Potter v. Ehrich

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PHILLIP TERRY POTTER, Plaintiff/Appellant,

v.

CHRISTINE EHRICH, Defendant/Appellee.

No. 1 CA-CV 23-0760
FILED 09-10-2024

Appeal from the Superior Court in Maricopa County
No. CV2021-005501
The Honorable Danielle Viola, Judge
The Honorable Pamela Gates, Judge

AFFIRMED

COUNSEL

Phillip Potter, Scottsdale
Plaintiff/Appellant

Mark J. DePasquale, P.C., Phoenix
By Mark J. DePasquale
Counsel for Defendant/Appellee
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.

M c M U R D I E, Judge:

¶1 Phillip Potter appeals the dismissal of his claim against
Christine Ehrich and “from all judgments, rulings, decisions, and orders
entered.” He argues, among other things, that the superior court erred by
denying leave to amend his complaint and denying a motion to consolidate
his case with another superior court case. We find no error and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Potter and Tasneem Doctor were married in October 2018 and
separated in January 2020. Following their separation, Doctor sought and
obtained a protective order against Potter based on what Potter alleges
were “fabricated domestic violence allegations.” Ehrich was to be a witness
for Doctor at the contested protective order hearing. Ehrich was never
called to testify. The order was quashed in April 2020.

¶3 In April 2021, Potter filed a superior court complaint alleging
one count of wrongful institution of civil proceedings (“wrongful
institution”) against Doctor and her legal counsel and one count of aiding
and abetting the wrongful institution claim against all defendants,
including Ehrich. The complaint addressed the quashed protective order
but also included extensive background information about Doctor and her
family, Robert Meza (a former member of the Arizona Legislature), and
various other individuals and organizations. Upon Doctor’s motion, the
court struck many of these allegations as irrelevant about the wrongful
institution and aiding and abetting claims.

¶4 In August 2021, Potter filed another complaint,1 accusing
Doctor of participating in a criminal enterprise with 24 other defendants,
including healthcare organizations, Meza and other public figures, and
private individuals, including Ehrich (“RICO case”). The RICO complaint

1 Case number CV2021-013210.

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alleged 13 total counts, including defamation per se, negligence per se,
conversion, unjust enrichment, tortious interference with business
relationships, civil conspiracy, and racketeering under A.R.S. § 13-2314.04.
The RICO complaint also alleged a wrongful institution claim and a civil
conspiracy to commit wrongful institution substantially like the two counts
in this case. Potter purported to link the wrongful institution claim to the
RICO claims by alleging that Doctor’s wrongful filing of the protective
order was done to intimidate Potter so that he would not expose the RICO
criminal conspiracy.

¶5 In October 2021, Potter moved to consolidate the two cases
under Arizona Rule of Civil Procedure (“Rule”) 42. But the court denied the
motion, finding the RICO case “extends far beyond the allegations in [this
case] and does not involve common questions of law or fact.” Meanwhile,
in this case, Ehrich moved to dismiss for failure to state a claim under Rule
12(b)(6).

¶6 In January 2022, the superior court dismissed most of the
defendants and claims from the RICO case. One week later, Potter moved
for leave to amend his complaint in this case, seeking to add over a dozen
new defendants from the RICO case and eight new claims. Six of the eight
new claims were similar or identical to claims from the RICO case. The
other two new claims were against Doctor for abuse of process and
fraudulent inducement.

¶7 In March 2022, the court denied Potter’s motion because
“claims previously stricken and dismissed in [the RICO case] are not
appropriate and request for leave to file such allegations and claims will not
be granted.” But the court acknowledged that “certain allegations such as
Plaintiff’s request to amend the complaint to add a claim against Tasneem
Doctor for Abuse of Process may properly state a claim . . . . If Plaintiff seeks
to amend the Complaint appropriately, he may refile a request.” In the
same order, the court granted Ehrich’s motion to dismiss, finding that
because Potter “did not allege any wrongdoing by Ms. Ehrich,” he failed to
state a claim for aiding and abetting wrongful institution.

¶8 In May 2022, the court in the RICO case entered a Rule 54(b)
judgment as to the dismissed claims, and Potter appealed. This court
affirmed. Potter v. Meza, 1 CA-CV 22-0441, 2023 WL 6845510 (Ariz. App.
Oct. 17, 2023) (mem. decision). While the appeal was pending, Ehrich
argued before the superior court in the RICO case that the claim against her

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should be dismissed under the doctrine of abatement.2 See Davies v. Russell, 84 Ariz. 144, 148 (1958) (“The pendency of a prior action between the same
parties for the same cause in a State court of competent jurisdiction works
in abatement of a subsequent action either in the same court or in another
court of the State having like jurisdiction.”). The court agreed that the
conspiracy to commit wrongful institution was abated, dismissing that
claim from the RICO case.

¶9 In June 2022, Potter again moved for leave to amend and
consolidate in the wrongful institution case. But his proposed amended
complaint contained nearly identical claims as his January motion. The
court denied his motion. In May 2023, Potter once again moved for leave to
amend or supplement the complaint “based on express abatement, new
law, the discovery of previously undiscoverable facts, and post-pleading
events giving rise to new claims and identifying liable parties previously
identified as ‘Doe’ defendants.” The court denied the motion. The court
then entered judgment under Rule 54(b) for the dismissed claim against
Ehrich.

¶10 Potter appealed. We have jurisdiction under A.R.S.
§ 12-2101(A)(1).

DISCUSSION

¶11 We review the superior court’s grant of a motion to dismiss
de novo. Mirchandani v. BMO Harris Bank, N.A., 235 Ariz. 68, 70, ¶ 7 (App.
2014). We “assume the truth of all well-pleaded factual allegations and
indulge all reasonable inferences from those facts, but mere conclusory
statements are insufficient.” Coleman v. City of Mesa, 230 Ariz. 352, 356, ¶ 9
(2012).

¶12 We review consolidation rulings and denials of motions to
amend pleadings for an abuse of discretion. Hancock v. McCarroll, 188 Ariz.
492, 495 (App. 1996) (“Cases may be consolidated in the trial court’s
discretion, and we will not disturb such an order unless the court abused
its discretion.”); In re Torstenson’s Est., 125 Ariz. 373, 376 (App. 1980) (“A
motion for leave to amend a pleading is addressed to the sound discretion
of the trial court . . . .”). “Although the superior court has the discretion to

2 Potter also argued before this court that abatement applied in Meza.
But we declined to address the argument, as it had not yet been considered
by the superior court. See Meza, 1 CA-CV 22-0441, at *2, ¶ 10.

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deny a motion to amend, we review de novo whether a request to amend
is futile.” Ute Mountain Ute Tribe v. Ariz. Dep’t of Revenue, 254 Ariz. 410, 416,
¶ 22 (App. 2023) (citation omitted). When determining a proposed
amendment’s futility, we take all well-pled factual allegations as true. Id.

A. Potter’s Arguments about Jurisdiction and Abatement Are
Irrelevant to This Appeal.

¶13 To begin, Potter argues that the superior court here and in the
RICO case improperly analyzed jurisdictional issues. He argues that
because this case and the RICO case both address common facts, this case
abated the RICO case, depriving the court of jurisdiction in the RICO case.
See Allen v. Superior Court, 86 Ariz. 205, 209 (1959). He concludes that,
without jurisdiction, the “orders, decisions, and judgments” of the RICO
case are void. But those judgments are not before us in this appeal.3

¶14 Potter further contends that the court’s rulings are also void
for “fail[ing] to exercise exclusive jurisdiction.” But Potter cites no law to
support this proposition. We decline to conclude that a court properly
vested with jurisdiction cannot issue valid orders simply because another
court asserts jurisdiction over the same matter. Thus, even if the RICO case
should have been abated, the decisions here are valid.

B. This Court Has Already Reviewed the Superior Court’s
Consolidation Ruling.

¶15 Potter challenged the superior court’s consolidation ruling in
an appeal from the RICO case. See Meza, 1 CA-CV 22-0441, at *2, ¶ 12. We
affirmed, deciding that the superior court did not abuse its discretion by
denying the motion to consolidate this and the RICO cases. Id.

¶16 “Issue preclusion, also known as collateral estoppel,
precludes relitigating an issue of fact in a later case when, in a previous case,
the same issue was actually litigated, a final judgment was entered, and the
party against whom the doctrine is to be invoked had a full and fair
opportunity to litigate.” Crosby-Garbotz v. Fell, 246 Ariz. 54, 55, ¶ 1 (2019)
(quotation omitted). “‘Law of the case’ concerns the practice of refusing to
reopen questions previously decided in the same case by the same court or

3 We address this argument in our concurrently issued decision
addressing his appeal from the RICO case, 1 CA-CV 23-0764.

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a higher appellate court.” Davis v. Davis, 195 Ariz. 158, 162, ¶ 13 (App. 1999)
(citation omitted).

¶17 Potter argues that neither issue preclusion nor the law of the
case applies here to bar review of the superior court’s consolidation ruling
in a prior case. He points out that issue preclusion applies only to “issues
of fact or law that were actually litigated and necessarily decided in a prior
proceeding,” relying on Quinn v. Cardenas, 256 Ariz. 77, 85–86, ¶ 31 (App.
2023). On that basis, he argues that because this court reviewed the
consolidation ruling in an appeal arising from the RICO case, which was
filed after this case, our decision in that case does not preclude the issue
here. He also argues that because our decision in Meza, 1 CA-CV 22-0441,
arose out of the RICO case and not this one, the law of the case does not
apply.

¶18 Potter is mistaken. While the RICO case may have been filed
in the superior court after this case, our decision in Meza, 1 CA-CV 22-0441,
is an “actually litigated” decision in an appellate case that precedes this
appellate decision. See Crosby-Garbotz, 246 Ariz. at 55, ¶ 1. Potter had a “full
and fair opportunity” to challenge the consolidation ruling there, and the
timing of the superior court filings in the cases is irrelevant.

¶19 Moreover, the superior court rulings in both cases were
written by the same judge, issued on the same day, and contained identical
text. The court ruled from identical case records and arguments. And our
review now would not consider any meaningfully distinct record from our
prior review of the consolidation issue. In short, Potter has not explained
why we should review the consolidation ruling differently than we did in
Meza, 1 CA-CV 22-0441. We decline to consider anew his arguments for
consolidation.

C. The Superior Court Did Not Abuse Its Discretion by Denying
Leave to Amend or Supplement the Complaint.

¶20 Rule 15 governs the procedure for amending and
supplementing civil pleadings. See Ariz. R. Civ. P. 15. A party may amend
its pleading without leave of the court within the timeframe provided
under Rule 15(a)(1). See Ariz. R. Civ. P. 15(a)(1)(B) (A party may amend “no
later than 21 days after a responsive pleading is served . . . or, if a motion
under Rule 12(b), (e), or (f) is served, on or before the date on which a
response to the motion is due, whichever is earlier.”). Potter received his
first responsive pleading in May 2021, but he did not move to amend his
complaint until January 2022. Thus, he could only amend his complaint

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with leave of court or consent of all opposing parties. See Ariz. R. Civ. P.
15(a)(2).

¶21 Potter argues that the superior court erred by denying his
motions to amend or supplement his complaint.4 The thrust of his argument
is that (1) his claims were well-pled; (2) new events entitled him to an
updated complaint; and (3) the dismissal from the RICO case is not
preclusive because of “discovered facts and new events.”

¶22 “While leave to amend a pleading should be freely granted in
the interests of justice, the right to amend is not automatic.” In re
Torstenson’s Est., 125 Ariz. at 376. It is not an abuse of discretion to deny
leave to amend when there is “undue delay, bad faith or dilatory motive . . .
repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of amendment.” Id. (quoting Foman v. Davis, 371
U.S. 178, 182 (1972)).

¶23 When ruling on Potter’s January 2022 motion for leave to
amend, the superior court found that many of the proposed claims had
been brought and dismissed in the RICO case. The court explained:

Although certain allegations such as Plaintiff’s request to
amend the complaint to add a claim against Tasneem Doctor
for Abuse of Process may properly state a claim, Plaintiff’s
Motion for Leave to Amend is denied. If Plaintiff seeks to
amend the Complaint appropriately, he may refile a request.
However, claims previously stricken and dismissed in [the
RICO case] are not appropriate and request for leave to file
such allegations and claims will not be granted.

As for the claims specific to Ehrich, the court elaborated that Potter’s
amended pleading “includes conclusory allegations and inferences that are
not implied by the facts, and which are insufficient to state a claim for
relief.” The court then denied the motion.

4 We note that multiple defendants remain in the action before the
superior court. While we have jurisdiction to consider this appeal following
judgment under Rule 54(b), granting Potter the relief he seeks would have
consequences for the remaining defendants, who are not present here to
object. Still, because we affirm the superior court, we need not address the
issue.

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¶24 On review, we note that six of Potter’s eight new claims had
been considered and dismissed from the RICO case. Though the superior
court did not explicitly state that Potter’s proposed amendment would be
futile, we determine it would have been on this basis alone. Leave to amend
may be denied when the amendment would be futile. See Tumacacori
Mission Land Dev, Ltd. v. Union Pac. R. Co., 231 Ariz. 517, 520, ¶ 12 (App.
2013); Deutsche Bank Nat’l Tr. Co. v. Pheasant Grove LLC, 245 Ariz. 325, 331,
¶ 19 (App. 2018).

¶25 The amendment would also have added several new
defendants, which is inherently prejudicial. See Carranza v. Madrigal, 237
Ariz. 512, 515, ¶ 13 (2015) (cleaned up) (citing Owen v. Superior Court, 133
Ariz. 75, 79 (1982)) (“Prejudice is the inconvenience and delay suffered
when the amendment raises new issues or inserts new parties into the
litigation.”).

¶26 Moreover, Potter’s new claim for fraudulent inducement did
not allege a single fact common to the initial wrongful institution claim or
the alleged racketeering enterprise. “Denial of leave to amend is a proper
exercise of the court’s discretion when the amendment comes late and
raises new issues requiring preparation for factual discovery which would
not otherwise have been necessitated nor expected, thus requiring delay in
the decision of the case.” See Carranza, 237 Ariz. at 515, ¶ 13 (cleaned up)
(citing Owen, 133 Ariz. at 81); see also Aiken v. Protis, 59 Ariz. 101, 106 (1942)
(Denial of the amendment was justified when “amendment would
necessarily have completely altered the entire theory of the case.”).

¶27 Finally, the “discovered facts and new events” that Potter
references comprise facts alleged in the RICO case or entirely irrelevant to
the wrongful institution claim. Potter does not adequately explain why
these new facts justified the amendment. We conclude that the court did
not err by denying leave to amend—especially given that it also authorized
Potter to refile a motion with the abuse of process claim.

¶28 Despite the court’s suggestion to narrow his focus, Potter’s
next proposed amendment contained much more than the abuse of process
claim. Instead, Potter’s motion contained an amended complaint with
nearly identical claims as his January motion and an even longer set of
factual allegations.

¶29 The court denied Potter’s June 2022 motion for failure to
comply with the civil rules. Alternatively, on the merits, the court ruled:

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Plaintiff apparently recognizes that he is seeking to
assert allegations that the Court already determined were not
appropriate in this case. . . . The “new” information that
Plaintiff identifies in support of his pending motion is that
Robert Meza purportedly made statements to a reporter that
he helped Plaintiff’s ex-wife get legal counsel and Meza is
running for public office. None of this information supports
revisiting the rulings of another judge or revisiting the prior
ruling in this case that denied leave to amend and
consolidation.

* * *

Plaintiff expressly acknowledges that he is dissatisfied
with [the RICO case] rulings and he wants the Civil Presiding
Judge to rule differently than [the RICO case court]. Plaintiff
claims that he is bringing new facts and circumstances to
light. The Motion fails to identify any new facts or
circumstances or any legal basis upon which this assigned
judicial officer should revisit a ruling made by another judge.
Plaintiff again seeks to expand the litigation to include
numerous claims and defendants.

The superior court did not err by denying Potter’s January motion.

¶30 Finally, as for the May 2023 motion, the court found that
“[n]othing ha[d] changed” since the previous ruling and that adding claims
and defendants would be inappropriate. The court reasoned:

[A]llowing leave to amend would be futile based on this
Court’s prior ruling that “claims previously stricken and
dismissed in [the RICO case] are not appropriate and request
for leave to file such allegations and claims will not be
granted.” Plaintiff has simply repackaged his claims into a
longer complaint with additional defendants but relies on the
same theories and claims previously rejected by the Court.

¶31 The court denied leave to file a supplemental pleading for the
same reasons it denied amendment. See Sw. Soil Remediation, Inc. v. City of
Tucson, 201 Ariz. 438, 446, ¶ 31 (App. 2001) (A trial court has broad
discretion to allow a supplemental pleading under Rule 15(d).). The court
discussed Potter’s alleged claim for abuse of process against Ehrich:

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The Complaint does not allege that Ehrich actually testified at
any hearing or provided any statement in support of the order
of protection at issue. . . . Plaintiff offered no well-plead facts
that Ehrich misused a judicial process. Even the
commencement of an unjustified action is insufficient, on its
own, to establish abuse of process. Morn v. City of Phoenix, 152
Ariz. 164, 167-68 (App. 1986). Even if Ehrich’s action of being
ready to testify was deemed sufficient, Plaintiff has not
offered anything other than conclusory allegations as to how
Ehrich used the judicial process, including Ehrich’s alleged
motives. . . . Plaintiff fails to allege well-pled facts sufficient to
show an actionable ulterior motive or collateral advantage.

¶32 We agree that the proposed amendment would have been
futile because Potter did not sufficiently allege how Ehrich misused a
judicial process. See Stair v. Maricopa Cnty., 245 Ariz. 357, 366, ¶ 37 (App.
2018); see also Carranza, 237 Ariz. at 515, ¶ 13 (“[R]epeated failure to cure
deficiencies by previous amendments” is cause to deny the amendment.).

D. The Superior Court Did Not Err by Dismissing Potter’s Aiding and
Abetting Claim Against Ehrich.

¶33 To bring a claim for aiding and abetting tortious conduct, a
plaintiff must allege: (1) the primary tortfeasor committed a tort that caused
plaintiff injury; (2) the defendant knew the primary tortfeasor’s conduct
was a breach of duty; and (3) the defendant substantially assisted or
encouraged the primary tortfeasor to breach the duty. Wells Fargo Bank v.
Ariz. Laborers, Teamsters & Cement Masons Loc. No. 395 Pension Tr. Fund, 201
Ariz. 474, 485, ¶ 34 (2002). “[A]iding and abetting liability is based on proof
of a scienter . . . the defendants must know that the conduct they are aiding
and abetting is a tort.” Federico v. Maric, 224 Ariz. 34, 36, ¶ 8 (App. 2010)
(citation omitted).

¶34 Here, Potter claimed that Doctor obtained a protective order
premised on false allegations, constituting the wrongful institution claim.
And Potter alleged that Ehrich aided and abetted the wrongful institution
claim. But to support this claim, Potter only alleged that Ehrich appeared to
testify at the contested protective order hearing and that she was prepared
to testify about stalking at the hearing, even though she “could not have
witnessed stalking that did not happen.” Potter does not claim that Ehrich
testified, only that Ehrich “did not provide a statement or evidence.”

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¶35 Taken as true, these facts do not support a claim for aiding
and abetting a wrongful institution. Ehrich’s mere appearance at the
hearing did not “substantially assist or encourage” Doctor to wrongfully
institute a civil proceeding. See Wells Fargo Bank, 201 Ariz. at 485, ¶ 34.
Indeed, the allegedly wrongful proceeding was already underway. And
without a specific allegation of aiding and abetting conduct, Potter’s
statements that Ehrich “maliciously set out to damage [him]” by
“weaponiz[ing] the judicial system” are conclusory and therefore
insufficient. See Coleman, 230 Ariz. at 356, ¶ 9. The superior court did not err
by dismissing the claim.

ATTORNEY’S FEES

¶36 Ehrich requests attorney’s fees under A.R.S. §§ 12-349,
13-2314.04(A), and 13-2314.04(N). In our discretion, we decline to award
fees. See Ariz. Republican Party v. Richer, 121 Ariz. Cases Dig. 42, 48, ¶ 15
(2024). Ehrich is entitled to her costs upon compliance with ARCAP 21 as
the prevailing party.

CONCLUSION

¶37 We affirm.

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

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