Key Points

  • The Georgia Court of Appeals reversed a Gwinnett County Superior Court judgment holding Erica Sutter, a lawyer for nonparty Tekion Corp., in contempt for failing to identify herself at a hearing in Asbury Automotive Group's suit against CDK Global.
  • The court held that the hearing transcript did not support the contempt order's finding that the trial court had directed spectators to identify themselves.
  • Applying McCloskey International v. GJ&;L Inc., the court held that a person may be punished only for violating terms set forth in definite terms that are express rather than implied.
  • The reversal sets aside sanctions that included a bar on Sutter's participation as Tekion's counsel in CDK's Delaware case and Tekion's Northern District of California case.
  • The court did not reach Sutter's due-process and impermissible-sanction arguments.

The Georgia Court of Appeals on Oct. 23 reversed a contempt judgment against an out-of-state lawyer who sat in the gallery of a Gwinnett County hearing where confidential documents were shown on a courtroom screen. The order had barred the lawyer, Erica Sutter, from representing her client, Tekion Corp., in two lawsuits against CDK Global LLC.

Chief Judge Brown wrote for a three-judge panel that the hearing transcript did not show the trial court ever told spectators to identify themselves, the directive the contempt order said Sutter had disobeyed. "Because the trial court abused its discretion in its finding of contempt, we reverse," Brown wrote. Presiding Judge McFadden and Judge Watkins concurred.

The reversal sets aside four sanctions. One barred Sutter from participating as Tekion's counsel in CDK Global LLC v. Tekion Corp. in Delaware Superior Court and in Tekion Corp. v. CDK Global LLC in the U.S. District Court for the Northern District of California. The panel applied the rule that a person may be held in contempt only for disobeying a command stated in express terms.

In 2024, Asbury Automotive Group Inc., a franchised automotive retailer, sued CDK in the Superior Court of Gwinnett County. According to Asbury's verified complaint, CDK supplied technology support and data management for Asbury's dealerships. Under an exception to the contract's exclusivity term, Asbury signed a pilot-program contract with Tekion, a CDK competitor, and announced that it would move its dealerships to Tekion if the pilot succeeded. Asbury sought specific performance, alleging that CDK failed to transfer client data from some dealerships. Tekion is not a party to the suit.

Sutter attended a motions hearing in the case as a spectator on Tekion's behalf. She represented Tekion in an antitrust case against CDK in California but not in the Delaware case. A magistrate judge sitting by designation presided. At the start of the hearing, the judge said he would "go through the list and see who's representing who" and had the parties' attorneys identify their clients. The judge did not ask spectators to do the same.

During a witness examination, CDK's counsel sought to display the Platform Subscription Agreement between Asbury and Tekion. Asbury objected because the document had been designated confidential under a protective order, which Asbury and CDK had agreed to before the hearing to limit disclosure of confidential material. The judge said he "thought everybody was covered as being either an attorney or a client" and asked each side's counsel whether anyone present should not see the exhibit. CDK's lawyer replied, "Everyone who's here has a right to be here."

After a second witness testified, CDK's counsel told the court that Sutter was in the room and had not identified herself, and he asked that she "be excluded." The judge called Sutter to the bench and asked, "Why didn't you identify yourself when I made that announcement?" Sutter apologized and said she "didn't understand that to be what was being asked."

The judge directed Sutter not to share what she had heard and took her notes to be shredded. He said he would not hold a contempt hearing because "that was an inadvertent error on your part," but warned that if information from the hearing surfaced in the Delaware or California cases, "we will have a hearing for sanctions."

The next day, the trial court signed a contempt order prepared by CDK's counsel. The order found that the court had "made an announcement at the beginning of the proceedings for any individual in the courtroom who was not an attorney or representative of CDK or Asbury to identify themselves" and that Sutter had ignored it. The order also found that Sutter "reported details about the hearing to her colleagues," although she had told the judge at the hearing that she had shared nothing substantive. CDK's counsel later sent the order to the Delaware and California courts.

CDK's lawyer had left Sutter off the e-mail that submitted the proposed order, but he copied Asbury's counsel. Asbury's counsel responded that "[t]he statements and findings in the order are not consistent with our recollection of the events from yesterday." The trial court's staff attorney replied that the court was "aware of both parties' concerns" and would file the order that afternoon. CDK later acknowledged that the hearing transcript was not available when the order was entered.

Sutter moved for reconsideration and then filed a notice of appeal before the trial court ruled. The Court of Appeals stayed the contempt order pending appeal. Sutter was the only party to file an appellate brief.

Brown acknowledged that a trial judge's contempt discretion "will never be controlled unless grossly abused." But the panel held that the transcript did not support the order's central finding. "At most, the transcript shows that at the beginning of the hearing, the trial court stated it would 'go through the list and see who's representing who,'" Brown wrote. Of the exchange over the exhibit, the opinion added that "at no point during that colloquy did the trial court direct the spectators to identify themselves."

The panel held that an implied request would not support contempt either. Citing its 2026 decision in McCloskey International v. GJ&;L Inc., the court wrote that "a party may not be punished for failure to comply with the terms of [an] order unless those terms are set forth in definite terms that are express rather than implied." Because the judge's statements "did not clearly and definitely inform" Sutter that she needed to identify herself, the panel held, she "cannot be held in contempt on this basis."

The panel did not decide Sutter's arguments that she was denied due process and that the order imposed an impermissible sanction. The opinion's judgment line reads "Judgment reversed," with no remand instructions. Under the court's notice on the opinion, any motion for reconsideration must be received by 4:30 p.m. on the 10th day after the decision issued.