Blue Fox, Inc. v. Timothy F. Rogers

• Court: Court of Appeals of Virginia
• Decided: May 22, 2001
• Docket: 2400003
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Agee and Senior Judge Coleman Argued at Salem, Virginia

BLUE FOX, INC. MEMORANDUM OPINION * BY v. Record No. 2400-00-3 JUDGE SAM W. COLEMAN III MAY 22, 2001 TIMOTHY F. ROGERS

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Thomas H. Wood, Judge

(Nancy A. Frank; Edmunds, Willetts & Frank, P.C., on brief), for appellant. Appellant submitting on brief.

Frankie C. Coyner for appellee.

This appeal involves a discovery dispute that arose in a

divorce proceeding between Timothy F. Rogers and his wife, Barbara

Rogers. In the divorce action, Timothy Rogers obtained a subpoena

duces tecum from the circuit court for various corporate documents

from appellant Blue Fox, Inc., a witness in the divorce. Barbara

Rogers is an employee of Blue Fox, a company primarily owned and

operated by her father. Blue Fox sought to quash the subpoena

duces tecum and now appeals the order of the circuit court denying

its motion.

Code § 17.1-405, provides "[a]ny aggrieved party may appeal"

to this Court from "any final judgment, order, or decree of a

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. circuit court" involving divorce or other domestic relations

matters. That statute further defines this Court's jurisdiction

to include "[a]ny interlocutory decree or order . . . (i)

granting, dissolving, or denying an injunction or (ii)

adjudicating the principles of a cause." Id.

We dismiss this appeal on two grounds. First, because Blue

Fox is a third party witness to the divorce proceeding and is not

an "aggrieved party" under Code § 17.1-405, and, second, because

the order denying Blue Fox's motion to quash the subpoena is

interlocutory in nature and is not a final judgment, order, or

decree.

In this case, Blue Fox was not a party to the underlying

divorce proceedings. "A person cannot appeal a case to which he

is not a party." Tidewater Psychiatric Institute v. Buttery, 8

Va. App. 380, 383, 382 S.E.2d 288, 290 (1989). Unless and until

Blue Fox refuses to comply with the discovery order and is found

in civil contempt by the court, it will not be a "party" to a

case or controversy with standing to appeal. See HCA Health

Services v. Levin, 260 Va. 215, 219, 530 S.E.2d 417, 419 (2000).

Furthermore, the circuit court order from which Blue Fox

appeals is not a final order. "A final decision is one 'which

disposes of the whole subject, gives all the relief that is

contemplated and leaves nothing to be done by the court.'"

Hoyle v. Virginia Employment Commission, 24 Va. App. 533, 537,

484 S.E.2d 132, 133 (1997) (quoting Southwest Va. Hosps. v.

- 2 - Lipps, 193 Va. 191, 193, 68 S.E.2d 82, 83 (1951) (citation

omitted)).

"Ordinarily, a trial court's discovery orders are not

subject to review on direct appeal because they are not final

within the contemplation of Code § [17.1-405]." America Online

v. Anonymous Publicly Traded Co., 261 Va. 350, 358, 542 S.E.2d

377, 381 (2001) (holding, however, that an order granting or

refusing a protective order in a proceeding brought in this

Commonwealth under the Uniform Foreign Deposition Act is a final

order subject to appellate review). The "order in dispute

neither adjudicates the underlying cause nor relates to an

attendant injunction, but simply resolves an issue arising from

discovery incidental to the claim, clearly an interlocutory

determination over which this Court has no jurisdiction." City

of Richmond-Fire & Emergency v. Brandon, 32 Va. App. 787, 789,

531 S.E.2d 22, 23 (2000).

Accordingly, we dismiss the appeal.

Dismissed.

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