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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MICHELLE MCCARVILLE, et al., Plaintiffs/Appellants,

v.

MICHAEL CARLTON, M.D. and JANE DOE CARLTON, his wife, 

Defendants/Appellees.

No. 1 CA-CV 22-0536

Appeal from the Superior Court in Maricopa County

No. CV2018-053277

The Honorable Sally Schneider Duncan, Judge (Retired)

AFFIRMED

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix

By David L. Abney

Co-Counsel for Plaintiffs/Appellants

O’Steen & Harrison, PLC, Phoenix

By C. Lincoln Combs

Co-Counsel for Plaintiffs/Appellants

The Kennedy Firm, Dallas, Texas

By Kirk Kennedy

Co-Counsel for Plaintiffs/Appellants

FILED 6-6-2023
2

Jennings, Strouss & Salmon, P.L.C., Phoenix

By Richard K. Delo, R. Ryan Womack, Brian Imbornoni, 

Alexander J. Egbert

Counsel for Defendants/Appellees

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in 

which Judge James B. Morse Jr. and Judge Daniel J. Kiley joined.

C R U Z, Judge:

¶1 Plaintiffs Michelle McCarville and Kirk Kennedy (“the 

Parents”) appeal the superior court’s orders granting the motion to dismiss 

filed by Jane Doe Carlton and Michael Carlton, M.D. (collectively “Dr. 

Carlton”); denying their motion to set aside the judgment and requesting a 

new trial; and entering judgment in favor of Dr. Carlton. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 While providing substance abuse treatment to Cameron, Dr. 

Carlton prescribed him a daily dose of methadone to be taken at the clinic 

and one weekly dose to be taken at home. In September 2016, Appellants’

daughter, Rachel, visited Cameron, ingested his methadone take-home

dose, and died sometime during the night. The medical examiner’s report, 

prepared just two days after Rachel’s death, revealed Rachel died from 

acute alcohol and methadone intoxication.

¶3 In September 2018, just two days before the two-year mark 

from Rachel’s death, the Parents filed a wrongful death action against Dr. 

Michael Ahmann and others who were treating Cameron “for addiction

issues.” Alleging that “the methadone clinic from which [Cameron] 

obtained his methadone” improperly “permit[ted] him to take the oral 

doses of methadone home with him for the weekend,” the Parents claimed

that “the methadone ingested by” Rachel the night she died “was the same 

drug Defendants had given to [Cameron].” By “negligently dispens[ing] 

take-home methadone to [Cameron],” they argued, the defendants 

“breached their duty of reasonable care owed to [Rachel].”

¶4 In October 2019, after filing the initial complaint and two 

amended complaints, the Parents moved to compel production of 
MCCARVILLE, et al. v. CARLTON, et al.

Decision of the Court

3

Cameron’s medical records and received them within five months.

1 The 

Parents named Dr. Carlton as a defendant for the first time in the third 

amended complaint filed in February 2020. Dr. Carlton moved to dismiss,

arguing the two-year limitations period set forth in Arizona Revised 

Statutes (“A.R.S.”) section 12-542(2) barred the Parents’ claims against him. 

Dr. Carlton further argued, in the alternative, that the claims fail as a matter 

of law because he owed no duty to Rachel since she was not his patient and 

the two had no relationship. The superior court granted the motion, finding 

both that “the claims were filed outside the applicable statute of 

limitations” and that “Dr. Carlton did not owe a duty to [Rachel].” The 

court subsequently entered judgment in favor of Dr. Carlton.

¶5 The Parents moved to set aside the judgment and requested a 

new trial. The superior court denied the motion. The Parents timely 

appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-2101(A)(1), 

(5)(a), and -120.21(A)(1).

DISCUSSION

¶6 We review the dismissal of a claim under Arizona Rule of 

Civil Procedure (“Rule”) 12(b)(6) de novo. Coleman v. City of Mesa, 230 Ariz. 

352, 355, ¶ 7 (2012). “Dismissal is appropriate under Rule 12(b)(6) only if 

as a matter of law . . . plaintiffs would not be entitled to relief under any 

interpretation of the facts susceptible of proof.” Id. at 356, ¶ 8 (citation and 

internal quotation marks omitted). Courts “look only to the pleading itself” 

when ruling on a Rule 12(b)(6) motion and “must assume the truth of all 

well-pleaded factual allegations and indulge all reasonable inferences from 

those facts . . . .” Id. at ¶ 9 (citation and internal quotation marks omitted).

¶7 The Parents argue the superior court erred by finding their 

claims against Dr. Carlton untimely and, therefore, barred by the statute of 

limitations in A.R.S. § 12-542(2). “The accrual of the cause of action and the 

interpretation of a statute of limitations are legal questions, which we 

review de novo.” Mertola, LLC v. Santos, 244 Ariz. 488, 490, ¶ 8 (2018).

¶8 “As a general matter, a cause of action accrues, and the statute 

of limitations commences, when one party is able to sue another.” Gust, 

Rosenfeld & Henderson v. Prudential Ins. Co. of Am., 182 Ariz. 586, 588 (1995). 

In wrongful death actions, the discovery rule tolls the statute of limitations 

“until the plaintiff possesses a minimum knowledge sufficient to recognize 

that a wrong occurred and caused injury.” Ritchie v. Krasner, 221 Ariz. 288, 

1 Only the Parents’ claims against Dr. Carlton are at issue here.
MCCARVILLE, et al. v. CARLTON, et al.

Decision of the Court

4

304, ¶ 57 (App. 2009) (citation and internal quotation marks omitted). 

Generally, the plaintiff must know both the “what” and “who” elements

before the statutory period begins running. Lawhon v. L.B.J. Institutional 

Supply, Inc., 159 Ariz. 179, 183 (App. 1988). “The discovery rule, however, 

does not permit a party to hide behind its ignorance when reasonable 

investigation would have alerted it to the claim.” Elm Ret. Ctr., LP v. 

Callaway, 226 Ariz. 287, 290, ¶ 12 (App. 2010). A plaintiff “may not have 

been aware of all the facts but is charged with a duty to investigate with 

due diligence to discover the necessary facts.” Doe v. Roe, 191 Ariz. 313, 324, 

¶ 37 (1998).

¶9 The Parents argue the discovery rule tolled the limitations

period under A.R.S. § 12-542(2) until they discovered Dr. Carlton’s identity, 

and they, therefore, timely brought their claims against him in February 

2020. But the medical examiner’s September 2016 report stating Rachel died

from ingesting prescription methadone and alcohol should have put the 

Parents on notice that a wrong may have occurred and it caused injury. See

Ritchie, 221 Ariz. at 304, ¶ 57. Moreover, the original complaint that the 

Parents filed in October 2018 reflects their awareness, at that time, that the 

methadone Rachel ingested had been prescribed to Cameron in connection 

with treatment he was receiving for addiction issues. Although the Parents 

had not yet discovered Dr. Carlton’s identity, the knowledge gained from 

the medical examiner’s report that their daughter’s death was attributable, 

at least in part, to the ingestion of methadone triggered their affirmative 

duty to investigate the identity of the prescribing physician. See Elm Ret. 

Ctr., LP, 226 Ariz. at 290, ¶ 12; see also Doe, 191 Ariz. at 324, ¶ 37.

¶10 The Parents claim from the time Rachel died they were 

“diligent in trying to discover the facts and circumstances surrounding 

[their] daughter’s death,” but nothing in the record shows the Parents used 

any available methods to attempt to identify Dr. Carlton during the more 

than three years between the medical examiner’s September 2016 report 

and the Parents’ October 2019 motion to compel production of Cameron’s 

medical records. The Parents do not allege they were prevented from 

learning the medical examiner’s report’s contents when it was first released 

two days after Rachel’s passing, and they do not deny knowing in 

September 2016 that she died after ingesting a drug that had been 

prescribed for Cameron. Instead, the Parents admit that in “the immediate 

aftermath of Rachel’s death,” they chose to “focus[]” on Cameron, not on 

attempting to identify his prescribing physician.

¶11 Section 12-542(2) provides that an action “[f]or injuries done 

to the person of another when death ensues from such injuries” shall be 
MCCARVILLE, et al. v. CARLTON, et al.

Decision of the Court

5

commenced “within two years after the cause of action accrues.” The 

Parents waited to file the initial complaint until just days before the 

statutory limitations period ran, and they waited over another year before 

moving to compel production of Cameron’s medical records, in hopes of 

identifying Dr. Carlton. But their efforts to determine the prescribing 

physician’s identity, via a motion to compel production, yielded positive 

results in a matter of five months. Had the Parents investigated Dr. 

Carlton’s identity with due diligence and used any available legal methods 

in a timely fashion, they would have had more than adequate time to 

discover Dr. Carlton’s identity sooner than three and one-half years after 

Rachel’s death.

¶12 From the time the Parents became aware that a combination 

of methadone and alcohol caused Rachel’s death in September 2016, they 

possessed the minimum requisite knowledge to begin the statutory 

limitations period in § 12-542(2) and trigger their duty to investigate with 

due diligence. See Ritchie, 221 Ariz. at 304, ¶ 57. They did not name Dr. 

Carlton as a defendant until February 2020, almost three and one-half years 

later. The superior court correctly found the Parents’ claims against Dr. 

Carlton were untimely and filed outside the limitations period set forth in 

§ 12-542(2).

¶13 The Parents argue the “trial court’s good-cause 

determination” allowing them to file the February 2020 third amended 

complaint which named Dr. Carlton as a defendant “end[s] any statute-oflimitations defense.” The Parents fail to provide any analysis or citations to 

relevant legal authority for the proposition that a trial court’s grant of a joint 

stipulated motion for leave to file a complaint is determinative of any 

statute of limitations defenses that may be raised once the new party joins 

the litigation. See ARCAP 13(a)(7).

¶14 Having decided the superior court correctly found the 

Parents’ claims against Dr. Carlton untimely and barred by the statute of 

limitations in A.R.S. § 12-542(2), we need not reach the remaining issues of 

duty of care raised by the Parents.
MCCARVILLE, et al. v. CARLTON, et al.

Decision of the Court

6

CONCLUSION 

¶15 We affirm. The Parents request their attorneys’ fees and costs 

on appeal pursuant to A.R.S. §§ 12-331, -341, and -342. They are not the 

successful parties on appeal, and we deny their request. As the prevailing 

party, Dr. Carlton is entitled to his costs on appeal, upon compliance with 

ARCAP 21.