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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

BRYAN FITZ, et al.
, Plaintiff s /Appellant s ,

v.

COLTON GROUP LLC, et al.
, Defendant s /Appellee s

.
No. 1 CA

- CV 19

- 0259

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 Plaintiff

s /Appellant s
Renaud Cook Drury Mesaros
, PA , Phoenix By Steven G. Mesaros, Kelly A. Hedberg Co

- C ounsel for Defendant s /Appellee s
Springel & Fink, LLP
, Phoenix By Leonard T. Fink, Thomas G. Levine Co

- Counsel for Defendants/Appellees FILED 2-13-2020FITZ, et al. v. COLTON GROUP, et al. Decision of the Court

2 MEMORANDUM DECISION
Judge Diane M. Johnsen delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge Randall M. Howe j oined.

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 a ttorney Richard Gaxiola to pur sue his personal

- injury claims. Alt hough 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 201 6

. At Barnes ' s sentencing , Fitz asked the prosecutor where Barnes had been drinking the day of the crash. On May 1 0 , 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 barr ed 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 Fitz e s' timely appeal pursuant to

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

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

3 Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (" A.R.S. ") section s 12

- 120.21 (A)(1) (2020) and

- 2101(A)(1) (202 0)

. 2

DISCUSSION
¶6 We review de novo the grant of summary judgment , viewing the facts " in the light most favorabl e " to the party against whom the judgment was entered

. Andrews v. Blake , 205 Ariz. 236, 240, ¶ 12 (2003). W hen there is no genuine issue of material fact and " the moving party is entitled to judgment as a matter of law, " w e will affirm a grant of summary judgment. Ariz. R. Civ. P. 56(a); accord Thompson v. Pima County , 226 Ar i z

. 42 , 44, ¶ 5 (App. 2010)

. ¶7 The st atute 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 ca n toll the statute of limitations. See Gust, Rosenfeld & Henderson v. Prud ential 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. Inst itutional Supply, Inc

. , 159 Ariz. 179, 181, 183 (App. 1988) (citation omitted)

. ¶8 "The rationale behind the discovery rule is that it is unjus t 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 a c t 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 pre v ent 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 , 31 6

- 1 7, ¶ ¶ 16, 25 (2002)

.

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

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

4 ¶9 Fitz argues that the statute of limitatio ns did not begin to run on hi s 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, i ncluding the identity of any responsible party. Id. at 31 6

- 1 7, ¶ 25.

¶10 Fitz argues no evidence in the record establish es 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 discover y 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 per iod

. 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 an y establishment at which Barnes was drinking before the crash

. In fact, Fitz and his attorney did no t investigat e any possible cause of action against a potential dram

- shop defendant before the statute of limitations expired

. ¶13 Fitz's lawyer testified he kne w 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

ca rd 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 prose cutor ' s office. Because Fitz offered no explanation on summary judgment to expla i n his failure to timely investigate, t here is no triable issue of fact to submit to the jury on the question of his diligence

. ¶14 V iewing 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

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

5 CONCLUSION

¶15 For the reasons stated above, we affirm. Because of the manner in whi ch 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.