LaBarre v. Payne

• Citation: 329 S.E.2d 533,174 Ga.App. 32
• Decision Date: 08 March 1985
• Docket Number: 69340,No. 69339,69339
• Parties: LaBARRE v. PAYNE. PAYNE v. LaBARRE.
• Court: United States Court of Appeals (Georgia)

Page 533

329 S.E.2d 533

174 Ga.App. 32

LaBARRE v. PAYNE.

PAYNE v. LaBARRE.

No. 69339, 69340.

Court of Appeals of Georgia.

March 8, 1985.

Rehearing Denied March 20, 1985.

William T. Gerard, Dean C. Broome, Jr., Athens, for appellant.

J. Hue Henry, Martha M. Pearson, Athens, for appellee.

SOGNIER, Judge.

Douglas Payne brought this action against Carol LaBarre and Susan Rivers for conspiring to interfere with and attempting to influence jury deliberations. Payne based his claims on state tort law and on federal law, alleging deprivation of rights secured to him by 42 U.S.C. § 1983. Rivers entered into a settlement with Payne. The trial court granted LaBarre's motion for summary judgment in Case No. 69340 and Payne appeals. The trial court denied LaBarre's motion brought under 42 U.S.C. § 1988 for attorney fees in Case No. 69339 and LaBarre appeals.

Payne was the plaintiff in a civil action and Rivers was a member of the jury. LaBarre, a friend of Rivers, contacted Rivers frequently during the trial, expressing an interest in the case. LaBarre also attended a portion of the seven-day trial. In a telephone conversation with LaBarre on the evening after the first day of the jury's deliberations, Rivers asked LaBarre about a legal issue regarding liability in the case. LaBarre expressed her opinion and volunteered to call Rivers back after she obtained a definitive answer from an attorney. Rivers called LaBarre the next morning before the jury continued its deliberations, but LaBarre had not obtained the answer to the question. Thereafter, LaBarre telephoned her former attorney, Lawrence, and asked him the liability question she had talked about with Rivers. Lawrence, who was familiar with the pending civil action, asked LaBarre if she had discussed the case with a juror. On being told that she had, he instructed LaBarre not to communicate further with Rivers and brought the matter before the trial court in the pending civil action. After a hearing regarding the communications between Rivers and LaBarre, the trial judge declared a mistrial over Payne's objections. Payne later entered into a settlement of his case and, subsequently, brought this action.

1. Payne contends the trial court erred by granting LaBarre's motion for summary judgment on his claim under 42 U.S.C. § 1983. To prevail on a claim brought under 42 U.S.C. § 1983 a plaintiff must prove two elements: (1) that some person has deprived him of a federal right and (2) that the person who has deprived him of that right acted under color of state law. Poss v. Moreland, 253 Ga. 730, 731, 324 S.E.2d 456 (1985); see Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980).

An essential element of a prima facie case under 42 U.S.C. § 1983 is the deprivation of a federally protected right. Williams v. Treen, 671 F.2d 892, 900 (5th Cir.1982); Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980); McCroan v. Bailey, 543 F.Supp. 1201, 1208 (S.D.Ga.1982). Payne cites Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982), in support of his contention that he was deprived of his federal right to an impartial jury trial of his state court claim under the due process clause of the Fourteenth Amendment. In Logan, the Supreme Court held that a state court cause of action did constitute a property right under the Fourteenth Amendment so that the state could not terminate the cause of action due to the failure of a state official to comply with a statutorily mandated procedure. Id. 455 U.S. at 429, 102 S.Ct. at 1154. See also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950). However, in the instant action as distinguished from Logan, there was no deprivation or termination of Payne's cause of action. Although he suffered inconvenience and delay in resolving his claims, the trial court's grant of a mistrial did not deprive Payne of his right to relitigate the matter. Instead Payne elected to settle those claims. Moreover, we note that the Seventh Amendment right to jury trial of civil actions applies only to trials in federal cases and there is no corresponding federal right to trial in state courts. Butler v. Claxton, 221 Ga. 620, 621, 146 S.E.2d 763 (1966). Accordingly, while it appears that there was unauthorized interference with the jury deliberation process, we find no deprivation of a federal right in this case and Payne's claim under 42 U.S.C. § 1983 must fail.

2. Payne contends the trial court erred by granting summary judgment to LaBarre on the basis that Payne has no claim against LaBarre under state law. We agree with Payne that he has a viable claim against LaBarre for embracery and we therefore reverse the trial court's grant of summary judgment to LaBarre because questions of fact exist on this issue. "A person commits the offense of embracery when he ... [w]ith intent to influence a person summoned or serving as a juror, communicates with him otherwise than is authorized by law in an attempt to influence his action as a juror...." OCGA § 16-10-91(a)(1); see Jones v. State, 101 Ga.App. 851, 855(2a), 115 S.E.2d 576 (1960). The record shows that despite LaBarre's claim that her interest in Payne's case resulted solely from her work for a bank and her interest in financial institutions, it is uncontroverted that a named defendant in Payne's case was a member of LaBarre's employer's board of directors and LaBarre admitted she was aware of that connection. LaBarre further admitted that as...