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Maloley v. Central Nebraska Public Power and Irrigation District

Supreme Court of Nebraska

July 19, 2019

Toffie Maloley, appellant and cross-appellee.
v.
Central Nebraska Public Power and Irrigation District et al., appellees and cross-appellants. 303 Neb. 743

         1. Judgments: Appeal and Error. In a bench trial of a law action, a trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless clearly wrong.

         2. __: __ . After a bench trial of a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party.

         3. Judgments. In a bench trial, the trial court's entry of judgment in favor of a certain party warrants the conclusion that the trial court found in the party's favor on all issuable facts.

         4. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusions.

         5. Summary Judgment: Moot Question: Appeal and Error. The denial of a summary judgment motion generally becomes a moot issue on appeal after a final trial on the merits.

         6. Actions: Civil Rights: Convictions: Proof. A plaintiff seeking relief under 42 U.S.C. § 1983 (2012) based on a criminal conviction must first show favorable termination of his or her underlying conviction if success in the civil action would necessarily undermine the validity of the previous conviction.

          Appeal from the District Court for Dawson County: James E. Doyle IV, Judge.

         [303 Neb.744] David W. Jorgensen, of Nye, Hervert, Jorgensen & Watson. PC, for appellant.

          Daniel M. Placzek and Jared J. Krejci, of Smith, Johnson, Baack, Placzek, Allen, Connick & Hansen, for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Miller-Lerman, J.

          Miller-Lerman, J.

         NATURE OF CASE

         The appellant, Toffie Maloley (Maloley), brought this 42 U.S.C. § 1983 (2012) action against the appellees, Central Nebraska Public Power and Irrigation District, a political subdivision (Central), its general manager, and the members of Central's board (collectively the appellees). Central owns real estate in Dawson and Gosper Counties, including Johnson Lake.

         After harassment protection orders were issued against Maloley and he moved out of the Johnson Lake area through an exit plan negotiated by his counsel, he was given a "ban notice" on August 13, 2013, but repeatedly trespassed thereafter, leading to two convictions for trespass which have not been overturned or otherwise reversed. In his amended complaint, Maloley generally alleged that he was unconstitutionally excluded from the Johnson Lake area such that he could not reside or travel there or engage in recreation and his occupation. After trial, the district court filed a 22-page order and opinion finding in favor of the appellees and dismissing Maloley's action. Judgment was entered accordingly. We determine that Maloley's convictions for trespassing are fundamentally inconsistent with his various civil claims alleged in his amended complaint. Under the Heck doctrine, Maloley's claims are not cognizable under 42 U.S.C. § 1983. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Although our reasoning differs from that of the district court, we affirm.

         [303 Neb. 745] STATEMENT OF FACTS

         Maloley alleged that he resided in a Johnson Lake residence leased by his mother for the 2 years prior to August 13, 2013. and had personal property and a business at Johnson Lake. Maloley alleged that on August 13, Central's attorney had Maloley served with a notice prohibiting Maloley from entering onto Central's real estate. Maloley alleged that after he received the notice, he was repeatedly arrested and prosecuted for trespassing on Central's real estate. It is undisputed that he was convicted of criminal trespass in two separate incidents and that the convictions have not been reversed, declared invalid, or expunged in any way.

         Maloley alleged that when Central's attorney issued the notice, the appellees violated his procedural due process rights and various property and civil rights. All of Maloley's claims were brought under 42 U.S.C. § 1983. The appellees admitted the obvious facts but denied others. Throughout these proceedings, the appellees asserted, inter alia, that under the Heck doctrine, Maloley's claims were not cognizable under ยง 1983, because ...


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