§ 3.7.2.6.4.9 Miscellaneous Legal Issues Reviewed De Novo.

• Jurisdiction: Arizona

§ 3.7.2.6.4.9 Miscellaneous Legal Issues Reviewed De Novo.

Access to Public Records. Whether denial of access to public records is wrongful is reviewed de novo. The court of appeals defers to the superior court’s factual findings unless they are clearly erroneous. See Judicial Watch, Inc. v. of Phoenix, 228 Ariz. 393, 395, ¶ 8, 267 P.3d 1185, 1187 (App. 2011).

Actionable Constitutional Rights. The question in an action brought pursuant to 42 U.S.C. § 1983 of whether an actionable constitutional right was violated is reviewed de novo. See Yanes v. Maricopa Cty., 231 Ariz. 281, 283, ¶ 10, 294 P.3d 119, 121 (App. 2013).

Arbitration. The validity and enforceability of a contract and arbitration clause are mixed questions of fact and law, subject to de novo review. See Estate of DeCamacho v. La Solana Care & Rehab, Inc., 234 Ariz. 18, 20, ¶ 9, 316 P.3d 607, 609 (App. 2014).

Denial of a motion to compel arbitration is reviewed de novo. See Sun Valley Ranch 308 Ltd. v. Robson, 231 Ariz. 287, 291, ¶ 9, 294 P.3d 125, 129 (App. 2012); National Bank of Ariz. v. Schwartz, 230 Ariz. 310, 311, ¶ 4, 283 P.3d 41, 42 (App. 2012).

Whether conduct amounts to waiver of the right to arbitrate is a question of law reviewed de novo. See In re Estate of Cortez, 226 Ariz. 207, 210, ¶ 3, 245 P.3d 892, 895 (App. 2010).

Attorney-Client Privilege. The scope of the attorney-client privilege is a question of law that the appellate court reviews de novo. See In re Kipnis Section 3.4 Trust v. Northern Trust Co., 235 Ariz. 153, 157, ¶ 7, 329 P.3d 1055, 1059 (App. 2014).

Whether a party has expressly or impliedly waived the attorney-client privilege poses a mixed question of law and fact which is reviewed de novo. See Empire West Title Agency, L.L.C. v. Talamante ex rel. Cty. of Maricopa, 234 Ariz. 497, 498-99, ¶ 8, 323 P.3d 1148, 1149-50 (App. 2014); Mendoza v. McDonald’s Corp., 222 Ariz. 139, 151 n.20, ¶ 37, 213 P.3d 288, 300 n.20 (App. 2009).

Attorney Disciplinary Proceedings. On appeal in an attorney disciplinary proceeding, the supreme court reviews questions of law de novo but accepts the hearing panel’s factual findings unless they are clearly erroneous. It also views the evidence and all reasonable inferences in the light most favorable to sustaining the panel’s findings. It reviews the imposed sanction de novo as a matter of law. See In re Aubuchon, 233 Ariz. 62, 67, 73, ¶¶ 21, 53, 309 P.3d 886, 891, 897 (2013).

Authority. Issues of authority are reviewed de novo. See Nw. Fire Dist. v. U.S. Home of Ariz. Constr. Co., 215 Ariz. 492, 494, ¶ 12, 161 P.3d 535, 537 (2007) (whether particular exercise of power by fire district falls within its statutory authority); In re Estate of De Escandon, 215 Ariz. 247, 249, ¶ 7, 159 P.3d 557, 559 (App. 2007) (trial judge’s authority to adjudicate matter).

Bar Admissions. Although the supreme court seriously considers the committee on character and fitness recommendation, it independently determines whether the applicant possesses the necessary character and fitness to gain admission to practice law in Arizona. See In re King, 212 Ariz. 559, 563, ¶ 8, 136 P.3d 878, 882 (2006).

Burden of Proof. The appropriate burden of proof is reviewed de novo. See Am. Pepper Supply Co. v. Fed. Ins. Co., 208 Ariz. 307, 309, ¶ 8, 93 P.3d 507, 509 (2004); Parker v. City of Tucson, 233 Ariz. 422, 428, ¶ 11, 314 P.3d 100, 106 (App. 2013).

Capacity To Sue. Capacity to sue is a question of law reviewed de novo. See State ex rel. Montgomery v. Mathis, 231 Ariz. 103, 109, ¶ 18, 290 P.3d 1226, 1232 (App. 2012). A corporation’s capacity to sue is subject to de novo review. See Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 499, 917 P.2d 222, 228 (1996).

Change of Judge. Interpretation of the applicable rule for change of judge is reviewed de novo. See Anderson v. Contes, 212 Ariz. 122, 124, ¶ 5, 128 P.3d 239, 241 (App. 2006).

Claim-Preclusive Effect of Prior Judgment. The claim-preclusive effect of a prior judgment is reviewed de novo. See Howell v. Hodap, 221 Ariz. 543, 546, ¶ 17, 212 P.3d 881, 884 (App. 2009).

Collateral Estoppel, Issue and Claim Preclusion, and Res Judicata. Application of collateral estoppel is a question of law reviewed de novo. See Campbell v. SZL Props., Ltd., 204 Ariz. 221, 223, ¶ 8, 62 P.3d 966, 968 (App. 2003). Unless issue preclusion involves disputed questions of fact, its applicability is a question of law to be determined independently. See Picaso v. Tucson Unified Sch. Dist., 217 Ariz. 178, 180, ¶ 6, 171 P.3d 1219, 1221 (2007); Pima Cty. v. Clear Channel Outdoor, Inc., 212 Ariz. 48, 53, ¶ 26, 127 P.3d 64, 69 (App. 2006); Special Fund Div., Indus. Comm’n v. Tabor, 201 Ariz. 89, 92, ¶ 20, 32 P.3d 14, 17 (App. 2001). Where the prior judgment was issued by a federal court, federal law dictates the preclusive effect. See Howell v. Hodap, 221 Ariz. 543, 546, ¶ 16, 212 P.3d 881, 884 (App. 2009).

^{Claim preclusion is a question of law reviewed de novo. See Pettit v. Pettit, 218 Ariz. 529, 531, ¶ 4, 189 P.3d 1102, 1104 (App. 2008). Res judicata also is a question of law reviewed de novo. See Better Homes Constr. v. Goldwater, 203 Ariz. 295, 298, ¶ 10, 53 P.3d 1139, 1142 (App. 2002).}

^{Comparative Fault. Whether several liability based on comparative fault should be applied to members of the chain of distribution in a products liability case is reviewed de novo. See State Farm Ins. Cos. v. Premier Manufactured Sys., Inc., 213 Ariz. 419, 421, ¶ 6, 142 P.3d 1232, 1234 (App. 2006).}

Compliance With A Lease. Whether a tenant is sufficiently in compliance with a lease to exercise his option to renew is a mixed question of law and fact reviewed de novo. See Maleki v. Desert Palms Prof’l Prop., LLC, 222 Ariz. 327, 331, ¶ 19, 214 P.3d 415, 419 (App. 2009).

^{Costs. Whether a court has discretion to award costs is subject to de novo review. See Roddy v. Cty. of Maricopa, 184 Ariz. 625, 626, 911 P.2d 631, 632 (App. 1996).}

Declaratory Relief. Whether a party has stated a valid claim for declaratory relief is a question of law an appellate court reviews de novo. See Gamez v. Brush Wellman, Inc., 201 Ariz. 266, ¶ 4, 34 P.3d 375, 378 (App. 2001).

^{Deed Restrictions and Covenants. Interpretation of deed restrictions and restrictive covenants is reviewed de novo. See Wilson v. Playa de Serrano, 211 Ariz. 511, 513, 514, ¶¶ 6, 10, 123 P.3d 1148, 1150, 1151 (App. 2005).}

^{Disqualification of Counsel. The court of appeals generally reviews a trial court’s ruling on a motion to disqualify counsel for an abuse of discretion. However, when the trial court’s decision is not based on resolution of disputed factual issues, but on application of legal principles, the court of appeals reviews the decision de novo, as an issue of law. See Simms v. Rayes, 234 Ariz. 47, 49-50, ¶ 8, 316 P.3d 1235, 1237-38 (App. 2014).}

^{Doctrine of Frustration of Purpose. Whether the doctrine of frustration of purpose excused a breach of lease was a question of law and thus would be reviewed de novo. See Next Gen Capital, L.L.C. v. Consumer Lending Assocs., LLC, 234 Ariz. 9, 11, ¶ 6, 316 P.3d 598, 600 (App. 2013).}

^{Economic Loss Doctrine. The scope of the economic loss doctrine presents a legal issue that the supreme court reviews de novo. See Sullivan v. Pulte Home Corp., 232 Ariz. 344, 345, ¶ 7, 306 P.3d 1, 2 (2013). Whether a claim of professional negligence against a design professional is barred by the economic loss doctrine is a question of law reviewed de novo. See Flagstaff Affordable Housing Ltd. P’ship v. Design Alliance, Inc., 221 Ariz. 433, 436, ¶ 7, 212 P.3d}...