                                                                        FILED BY CLERK
                                                                            SEP 30 2010
                                                                             COURT OF APPEALS
                               IN THE COURT OF APPEALS                         DIVISION TWO
                                   STATE OF ARIZONA
                                     DIVISION TWO


JOHNNIE LITTLE, for herself as                 )
natural mother of SHAWNTINICE                  )    2 CA-CV 2010-0079
POLK, who was born March 27, 1983,             )    DEPARTMENT A
and died September 26, 2005, and on            )
behalf of all A.R.S. § 12-611, et seq.         )    OPINION
beneficiaries, if any,                         )
                                               )
                        Plaintiff/Appellant,   )
                                               )
                   v.                          )
                                               )
STATE OF ARIZONA,                              )
                                               )
                   Defendant/Appellee.         )
                                               )

           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                    Cause No. C20085379

                                Honorable Kenneth Lee, Judge

                                         AFFIRMED


Stompoly & Stroud
 By John G. Stompoly                                                                Tucson
                                                          Attorneys for Plaintiff/Appellant

Terry Goddard, Arizona Attorney General
 By Catherine M. Stewart                                                        Tucson
 and Daniel P. Schaack                                                         Phoenix
                                                       Attorneys for Defendant/Appellee
E S P I N O S A, Judge.

¶1            Johnnie Little appeals from the trial court‟s grant of summary judgment in

favor of the state and its denial of her cross-motion for summary judgment in this medical

malpractice action for the wrongful death of Little‟s daughter, Shawntinice Polk. For all

of the reasons set forth below, we affirm.

                          Factual and Procedural Background

¶2            “On appeal from a summary judgment, we view the facts in the light most

favorable to the party against whom judgment was entered and draw all justifiable

inferences in [her] favor.” Modular Mining Sys., Inc. v. Jigsaw Techs., Inc., 221 Ariz.

515, ¶ 2, 212 P.3d 853, 855 (App. 2009). Polk, a member of the University of Arizona‟s

women‟s basketball team, died after collapsing in a training room on September 26,

2005.   The cause of death was a pulmonary thromboembolism due to deep-vein

thrombosis. For over a year before her death, Polk had received primary medical care

from Dr. Donald Porter at the University of Arizona‟s Campus Health Service.

¶3            When Little came to Tucson from her home in California for Polk‟s

memorial service, she was approached by Len Johnson, a local television reporter, who

was planning to make a documentary film about Polk‟s death. Little authorized Johnson

to obtain Polk‟s medical records and investigate the circumstances surrounding her




                                             2
death.1 After obtaining those records, Johnson consulted with four different physicians

regarding Polk‟s symptoms and the medical care she had received.

¶4           On July 1, 2007, Johnson filed on Little‟s behalf a complaint against

Dr. Porter with the Arizona Medical Board (the Board),2 asserting that Porter had been

medically negligent in his care of Polk. The complaint stated it was “authorized and

urged by Polk‟s mother, Johnnie Little”; that Little was working with Johnson; and that

Johnson was “writing in conjunction with and on behalf of the mother.” The complaint

set forth a number of the symptoms Polk exhibited before her death and asserted, “We

have concluded that while clots are not easily detected, the warning signs and symptoms

in this case [we]re too numerous and obvious to ignore and that Dr. Donald Porter fell

below the standard of care when treating this patient.” Little authorized Johnson to

prepare and file the complaint as well as to appear and testify at the ensuing Board

hearing.3




      1
        Later, in January 2008, after much of the investigation had been completed, Little
and Johnson entered into an agreement for Johnson to receive ten percent of any
settlement Little might receive in connection with Polk‟s death.
      2
        The Board, previously known as the Arizona State Board of Medical Examiners,
is the state agency that licenses and regulates physicians in Arizona. Murphy v. Bd. of
Med. Examiners, 190 Ariz. 441, 446, 949 P.2d 530, 535 (App. 1997).
      3
        The complaint also contained allegations that others had committed misconduct
and contributed to Polk‟s death, including an allegation that University of Arizona
basketball personnel and another physician had delayed life-saving treatment on the
morning of her death. But, because the Board required the complaint to be filed against a
single party, Johnson primarily directed the complaint at Dr. Porter.

                                            3
¶5            On February 7, 2008, the Board ruled that Porter‟s care of Polk constituted

“unprofessional conduct” in violation of A.R.S. § 32-1401(27)(q). It issued a letter of

reprimand for Porter‟s having failed to consider and pursue a diagnosis of pulmonary

embolus, to perform an adequate examination, and to measure vital signs. On May 15,

2008, Little filed a notice of claim with the state pursuant to A.R.S. § 12-821.01. In

recognition of the 180-day time limit for filing such claims, see § 12-821.01(A), Little

asserted her claim had not accrued until the date of the Board‟s February 7, 2008,

decision. She alternatively claimed the time limit should be equitably tolled.

¶6            The state moved for summary judgment based on the untimeliness of

Little‟s notice of claim. The trial court granted the motion, ruling that, because Johnson

was Little‟s authorized agent and Little specifically had approved his filing the Board

complaint on July 1, 2007, her May 2008 notice of claim was untimely. The court also

denied Little‟s cross-motion for summary judgment, in which she had argued that her

notice of claim was timely because her cause of action did not accrue until the Board

issued its decision and, alternatively, that any untimeliness should be excused under the

doctrines of equitable estoppel and tolling. We have jurisdiction over Little‟s appeal

pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(B).

                                       Discussion




                                             4
¶7            Little argues the trial court erred in granting summary judgment in favor of

the state based on its finding that her notice of claim had been filed untimely.4 The entry

of summary judgment is appropriate “if the pleadings, deposition[s], answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Ariz. R. Civ. P. 56(c)(1). “In reviewing a motion for

summary judgment, we determine de novo whether any genuine issues of material fact

exist and whether the trial court properly applied the law.” Tierra Ranchos Homeowners

Ass’n v. Kitchukov, 216 Ariz. 195, ¶ 15, 165 P.3d 173, 177 (App. 2007).

Timeliness of Notice of Claim

¶8            Under A.R.S. § 12-821.01(A), a party wishing to assert a claim against a

public entity first must file a notice of claim within 180 days after the cause of action

accrues. Any claim not filed within this time limit is barred. Id.; see Falcon ex rel.

Sandoval v. Maricopa County, 213 Ariz. 525, ¶ 10, 144 P.3d 1254, 1256 (2006).

¶9            A cause of action accrues under § 12-821.01 “when the damaged party

realizes he or she has been damaged and knows or reasonably should know the cause,


       4
        Little also purports to preserve other issues raised below but not addressed on
appeal and “asks this Court to consider them as though set forth herein.” Our rules do not
permit either the preservation or raising of issues in this manner; instead, any argument
not developed on appeal is deemed waived. See Ariz. R. Civ. App. P. 13(a)(6) (“An
argument . . . shall contain the contentions of the appellant with respect to the issues
presented, and the reasons therefor, with citations to the authorities, statutes and parts of
the record relied on.”); Polanco v. Indus. Comm’n of Ariz., 214 Ariz. 489, n.2, 154 P.3d
391, 394 n.2 (App. 2007) (appellant‟s failure to develop and support argument waives
issue on appeal).
                                             5
source, act, event, instrumentality or condition which caused or contributed to the

damage.” § 12-821.01(B). The term “accrual” is construed in accordance with the

common law discovery rule, which “provides that a cause of action accrues when a

plaintiff discovers or reasonably should have discovered the injury was caused by the

defendant‟s negligent conduct.” Stulce v. Salt River Project Agric. Improvement &

Power Dist., 197 Ariz. 87, ¶ 10, 3 P.3d 1007, 1010 (App. 1999). The relevant inquiry is

when did a plaintiff‟s “„knowledge, understanding, and acceptance in the aggregate

provide[] sufficient facts to constitute a cause of action.‟” Walk v. Ring, 202 Ariz. 310,

¶ 23, 44 P.3d 990, 996 (2002), quoting Doe v. Roe, 191 Ariz. 313, ¶ 36, 955 P.2d 951,

962 (1998).

¶10           Here, we must determine whether the trial court correctly concluded that

Johnson‟s filing the Board complaint on Little‟s behalf marked the accrual of her claim

for purposes of § 12-821.01(B). Little argues a number of reasons why it did not,

contending she did not know the contents of the Board complaint, Johnson‟s opinion that

Dr. Porter was negligent cannot be imputed to her, and “the cause of action d[id] not

accrue until a medical expert t[old her] she was injured as a result of medical

negligence,” which she maintains did not occur until the Board issued its decision. She

further argues that the filing of the Board complaint could not cause the 180-day period

to accrue because, “when Johnson told [her] he filed the [Board] complaint, neither had

the slightest idea that Johnson‟s opinion about Dr. Porter‟s negligence could cause

Little‟s cause of action to accrue.”


                                            6
¶11           We find these arguments unavailing and agree with the trial court that

Little‟s cause of action accrued as a matter of law no later than the date the Board

complaint was filed. The Board is charged with investigating complaints filed against

physicians who may be “medically incompetent,” “guilty of unprofessional conduct,” or

“mentally or physically unable safely to engage in the practice of medicine,” A.R.S.

§ 32-1451(A), and its “primary duty is „to protect the public from unlawful, incompetent,

unqualified, impaired or unprofessional practitioners,‟” Murphy v. Bd. of Med.

Examiners, 190 Ariz. 441, 446-47, 949 P.2d 530, 535-36 (App. 1997), quoting A.R.S.

§ 32-1403(A).    When Little took the significant step of essentially alleging Porter‟s

malpractice to the Board, she not only initiated an investigation into Porter‟s treatment of

Polk but expressly identified the actors and events that “caused or contributed to [her]

damage.” § 12-821.01(B); see also Keonjian v. Olcott, 216 Ariz. 563, ¶¶ 15-16, 169 P.3d

927, 930 (App. 2007) (attorney malpractice cause of action accrued as matter of law

when plaintiff made sworn statements concerning attorney‟s mishandling of transaction).

¶12           By authorizing and knowing about the filing of the Board complaint against

Porter, even if she did not read its contents, Little demonstrated that, as of that time, her

“„knowledge, understanding, and acceptance in the aggregate provided sufficient facts to

constitute a cause of action.‟” Walk, 202 Ariz. 310, ¶ 23, 44 P.3d at 996, quoting Doe,

191 Ariz. 313, ¶ 36, 955 P.2d at 962. “A plaintiff need not know all the facts underlying

a cause of action to trigger accrual” but “must at least possess a minimum requisite of

knowledge sufficient to identify that a wrong occurred and caused injury.” Doe, 191


                                             7
Ariz. 313, ¶ 32, 955 P.2d at 961; see also Stulce, 197 Ariz. 87, ¶ 10, 3 P.3d at 1010 (“[A]

cause of action accrues when a plaintiff discovers or reasonably should have discovered

the injury was caused by the defendant‟s negligent conduct.”); Floyd v. Donahue, 186

Ariz. 409, 412, 923 P.2d 875, 878 (App. 1996) (cause of action accrued as matter of law

when plaintiff began treatment at sexual abuse center, showing she “had reason to know

her father‟s abuse [had] caused her injury”).

¶13           Here, although Little contends she was unaware of Porter‟s negligence until

the Board had ruled on her complaint against him, her Board complaint detailed Polk‟s

symptoms and warning signs as well as Porter‟s allegedly inadequate treatment. The

complaint also alleged that other state actors had contributed substantially to Polk‟s

death.5 Thus, we reject Little‟s argument that her cause of action did not accrue until she

had received an “expert medical opinion of malpractice.” At oral argument, Little‟s

counsel asserted that Walk was the primary case supporting her theory, but in fact Walk

undercuts her assertion. Walk explains that “the core question” as to when a cause of

action accrues is when a “reasonable person would have been on notice” to investigate

whether negligent conduct may have caused her injury; it does not provide or suggest that

a plaintiff first must receive an expert medical opinion stating that malpractice has

occurred, which is the litmus test Little proposes. 202 Ariz. 310, ¶ 24, 44 P.3d at 996.

       5
        Although the Board complaint, notice of claim, and civil complaint all allege that
other university employees also had contributed to Polk‟s death, because Little now
contends that her cause of action did not accrue until the Board reprimanded Dr. Porter,
we conclude she has waived any argument that her notice was timely as to any of those
individuals.

                                                8
Here, consistent with Walk, by the time Johnson had filed the Board complaint, Little,

through Johnson, already had commenced an investigation into whether Porter had been

negligent, including consulting with four different physicians, and then submitted

detailed findings and conclusions in the Board complaint. We therefore conclude the trial

court correctly found Little‟s notice of claim untimely and her claim barred by § 12-

821.01.6

¶14           Furthermore, despite her arguments to the contrary, because Johnson had

been acting as Little‟s agent, his filing of the complaint is imputed to her.            The

undisputed facts demonstrate Little knew of and specifically authorized Johnson to file

the Board complaint; therefore, he was acting as Little‟s agent when he did so on her

behalf. See Gulf Ins. Co. v. Grisham, 126 Ariz. 123, 126, 613 P.2d 283, 286 (1980)

(express agency created when principal delegates authority to agent to perform certain

act); see also Ruesga v. Kindred Nursing Ctrs. W., L.L.C., 215 Ariz. 589, ¶ 21, 161 P.3d

1253, 1259 (App. 2007) (agency relationship may be determined as matter of law when

relevant material facts not in dispute).

¶15           Because “an agent‟s acts bind the agent‟s principal,” Queiroz v. Harvey,

220 Ariz. 273, ¶ 8, 205 P.3d 1120, 1122 (2009), “when an agent acts . . . it is as if the

principal herself has acted,” Barlage v. Valentine, 210 Ariz. 270, ¶ 16, 110 P.3d 371, 376

(App. 2005). Thus, Little herself effectively filed the Board complaint alleging Dr.

       6
        Although determinations of when discovery occurs and a cause of action accrues
are often jury questions, see Walk, 202 Ariz. 310, ¶ 23, 44 P.3d at 996, we conclude for
the reasons stated above that the trial court correctly decided the issues here as a matter of
law.
                                              9
Porter “fell below the standard of care when treating” Polk. And, contrary to Little‟s

assertion, whether either Johnson or Little realized the potential legal implications of

filing the Board complaint is immaterial. See, e.g., Barlage, 210 Ariz. 270, ¶¶ 12-17, 110

P.3d at 375-76 (service of process by mail legally binding on principal under agency

theory because principal had authorized UPS store to accept certified mail for her; lack of

explicit authorization to accept service of process did not change result); see also Simon

v. Maricopa Med. Ctr., 225 Ariz. 55, ¶ 27, 234 P.3d 623, 630 (App. 2010) (rejecting

vagueness challenge to § 12-821.01 claiming persons “of ordinary intelligence” do not

know what statute requires). Accordingly, we could affirm the trial court‟s grant of

summary judgment on this basis as well.7

Equitable Estoppel and Tolling

¶16           Little next contends that, even if her notice of claim was untimely, the trial

court erred by denying her cross-motion for summary judgment because the court

“should . . . have found [that] the State was equitably estopped from raising the timeliness

defense or that A.R.S. § 12-821.01[(A)] was equitably tolled by the conduct of Little‟s

attorneys.” “The notice of claim statute is „subject to . . . estoppel and equitable tolling.‟”

Jones v. Cochise County, 218 Ariz. 372, ¶ 22, 187 P.3d 97, 104 (App. 2008), quoting

Pritchard v. State, 163 Ariz. 427, 432, 788 P.2d 1178, 1183 (1990). Because both are



       7
       Because we affirm the trial court‟s judgment based on the filing date of the Board
complaint, we need not reach the state‟s alternative argument that Little‟s claim accrued
on September 13, 2007, the date her second attorney wrote to her about the case.

                                              10
equitable doctrines, the trial court acts as the fact-finder and determines if they should

apply. See McCloud v. State, 217 Ariz. 82, ¶ 9, 170 P.3d 691, 695 (App. 2007).

¶17          In support of her estoppel argument, Little points to the fact that a state

insurance adjuster opened a file after Polk‟s death, implies the adjuster may have

prevented Porter from contacting Little, and suggests the adjuster attempted to delay

Little‟s and Johnson‟s receipt of Polk‟s medical records. These assertions, however, are

not only speculative but do not demonstrate the trial court erred. The undisputed facts

show that any delay in obtaining Polk‟s medical records had been substantially remedied

by the time Johnson filed the Board complaint and thus was irrelevant to Little‟s

subsequent delay in filing her notice of claim. And Little has failed to explain how a

state adjuster‟s opening a file or allegedly preventing Porter from contacting her should

estop the state from relying on the notice-of-claim statute, especially when the court did

not deem her claim to have accrued until almost two years after Polk‟s death when

Johnson filed the Board complaint on Little‟s behalf. Furthermore, the cases on which

she relies are distinguishable and do not compel a contrary result. See Jones, 218 Ariz.

372, ¶¶ 27-29, 187 P.3d at 105-06 (county waived affirmative defense based on notice-

of-claim statute by actively engaging in discovery on merits); McCloud, 217 Ariz. 82,

¶¶ 17-19, 170 P.3d at 697-98 (affirming trial court‟s decision not to apply equitable

tolling based on attorney‟s illness and family circumstances). Accordingly, we cannot




                                           11
conclude the court erred in refusing to find the state equitably estopped from asserting the

notice-of-claim statute as an affirmative defense.8

¶18           Little also argues the trial court should have equitably tolled the deadline

for filing her notice of claim because of her attorneys‟ actions. Two different attorneys

declined to represent Little after initially investigating her case, the first without

explanation and the second because he believed Little already had missed her filing

deadlines. Little claims the first attorney failed to obtain Dr. Porter‟s records and the

second attorney, despite receiving the records, “apparently did not have those records

reviewed by a medical expert” and also apparently failed to review the Board complaint

or talk to the physicians with whom Johnson had spoken.

¶19           Again, however, Little has failed to demonstrate that the trial court erred in

refusing to apply equitable tolling to her claim.        Equitable tolling applies only in


       8
         Citing Walk, Little also asserts that, “[i]f a doctor suspects his treatment may have
been negligent or even if he believes [it] was entirely proper, but knows that another
doctor thinks his treatment may have been below the standard of care,” the physician
“has a fiduciary duty to voluntarily tell the patient not only what he knows, but what he is
chargeable with knowing and his failure to do so will toll the statute of limitations.” She
then claims any such duty Porter may have owed Polk “was and should have been
equitably and equally owed to Little.” Because Little has not adequately developed this
argument, however, we do not consider it further. See City of Tucson v. Clear Channel
Outdoor, Inc., 218 Ariz. 172, ¶ 88, 181 P.3d 219, 242 (App. 2008) (appellate court will
not address issues or arguments waived by party‟s failure to develop them in briefs). In
any event, under Walk, any tolling would continue only as long as the plaintiff remained
unaware of the pertinent facts. 202 Ariz. 310, ¶¶ 35, 42-43, 44 P.3d at 999, 1001 (if
fraudulent concealment established, statute of limitations tolled until plaintiff has actual
knowledge of claim). As set forth above, because Little knew of and authorized the filing
of the Board complaint, which was essentially a malpractice allegation against Porter, she
cannot rely on any failure by Porter to affirmatively disclose his alleged negligence as
justifying her subsequent delay in filing her notice of claim.
                                             12
“extraordinary circumstances” and not to “„a garden variety claim of excusable neglect.‟”

McCloud, 217 Ariz. 82, ¶ 16, 170 P.3d at 697, quoting Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89, 96 (1990). Even assuming the first two attorneys Little consulted had acted

improperly, she has not explained how their actions created extraordinary circumstances

warranting the application of the doctrine. Cf. McCloud, 217 Ariz. 82, ¶ 19, 170 P.3d at

698 (explaining, in cases of attorney illness, “courts have only applied the doctrine of

equitable tolling where the attorney had suffered a significant incapacitating disability”).

¶20              Moreover, the cases on which Little relies are inapposite.      See United

Liquor Co. v. Stephenson, 84 Ariz. 1, 6-7, 322 P.2d 886, 889-90 (1958) (party bound by

settlement because she had authorized attorneys to settle and settlement not “grossly

unfair”); Zimmerman v. Shakman, 204 Ariz. 231, ¶ 23, 62 P.3d 976, 982 (App. 2003)

(court should not dismiss case for discovery violation without first determining whether

fault was attorney‟s or party‟s); Wayne Cook Enters., Inc., v. Fain Props. Ltd. P’ship, 196

Ariz. 146, ¶¶ 11-12, 993 P.2d 1110, 1112-13 (App. 1999) (error to dismiss lawsuit based

on discovery violation absent determination whether client or attorney at fault);

Montgomery Ward & Co. v. Superior Court, 176 Ariz. 619, 622-23, 863 P.2d 911, 914-

15 (App. 1993) (trial court must determine whether party personally at fault in discovery

process before striking answer). Accordingly, we affirm the trial court‟s decision on this

basis as well.

                                        Disposition




                                             13
¶21         For the reasons stated, we affirm the trial court‟s grant of summary

judgment in favor of the state and its denial of Little‟s cross-motion for summary

judgment.




                                        /s/ Philip G. Espinosa
                                        PHILIP G. ESPINOSA, Judge

CONCURRING:



/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Presiding Judge



/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge




                                       14
