                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Deanna McKinney,                                                                  FILED
                                                                                   July 8, 2013
Defendant Below, Petitioner                                                  RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA
vs.) No. 12-0437 (Kanawha County 11-C-AP-152)

Kathy L. Fannin,

Plaintiff Below, Respondent


                               MEMORANDUM DECISION

        Petitioner Deanna McKinney, pro se, appeals an amended final order of the Circuit Court
of Kanawha County, entered April 5, 2012, denying her appeal from the Magistrate Court of
Kanawha County because she did not file her appeal within twenty days of the entry of the
magistrate court’s judgment. The magistrate court previously entered a default judgment against
petitioner in the amount of $1,961 plus $60 in court costs in this landlord/tenant dispute.
Respondent Kathy L. Fannin filed no response.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. For the reasons expressed below, the decision is reversed and this case is
remanded for further proceedings. In so holding, this Court finds that this case does not present a
new or significant question of law. For these reasons, a memorandum decision is appropriate under
Rule 21 of the Rules of Appellate Procedure.

        On March 18, 2011, respondent filed suit against petitioner, her former tenant, for damages
to the rental property. On August 26, 2011, respondent filed an affidavit of default judgment
alleging that petitioner was served with the summons and the complaint on August 5, 2011.
Respondent alleged that the method of service was “self-serve.” On August 29, 2011, the
magistrate court entered a default judgment in respondent’s favor in the amount of $1,961 plus $60
in court costs.

        On October 6, 2011, respondent applied for a suggestee execution to begin the garnishment
of petitioner’s wages in satisfaction of the judgment. The suggestee execution was subsequently
mailed to petitioner’s employer. With interest and the costs of the execution, the total amount
petitioner owed was $2,064.53.

        On October 24, 2011, petitioner filed for an exemption and a temporary release of the
suggestee execution. On the same day, petitioner filed a motion to set aside the default judgment
alleging that “I was never served.” Petitioner also disputed that she owed any money for damages.
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The magistrate court denied petitioner’s motion to set aside the default judgment on October 27,
2011. Petitioner did not appeal the magistrate court’s denial of her motion.

        On November 21, 2011, petitioner appealed the magistrate court’s August 29, 2011 default
judgment in respondent’s favor to the circuit court. The circuit court noted that the basis of
petitioner’s appeal was that “she was not properly served with the complaint in the underlying
magistrate court case.” The circuit court found that petitioner was served in person on August 5,
2011. The circuit court determined that it lacked jurisdiction to consider petitioner’s appeal of the
August 29, 2011 default judgment because she did not file her appeal within twenty days of that
judgment’s entry. See Rule 18(a)(1), W.V.R.C.P.Mag.Ct.

        On appeal, petitioner asserts that she did not become aware of the default judgment against
her until the garnishment of her wages began. Petitioner asserts that no receipt of summons was
ever produced to show her acceptance of the summons. Accordingly, petitioner argues that default
judgment should not have been entered against her. Petitioner does not specifically address the
circuit court’s determination that her appeal was untimely.

        Rule 18(c) the West Virginia Rules of Civil Procedure for Magistrate Courts provides that
“[i]f no notice is filed within the 20-day [appeal] period, the circuit court may, not later than 90
days after the date of judgment, grant an appeal upon a showing of good cause why the notice was
not filed within such 20-day period.” In her affidavit of default judgment, respondent indicated
that she personally served petitioner with the summons and the complaint. Under Rule 4(c)(2) of
the West Virginia Rules of Civil Procedure, service may not be effected by a person who is a
party.1 See Syl. Pt. 1, State ex rel. West Virginia Truck Stop, Inc. v. Belcher, 156 W.Va. 183, 192
S.E.2d 229 (1972). Thus, the circuit court was incorrect to have found that petitioner was properly
served. On the other hand, petitioner waited approximately a month after she apparently became
aware of the default judgment to file an appeal of that judgment. The date of Ms. McKinney’s
appeal, November 21, 2011, is within ninety days of the default judgment’s entry on August 29,
2011. Therefore, after careful consideration, this Court reverses the circuit court and remands the
case to the circuit court for a determination of whether good cause exists to grant petitioner an
appeal pursuant to Rule 18(c) of the West Virginia Rules of Civil Procedure for Magistrate Courts.

       For the foregoing reasons, we reverse the decision of the Circuit Court of Kanawha County
and remand this case for further proceedings.

                                                                          Reversed and Remanded.




       1
         Pursuant to Rule 3 of the West Virginia Rules of Civil Procedure for Magistrate Courts,
Rule 4 of the West Virginia Rules of Civil Procedure governs service of process in civil actions in
the magistrate court.
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ISSUED: July 8, 2013


CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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