San Tan Valley woman loses 'fissure' appeal

Just because real estate agents might have known about land fissures - a problem in some new developments - isn't enough for the buyer of the property to sue, the Arizona Court of Appeals has ruled.

The judges threw out a claim filed by Joan Etzenhouser against the agents who represented both her and the sellers in a deal to buy some land in Pinal County. They said she presented so little evidence in her allegations that they did not even merit giving her a trial.

Etzenhouser bought the property in San Tan Valley near Queen Creek in 2004, choosing Jonna Baker, a broker with GJB Properties as her agent. The sellers were represented by John Richins with R & M Realty Co.

Following a rainstorm 18 months later, three fissures opened up on the property. Those fissures, she alleged, continued to expand and caused cracking in the floors, walls and ceiling of the house located on the property.

She subsequently sued.

The defendants claimed they had "no actual knowledge" that the property or the surrounding area was subject to earth fissures.

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That defense was designed to mirror a state law which mandated the mapping of fissures and granting immunity to anyone who didn't actually know about fissures before a map was posted with the state Department of Real Estate.

In response, Etzenhouser submitted an affidavit from a hydrologist who said the property "may have been known to be in or near an area of earth fissure hazards as early as 1962." He based that conclusion on maps published by the Arizona Geological Survey and the Federal Geological Survey, public presentations to both the Town Council and local planning and zoning commission, as well as radio and TV reports.

Etzenhouser also provided an affidavit from a real estate broker that it would have been "reasonably expected" that anyone dealing in land sales in the Queen Creek area would have knowledge of the fissures.

Finally, she said the Department of Real Estate had issued two bulletins about fissures which she alleged had been "disseminated to all licensed realtors in Arizona."

But Pinal County Superior Court Judge William O'Neil threw out the case, citing that immunity law. Etzenhouser appealed, saying there were "genuine issues of material fact" that remained about the defendants' knowledge - issues she was entitled to present to a jury.

Appellate Judge Garye Vasquez acknowledged that, except in cases where there is a confession, it is virtually impossible to prove someone had actual knowledge of a particular fact. He said that knowledge can be shown, though, by circumstantial evidence.

Vasquez said, though, there was nothing in Etzenhouser's allegations that even rose to that level, such as evidence they had observed structural problems that could be related to fissures.

Beyond that, the judge said Etzenhouser couldn't even prove that the defendants had seen any signs warning of fissures or any specific maps or reports. Instead, he said, she argued that they had "undoubtedly received some of this information."

He said even if the agents had received the Department of Real Estate bulletins, one issued in 1999 and the other in 2003, "there is no evidence the defendants personally received them or ever read the articles in question which dealt with a variety of 'adverse land conditions' and 'geologic hazards.'"

"When a statute requires proof of actual knowledge, a mere showing that the defendants reasonably should have known is insufficient," the judge wrote.

Arizona Geological Survey fissure maps