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Code enforcement and compliance in Forsyth County?

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Code enforcement and compliance in Forsyth County?

Postby Nydia Tisdale » Sat Sep 17, 2011 6:46 pm

Forsyth homeowners win $2.5 million judgment from builder

The Atlanta Journal-Constitution
By Patrick Fox
September 14, 2011

Three Cumming families have won a $2.5 million judgment against Pulte Home Corporation for property damages they incurred as a result of an upstream development.

A Forsyth County jury found the builder guilty last week of common law nuisance, trespass and negligence and of repeated violations of Georgia environmental laws. A hearing has been scheduled for Thursday morning to consider how the company will fix the problem and repair the damage.

It is one of the largest stormwater pollution judgments in state history, eclipsing a $2.3 million award against D.R. Horton builders in Cobb County six years ago.

Plaintiffs in the case -- Richard and Susan Trent, Sally and Dwayne Lawson, Ruth Bennefield and Timothy and Adele Simerly -- argued Pulte's subdivision damaged their properties by allowing excessive stormwater runoff from Harris Creek. As a result, silt and sediment from Pulte's 733-home development settled on the homeowners' property and created additional erosion problems, said Donald Stack, lead attorney in the suit.

"‘Environmentalist' sometimes has a negative connotation, but what juries do understand is property rights," Stack said. "Developers really do need to consider the impact of their development on downstream homeowners."

The judgment comes on top of a $406,000 finding against Pulte in which the court determined the company had destroyed electronically stored evidence relating to the case.

The homeowners hired Neil Broom, president of Atlanta-based Technical Resources Center, who determined that the hard drives of several Pulte executives and employees were destroyed or permanently altered after the court issued an order to preserve evidence.

Court documents also show the company's own third-party environmental consultant had notified Pulte that it was not complying with environmental permit requirements and had violated Georgia law repeatedly failing to correct best management practices. They also show Pulte received hundreds of "Notices to Comply" and dozens of "Stop Work" orders from Forsyth County during construction.

Officials with Pulte said Wednesday they were disappointed with the verdict and judgment. The company said it plans to appeal.

"We believe the evidence introduced at trial demonstrated that the company took all reasonable steps and complied with all local, state and federal requirements related to the detention and runoff of storm water from our development," said spokeswoman Valerie Dolenga. "We look forward to reaching a fair conclusion to this matter."
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$2.5 million judgment

Postby Nydia Tisdale » Sat Sep 17, 2011 6:48 pm

Builder must repair erosion damage

The Atlanta Journal-Constitution
By Patrick Fox
September 15, 2011

In one of the state's largest judgments of its kind, a Forsyth County Superior Court Thursday ordered Pulte Homes to install a series of fixes on property damaged by runoff from its development. The company has 90 days to complete the work.

Three Cumming families won a $2.5 million judgment against Pulte for property damages they incurred as a result of a the company's 733-home development upstream. A Forsyth County jury found the builder guilty last week of common law nuisance, trespass and negligence and of repeated violations of Georgia environmental laws.

It is one of the largest storm water pollution judgments in state history, eclipsing a $2.3 million award against D.R. Horton builders in Cobb County six years ago.
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Willfully deleted e-mail evidence

Postby Nydia Tisdale » Sat Sep 17, 2011 6:52 pm

How a drainage suit got so expensive for Pulte Group

Crain's Detroit Business
By Chad Halcom
September 13, 2011

Bloomfield Hills-based Pulte Group Inc. will appeal a jury verdict awarding $2.5 million damages to neighboring landowners who claim flooding and soil erosion from an upstream Pulte residential development valued at more than $70 million in Georgia, the company said today.

The jury late last week awarded about $310,000 in compensatory damages, more than $425,000 in punitive damages and more than $1.6 million in attorney fees and court costs to four homeowner couples, in a case where the court had already ordered sanctions against Pulte for destroying electronic evidence prior to trial.

The nearby landowners allege negligence, trespass and nuisance, violations of Georgia state environmental law, unjust enrichment and breach of contract in the combined 2009 lawsuits arising from the Fieldstone and Notting Hill residential developments by Pulte Group subsidiary Pulte Home Corp. The developments built more than 400 homes valued at $173,000-$202,000 in the mid-2000s in Georgia.

"We are, of course, disappointed by the verdict and resultant judgment in (the lawsuit) and as such plan to pursue an appeal," Pulte Group communications director Leanne Wandoff said in a statement.

"We believe the evidence introduced at trial demonstrated that the company took all reasonable steps and complied with all local, state and federal requirements related to the detention and runoff of storm water from our development. We look forward to reaching a fair conclusion to this matter."

But how did a tresspass-nuisance lawsuit, which residential developers face all the time, get so expensive in a case involving just four neighboring property owners?

Forsyth County Superior Court Chief Judge Jeffrey Bagley found that Pulte vice president of land development George "Ted" Turner "willfully deleted email evidence" related to the 2009 lawsuit, and in June Bagley awarded more than $405,000 in attorney fees and costs prior to trial. The jury awarded damages against Pulte but not against Turner, who was also a defendant.

Michael Caravahlo, president of Marietta, Ga.-based Carvalho & Associates PC and attorney for two of the plaintiffs, said his firm had originally offered to settle the case for just $50,000 prior to filing the lawsuit.

"I was just shocked by this scorched earth approach to litigation," said "It was take no prisoners," he said. "It's unfortunate that Pulte, a publicly-traded company, would engage in some of this behavior with evidence. If they want to (appeal), good for them — but we feel this is a solid conclusion that will stand up to appeal."

Pulte lead attorney W. Gordon Hamlin Jr., of counsel at Bryan Cave LLP in Atlanta, did not return phone calls seeking comment. He told the Fulton County Daily Report in an email earlier this year that "Pulte produced an enormous quantity of documents to" the neighbors' attorneys, who did not send a request covering emails "other than a few distinct categories." Furthermore, "none of the deleted e-mails" are relevant to the lawsuit.
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Destruction of electronic evidence

Postby Nydia Tisdale » Sat Sep 17, 2011 6:55 pm

Sanctions Ordered Against Ga. Developer for Wiping Evidence

Law Technology News
Katheryn Hayes Tucker
February 28, 2011

Forsyth County Superior Court Chief Judge Jeffrey S. Bagley has ordered sanctions against Pulte Home Corp. for destroying e-mails and other electronic evidence in an environmental lawsuit.

The sanctions, which will be determined in a hearing March 31, include paying attorney fees for plaintiffs suing the developer.

"We expect that attorney fees and costs will be in the range of $400,000 -- making it the largest award of sanctions for willful spoliation of electronically stored information in Georgia history," said Michael P. Carvalho, attorney for Adele and Tim Simerly, who are suing Pulte over stormwater runoff from the Fieldstone subdivision.

Pulte's attorney, W. Gordon Hamlin Jr. of Bryan Cave, responded to questions about the case by e-mail with a prepared statement approved by the company's in-house counsel. "Pulte produced an enormous quantity of documents to counsel for the Simerlys," the statement said. The plaintiffs did not request documents that would have included e-mails "other than a few distinct categories." Furthermore, "none of the deleted e-mails" are relevant to the lawsuit.

"Pulte looks forward to trying this case and demonstrating to the jury that its engineering and erosion controls actually reduced the discharge of sediment dramatically," Hamlin's statement said. "In short, Pulte believes that the evidence will demonstrate that the plaintiffs have not been harmed by any of Pulte's activities."

The case was filed in January 2009. The plaintiffs, who have been joined in the suit by other homeowners downstream from the Fieldstone subdivision, claim stormwater runoff from Pulte's development has damaged their property and filled their ponds with silt. "The damages are not yet established because they are ongoing," Carvalho said. "Each of the plaintiffs and third party defendants [has] suffered significant property damage due to sediment and [is] receiving significantly more stormwater that has resulted in damage to driveways and bridges."

In September 2009, Bagley ordered an investigation by a special master into allegations that Pulte's vice president of land development, George "Ted" Turner, had deleted e-mails related to the case. The order followed a deposition in which Turner said he had deleted e-mails and intended to continue doing so, according to Carvalho.

Bagley appointed Kevin Tallant of Miles Patterson Hansford Tallant in Cumming to be a special master in the case and investigate the claims of deleted e-mails.

Tallant's report concluded that Pulte employees violated Bagley's order on spoliation of evidence, specifically deleting e-mails as well as replacing and reformatting hard drives in some computers. After a Feb. 3 hearing, Bagley issued a ruling Feb. 9 adopting Tallant's findings.

"Pulte argued that despite the fact that significant efforts had been undertaken by the court-appointed forensic expert, 'only 160 documents' had been produced as potentially deleted emails," wrote Bagley. "And of these 160 documents, none of the emails was ultimately determined to be a 'smoking gun,' which would have otherwise caused this court to conclude that Turner's deletion was intended to hide, cover up or obfuscate the truth.

"Despite this court's prior order prohibiting the continued deletion of emails, Pulte continued to engage in a pattern of … spoliation," the judge added.

The judge noted that the company replaced hard drives without first mirror imaging them. "The specter of spoliation remains and causes this court to find that Pulte continued to engage in a pattern of suspicious activities for which Turner's prior spoliation leaves the court little room to give Pulte the benefit of the doubt," Bagley wrote.

Bagley also ordered Pulte to pay the cost of Tallant's investigation, which the report said cost $60,000.

The judge signed a separate order denying Pulte's motion for reconsideration.

The issue of destruction of electronic evidence is likely to be an issue in the trial, scheduled for April, said Carvalho. The judge's order said he would allow the plaintiffs to present "evidence of spoliation by Pulte's employees" as a part of the sanctions against the developer.

However, Bagley declined the plaintiffs' request to strike the defendant's answer to the suit. "Regardless of the court's findings of prior spoliation by Pulte, and the more recent questionable activities of Pulte employees," Bagley's order said, "Pulte deserves its day in court before a jury of 12 people."

The case is Simerly v. Pulte, No. 09CV-0089.
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Spoliation Sanctions

Postby Nydia Tisdale » Sat Sep 17, 2011 7:09 pm

Willful Spoliation Sanctions

CyberControls.com
February 28, 2011

Simerly v. Pulte, No. 09CV-0089-Georgia; In Forsyth County Superior Court Judge Jeffrey S. Bagley has issued an order for sanctions against Pulte Home Corp. for destroying e-mails and other electronic evidence in an environmental lawsuit.

While the sanctions will be determined in an upcoming hearing scheduled for March 31st, it has been estimated by the plaintiff’s attorneys to be in the range of $400,000 which will make it the largest willful spoliation of electronically stored information in Georgia history. Will this turn out to be yet another example of outside counsel's absent supervision of the ongoing duty to preserve all relevant ESI throughout the duration of the lawsuit? Even after the explicit order by the court to do so?
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Spoliation

Postby Nydia Tisdale » Sat Sep 17, 2011 7:10 pm

Spoliation

The destruction, alteration, or mutilation of evidence that may pertain to legal action.
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