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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 2-13-2020
FITZ, 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 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.
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.") 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.
FITZ, et al. v. COLTON GROUP, et al.

Decision of the Court

4

¶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 creditcard 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.
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 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.