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2008-UP-262 - Kemppinen v. Alltel, South Carolina

THIS OPINION HAS NO PRECEDENTIAL VALUE, IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Auvo I. Kemppinen, Appellant,

v.

Alltel, South Carolina, Respondent.


Appeal From Berkeley County
 John M. Milling, Circuit Court Judge


Unpublished Opinion No. 2008-UP-262
Submitted May 1, 2008 – Filed May 15, 2008  


AFFIRMED


Auvo I. Kemppinen, pro se, for Appellant.

Bonum Sams Wilson, III, of Charleston, for Respondent.

PER CURIAM:  This action arises from a dispute between Kemppinen and Alltel regarding a mobile phone account.  Kemppinen filed a complaint in magistrate’s court on January 30, 2006.  Alltel moved to dismiss pursuant to Rule 12(b)(6), SCRCP.  The magistrate’s court dismissed the action after Alltel helped to remove past-due mobile phone charges from Kemppinen’s credit history.

Kemppinen timely filed a notice of appeal with the circuit court, but failed to serve Alltel or Alltel’s counsel with the notice of appeal.  The circuit court dismissed Kemppinen’s appeal for improper service.  Kemppinen filed a Motion for Reconsideration, but the circuit court denied his motion. Kemppinen appeals.  We affirm.[1]

“[T]he procedure on appeal to the circuit court from the judgment of an inferior court . . . shall be in accordance with the statutes providing such appeals.”  Rule 74, SCRCP.  Section 18-7-20 of the South Carolina Code requires an appellant to serve his notice of appeal within thirty days of receiving written notice of judgment by the magistrate.  S.C. Code Ann. § 18-7-20 (Supp. 2007).   In addition, where the notice of appeal is required by statute, Rule 74 mandates the “notice of appeal to the circuit court must be served on all parties within thirty (30) days after receipt of written notice of the judgment, order or decision appealed from.”  Rule 74, SCRCP.

Failure to perfect an appeal from magistrate’s court divests the trial court of appellate jurisdiction.  See State v. Brown, 358 S.C. 382, 387, 596 S.E.2d 39, 41 (2004).  Further, service of notice of intent to appeal on the opposing party is a jurisdictional requirement, and an appellate court has no authority to extend the time in which the notice of intent to appeal must be served.  Mears v. Mears, 287 S.C. 168, 169, 337 S.E.2d 206, 207 (1985).

Here, Kemppinen failed to serve Alltel with the notice of appeal.  Accordingly, the circuit court’s dismissal of Kemppinen’s appeal is

AFFIRMED.  

SHORT and KONDUROS, JJ., and GOOLSBY, A.J., concur.


[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.