Volume 982 — North Western Reporter, Second Series

Statutes are interpreted to give meaning and effect to every word, phrase, and sentence, and construed to avoid rendering part of the statute mere surplusage. Under the firearm prohibition statute, a person is prohibited from possessing a firearm for five years after being convicted of a felony. A prior juvenile adjudication of a delinquent act equivalent to a felony qualifies as a predicate felony conviction. If two or more statutes relating to the same subject matter conflict, we attempt to give meaningful effect to each without rendering one or the other useless. If the conflict is irreconcilable, the special provision must generally prevail and be construed as an exception to the general provision. A firearm prohibition is a collateral consequence, and there is no constitutional requirement that a defendant or juvenile delinquent be notified of such prohibition or the possibility of a future firearm conviction for violating the prohibition. A law is not unconstitutionally vague if the challenged language, when measured by common understanding and practice, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for fair administration of the law.

Common law theory of imposing a trust based upon a confidential relationship is still present in North Dakota law. To successfully plead the defense of unclean hands/illegality the defendant must not have been a participant in the unlawful act. When it is alleged that an attorney negligently failed to perform some act on behalf of the client, the plaintiff must allege and prove performance of the act would have benefited the client. If a party fails to provide supporting argument for an issue listed in their brief, they are deemed to have waived that issue.

The nonperformance of a contractual duty when it is due is a breach of the contract. Under the common law doctrine of apportionment of rent, rent is not apportionable as to time rather the person who has ownership of the property at the time that rent is due has the right to receive it. Generally, a material breach by one party gives the non-breaching party the right to terminate the contract.

An order dismissing a complaint without prejudice is generally not appealable. The district court is required to make a pre-filing determination prior to ruling on a motion filed by a vexatious litigant. A vexatious litigant's request for reconsideration did not satisfy the pre-filing order requirement that new documents filed with the court have merit and have not been filed for the purpose of harassment or delay. A denial of leave to file is not appealable.

The district court's findings on restitution were not clearly erroneous.

When the sufficiency of evidence to support a criminal conviction is challenged, this Court merely reviews the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. Constructive possession is proven when the evidence establishes that the accused had the power and capability to exercise dominion and control over the controlled substance or paraphernalia. When a defendant fails to preserve a claim of insufficient evidence, the Court may review for obvious error, which is a narrow exception to the rule that issues may not be raised for the first time on appeal. Although the Court may decline review of forfeited errors when the appellant fails to argue the obvious error standard, the Court is not foreclosed from considering such errors. An error is obvious when it is a clear deviation from an applicable rule under current law. Drug paraphernalia used, or possessed with intent to be used, to store a controlled substance does not satisfy the felony use element under N.D.C.C. § 19-03.4-03(1). If even a properly instructed jury would have had insufficient evidence on which it could have convicted the defendant, the required remedy upon a conclusion there was insufficient evidence presented at trial is to enter a judgment of acquittal.

Interim suspension of lawyer ordered.

The district court has discretion to award back child support considering the time the parties separated.

A district court's order denying a petition for discharge from civil commitment as a sexually dangerous individual is summarily affirmed under N.D.R.App.P. 35.1(a)(2).