Homeowner Sues Over Cavernous Fissures

A Pinal County homeowner, whose property is riddled with fissures, has filed a lawsuit in hopes of recovering damages to repair her cracked house.

Joan Etzenhouser's suit could be the first of many.

Etzenhouser purchased the property near the Santan Mountains in February 2004 for $230,000. But nearly three years later, she fears the value of her home has plummeted thanks to a trio of fissure cracks that have shattered her land, cracked floor tiles and separated walls and ceilings.

"My holes are getting deeper and wider," Etzenhouser said. "They've like doubled in size."

Earth fissures, or subsidence cracks, have been a problem in Arizona for decades, but they have become more prevalent as growth has pushed toward the agricultural fringes of the Valley, particularly into Pinal County and parts of the west Valley near the White Tank Mountains. The cracks often open when exposed to water, and can cause substantial structural damage.

Etzenhouser noticed the cracks shortly after she moved into the house. She believes the people who sold her the home knew about the cracks and did not disclose them, as they were legally obligated to do.

"I just think somebody outta get smacked real hard because they know better," she said.

Bradley P. Burke and Patti J. Bailey, the former owners of the property, along with John S. Richins, the seller's realtor, Jonna Baker, Etzenhouser's realtor, and R&M Realty Co. LLC are all named as defendants in Etzenhouser's civil suit filed in Pinal County Superior Court. She is claiming that they participated in breach of contract, fraud, fraudulent concealment, negligent misrepresentation and negligence.

The suit alleges the sellers lied about known defects on the property, and that Richins and R&M Realty "knew or should have known" that the property contained fissures or "was likely to develop fissures."

The suit states that fissures in the area have long been documented.

David Sandoval, an attorney with Carmichael & Powell who is representing Etzenhouser, said that to his knowledge this is the first Arizona lawsuit involving a homeowner seeking compensation for damages caused by a fissure that was not disclosed. In years past, homeowners have sued their builder or developers because of soil settlement problems and construction defects.

Sandoval said the amount of financial damages Etzenhouser is seeking won't be determined until trial. Experts will determine the severity of the fissures on her property, if they can be repaired and if not, what the financial impact of those fissures is and how they have affected the value of Etzenhouser's home.

No legal response to the suit has yet been filed by any of the defendants.

Robert Kline, owner of R&M Realty, which operates as ReMax 2000, deferred comment on the case to his attorney. But, Kline did say agents need to rely on statements by the seller, which he said didn't indicate any fissures were on the property. He also said the agency advised Etzenhouser to get an inspection done on the property before the purchase, which he said she waived.

"Some people don't take our advice," Kline said.

Fissures became the focus of attention late last year after heavy monsoon rains opened a massive crack south of Queen Creek that left several homeowners with crumbling driveways and cavernous property.

As a result, the state legislature approved funding for the Arizona Geological Survey earlier this year to update maps of fissures and make them available online for public use. In addition, the Arizona Department of Real Estate changed its subdivision reports to include a separate section for fissure disclosure. Previously, fissure disclosure was included in a soil report and not singled out.

Sandoval said Etzenhouser's case may not be the last. He said he has spoken with at least four other homeowners in the area who are also considering filing suit.

"It's certainly not isolated," Sandoval said. "I'm sure there are a lot of other attorneys, that once they hear about this case, will watch it."

The Arizona Department of Real Estate is also processing a complaint from a Queen Creek-area homeowner.

Mary Utley, a spokesperson for the Department of Real Estate, said the complaint is in the negotiation period where fines against the realtor and/or a realty agency are being determined. Utley said she could not elaborate on the nature of the complaint, and would not know any more about the outcome until the negotiation period is complete.