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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 09-10-2024
POTTER v. EHRICH

Decision of the Court

2

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.
POTTER v. EHRICH

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3

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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4

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.
POTTER v. EHRICH

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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.
POTTER v. EHRICH

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6

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 
POTTER v. EHRICH

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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.
POTTER v. EHRICH

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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.”
POTTER v. EHRICH

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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.