                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
        UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
           PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


   LINDA SCORZO, an individual; and KAREN SUZANN GRABE, an
                 individual, Plaintiffs/Appellants,

                                        v.

 ARIZONA MEDICAL BOARD, STATE OF ARIZONA, an Arizona State
                Agency, Defendant/Appellee.

                             No. 1 CA-CV 15-0730
                               FILED 1-26-2017


           Appeal from the Superior Court in Maricopa County
                          No. CV2014-054509
               The Honorable John R. Hannah, Jr., Judge

                                    AFFIRMED


                                    COUNSEL

DKL Law, PLLC, Scottsdale
By David W. Lunn
Counsel for Plaintiffs/Appellants

Arizona Attorney General’s Office, Phoenix
By Rachel M. Remes
Counsel for Defendant/Appellee
                     SCORZO et al. v. AZ MED/STATE
                          Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1           Linda Scorzo and Karen Suzann Grabe (collectively,
“Appellants”) appeal the trial court’s order dismissing their first amended
complaint against the State of Arizona (“the State”), based on the actions of
the Arizona Medical Board (“the Board”).1 For the following reasons, we
affirm.

                 FACTS AND PROCEDURAL HISTORY2

¶2            The Board is a statutorily created entity charged with
protecting the public “from unlawful, incompetent, unqualified, impaired
or unprofessional practitioners of allopathic medicine through licensure,
regulation and rehabilitation of the profession in this state.” Ariz. Rev. Stat.
(“A.R.S.”) § 32-1403(A) (Supp. 2016).3 Appellants were employed by the
Board; when their employment ended, Scorzo was a licensing investigative
coordinator and Grabe was a licensing office manager. In late fall 2011, the
Board implemented changes to certain procedures used to license medical
doctors. Appellants publicly questioned whether those changes violated
Arizona law relative to the licensing process. See generally A.R.S. §§ 32-




1      The Board is a non-jural entity that can neither sue nor be sued.
Consequently, Appellants brought suit against the State as the associated
jural entity.

2      We assume the truth of, and indulge all reasonable inferences from,
the well-pled factual allegations. Cullen v. Auto-Owners Ins. Co., 218 Ariz.
417, 419, ¶ 7, 189 P.3d 344, 346 (2008).

3     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.




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                     SCORZO et al. v. AZ MED/STATE
                          Decision of the Court

1403(A) (Supp. 2016), -1403.01 (2016). Their employment was terminated
shortly thereafter.4

¶3            In January 2012, Scorzo filed a complaint with the Arizona
Ombudsman Citizens’ Aide (“AZOCA”), alleging the Board’s medical
licensing procedures violated Arizona law. AZOCA issued its report in
July 2012, essentially concluding the Board’s procedures were lawful.
Scorzo confirmed with AZOCA that its findings were complete and there
were no issues with the Board’s licensing practices; she also reached out to
the Governor’s office and was told by an advisor that the Board did not
appear to be violating any licensing statutes or compromising patient
safety. In October 2013, however, AZOCA issued a report in response to a
separate inquiry; this time, AZOCA found some of the Board’s licensing
practices to be unlawful.

¶4            Appellants filed this suit in October 2014, alleging wrongful
termination pursuant to the Arizona Employment Protection Act
(“AEPA”).5 See A.R.S. § 23-1501(A)(3)(c) (2016). The State moved to
dismiss, arguing the claims were barred by the one-year statute of
limitations. See A.R.S. § 12-821 (2016) (stating all actions against any public
entity must be brought within one year after the cause of action accrues).6
The trial court agreed and granted the motion. The court entered a final
judgment, see Ariz. R. Civ. P. 54(c), and Appellants timely appealed. We
have jurisdiction pursuant to A.R.S. § 12-2101(A)(1) (2016).

                                  ANALYSIS

¶5             A motion to dismiss may be granted if the plaintiff is not
entitled to relief “under any facts susceptible of proof in the statement of
the claim.” ELM Ret. Ctr., LP v. Callaway, 226 Ariz. 287, 289, ¶ 5, 246 P.3d
938, 940 (App. 2010) (quoting Mohave Disposal, Inc. v. City of Kingman, 186
Ariz. 343, 346, 922 P.2d 308, 311 (1996)); see also Ariz. R. Civ. P. 12(b)(6). We


4     Grabe was terminated on October 20, 2011, and Scorzo was
terminated on November 2, 2011.

5      Grabe filed a notice of claim on November 19, 2013; on March 21,
2014, Scorzo filed a notice of claim and Grabe filed an amended notice of
claim. See A.R.S. § 12-821.01 (2016).

6       See also A.R.S. § 12-541(4) (2016) (providing a claim seeking damages
for wrongful termination must be brought within one year after the cause
of action accrues).


                                       3
                     SCORZO et al. v. AZ MED/STATE
                          Decision of the Court

review de novo a trial court's decision to dismiss a complaint. Orca Commc’ns
Unlimited, LLC v. Noder, 236 Ariz. 180, 181, ¶ 6, 337 P.3d 545, 546 (2014). We
review de novo the application of a statute of limitations, Watkins v. Arpaio,
239 Ariz. 168, 170, ¶ 7, 367 P.3d 72, 74 (App. 2016), including the question
of accrual if it rests on a question of law rather than disputed facts. Cook v.
Town of Pinetop-Lakeside, 232 Ariz. 173, 175, ¶ 10, 303 P.3d 67, 69 (App. 2013);
Montano v. Browning, 202 Ariz. 544, 546, ¶ 4, 48 P.3d 494, 496 (App. 2002).
We may affirm if the dismissal was correct for any reason. Sw. Non-Profit
Hous. Corp. v. Nowak, 234 Ariz. 387, 391, ¶ 10, 322 P.3d 204, 208 (App. 2014).

       I.     Accrual

¶6           An action against a public entity or public employee must be
brought within one year after the cause of action accrues. A.R.S. § 12-821
(2016). Appellants argue that their claims did not accrue until October 2013
when they learned, by way of the AZOCA report, that the Board had
engaged in wrongful conduct.

¶7             A cause of action against a public entity or employee accrues
when the plaintiff “realizes he or she has been damaged and knows or
reasonably should know the cause, source, act, event, instrumentality or
condition which caused or contributed to the damage.” A.R.S. § 12-
821.01(B); see also Dube v. Likins, 216 Ariz. 406, 421-22, ¶¶ 2-4, 167 P.3d 93,
108-09 (App. 2007) (supp. op.) (applying the statutory standard in § 12-
821.01(B) to § 12-821). Accrual is based on the plaintiff’s knowledge of “the
facts which give rise to the cause of action, not . . . the legal significance of
such facts.” Ins. Co. of N. Am. v. Super. Ct., 162 Ariz. 499, 502, 784 P.2d 705,
708 (App. 1989), vacated on other grounds, 166 Ariz. 82, 800 P.2d 585 (1990).
Although accrual is often a question of fact, Doe v. Roe, 191 Ariz. 313, 323,
¶ 32, 955 P.2d 951, 961 (1998), it may be determined as a matter of law when
no genuine issue of material fact exists. Thompson v. Pima Cty., 226 Ariz. 42,
46-47, ¶ 14, 243 P.3d 1024, 1028-29 (App. 2010).

¶8             We analyze the elements of the underlying claim to determine
when a cause of action accrues. Glaze v. Larsen, 207 Ariz. 26, 29, ¶ 10, 83
P.3d 26, 29 (2004). The AEPA establishes specific categories of discharge
that give rise to a claim for wrongful termination. Harper v. State, 1 CA-CV
15-0519, 2016 WL 7438534, at *1, ¶ 9 (Ariz. App. Dec. 27, 2016). As relevant
here, the AEPA provides a discharged employee with a cause of action
against her employer for terminating the employee if she (1) had a good
faith, reasonable belief her employer violated or was violating state law and
(2) disclosed her belief in a reasonable manner to someone she believed had
the authority to investigate the alleged violation and take action to prevent


                                       4
                     SCORZO et al. v. AZ MED/STATE
                          Decision of the Court

further violations.7 See A.R.S. § 23–1501(A)(3)(c)(ii); Galati v. Am. W.
Airlines, Inc., 205 Ariz. 290, 292, ¶ 5, 69 P.3d 1011, 1013 (App. 2003). The
employee need not prove a violation actually occurred, merely that she
reasonably believed one did. Logan v. Forever Living Prods. Int'l, Inc., 203
Ariz. 191, 194, ¶ 15, 52 P.3d 760, 763 (2002) (citing Wagenseller v. Scottsdale
Mem'l Hosp., 147 Ariz. 370, 380, 710 P.2d 1025, 1035 (1985)); see also Murcott
v. Best W. Int'l, Inc., 198 Ariz. 349, 357, ¶ 41, 9 P.3d 1088, 1096 (App. 2000)
(citing Wagner v. City of Globe, 150 Ariz. 82, 722 P.2d 250 (1986) and
Wagenseller).

¶9             We conclude that Appellants’ claims accrued when the Board
terminated their employment in 2011. See Breeser v. Menta Grp., Inc., NFP,
934 F. Supp. 2d 1150, 1160 (D. Ariz. 2013) (granting summary judgment to
defendants on an AEPA claim filed more than one year after the plaintiff’s
employment was terminated). At that time, Appellants had sufficient facts
to establish that they reasonably believed the changes to the licensing
process violated state law, they made their concerns known, and believed
their “whistleblowing” motivated their termination. Appellants did not
“discover” any new facts in October 2013, and they simply misapprehend
the elements of the AEPA claim when they urge to the contrary.8 See Logan,
203 Ariz. at 194, ¶¶ 15-16, 52 P.3d at 763 (discussing subsection (3)(c)(viii));
Murcott, 198 Ariz. at 357, ¶ 41, 9 P.3d at 1096. Verification of the employer’s
wrongdoing is not required for accrual of a claim under subsection (3)(c)(ii).
Cf. Walters v. Maricopa Cty., 195 Ariz. 476, 481, ¶¶ 24-26, 990 P.2d 677, 682
(App. 1999) (holding that an unclassified employee need not exhaust her
administrative remedies under A.R.S. § 38-532 (2015) before maintaining an
action for wrongful discharge under § 23-1501(3)(c)(ii)).

       II.    Equitable Tolling

¶10           Appellants argue the trial court erred in failing to consider the
doctrine of equitable tolling. Appellants, however, do not clearly develop

7      Contrary to Appellants’ suggestion, the well-pled factual allegations
in the first amended complaint do not state a claim under § 23-
1501(A)(3)(c)(i) (refusal by an employee to commit a wrongful act). See
Ariz. R. Civ. P. 12(b)(6); Cullen, 218 Ariz. at 419, ¶ 7, 189 P.3d at 346.

8      Appellants’ reliance on Cummins v. Mold-In Graphic Sys., 200 Ariz.
335, 26 P.3d 518 (App. 2001) is misplaced. Cummins was ordered
depublished by our supreme court, 201 Ariz. 474, 38 P.3d 12 (2002), and we
do not consider it. See Ariz. R. Sup. Ct. 111(c)(1), (g).



                                       5
                    SCORZO et al. v. AZ MED/STATE
                         Decision of the Court

this argument and thus have waived it. See Polanco v. Indus. Comm’n of Ariz.,
214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 (App. 2007) (declining to
address the merits of an argument a party mentioned only in passing in his
opening brief).

                               CONCLUSION

¶11          For the foregoing reasons, we affirm. We award costs to the
State upon compliance with Arizona Rule of Civil Appellate Procedure 21.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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