Unofficial Opinion 2012-3
Council of Superior Court Clerks of Georgia
Costs collected under O.C.G.A. § 9‑11‑55 as a condition precedent to opening cases in default should be held in the court registry pending disposition of the case, and then the monies should be disbursed to the prevailing party based on the judgment or dismissal.
In your capacity as the President of the Council of Superior Court Clerks, you have requested my opinion regarding the disbursement of costs paid to the superior court clerks in relation to the opening of default judgments pursuant to O.C.G.A. § 9‑11‑55. It is my unofficial opinion that the clerk of court should keep the amounts collected under O.C.G.A. § 9‑11‑55 in the court’s registry until final disposition of the case, and then disburse the monies to the prevailing party based on the judgment or dismissal.
Under O.C.G.A. § 9‑11‑55 the payment of costs is required prior to opening a case in default – either as a matter of right within fifteen (15) days of the default under subsection (a), or in the court’s discretion at any time before “final judgment” under subsection (b). While a case is automatically in default where an answer has not been filed within the statutorily required time period, default status itself is an interlocutory matter until a final judgment is entered and legal rights have vested. Clements v. United Equity Corp., 125 Ga. App. 711, 712 (1972) (recognizing the legal distinction between a default, which is interlocutory in nature, and default judgment, which involves final judicial action and vesting of rights). Specifically, you have presented four possible disbursement options for these accrued costs:
- All monies should be distributed as one lump sum to the county governing authority as a miscellaneous penalty fee;
- The costs should be distributed to the various agencies/funds in the same manner as when new filing fee is paid (i.e., retirements, law library, dispute resolutions agency, Judicial Operation Fund, governing authority, etc.);
- Without waiting for the disposition of the case, the cost is automatically disbursed to the plaintiff as a reimbursement of the initial filing fee costs paid. However, if plaintiff was exempt for paying advanced filing fees pursuant to a pauper’s affidavit under O.C.G.A. § 15‑6‑77(e)(2) then the default cost is to be disbursed as the initial filing fee cost for the case; or
- Relying on O.C.G.A. § 15-6-77(e)(5), costs should be held in the court’s registry pending disposition of the case, then disbursed to prevailing party based on the judgment or dismissal.
Statutes providing for costs must be strictly construed. Silverboard v. Iteld, 248 Ga. 589, 590 (1981). Additionally, “[a]ll officers charging costs must always show the authority of the law to do so.” Id.; see also O.C.G.A. § 45‑6‑5; Bentley v. State Bd. of Med. Exam’rs, 152 Ga. 836 (1922) (It is “fundamental that the duties and powers of public officers are limited to those defined by law.”).
The text of O.C.G.A. § 9-11-55 neither defines precisely what elements constitute costs under that section nor addresses the underlying purpose behind the requirement that costs be paid prior to opening a case in default. Case law interpreting the statute, however, provides some direction in evaluating the distribution options by defining the responsibilities of the clerks to the parties in collecting costs. Specifically, those cases establish that costs belong to the court, not the parties. The Georgia Court of Appeals has recognized that “[w]hile superior court clerks are not ‘collecting officers,’ they are by law charged with the duty of receiving the amounts of all costs due in the court of which they are clerks.” Whitsett v. Hester, 94 Ga. App. 78, 81 (1956). In Whitsett, the clerk failed to quote and charge the defaulting defendant the full amount of costs due to open the default. Id. In deciding that the failure to pay the full amount of costs did not affect the rights of the parties, the court noted that costs, in cases where the clerk is on salary, belong to the county. Id.; see also O.C.G.A. § 15‑6‑60. Moreover, a defendant has a right to rely upon the clerk’s statement on the amount of costs due “since court costs are a matter to be handled by courts rather than by parties litigant.” Sirmans v. Sirmans, 222 Ga. 202, 203 (1966).
Related Code sections addressing costs further indicate that costs are collected to compensate the clerk and not to punish or reward the parties. Georgia courts have defined costs as “all charges, fixed by statute, as compensation for services rendered by officers of the Court in the progress of the cause.” Davis v. State, 33 Ga. 531, 533 (1863); see also O.C.G.A. § 9‑15‑3 (specifying that costs are those amounts for which “the party who dismisses, loses, or is cast in the action shall be liable.”). Additionally, O.C.G.A. § 9‑11‑54(d) specifies that costs shall be awarded “as a matter of course to the prevailing party unless the court otherwise directs.” The party ultimately receiving costs after final judgment collects such amounts not as compensation for having prevailed, but as reimbursement for costs already paid to the officer or collection of amounts to be paid to the officer. See Holloman v Humber, 180 Ga. 470, 472‑73 (1935). The assessment of costs does not “constitute part [of any] verdict” but is simply “one of the duties of the court.” Markan Realty Co. v. Klarman, 99 Ga. App. 703, 705 (1959). Accordingly, if the defendant pays the costs directly to the court officer, the plaintiff may not then “demand that the defendant also pay him the amount of costs”  in conjunction with “the taxing of costs in the judgment.” Holloman, 180 Ga. at 473.
To this end, in Sweeney v. Malloy, 107 Ga. 80, 84 (1899), the Georgia Supreme Court described the system of taxing costs:
[J]udgments for costs are rendered against the losing and in favor of the prevailing party, primarily for the use of the officers of court, they not being parties to the litigation. In other words, the courts adjudge that the party in whose favor the case is decided shall be the channel, as it were, through whom the officers shall receive their compensation.
Thus, an overall reading of the Georgia statutes and case law suggests that costs should be treated as a mechanism for initially directing payment to the clerk, rather than an award to the prevailing party or a punishment of the losing party. This characterization best supports disbursement in accord with Option 4 below. Nevertheless, since you have raised four alternative means of disbursing such costs, I will address each method below in the order you have raised them.
Treating the collected costs as a “miscellaneous penalty fee” to be distributed to the county governing authority (Option 1) is, at minimum, a feasible use of the costs collected pursuant to O.C.G.A. § 9‑11‑55 given the language of O.C.G.A. § 15‑6‑77(b)-(c). The latter statute provides that “the fees provided for in this Code section shall be paid into the county treasury less and except such sums as are otherwise directed to be paid pursuant to Code Section 15-6-61 and such sums as are collected pursuant to Code Section 36-15-9 . . . .” O.C.G.A. § 15‑6‑77(c). The fees under O.C.G.A. § 15‑6‑77 are “exclusive of costs for service of process or other additional sums as may be provided by law.” O.C.G.A. § 15‑6‑77(b) (emphasis added). Additionally, the dissent in at least one case has construed as a penalty the somewhat analogous requirement that costs be paid before renewing an action under O.C.G.A. § 9‑11‑41(d). Hiley v. McGoogan, 177 Ga. App. 809, 812 (1986) (Deen, J., dissenting) (describing the precondition imposed upon refiling plaintiffs as “in the nature of a penalty for not being ready and willing to press his original suit to a hearing on the merits.”); see also Wright v. Jett, 120 Ga. 995, 1001 (1904).
Nonetheless, this interpretation is less ideal than Option 4. Despite the “additional costs” contemplated by O.C.G.A. § 15‑6‑77, neither that statute nor the associated case law suggests that costs under the default statute are “additional sums” “exclusive” of O.C.G.A. § 15‑6‑77. Given that officers charging costs must clearly show the authority of law to do so, treating the collected costs as a miscellaneous penalty – which results in the defaulting party paying costs twice if he also has final judgment entered against him – is not ideal because it does not have the same grounding in the law as Option 4 does. See O.C.G.A. § 45‑6‑5 (the duties and powers of public officers and agencies are limited to those defined by law). Moreover, the rationale for imposing a “penalty” under O.C.G.A. § 9‑11‑41(d) for failure to prosecute a case – i.e., punishing “the harassing renewal of a writ which the plaintiff has, after calling upon the defendant to appear in court and defend it, elected to dismiss” – simply is not present in a default scenario. Hiley, 177 Ga. App. at 812. Even the Hiley dissent recognizes that “[t]here seems to be a greater burden on plaintiff regarding payment of costs or penalty in this type of situation.” Id. (emphasis added). Unlike the plaintiff who has willfully hailed a defendant into court only to dismiss it, the defaulting defendant is culpable for curable oversight.
Second, reading the otherwise absent term “penalty” into O.C.G.A. § 9‑11‑55 contravenes the traditional rules of statutory interpretation. The cardinal rule of statutory interpretation is to ascertain the intent of the General Assembly, giving words their ordinary meaning unless they are words of art connected with a particular trade or subject matter. O.C.G.A. § 1‑3‑1. Vasant v. Allstate Ins. Co., 142 Ga. App. 684, 686 (1977). One statute will not be construed to repeal another unless the two are in irreconcilable conflict. Cornwell v. Atlanta Trust Co. 177 Ga. 303, 306 (1933). Moreover, statutes in pari materia (i.e., on the same subject matter) should be construed to avoid conflicts and repeal by implication, if possible. Lewis v. City of Smyrna, 214 Ga. 323, 326 (1958).
If the General Assembly intended for costs under O.C.G.A. § 9‑11‑55 to be construed as a penalty, they could have easily used the term “penalty” in that statute, just as they have in hundreds of other instances. See, e.g., O.C.G.A. § 15‑6‑77.4 (specifying additional filing fees in divorce cases); O.C.G.A. § 36‑1‑9 (prescribing that “[a]ny county official . . . who is charged with the responsibility of collecting, receiving, or disbursing any fees, fines, forfeitures, costs, commissions, allowances, penalties, funds, or moneys, or any other emolument . . . . may pay said funds directly into the county treasury upon their receipt.”) (Emphasis added). The Georgia Court of Appeals has specified that “[t]he terms ‘cost’ and ‘costs’ as employed in O.C.G.A. § 9‑15‑2 and related statutes mean exactly what they say: any of the various court costs ordinarily incurred in a proceeding, and especially those set forth in detail in O.C.G.A. § 15‑6‑77.” McKenzie v. Seaboard Sys. R.R., 173 Ga. App. 402, 404 (1985) (emphasis added). Thus, if O.C.G.A. § 9‑11‑55 is to maintain a plain meaning consistent with the established rules of statutory interpretation, the costs collected thereunder must mean costs as traditionally defined. Those costs should not be treated as a miscellaneous penalty fee.
Treating the costs as filing fees to be distributed among various agencies (Option 2) also does not appear to be the best reading of O.C.G.A. § 9‑11‑55. Research does not yield any statutory or case law that might give this interpretation some grounding in Georgia law. Georgia courts have recognized that filing fees paid at the outset of the case are to be treated distinctly from costs awarded at the conclusion of an action under O.C.G.A. § 9‑15‑1. In Newsome v. Graham, 254 Ga. 711, 712 (1985), the Georgia Supreme Court concluded that the plaintiff was liable for court costs under O.C.G.A. § 9‑15‑1 as the losing party, notwithstanding that the plaintiff had originally filed his action in forma pauperis. The provision allowing for a pauper’s affidavit in filing an action under O.C.G.A. § 9‑15‑2(a)(1) only “ensures access to the courts [by waiving the filing fee] and does not forego liability for costs upon losing a case.” Id.; see also Whitehead v. Lavoie, 176 Ga. App. 666, 666 (1985).
Reimbursing the plaintiff prior to the disposition of the case (Option 3) is the least sustainable option for distributing costs collected under O.C.G.A. § 9‑11‑55. As discussed above, default is an interlocutory matter. Clements v. United Equity Corp., 125 Ga. App. 711, 712 (1972). An accounting for costs is to be settled only when final judgment determines which party has prevailed. “The several officers of the court are prohibited from demanding the costs in any civil case or any part thereof until after final judgment in the same, except as otherwise provided by law.” O.C.G.A. § 9‑15‑3. Further, O.C.G.A. § 15‑6‑77(e)(5) specifies “no costs shall be refunded by the clerk unless and until the same have been paid to the clerk by the losing party.” (Emphasis added.) During the default period, no winning and losing party can be discerned. Therefore, the clerk cannot use such amounts to immediately refund costs paid by the plaintiff to the action. Additionally, Option 3 is not an appropriate use of the costs at issue because it yields results which contravene the case law specifying that costs fundamentally belong to the court and not the parties. See, e.g., Sweeney v. Malloy, 107 Ga. 80, 84 (1899).
As discussed above, Option 4 is the most logical and legally supported interpretation of costs under O.C.G.A. § 9‑11‑55. Principles of statutory construction support this definition of costs because it emulates the general definition of costs throughout two related areas of Georgia law –Titles 9 and 15. This interpretation also conforms to the plain meaning of costs recognized by Georgia case law: compensatory amounts to be handled by the clerk of court and not part of the verdict belonging to one of the parties. See, e.g., Markan Realty Co., 99 Ga. App. at 705. Given this legal grounding, the legislature likely did not envision that O.C.G.A. § 9‑11‑55 would require payment of double costs in the event the defaulting party also loses on the merits. To the extent that such costs are intended to deter parties from defaulting, the disincentive is that they must be paid before final judgment, as is typically required.
Therefore, it is my unofficial opinion that the clerk of court should keep the amounts collected under O.C.G.A. § 9‑11‑55 in the court’s registry until final disposition of the case, and then the monies should be disbursed to the prevailing party based on the judgment or dismissal.
Assistant Attorney General
 Similarly, a party is not entitled to collect costs from the opposing party which he did not pay. O.C.G.A. § 15‑6‑77(e)(5) (“no costs shall be refunded by the clerk unless and until the same has been paid to the clerk by the losing party”). Greer v. Whitley, 135 Ga. 333, 334 (1910). Thus, the clerk of a superior court must refund any portion of an advance costs deposit that exceeds actual costs. 1976 Op. Atty Gen. Ga. U76-61.
 This section provides that “[i]f a plaintiff who has dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the plaintiff shall first pay the court costs of the action previously dismissed.” O.C.G.A. § 9‑11‑41(d).
 See also 2005 Op. Att’y Gen. 2005-3 n.11 (“If the General Assembly specifically includes language in one section of a statute and fails to include that language in a provision dealing with the same subject matter, it is assumed that the exclusion is intentional. See Dept. of Human Res. v. Hutchinson, 217 Ga. App. 70, 72 (1995) (‘The omission of [specific statutory language] invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare tacitum, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned.’). 2000 Op. Att'y Gen. 2000-2, at 2.”)
 One such exception to this rule, however, is the filing fee deposit described in O.C.G.A. § 9‑15‑4(a); under this provision, a clerk is not required to file any civil case until after the fees of the superior court clerks under O.C.G.A. § 15‑6‑77 and 15‑6‑77.2 are paid, or after an affidavit of indigency is filed. Under O.C.G.A. § 9‑15‑4(b), the filing deposit required for filing “shall not affect any other law which requires a deposit in excess of or in addition to the deposit of cost required by this Code section.”