Tirouda v. State, 2004-CP-00379-COA.

• Court: Court of Appeals of Mississippi
• Citation: 919 So.2d 211
• Docket Number: No. 2004-CP-00379-COA.,2004-CP-00379-COA.
• Parties: Zineddine TIROUDA, Appellant v. STATE of Mississippi (Mississippi State Board of Health), Appellee.
• Decision Date: 21 June 2005

919 So.2d 211 Zineddine TIROUDA, Appellant
v.
STATE of Mississippi (Mississippi State Board of Health), Appellee. No. 2004-CP-00379-COA. Court of Appeals of Mississippi. June 21, 2005.

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Zineddine Tirouda, Appellant, pro se.

Sanford Ridley Horton, Jackson, Dennis Leon Sharp, attorneys for appellee.

Before KING, C.J., IRVING and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. On January 26, 2004, the Chancery Court of Lauderdale County set aside the court's 1999 judgment issuing Zineddine Tirouda a delayed birth certificate. Aggrieved, Mr. Tirouda appeals to this Court, arguing that the trial court abused its discretion in setting aside the judgment more than six months after the judgment was entered. Since Mr. Tirouda was found to have committed fraud upon the court, Rule 60(b) does not limit the court's ability to set aside its 1999 judgment. Accordingly, we affirm.

STATEMENT OF FACTS

¶ 2. Zineddine Tirouda initiated an action on May 14, 1999, in the Chancery Court of Lauderdale County, Mississippi, requesting the court to direct the Vital Records Division of the Mississippi State Board of Health to issue him a delayed certificate of birth. At that time, Tirouda was not a citizen of the United States and was not residing in Mississippi. An evidentiary hearing was held on August 17, 1999, before Chancellor Sarah Springer, during which live testimony from Mr. Tirouda and individuals claiming to be his parents was taken. Mr. Tirouda's alleged parents, Amar and Tata Tirouda, testified with the assistance of an interpreter, that Mr. Tirouda was born in Meridian, Mississippi in 1964. Mr. Tirouda personally testified that he had been raised in Algeria by his parents, had lived in the United States for about six years and was seeking an immigration visa through the U.S. Department of Labor. No other witnesses testified, and the Mississippi State Department of Health did not question the witnesses. The chancery court entered its judgment on August 17, 1999 ordering the Mississippi State Board of Health to issue Mr. Tirouda a delayed birth certificate. Pursuant to the chancery court's order, the delayed birth certificate was issued, and a copy was provided to Mr. Tirouda.

¶ 3. In 2000, Mr. Tirouda was charged by federal authorities in San Diego, California, with making a false statement in his application for a United States passport in violation of 18 USC § 1542. The case went to trial in January of 2003. During the trial, the chancellor from the birth certificate proceeding, Honorable Sarah Springer, testified as a witness for the government pursuant to subpoena. Mr. Tirouda was convicted by a jury and sentenced to serve six months in prison. On January 10, 2005, the United States Court of Appeals for the Ninth Circuit affirmed

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Tirouda's judgment of conviction. U.S. v. Tirouda, 394 F.3d 683 (9th Cir.2005).¹

¶ 4. On August 26, 2003, two days prior to Mr. Tirouda's sentencing hearing in San Diego, Chancellor Springer issued an order to show cause why the judgment directing issuance of delayed certificate of birth, entered on August 17, 1999, should not be set aside, vacated and held for naught. Reciting Rule 60(b)(1) of the Mississippi Rules of Civil Procedure, the order to show cause was based on "the receipt of information that a fraud may have been committed on th[e] court." Chancellor Springer set a hearing date of October 20, 2003, which was continued at the request of Mr. Tirouda. On January 4, 2004, Mr. Tirouda filed a motion to dismiss the order to show cause as time barred under Rule 60(b)(1) and moved to recuse Chancellor Springer from presiding over the matter. The State responded that the court had authority under Rule 60(b)(4) and (6) to vacate the order more than six months after its rendition. Chancellor Springer conducted the hearing on January 26, 2004, but Mr. Tirouda was not present. Admitted into evidence was a copy of the United States Department of State Diplomatic Security Service Report of Investigation, which identified Tirouda's correct birthplace to be Algeria. The chancery court vacated the order of August 17, 1999, and found that Mr. Tirouda's conviction for conspiracy to possess immigration documents by fraud and making a false statements in application for a United States passport was an indication that fraud was committed at the 1999 hearing.

ISSUE

¶ 5. The only issue presented is whether the trial court erred when, upon its own motion, it set aside its prior judgment issuing Mr. Tirouda a delayed certificate of birth more than six months after the judgment was entered.

STANDARD OF REVIEW

¶ 6. The decision to vacate a previous order under Rule 60(b) of the Mississippi Rules of Civil Procedure is a matter left to the sound discretion of the trial court, and the only question asked on appeal is whether there has been an abuse of that discretion. Accredited Sur. & Cas. Co. v. Bolles, 535 So.2d 56, 58 (Miss.1988).

ANALYSIS

¶ 7. At issue is the court's authority to vacate an order upon its own initiative

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under Mississippi Rules of Civil Procedure 60(b). The chancery court is vested with broad equitable powers with which it is able to decide if the original order was entered by mistake, fraud of a party, or for another reason justifying relief from the judgment under Rule 60(b) and may do so upon its own motion. Edwards v. Roberts, 771 So.2d 378, 386(¶ 28) (Miss.Ct.App. 2000). Regarding the validity of the court's order to vacate its previous order, we must examine Rule 60(b):

Mistakes; Inadvertence; Newly Discovered Evidence; Fraud, etc.

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

(1) fraud, misrepresentation, or other misconduct of an adverse party;

(2) accident or mistake;

(3) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application;

(6) any other reason justifying relief from the judgment.

The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. Leave to make the motion need not be obtained from the appellate court unless the record has been transmitted to the appellate court and the action remains pending therein. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court ....

M.R.C.P. 60(b) (emphasis added in italics).

¶ 8. Mr. Tirouda argues that Mississippi appellate courts have clearly held that a motion to set aside a final judgment pursuant to Rule 60(b)(1) is time barred if filed after six months from the date judgment was entered. In support of his argument, Mr. Tirouda discusses two cases: Moore v. Jacobs, 752 So.2d 1013 (Miss.1999), and Jenkins v. Jenkins, 757 So.2d 339 (Miss. Ct.App.2000). In Moore, the defendant filed a motion from relief from judgment four years after the judgment was entered based on claims that the plaintiff committed perjury and that there was newly discovered evidence. The supreme court held that the defendant's motion was time-barred since relief under Rule (60)(b)(1) must be made within six months of the final judgment. In Jenkins, this Court held that a final...