STATE OF WEST VIRGINIA 

SUPREME COURT OF APPEALS 

Deanna McKinney, 

Defendant Below, Petitioner 

FILED 

July 8, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs.) No. 12-0437 (Kanawha County 11-C-AP-152) 

OF WEST VIRGINIA 

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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