Eguia v. Tompkins, No. 84-2451

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GEE, JOHNSON, and DAVIS; GEE
• Citation: 756 F.2d 1130
• Parties: L.E. EGUIA, Plaintiff-Appellant, v. Joyce TOMPKINS, et al., Defendants-Appellees. Summary Calendar.
• Docket Number: No. 84-2451
• Decision Date: 08 April 1985

Page 1130

756 F.2d 1130 L.E. EGUIA, Plaintiff-Appellant,
v.
Joyce TOMPKINS, et al., Defendants-Appellees. No. 84-2451
Summary Calendar. United States Court of Appeals,
Fifth Circuit. April 8, 1985.

Page 1133

David T. Lopez, Houston, Tex., for plaintiff-appellant.

Doherty & Williamson, Larry J. Doherty, Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE, JOHNSON, and DAVIS, Circuit Judges.

GEE, Circuit Judge:

In this case we are called upon to determine what process is due a county official whose salary is withheld to offset alleged insufficiencies in the fees of office he deposited with the county. The plaintiff, L.E. Eguia, a former Justice of the Peace in Fort Bend County, Texas, sued the county and various county officials, alleging that they acted unconstitutionally ¹ and in violation of federal civil rights statutes ² when they withheld his final paycheck. The defendants moved for summary judgment and for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. The district court granted summary judgment for the defendants. The plaintiff appealed the entry of summary judgment and the denial of his cross motion for partial summary judgment. Because the plaintiff's complaint states a claim upon which relief can be granted and genuine

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issues of material fact remain to be resolved, we vacate the judgment and remand the action to the district court for entry of a partial summary judgment and for further proceedings consistent with this opinion.

Facts

Because on review of the entry of summary judgment we consider the record in the light most favorable to the party opposing the motion, National Hygienics, Inc. v. Southern Farm Bureau Life Ins. Co., 707 F.2d 183, 185-86 (5th Cir.1983), we state the facts in the version most favorable to the plaintiff. Mr. Eguia was elected Justice of the Peace in Fort Bend County, Texas and served in that position from 1979 to 1982. At the time of his election, he was the first and only Republican to hold elective office in the county. One of Mr. Eguia's duties as Justice of the Peace was to collect and record fees due for his services and to deposit them in the county Officers' Salary Fund from which his salary was paid. Tex.Rev.Civ.Stat.Ann. arts. 3896, 3912e Sec. 3, Sec. 5 (Vernon 1966). Mr. Eguia made monthly reports to the County Auditor, Joyce Tompkins, one of the defendants in this case. Ms. Tompkins approved those reports. Within a few months of Mr. Eguia's taking office, Ms. Tompkins accused Mr. Eguia of malfeasance or misfeasance in office. The plaintiff alleges that this action and the subsequent actions of Ms. Tompkins and the other defendants ³ complained of were motivated by the defendants' animosity toward Mr. Eguia's political beliefs and associations. When his term of office expired on December 29, 1982, Mr. Eguia delivered his records of office and account books to the County Auditor's office. At that time, county personnel delivered to him a letter from Ms. Tompkins that alleged discrepancies in his reports, bank statements, or books of account for the period January 1979 through May 1981. Ms. Tompkins withheld Mr. Eguia's last paycheck and reimbursement of expenses for the month of December. Mr. Eguia wrote to county officials shortly thereafter, explaining his position that his records were in order.

In March 1983 Mr. Eguia filed this lawsuit. In February 1984 the county furnished Mr. Eguia with an eight-page document prepared by an assistant to the County Auditor summarizing the alleged deficiencies in his accounts. In late February 1984, the court set the case for trial in early April. On March 12, 1984, more than fourteen months after the County Auditor withheld Mr. Eguia's paycheck, the Commissioners' Court of Fort Bend County held a hearing at which the plaintiff was given an opportunity to explain the alleged discrepancies in his accounts. The county did not present evidence at this hearing, other than to draw the plaintiff's attention to the County Auditor's summary. The plaintiff's attorney presented a statement at the hearing protesting the county's failure to comply with Tex.Rev.Civ.Stat.Ann. art. 3912e, Sec. 5 (Vernon 1966), which requires that the Commissioners' Court furnish an officer with an itemized statement of uncollected fees and provide a hearing on ten days' notice before it deducts from his salary the amount of fees that the officer has negligently failed to collect. ⁴

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Mr. Eguia's attorney declined to rebut the discrepancies documented in the County Auditor's summary. Instead, he contended that the summary did not serve as the itemized notice required by article 3912e and observed that Ms. Tompkins, at her deposition, had been unable to explain the document, which she said had been prepared by an assistant. Although Mr. Eguia's attorney offered to respond to a "properly" itemized statement, Mr. Eguia did not try to call the assistant to explain the summary.

Mr. Eguia's response evidently did not satisfy the Commissioners' Court, which found that Mr. Eguia negligently failed to collect fees that he should have collected; that the County Auditor should deduct those fees from his salary; that the County Auditor was right to withhold Mr. Eguia's paycheck; and that Mr. Eguia had failed to cooperate with the county in rectifying the discrepancies in his accounts. About a month later, the county moved to dismiss this suit or for summary judgment, and Mr. Eguia filed a cross motion for partial summary judgment in his favor on the denial of procedural due process claims.

District Court's Opinion

The district court entered judgment for the defendants. After stating the requirements of due process to be that Mr. Eguia be given 1) written notice of the reasons for a deprivation and 2) an effective opportunity to rebut those reasons, the court held that Ms. Tompkins' letter of December 29, 1982, and the summary document furnished in February of 1984 provided the required notice and that the March 12, 1984, hearing provided Mr. Eguia with an effective opportunity to rebut the allegations against him. The court found that the delay in affording the hearing was as much the fault of the plaintiff as the county. In addition, it held that under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the post-deprivation hearing sufficiently met the requirements of due process.

Summary Judgment Motion

Before we reach the plaintiff's contentions that the district court erred in its application of the law when it entered summary judgment, we must turn our attention to a procedural matter. Rule 56(c) of the Federal Rules of Civil Procedure provides that the court may enter summary judgment if it concludes, after consideration of the pleadings, depositions, answers to interrogatories, admissions, and affidavits on file, ⁵ that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. When the defendants filed their motion for summary judgment on April 17, 1984, they attached in support of the motion unauthenticated excerpts from the commissioners' proceedings and an affidavit signed by their attorney, to the effect that the facts and allegations contained in the defendants' motion for summary judgment were true and correct. It was not until August 8, 1984, six days after the court entered summary judgment, that the defendants filed supplemental affidavits authenticating the excerpts from the March 12, 1984, proceedings. At the same time,

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the defendants added a supplemental affidavit signed by Jodie Stavinoha, a defendant and the County Judge of Fort Bend County. The affidavit is substantially the same as that signed by the defendants' attorney and filed April 17.

It could not escape our notice that the district court granted summary judgment on the basis of a motion supported by unauthenticated documents and an improper affidavit. Although we do not subscribe to the proposition that a litigant may routinely shore up such fundamental infirmities in a motion for summary judgment with subsequently-filed affidavits, ⁶ see Munoz v. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, 563 F.2d 205, 207 (5th Cir.1977); Ramsey v. United States, 463 F.2d 815, 817 (D.C.Cir.1972); Garcia v. American Marine Corp., 432 F.2d 6, 8 (5th Cir.1970) (per curiam), we have concluded that in this case any error was harmless. The text of the motion for summary judgment offered to supply the original transcript of the proceedings in Commissioner's Court if the authenticity of the attached documents were questioned. It was not. Documents presented in support of a motion for summary judgment may be considered even though they do not comply with the requirements of Rule 56 if there is no objection to their use. McCloud River Railroad Co. v. Sabine River Forest Products, Inc., 735 F.2d 879, 882 (5th Cir.1984); Hicks v. Harris, 606 F.2d 65, 67 n. 3 (5th Cir.1979); Munoz, 563 F.2d at 214; Townsend v. Columbia Operations, 667 F.2d 844 (9th Cir.1982). Thus the court acted within its discretion when it relied upon the documents, rather than, sua sponte, requesting that the defendants properly authenticate them.

The attorney's affidavit filed by the defendants in support of their motion is another matter. The plaintiff properly objected to its use in the district court. It attests to the truth of the facts and allegations contained in the defendants' motion. As to at least one of these facts, it appears that the attorney lacked personal knowledge. ⁷ We cannot condone the use of such an improper affidavit. See Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980) (per curiam); Broadway v. City of Montgomery, 530 F.2d 657, 660 (5th Cir.1976); Maddox v. Aetna Casualty...