Pulte Home Corporation v Simerly
746 S.E.2d 173 (Ga.App. 2013)
Fooling Around with Documents and E-Mails: Costs and
In January 2004, Pulte purchased property to develop single-
family residences for what would become the Notting
Hill and Fieldstone subdivisions. The Pulte Development
discharged water into Harris Creek and was located
upstream of the properties owned by Tim and Adele
Simerly and Richard and Susan Trent (Plaintiffs). Pulte
had purchased the property from Macauley Properties,
which previously hired Lowe Engineering to complete
a hydrology and storm-water management study. The
Lowe Study was completed in January 2004, and Pulte
relied upon the study to design and construct its development.
The Lowe Study recommended that storm water
discharges from future developments could be controlled
with the construction of a weir on Harris Creek, which
consisted of a partial wall across the creek, above Drew
Campground Road located within Fieldstone.
Pulte began mass grading and other land-disturbing
activities at Fieldstone in March 2004. Shortly thereafter,
excessive amounts of storm water, dirt, sediment, and
development debris were discharged into Harris Creek
and ultimately into the ponds located on the Simerly
and Trent properties. Investigations revealed that the
discharged sediment and pollutants were caused by
Pulte’s activities upstream and its failure to install and
maintain erosion control devices required by law. The
Pulte Development also caused a dramatic increase in the
rate and flow of storm-water discharge into Harris Creek
that caused flooding to the Simerly and Trent properties.
During a subsequent study, it was discovered that the
weir was inadequate to control the storm-water discharge
from the Pulte Development because the Lowe Study,
upon which Pulte had relied for storm-water management,
was based upon flawed assumptions and analysis.
The Simerlys and Trents sued Pulte Home Corporation
for trespass, nuisance, negligence, negligence
per se, riparian rights, unjust enrichment, and ejectment
based on the company’s actions in causing excess
storm water and sediment to enter the Simerlys’ and
The jury found in favor of the Simerlys, Trents, and
Lawsons (collectively, the “Plaintiffs”) and awarded them
$2.49 million in damages and attorney fees. The court
had found evidence of spoliation by Pulte and excluded
certain exculpatory evidence from the trial because of a
finding of Pulte’s counsel’s misconduct. The trial court
also allowed evidence of Pulte’s conduct during discovery
in its determination of attorney fees. Pulte appealed.
© Harper 3D/Shutterstock.com
During litigation, the trial court found that Pulte had
engaged in spoliation by deleting emails relevant to the
litigation, and enjoined Pulte from engaging in further
destruction of evidence. The trial court had appointed a
Special Discovery Master to oversee compliance with the
court’s injunction and to resolve other discovery issues,
including the attempted recovery of spoliated evidence
through a computer forensic investigation. The Special
Discovery Master issued a report outlining that the
computer forensic investigation revealed that Pulte had
engaged in further spoliation of electronic evidence after
the trial court’s order and recommended that Pulte be
sanctioned for its violations. The trial court adopted the
Special Discovery Master’s report and recommendation.
The Special Discovery Master also informed the trial
court that the Simerlys’ counsel and Pulte’s counsel had
provided conflicting statements relating to Pulte’s removal
of discovery documents during a May 2009 document
review at Pulte’s offices. At a subsequent hearing before
the trial court, Simerlys’ counsel, Michael Carvalho, testified
that he and an associate attorney, Christine Westberg,
had a scheduled document review at Pulte’s offices in
May 2009. Carvalho testified that during the document
review, he had stacked a number of documents in a pile
that were deemed relevant in order to copy them. Before
taking a break for lunch, Carvalho informed Pulte’s counsel
that they planned to copy the documents in the stack.
When Carvalho returned from lunch, he noticed that the
stack of documents was smaller. Carvalho testified that he
asked Pulte’s counsel about the missing documents, and
she told him that she took the documents because they
were privileged. Following the hearing, the trial court
found that Pulte’s counsel had taken documents during
the document review.
The trial court allowed Carvalho to testify about
spoliation during the May 2009 document review, and
would [not] allow Pulte to benefit from its discovery
Plaintiffs were forced to undergo unnecessary trouble
and expense to prosecute their claims in this case,
and the evidence [of the spoliation] was properly admitted
as it related to the issue of attorney fees.
1. Explain what the Special Master found about
Pulte’s behavior in the case.
2. What are the consequences when one side
attempts to withhold or destroy evidence?
3. What management lessons should be learned and
applied from this case?
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