Pulte Home v. Simerly

• Decision Date: 08 July 2013
• Docket Number: No. A13A0065.,A13A0065.
• Parties: PULTE HOME v. SIMERLY, et al.
• Court: Georgia Court of Appeals

322 Ga.App. 699

746 S.E.2d 173

PULTE HOME

v.SIMERLY, et al.

No. A13A0065.

Court of Appeals of Georgia.

July 8, 2013.

Laura Ann Williams, Christopher Paul Galanek, Eric Peter Schroeder, Atlanta, for Pulte Home.

Michael Paul Carvalho, Marietta, Donald D.J. Stack, Martin Arthur Shelton, Simon Howard Bloom, Atlanta, for Simerly, et al.

MILLER, Judge.

Tim and Adele Simerly and Richard and Susan Trent sued Pulte Home Corporation (“Pulte”), raising claims of 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 Trents' properties. Pulte filed third-party complaints against Sally and Dwayne Lawson and Ruth Benefield (collectively, the “Lawsons”), alleging that a bridge on the Lawsons' property was the cause of damage to the properties owned by the Simerlys and Trents. The Lawsons filed counter-claims against Pulte that were similar to the claims asserted by the Simerlys and Trents. The suits were consolidated and proceeded to a jury trial, where 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. Pulte filed a motion for new trial following the entry of judgment, which the trial court denied. Pulte appeals, contending that the trial court erred in (1) denying Pulte's motion in limine to preclude Plaintiffs' counsel from testifying at trial; (2) failing to enforce the Georgia Rules of Professional Conduct requiring counsel to elicit only truthful evidence and failing to give a requested curative instruction following the presentation of false testimony; and (3) denying Pulte's motion in limine to preclude Plaintiffs from referencing Pulte's violations of the Clean Water Act (“CWA”) and state statutes implementing the CWA. For the reasons that follow, we affirm.

Construed in favor of the verdict,¹ the evidence shows that in January 2004, Pulte purchased property in Forsyth County to develop single-family residences for what would become the Notting Hill and Fieldstone subdivisions (“Pulte Development”). The Pulte Development discharged water into Harris Creek and was located upstream of the Plaintiffs' properties. Pulte had purchased the property from Macauley Properties, which previously hired Lowe Engineering to complete a hydrology and storm water management study (“Lowe Study”). The Lowe Study was completed in January 2004, and Pulte relied upon the study to design and construct the Pulte 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. The weir on Harris was constructed by Macauley Properties.

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 Plaintiffs' 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 Plaintiffs' 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.

[322 Ga.App. 701]1. Pulte contends that the trial court erred in denying its motion in limine to preclude the Simerlys' counsel from testifying at trial as to what occurred during a May 2009 document review. We disagree.

“In reviewing the denial of a motion in limine, this Court must construe the evidence most favorably to the upholding of the trial court's findings and judgment, and we cannot reverse a trial court's ruling absent an abuse of discretion.” (Citations omitted.) Hood v. State, 291 Ga.App. 881, 882, 663 S.E.2d 297 (2008). “A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” (Punctuation and footnote omitted.) Hankla v. Jackson, 305 Ga.App. 391, 392(1), 699 S.E.2d 610 (2010).

During litigation, the trial court found that Pulte had engaged in spoilation 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 spoilated 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 spoilation 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.

About two weeks prior to trial, Pulte filed the instant motion in limine seeking to preclude the Plaintiffs from mentioning what transpired during the May 2009 document review. Pulte argued that any evidence with respect to the May 2009 document review would rely either on Carvalho's testimony, which was improper under Rule 3.7(a) of the Rules of Professional Conduct, or the trial court's order, which would amount to an impermissible comment on the evidence. The trial court denied Pulte's motion in limine and allowed Carvalho to testify about spoilation during the May 2009 document review, finding that forcing him to withdraw at the late stage of the proceedings would cause a substantial hardship to the Simerlys and would allow Pulte to benefit from its discovery violations.

Under these circumstances, we cannot say that the trial court abused its discretion in denying Pulte's motion in limine. Notably, while Rule 3.7(a) of the Rules of Professional Conduct of Georgia provides that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness,”Rule 3.7(a) specifically provides an exception where the testimony relates to the nature and value of legal services rendered in the case. Georgia Rules of Professional Conduct 3.7(a)(2). In this case, the Plaintiffs sought expenses of litigation and attorney fees under OCGA § 13–6–11 for stubborn litigiousness and unnecessary trouble and delay, and they argued that Carvalho's testimony regarding spoilation was relevant to this issue. At trial, the Plaintiffs elicited Carvalho's testimony about the May 2009 document review while he testified about the expenses of litigation and his attorney fees. If the documents removed by Pulte would show its liability, then the Plaintiffs were forced to undergo unnecessary trouble and expense to prosecute their claims in this case, and the evidence was properly admitted as it related to the issue of attorney fees. See Kroger Co. v. Walters, 319 Ga.App. 52, 57–58(2)(a)(i), 735 S.E.2d 99 (2012) (affirming denial of motion in limine seeking to exclude evidence of spoilation because such evidence was relevant in jury's determination of whether plaintiff was entitled to attorney fees under OCGA § 13–6–11); see also Citadel Corp. v. All–South Subcontractors, 217 Ga.App. 736, 737(1), 458 S.E.2d 711 (1995) (an award of attorney fees is unauthorized if a plaintiff fails to prove the actual costs of attorneys and the reasonableness of those costs).

Moreover, while Pulte's motion in limine did not specifically seek to disqualify Carvalho as counsel for the Simerlys, Rule 3.7(a) also allows an attorney to testify at a trial where his disqualification would work substantial hardship on the client. Georgia Rules of Professional Conduct 3.7(a)(3). Carvalho represented the Simerlys from the outset of the dispute with Pulte and was involved in the case for more than three years before it went to trial. Based on Carvalho's substantial participation in the case, along with the fact that Pulte filed its motion in limine only weeks prior to trial, we cannot say that the trial court erred in concluding that disqualifying Carvalho would have worked a substantial hardship to the Simerlys. See Schaff v. State, 304 Ga.App. 638, 640, 697 S.E.2d 305 (2010) (the curtailment of an individual's right to counsel of choice is to be approached with great caution, and the trial court is vested with the discretion to determine whether to disqualify counsel...