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Firm found at fault in erosion case
Judge gives 90 days to repair damages
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Forsyth County News

A Forsyth County Superior Court judge has given a Michigan-based builder 90 days to remedy damage caused by runoff to property downstream from its development projects.

The order Thursday from Judge Jeffrey S. Bagley is the latest development in an environmental lawsuit expected to cost Pulte Home Company more than $2 million for damage to the property of three west Forsyth families.

Earlier this month, a Superior Court jury awarded $2.5 million against Pulte for claims of negligence, common law nuisance and trespass in a trial that spanned some three weeks.

The amount covers compensatory damages, attorney fees, litigation costs and punitive damages for three families who own property on Ryan’s Bluff Drive, downstream from where Pulte had been developing the Fieldstone and Notting Hill subdivisions.

The jury found that Pulte acted with specific intent to cause harm to the families.

Valerie Dolenga, Pulte spokeswoman, said the company plans to appeal the jury’s decision.

"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 stormwater from our development," Dolenga said. "We look forward to reaching a fair conclusion to this matter."

The case included allegations that Pulte repeatedly violated the Georgia Erosion and Sedimentation Act and Georgia Water Quality Control Act.

The jury decision stems from a complaint filed in 2009 by Tim and Adele Simerly. The couple contended that Pulte’s development of the subdivisions was causing damage to their property.

The couple further maintained the developer failed to comply with best management practices and discharged sediment-laden stormwater to their property and pond.

Marietta attorney Michael Carvalho, who represented the Simerlys in the case, said he and his clients are pleased with the outcome and felt they had a fair trial.

He said the amount was the largest awarded in an erosion and sedimentation case in Georgia.

"What’s significant about this case is that Pulte’s own consultants told Pulte over 13,000 times — 13,532 times, by my count — that they were not in compliance with their permits," Carvalho said.

"And over 1,000 times they didn’t repair those issues within seven days, which is a violation of their general permits."

Carvalho said Pulte dumped 8,500 cubic yards, or 850 dump trucks full, of sediment into a pond belonging to the Simerlys’ neighbors, Dwayne and Sally Lawson and Ruth Bennefield.

He said the Simerlys’ quarter-acre pond was filled in with sediment, which resulted in the destruction of a bridge at the site.

He noted that in June, the families were awarded about $406,000 in attorney’s fees after hearings determined that Pulte had destroyed evidence and the company’s lawyers had removed some of it from a room where it had been kept.

Pulte denied many of the allegations the Simerlys made against it and claimed that the Lawsons, Bennefield and others were also partially responsible.

Court documents show Pulte contended the Lawsons and Bennefield had agreed to remediate silt and sedimentation problems on their property as part of a 2008 settlement.

The jury found in favor of Bennefield and the Lawsons in their counterclaim against Pulte for breach of contract.

In addition, Richard and Susan Trent, who had sold one of their lots on Ryan’s Bluff Drive to Bennefield, Sally Lawson’s mother, joined in the Simerlys’ suit against Pulte.

Because of increased stormwater resulting from Pulte’s operations, the banks of a creek on the Trents’ property have eroded, Carvalho said.