.

It’s a cinch that Reece probably felt strongly about it after 20 days in jail, and it seems to us rather hyper-technical of the court not to consider Reese’s misstyled counterclaim to be a motion for show cause to hold Smith in contempt. To do so would have been more efficient, as well as a triumph of substance over form.

Reece v. Smith, 292 Ga.App. 875, 665 S.E.2d 918 (Ga.App. 2008). This case was the last in a series of appeals resulting from several years of litigation between Gerry Smith and George Reece, who live next door to each other (but obviously not in harmony).

Smith and Reece repeatedly petitioned the court to intervene in a property-line dispute. In 2005, they entered into a settlement agreement in which they agreed to get an accurate survey of the disputed property and, based upon the survey, to convey portions of their property to each other in settlement of the long-running dispute. Smith specifically agreed that certain property next to a pond would belong to Reece and that this property included a tall hemlock tree. The court entered a final order approving the settlement agreement, ordering the parties to comply with it “in every respect.”

Two years later, Smith asked the court to hold Reece in contempt of the agreement. Smith said Reece had trespassed on his property several times, had threatened and hit him, and had caused rainwater to flow onto his property. Reece denied it and asked the court to hold Smith in contempt, saying that Smith cut down the hemlock tree, destroyed a wrought iron gate Reece had erected across his driveway, interfered with the surveyors, removed pins marking the property lines, blocked the access roads to his property, and stalked and harassed him and his guests. Reece asked for damages for the destruction of the hemlock tree and the gate.

The trial court found that each of them had committed some of the acts alleged and ordered them to serve 20 days in jail and pay a fine. The court also ordered Smith to pay Reece $5,000 in damages for cutting the hemlock tree, but it denied Reece’s claim for damage to the gate, ruling that he hadn’t presented sufficient evidence on the value of the gate.

Both parties appealed.

Held: The Court upheld the jail sentence against , but reversed Reece’s counterclaim. In order to find criminal contempt, there must be a showing of willful disregard or disobedience of the order or command of the court. The sentences and fines should be affirmed if there is sufficient evidence to find that a party committed at least one of the contumacious acts listed in the court’s order.

box150729Smith’s testimony that an adjoining owner had constructed his driveway in such a manner that it caused rainwater to dump onto Smith’s property, had trespassed and threatened him, and drove into a sand pile in Smith’s front yard was sufficient to support the court’s finding that Reece was in contempt of the court’s previous order relating to the settlement.

The contempt remedy is part of the judiciary’s inherent power to enforce its orders. As such, an action for contempt is ancillary to the primary action and is characterized as a motion and not a pleading. Because it is not a complaint, an application for contempt may not, standing alone, serve to commence a civil action for damages.

Therefore, Reece could not file a counterclaim for contempt or obtain an order requiring Smith to pay $5,000 in damages for cutting the hemlock tree. However, he could file a separate suit in superior court for damages resulting from destruction of the hemlock tree and wrought iron gate.

– Tom Root


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