Bush ex rel. Bush v. O'Daniel

LEIBSON, Justice. The issue is how to seek appellate review when the trial court denies a party the right to proceed on appeal in forma pau-peris. Appellants, plaintiffs below, seek to appeal, in forma pauperis, from adverse judgments in the trial court which followed jury verdicts for the defendant/appellee, in a civil action for wrongful death and assault. They had been permitted to commence and proceed in forma pauperis in the trial court until judgment, using KRS 453.190, which provides “a poor person residing in this state (a right) to file or defend any action or appeal therein without paying costs.” The initial order permitting appellants to proceed as poor persons was granted ex parte, based on their affidavits submitted when suit was filed. After trial and judgment, however, the court, following a hearing at which the appellee opposed their status as poor persons, denied their further motion to proceed on appeal in forma pau-peris. The trial court’s final order denying appellant, Bessie Bush, relief enumerates findings of fact from which the court concluded that she was not a “poor person” as defined in KRS 453.190. The motion on behalf of appellant, Annette Bush, was later overruled, presumably for the same reasons. Pursuant to CR 76.18(5), the Kentucky Court of Appeals has asked our Court to accept transfer of this appeal in order to clarify the procedure to be followed by a person claiming to be an indigent when seeking review of an order denying a motion to proceed on appeal in forma pauper-is. There are a number of issues underlying the question before us. 1) Does the initial grant of “poor person” status at the commencement of the [404] action automatically carry through to the appeal stage? 2) Should the question of an appeal in forma pauperis be decided ex parte, on the appellant’s motion supported by affidavit, or is the adverse party entitled to notice and a hearing on the question? 3) If the trial court denies the right to proceed on appeal in forma pauperis, how does the appellant get this issue reviewed, by appeal from the order denying relief or by writ of mandamus? 4) Is the time for appeal of the judgment in the underlying case stayed while the denial of appeal in forma pauperis is being reviewed? 5) Does the appellate court consider the merits of the right to appeal in forma pauperis de novo, or is it limited to deciding whether the trial court abused its discretion in denying the right? KRS 453.190, which defines “poor person” and provides the method for an indigent “to file or defend any action or appeal therein without paying costs,” has already been interpreted by our Court in a manner adequate to provide for appeals in criminal cases. Gabbard v. Lair, Ky., 528 S.W.2d 675 (1975). The procedure under Gabbard requires application to the trial court for permission to prosecute on appeal in forma pauperis, which, if denied, will be reviewed by the appellate court by appeal from the order denying relief, as with other final orders. Gabbard further provides: “Until such time as the court disposes of the appeal on the motion to proceed in forma pauperis, the running of the time set by [former] RCr 12.58 within which the record on the appeal from the criminal conviction must be filed shall be stayed.” 528 S.W.2d at 678. The problem in civil cases, as opposed to criminal cases, is CR 73.02(l)(b), which requires payment of the filing fee for an appeal before the notice of appeal in the underlying action can be docketed. CR 73.02(l)(b). Thus, until now, the poor person seeking appeal in a civil case would lose the right to appeal the underlying judgment during the period necessary to seek relief from the order denying appeal in forma pauperis, because the appeal of the underlying action would not be docketed. In this set of circumstances, the litigant had no choice but to seek a writ of mandamus from the appellate court and to ask for a stay of the running of time on the underlying judgment while the right to mandamus was being decided. Recent changes in our Civil Rules obviate any further need for the writ of mandamus process. Where the reason for failing to pay the fee is because one seeks to perfect a poor person’s appeal, under CR 73.02(2) as amended, effective Jan. 1, 1985, it is no longer fatal to file a notice of appeal before paying the filing fee. Until such time as that issue is finally disposed of, there is a perfectly valid reason for the notice of appeal to be filed without the filing fee. Manly v. Manly, Ky., 669 S.W.2d 537 (1984) has no application to a pauper’s appeal, and it is no longer necessary to seek a writ of mandamus in order to avoid its impact. Next, effective Jan. 1, 1986, a new paragraph is added to CR 5.05, which shall read: “(4) If accompanied by a Motion for Leave to Proceed in Forma Pauperis and a supporting affidavit, and made in good faith, any matter to be filed under these rules, including appeals, shall be considered filed on the date it is tendered. If the Motion to Proceed in Forma Pau-peris is overruled, the moving party shall then have ten days to pay any required fees or costs or to appeal the decision. If the moving party fails to pay the required fees or costs, or to seek review, the matter shall be treated as though not timely filed.” (Emphasis added.) This new rule will provide for an appeal from a trial court’s order denying the right to commence an action in forma pauperis. The tender of notice of appeal of the underlying action will suffice to preserve the right to appeal it until after review of the denial of the right to appeal in forma [405] pauperis. It will no longer be necessary to seek a writ of mandamus from an appellate court to obtain review of a trial court’s order denying a motion to commence or proceed in the trial court in forma pauper-is. See Salyers v. Cornett, Ky., 566 S.W.2d 418 (1978). Further, it will no longer be necessary to seek mandamus where the trial court denies the right to appeal in forma pauperis and the litigant seeks appellate review. The only difference between the procedure at the stage where one commences the action, and the stage where one seeks appeal after the case has been lost, is that, at the commencement of the action, the person seeking relief as an indigent must necessarily proceed ex parte. At that point one seeks to avoid payment of initial costs, there is as yet no other party to the litigation and thus, no need for a contested hearing. KRS 453.190(3) specifies that the procedure to be followed in seeking to proceed in forma pauperis is “by motion.” Before the action is filed the motion is necessarily ex parte. There is, however, nothing in KRS 453.-190 mandating that once there are other parties to the litigation they should not have notice and an opportunity to be heard on this question, as with any other question where a court must exercise discretion. The right to appeal in forma pauperis is a decision which, by its nature, calls for an opportunity for the adverse party to be heard, and there is nothing in the statute denying such opportunity. Thus, we conclude that the logical way to review the trial court’s denial of the right to appeal in forma pauperis is not by writ of mandamus, but by appeal. Immediately and automatically, when the notice of appeal from the order denying the right to appeal in forma pauperis is filed, the appellate court should stay the running of time on further steps related to the initial, underlying appeal, until this matter of appeal in forma pauperis can be determined. Although we agree with the appellants that if they are poor persons they have the right to appeal in forma pauper-is, we do not agree that their claim is absolute or conditioned merely upon filing a proper affidavit. Adverse parties of record have a right to be notified of the motion and have a right to challenge whether it is appropriate. The trial court must then, as it did in the present case, hold a hearing and make a decision as to whether such relief is appropriate. That decision, like a decision on any other question which is addressed to the sound discretion of the trial court, will not be reviewed de novo, but will only be reversed if clearly erroneous. CR 52.01. Applying this standard to the present case, the findings of the trial court provide five different reasons why appeal in forma pauperis should be denied here. Although some of these reasons individually appear inadequate, we cannot say that, taken as a whole, the trial court’s findings are clearly erroneous. There are enough facts at issue in this respect to make the credibility of the appellants critical. Credibility is an issue that addresses itself to the fact finder. Therefore, the decision of the trial court overruling the motion to appeal in forma pauperis is affirmed. STEPHENS, C.J., and AKER, GANT and WINTERSHEIMER, JJ„ concur. VANCE, J., dissents by'separate opinion in which STEPHENSON, J., joins.