                      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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                   BRYAN FITZ, et al., Plaintiffs/Appellants,

                                         v.

             COLTON GROUP LLC, et al., Defendants/Appellees.

                              No. 1 CA-CV 19-0259
                                FILED 2-13-2020


            Appeal from the Superior Court in Maricopa County
                           No. CV2016-016498
                The Honorable Sherry K. Stephens, Judge

                                    AFFIRMED


                                    COUNSEL

Mick Levin, PLC, Phoenix
By Mick Levin
Counsel for Plaintiffs/Appellants

Renaud Cook Drury Mesaros, PA, Phoenix
By Steven G. Mesaros, Kelly A. Hedberg
Co-Counsel for Defendants/Appellees

Springel & Fink, LLP, Phoenix
By Leonard T. Fink, Thomas G. Levine
Co-Counsel for Defendants/Appellees
                  FITZ, et al. v. COLTON GROUP, et al.
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.


J O H N S E N, Judge:

¶1           Plaintiffs Bryan Fitz ("Fitz") and Sage Fitz appeal the superior
court's order granting summary judgment to defendant Colton Group,
LLC. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             On December 16, 2012, Fitz sustained serious injuries in a
traffic accident caused by Jeffrey Barnes, who was driving while
intoxicated. Within three weeks after the accident, Fitz retained attorney
Richard Gaxiola to pursue his personal-injury claims. Although Gaxiola
assisted Fitz in recovering insurance proceeds, he did not look into where
Barnes had been drinking, and he ultimately filed no suit against Barnes or
any other individual or entity. Gaxiola had litigated prior dram-shop cases,
but had no discussion with Fitz about pursuing such a claim on his behalf.

¶3            Barnes was charged criminally in the crash and pled guilty in
2016. At Barnes's sentencing, Fitz asked the prosecutor where Barnes had
been drinking the day of the crash. On May 10, 2016, Fitz received an email
from the prosecutor's office stating that Barnes had been drinking at a
restaurant called Cocomo Joe's.

¶4            On December 14, 2016 – almost four years after the crash –
Fitz sued Colton Group, doing business as Cocomo Joe's, alleging statutory
and common-law dram-shop claims.1 After discovery addressing the
timeliness of the suit, Colton Group moved for summary judgment,
arguing that the two-year statute of limitations barred Fitz's claims. Fitz
countered that his complaint was timely because his claim did not accrue
until he received the email from the prosecutor.

¶5          The superior court granted the motion and dismissed the
complaint. We have jurisdiction over the Fitzes' timely appeal pursuant to

1      Fitz also named Gaxiola as a defendant, alleging legal malpractice,
but later dismissed that claim.


                                     2
                   FITZ, et al. v. COLTON GROUP, et al.
                            Decision of the Court

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2020) and -2101(A)(1) (2020).2

                                DISCUSSION

¶6             We review de novo the grant of summary judgment, viewing
the facts "in the light most favorable" to the party against whom the
judgment was entered. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003).
When there is no genuine issue of material fact and "the moving party is
entitled to judgment as a matter of law," we will affirm a grant of summary
judgment. Ariz. R. Civ. P. 56(a); accord Thompson v. Pima County, 226 Ariz.
42, 44, ¶ 5 (App. 2010).

¶7             The statute of limitations on a dram-shop claim is two years.
A.R.S. § 12-542 (2020); Andrews ex rel. Woodard v. Eddie's Place, Inc., 199 Ariz.
240, 241, ¶ 2 (App. 2000). When an injury or the act causing an injury is
difficult to detect, the discovery rule can toll the statute of limitations. See
Gust, Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 588,
590 (1995). Under that rule, "a cause of action does not 'accrue' until a
plaintiff discovers or by the exercise of reasonable diligence should have
discovered" the identity of the particular entity that caused the harm.
Lawhon v. L.B.J. Institutional Supply, Inc., 159 Ariz. 179, 181, 183 (App. 1988)
(citation omitted).

¶8             "The rationale behind the discovery rule is that it is unjust to
deprive a plaintiff of a cause of action before the plaintiff has a reasonable
basis for believing that a claim exists." Gust, 182 Ariz. at 589. Our supreme
court explained:

       A common thread seems to run through all the types of
       actions where courts have applied the discovery rule. The
       injury or the act causing the injury, or both, have been difficult
       for the plaintiff to detect. . . . Thus, there is an underlying
       notion that plaintiffs should not suffer where circumstances
       prevent them from knowing they have been harmed.

Id. (quoting April Enters. v. KTTV, 195 Cal. Rptr. 421, 436 (App. 1983)).
When a plaintiff knows he has been harmed, however, the law imposes on
him the duty to investigate fault and "whether any basis exists for legal
action." Walk v. Ring, 202 Ariz. 310, 314, 316-17, ¶¶ 16, 25 (2002).


2      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


                                       3
                   FITZ, et al. v. COLTON GROUP, et al.
                            Decision of the Court

¶9             Fitz argues that the statute of limitations did not begin to run
on his dram-shop claim until he discovered in May 2016 that Barnes had
been drinking at Cocomo Joe's. Having incurred serious injuries in the
traffic accident, however, he was obligated to investigate the cause of those
injuries, including the identity of any responsible party. Id. at 316-17, ¶ 25.

¶10            Fitz argues no evidence in the record establishes he could
have learned of Colton Group's identity any earlier than he did. He argues
that, under these circumstances, a jury should decide whether he should
have known to investigate where Barnes had been drinking and whether
the statute of limitations was tolled.

¶11           Fitz's argument disregards that it was his burden under the
discovery rule to show he acted diligently. Under that rule, in response to
Colton Group's motion for summary judgment, Fitz needed to show that,
in the exercise of reasonable diligence, he was unable to discover Colton
Group's identity within the limitations period. See, e.g., Doe v. Roe, 191 Ariz.
313, 323, ¶¶ 32-33 (1998).

¶12           Fitz, however, made no showing that he acted with
reasonable diligence in ascertaining facts to support a claim against any
establishment at which Barnes was drinking before the crash. In fact, Fitz
and his attorney did not investigate any possible cause of action against a
potential dram-shop defendant before the statute of limitations expired.

¶13           Fitz's lawyer testified he knew that Barnes was cited after the
crash for driving while under the influence. Before the statute of limitations
expired, Fitz could have asked Barnes where he had been drinking. Fitz
argues that Barnes would not have cooperated, given the pending criminal
charges against him. But if he had been reasonably diligent, Fitz could have
interviewed witnesses to Barnes's conduct the day of the crash or sued
Barnes, then subpoenaed his bank, vehicle-navigation, cell-phone, or credit-
card records to determine whether Barnes had been drinking at a
commercial establishment. He could have asked the prosecutor years
before he did about what the criminal investigation of Barnes disclosed; he
could have subpoenaed the case file from the prosecutor's office. Because
Fitz offered no explanation on summary judgment to explain his failure to
timely investigate, there is no triable issue of fact to submit to the jury on
the question of his diligence.

¶14            Viewing the reasonable inferences in the light most favorable
to Fitz, the superior court properly granted summary judgment to Colton
Group. See Walk, 202 Ariz. at 316, ¶ 23.



                                       4
                  FITZ, et al. v. COLTON GROUP, et al.
                           Decision of the Court

                              CONCLUSION

¶15          For the reasons stated above, we affirm. Because of the
manner in which we resolve the appeal, we need not address Fitz's
argument concerning the naming of fictitious entities. We award Colton
Group its costs on appeal, subject to compliance with Arizona Rule of Civil
Appellate Procedure 21.




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




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