MCFADDEN, P. J., BRANCH and BETHEL, JJ.
dispossessory proceeding, Yevette Freeman appeals pro se from
an order of the DeKalb County Superior Court denying her
application to proceed in forma pauperis. For reasons
explained below, we vacate the trial court's order and
remand the case for further proceedings.
relevant facts are undisputed and show that on May 4, 2016,
the DeKalb County Magistrate Court entered final judgment
against Freeman and in favor of The Park at Hairston
Apartments in a dispossessory action brought by the apartment
complex. Freeman appealed that judgment to the Superior
Court. On May 10, 2016, the clerk of the Superior Court sent
Freeman a notice stating that before her appeal could be
filed, Freeman was required to pay the filing fee of $214.
The notice further stated that "[i]f the costs are not
paid within (30) days, the case will be dismissed for want of
prosecution and will be returned to Magistrate Court."
The notice was sent via certified mail to Freeman at an
address that we presume she provided to the clerk at the time
she filed her notice of appeal. On June 8, 2016, that notice was
returned to the clerk's office as "unclaimed."
Approximately one week later, on June 16, 2016, Freeman filed
an application to proceed without paying costs together with
a supporting affidavit of poverty.
trial court considered Freeman's application under OCGA
§ 9-15-2, which provides that when a pro se litigant in
a civil action files an affidavit of poverty and seeks to
proceed without paying costs,
the clerk of court shall not file the matter but shall
present the complaint or other initial pleading to a judge of
the court. The judge shall review the pleading and, if the
judge determines that the pleading shows on its face such a
complete absence of any justiciable issue of law or fact that
it cannot be reasonably believed that the court could grant
any relief against any party named in the pleading, then the
judge shall enter an order denying filing of the pleading. If
the judge does not so find, then the judge shall enter an
order allowing filing and shall return the pleading to the
clerk for filing as in other cases. . . .
OCGA § 9-15-2 (d).
considering Freeman's application, the trial court denied
the same based on its finding that the application was
untimely. Specifically, the trial court reasoned that because
the clerk's office had directed Freeman to pay the bill
of costs by June 9, 2016,  Freeman was required either to pay the
costs or file an affidavit of poverty by that date. Freeman
challenges this ruling on appeal.
that the trial court erred in relying on OCGA § 9-15-2
(d) to deny as untimely Freeman's application to proceed
in forma pauperis. Assuming arguendo that OCGA §9-15-2
applies to notices of appeal filed in the Superior Court,
language of that code section does not authorize a dismissal
for failure to file a timely application to proceed in forma
pauperis. Instead, it allows the trial court to refuse to
accept a pro se complaint or other pleading for filing only
if the court determines "that it cannot be reasonably
believed that the court could grant any relief against any
party named in the pleading." Here, the trial court made
no such determination, and therefore it could not rely on
OCGA § 9-15-2 to deny Freeman's application.
the code section that authorizes a superior court to dismiss
an appeal for failure either to pay costs or file an
affidavit of poverty is OCGA § 5-3-22 (a), which
No appeal shall be heard in the superior or state court until
any costs which have accrued in the court . . .
below have been paid unless the appellant files with the
superior or state court . . . an affidavit stating that
because of indigence[, ] he or she is unable to pay the costs
[of an] appeal. In all cases, no appeal shall be dismissed in
the superior or state court because of nonpayment of the
costs below until the appellant has been directed by the
court to do so and has failed to comply with the court's
(Emphasis supplied.) This case, however, does not involve
Freeman's failure to pay costs in the Magistrate Court.
Instead, it involves Freeman's failure either to pay the
filing fee owed in Superior Court or file an affidavit of
poverty in that court. Accordingly, OCGA § 5-3-22 (a)
provides no basis for affirming the trial court's order.
reasons set forth above, we vacate the order of the trial
court denying Freeman's motion to proceed in forma
pauperis, and we remand the case for ...