Lee v. Batchelor. ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
April 25, 2018
In the Court of Appeals of Georgia
A18A0273. LEE v. BATCHELOR.
REESE, Judge.
Howard Lee seeks review of the trial court’s order denying his request to
proceed in forma pauperis in a civil action he intends to file.1 Lee contends that the
trial court erred in denying his request without conducting a hearing, because no one
filed a traverse contesting the truth of his affidavit of poverty. For the reasons set
forth, infra, we reverse and remand this case for a hearing on Lee’s request.
The record shows the following undisputed facts. Lee filed an affidavit of
eligibility to proceed in forma pauperis, proof of his inmate account balance, and his
1
Lee is incarcerated, so his appeal is controlled by the Prison Litigation Reform Act
of 1996, OCGA § 42-12-1 et seq., and he properly proceeded by filing an application for
discretionary review. See OCGA § 42-12-8 (“Appeals of all actions filed by prisoners shall
be as provided in Code Section 5-6-35.”); see also OCGA § 5-6-35 (b).
proposed civil complaint. According to these documents, Lee had no assets except for
the seven cents in his inmate account. There is no traverse contesting the truth of
Lee’s affidavit of poverty in the record. Even so, without conducting a hearing, the
trial court found as a matter of fact that Lee was not indigent to the extent that he
should be allowed to proceed in forma pauperis.
The procedures to be followed by the trial court when a party seeks to avoid
paying court costs due to his or her indigence are outlined in OCGA § 9-15-2. OCGA
§ 9-15-2 (a) (1) provides as follows:
When any party, plaintiff or defendant, in any action or
proceeding held in any court in this state is unable to pay any deposit,
fee, or other cost which is normally required in the court, if the party
shall subscribe an affidavit to the effect that because of his indigence he
is unable to pay the costs, the party shall be relieved from paying the
costs and his rights shall be the same as if he had paid the costs.
However, “[a]ny other party at interest or his agent or attorney may contest the truth
of an affidavit of indigence by verifying affirmatively under oath that the same is
untrue.”2 In such a case, the question of the plaintiff’s indigence “shall be heard and
determined by the court, under the rules of the court[,]” and “[t]he judgment of the
2
OCGA § 9-15-2 (a) (2); see OCGA § 5-6-47 (b).
2
court on all issues of fact concerning the ability of a party to pay costs or give bond
shall be final.”3 Thus, under OCGA § 9-15-2 (a) (2), if another party disputes the
party’s status as indigent and that dispute is resolved by the trial court, the court’s
decision is typically not entitled to appellate review.4
This Court has concluded, however, that, even though a trial court’s factual
determination of whether a party is indigent is not subject to appellate review, this
Court is authorized to review the procedure used by the trial court when making an
indigence ruling.5 Here, Lee argues that the trial court erred when it denied his
request to proceed in forma pauperis without holding a hearing, as required by OCGA
§ 9-15-2 (b). OCGA § 9-15-2 (b) provides as follows:
In the absence of a traverse affidavit contesting the truth of an
affidavit of indigence, the court may inquire into the truth of the
affidavit of indigence. After a hearing, the court may order the costs to
3
OCGA § 9-15-2 (a) (2); see OCGA § 5-6-47 (b); see also Mitchell v. Cancer
Carepoint, 299 Ga. App. 881, 882-883 (1) (683 SE2d 923) (2009) (“[T]he proper forum
for determining the truth of a pauper’s affidavit is in the trial court, not in this [C]ourt.”)
(punctuation and footnote omitted).
4
See Mitchell, 299 Ga. App. at 883 (1).
5
Boyd v. JohnGalt Holdings, 318 Ga. App. 866, 869 (2) (736 SE2d 459) (2012)
(“Whether the trial court followed the correct procedure when it denied the [party’s]
indigent status is a question of law for this Court.”) (citations omitted).
3
be paid if it finds that the deposit, fee, or other costs can be paid and, if
the costs are not paid within the time permitted in such order, may deny
the relief sought.6
Thus, “the plain language of [OCGA § 9-15-2 (b)] requires a hearing before a court
may order costs to be paid.”7 Stated differently, “there is nothing in the statute that
allows a court inquiring on its own into the truth of a pauper’s affidavit to order the
payment of court costs without a hearing.”8 It follows that, “without a traverse or a
hearing, [Lee’s] affidavit[ ] stand[s] unrebutted in the record, and [Lee] should have
been relieved from paying costs without any adverse impact on [his] right[ ] to pursue
a legal remedy.”9
6
(Emphasis supplied.)
7
Boyd, 318 Ga. App. at 871 (2); see Gruner v. Thacker, 320 Ga. App. 146, 149 (2)
(739 SE2d 440) (2013).
8
Boyd, 318 Ga. App. at 871 (2).
9
Id. at 872 (2); see Gruner, 320 Ga. App. at 149 (2).
4
Accordingly, the trial court erred in failing to conduct a hearing on Lee’s claim
of indigence.10 We reverse the order and remand this case to the trial court for an
evidentiary hearing on the question of Lee’s indigence.11
Judgment reversed, and case remanded with direction. Barnes, P. J., and
McMillian, J., concur.
10
See Boyd, 318 Ga. App. at 872 (2).
11
See id.; see also Gruner, 320 Ga. App. at 149-150 (2).
5