Nathaniel and Lucy Boyd appeal the simultaneous dismissal of two earlier attempts to appeal rulings of the trial court. The chief issue before us is whether the trial court erred when it denied them pauper status with regard to their first appeal. We hold that the court’s ruling on that issue was erroneous as a mattеr of law and that the effect of the error controls resolution of the remaining issues on appeal.
The facts relevant to our decision are undisputed. In October 2005, the Boyds brought suit for trespass and ejectment against JohnGalt Holdings, LLC, alleging JohnGalt acquired commercial property the Boyds owned in Atlanta as a result of a tax sale that was “null, void and of no force or effect.” In 2007, the Boyds amended their complaint to add claims of tortious interference with property rights, breach of contract, and rescission. JohnGalt answered and filed counterclaims, including a claim for quiet title, which prompted the court to appoint a special master to hear the case. In July 2009, the special master issued findings; on July 30, 2009, the trial court entered a “Non-Final
On September 18,2009, the Boyds timely
The Boyds filed an emergency motion for a hearing to reconsider the issue of indigence, as well as a request for additional time to appeal the ruling. They attached a new affidavit containing detailed factual support for the assertion of indigence. JohnGalt did not traverse this affidavit either. On Mаrch 1, 2010, and again without a hearing, the trial court refused to reconsider the issue of indigence. That same day, the Boyds filed a notice of appeal regarding the January 29, 2010 order.
Almost seven months elapsed before the clerk sent a bill for costs related to the Boyds’ second appeal. In the meаntime, the Supreme Court announced that, effective June 2, 2010, it had “adopted a change in its rules to ensure that those seeking to appeal a lower court’s ruling will be able to afford to do so.” The rule allows the parties themselves to submit a record appendix in lieu of the court clerk transmitting the reсord. See Rules of the Supreme Court of Georgia, Rule 67 (2), (4). The Boyds received the bill of costs on September 28, 2010, for $4,489, essentially the same amount as the earlier bill.
The trial court then conducted a hearing on JohnGalt’s motion to dismiss (but not on the pauper issue), following which it dismissed both of the Boyds’ attempts to аppeal — from the order adopting the decision of the special master and all prior orders, and from the denial of indigent status. The Boyds appealed for the third time. The Supreme Court transferred the case to this Court on the ground that it did not have jurisdiction because the Boyds had not appealed the merits of the quiet title action but only the dismissal of their two previous attempts to appeal.
2. The Boyds contend the trial court erred by denying their initial attempt to secure indigent status because JohnGalt did not traverse their affidavits, the court did not hold a hearing on the matter, and, as a consequence, the court had no evidence upon which to base a denial of indigent status. Whether the trial court fоllowed the correct procedure when it denied the Boyds indigent status is a question of law for this Court. See Hawkins,
Georgia law provides that a party unable to pay costs may present an affidavit to that effect and, as a result, “the party shall be relieved from paying the costs and his rights shall be the same as if he hаd paid the costs.” OCGA § 9-15-2 (a) (l).
OCGA § 9-15-2 provides two avenues of attack on such an affidavit. First, the opposing party may contest the affidavit by a sworn statement to the effect that the applicant’s affidavit is not true. OCGA § 9-15-2 (a) (2).
Second, even in the absence of a traverse, the court itself may “inquire into the truth of the affidavit.” OCGA § 9-15-2 (b). Here, the trial court inquired into the validity of the two pauper’s affidavits, but it did not hold a hearing. In its order denying the Boyds indigent status, the court characterized those affidavits as a request to proceed without paying costs, and it analyzed the request as follows:
In this case, the entirety of the proof of the Plaintiffs’ poverty comes from their assertion that they are poor. The Plaintiffs have not supported this assertion by setting out a comparison of their income vis-a-vis their expenses, or in any other matter. The Court therefore has no means by which to judge the Plaintiffs’ ability to pay these costs. And it is the Court’s duty to make this determination, not the parties’.
The court then denied the Boyds indigent status.
To determine whether a hearing was required in the absence of a traverse, we look first to the statute. The rules of construction require us to consider the statute as a whole and look for the intent of the legislature. OCGA § 1-3-1 (a). “When a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accоrdingly.” (Citations omitted.) Opensided MRI of Atlanta v. Chandler,
OCGA § 9-15-2 (b) sets out a procedure for contesting the truth of a pauper’s affidavit in the absence of a traverse that specifically includes a hearing:
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 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.
(Emphasis supplied.) Id. Thus, the plain language of the statute requires a hearing before a court may order costs to be paid. Nevertheless, two cases from this Court come to opposite conclusions on the question of whether a hearing is required under these circumstances. See Walker v. Crane,
Appellant contends he was entitled to a hearing on the matter by OCGA § 9-15-2 (b). This section, however, does not mandate a hearing upon the mere filing of a petition in forma pauperis. It provides that the court “may” inquire into the truth of the affidavit of indigency, and “aftеr a hearing” (if it holds a hearing) may award costs.
The case of Barham v. Levy,
Here, without a traverse or a hearing, the Boyds’ affidavits stand unrebutted in the record, and the Boyds should have been relieved from paying costs without any adverse impact on their rights to pursue a legal remedy. Although the trial court attempted to inquire into the validity of the affidavit, it failed to hold the required hearing. All of the subsequent events were the result of this error. The court dismissed the Boyds’ second appeal on the ground that there was an unreasonable delay of over one year in the transmission of the record following the second notice of appeal and that the delay was inexcusable and caused by the Boyds’ failure to pay costs of preparing the record. See OCGA § 5-6-48 (c). Based on the record currently before the trial court, however, the Boyds were entitled to proceed without paying costs, they were incapable of doing so, and it would have been futile to file another affidavit of indigence. Thus the trial court erred by dismissing the Boyds’ second appeal as well. Accordingly, the trial court’s order is reversed, and the case remanded for an evidentiary hearing on the question of indigence before further proceedings on the merits. See Mapp v. We Care Transp. Svcs.,
Judgment reversed and case remanded.
Notes
The special master only addressed JohnGalt’s counterclaims for quiet title as to right of redemption and prescriptive rights. The trial court entitled the order “Non-Final,” and the order is limited to approval and adoption of the speciаl master’s report. The parties’ other claims, therefore, remain pending.
Due to problems with service of the special master’s report, the trial court vacated the July 30, 2009 order and reentered it on August 19, 2009.
The Boyds appealed to the Supreme Court under that court’s jurisdiction of cases involving title to land based on the special master’s adjudication of JohnGalt’s counterclaim to quiet title.
The Court Services Director of the Fulton County Superior Court Clerk’s Office later testified that filing such an affidavit triggers no action by the clerk; she testified that unless there is a court order the appeal stops and, “We don’t dо anything. The cost hill has not been paid, there’s nothing we can do.”
The new bill reflects a different amount due, in part because of a change in the number of pages to be processed.
The complete subsection (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 dеposit, 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 unahle 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.
Compare Uniform Superiоr Court Rule 29.2, which, in criminal cases, requires “an application for appointment of counsel and certificate of financial resources, made under oath and signed by the accused” when accused persons contend they are financially unable to employ a defense attorney.
OCGA § 9-15-2 (a) (2) provides:
Any 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. The issue thereby formed shall be heard and determined by the court, under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.
Prior to the addition of the court’s own authority to inquire into the validity of the indigent affidavit in the absence of a traverse, Code Ann. § 24-3413 read as follows:
When any party, plaintiff or defendant, in any suit at law or proceedings ... shall be unable to pay any deposit, fee or other cost which may normally be required in such court, if such party shall subscribe an affidavit to the effect that from poverty he is unable to pay these costs, such party shall be relieved from paying such costs and his rights shall be the same as if he had paid such costs. Any other party at interest, or his agent or attorney, may contеst the truth of such pauper’s affidavit by verifying affirmatively under oath that the same is untrue. The issue thereby formed shall be heard and determined by the court under the rules of the court. The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.
(Punctuation omitted; emphasis supplied.) Heath v. McGuire,
But see Morris v. Dept. of Transp.,
Furthermore, Morris, a case involving a traverse, cited Sweet, a case where the court determined the matter on its own, for the proposition that a hearing was not required.