Pulte Home Corp. v. Simerly
322 Ga. App. 699
Ga. Ct. App.2013Background
- Pulte developed upstream subdivisions (Notting Hill/Fieldstone) discharging stormwater into Harris Creek; Plaintiffs (Simerlys, Trents, Lawsons) alleged flooding, sedimentation, and property damage.
- Pulte relied on a 2004 hydrology/stormwater study by Lowe Engineers (commissioned by prior owner Macauley); a weir was built but later found inadequate due to flawed assumptions in the Lowe Study.
- During discovery Pulte deleted emails and was found to have engaged in spoliation; a Special Discovery Master recommended sanctions and the court enjoined further destruction.
- A May 2009 document review produced a dispute about missing documents; Plaintiffs’ lead counsel (Carvalho) later testified about the event and spoliation-related litigation expenses.
- Jury returned a $2.49 million verdict for Plaintiffs; trial court denied Pulte’s motion for new trial. Pulte appealed, raising three primary evidentiary/professional-conduct challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiffs’ counsel (Carvalho) could testify about the May 2009 document review | Carvalho’s testimony was relevant to litigation expenses/attorney fees and spoliation; exclusion would prejudice Plaintiffs | Carvalho is an advocate and thus disqualified under Rule 3.7; testimony should be barred | Court affirmed denial of motion in limine: exception to Rule 3.7 and hardship exception apply; testimony admissible as related to attorney-fee claim and disqualification would impose substantial hardship |
| Whether Plaintiffs knowingly elicited false testimony from expert (that Pulte commissioned the Lowe Study) and whether a curative instruction was required | False testimony was elicited and uncorrected; curative instruction was required to prevent prejudice | Pulte failed to timely object to many of the misstatements; any error was waived or harmless | Admission was harmless because Pulte did not timely object to initial misstatements and substantially similar evidence was later admitted without objection; no reversible error |
| Whether Plaintiffs could present evidence of Pulte’s CWA violations / related consent decree | Evidence of CWA/GWQCA/Sedimentation Act violations is relevant to negligence per se under OCGA §51-1-6 and to prove breach of statutory duty | CWA does not create private cause of action; evidence is prejudicial, and a consent decree (not involving Georgia) bars claims | Court allowed evidence: state statutes implementing the CWA can be adopted as standard of conduct; OCGA §51-1-6 permits negligence per se even if federal statute lacks private right; consent decree did not bind third parties |
Key Cases Cited
- Hood v. State, 291 Ga. App. 881 (discretionary review of motion in limine denial)
- Kroger Co. v. Walters, 319 Ga. App. 52 (evidence of spoliation relevant to entitlement to attorney fees under OCGA § 13-6-11)
- Jenkins v. Wachovia Bank, 314 Ga. App. 257 (statute that provides no private right may still establish duty for state negligence claim under OCGA § 51-1-6)
- Phelps v. Huff, 214 Ga. App. 398 (failure to timely object renders subsequent objection harmless)
- Francois v. State, 309 Ga. App. 692 (admission of substantially similar evidence after an objection is not reversible error)
- Upper Chattahoochee Riverkeeper v. Forsyth County, 318 Ga. App. 499 (discussion of NPDES permits and Georgia’s implementation of the CWA)