Texas Judiciary Online - HTML Opinion

Because the Council = and St.=20 Paul were independent parties in the trial court, and because the = trial=20 court=3Ds judgment, entered = against=20 each of them on independent grounds, did not affect the = rights of=20 the other, it logically follows that neither was adversely = affected by the=20 judgment against the other, and, thus, neither had standing to = appeal the=20 judgment entered against the other. Under these = circumstances, the=20 notice of appeal filed solely and unambiguously in the name of the = Council=20 and without any reference to St. Paul, can relate only to the = portion of=20 the judgment that disposed of claims asserted by the Council, and = not to=20 its disposition of claims asserted by other parties, such as St.=20 Paul. A contrary interpretation would suggest that a notice = of=20 appeal filed in the name of any single party would apply to any or = all=20 other co-parties and thereby render rule 25.1(c) meaningless.^{^[7]} =20 Moreover, although a defect in a notice of appeal may be corrected = by=20 amendment,^{^[8]} = the=20 notice of appeal filed for the Council is not defective, and no = amendment=20 was filed in any event.^{^[9]}

Because our record = does not=20 reflect that a notice of appeal was filed for St. Paul, and the = record=20 does not contain a showing of good cause to grant St. Paul more = favorable=20 relief than did the trial court, we have no authority to do = so. =20 Accordingly, we do not reach the issues presented by St. Paul, and = the=20 judgment against it is affirmed.

/s/ =20 Richard H. Edelman

Justice

Judgment rendered and = Majority=20 and Concurring Opinions filed January 11, 2007.

Panel consists of = Justices=20 Hudson, Edelman, and Seymore. (Seymore, J.,=20 concurring).

^{^[1]} =20 An insurer that pays its policy holder on a claim is subrogated to = the=20 right of the policy holder to recover damages from a third party = who=20 caused the loss to the extent that the amount recovered from the = third=20 party exceeds the remaining portion of the policy = holder=3Ds insured loss above the amount paid by = the=20 insurer. See Ortiz v. Great S. Fire and Cas. Ins. = Co., 597=20 S.W.2d 342, 344 (Tex. 1980).

^{^[2]} =20 The attorneys who filed the notice of appeal do not appear in our = record=20 as counsel for either the Council or St. Paul before the notice of = appeal=20 was filed. Their designation of clerk=3Ds record was also requested solely in = the name of=20 the Council as appellant.

^{^[3]} =20 See, e.g., Brooks v. Northglen Ass=3Dn, 141=20 S.W.3d 158, 171 (Tex. 2004); Lubbock County v.=20 Trammel=3Ds Lubbock Bail Bonds, 80 S.W.3d 580, 584 (Tex. 2002); = Boulle v.=20 Boulle, 160 S.W.3d 167, 176-77 (Tex. App.CDallas 2005, pet. denied); see also = Jakab v.=20 Gran Villa Townhouses Homeowners Ass=3Dn, Inc.,=20 149 S.W.3d 863, 869-70 (Tex. App.CDallas 2004, no pet.) (holding that=20 Association=3Ds explanation that it filed no appeal = because it=20 believed its issue had been waived was not sufficient to show just = cause).

^{^[4]} =20 See, e.g., Fort Worth & Denver Ry. Co. v. Ferguson, 261 = S.W.2d=20 874, 880 (Tex. Civ. App.CFort Worth 1953, writ dism=3Dd).

^{^[5]} =20 The dismissal of the Council=3Ds claims did not prejudice St. = Paul=3Ds subrogation claims. See = Wichita City=20 Lines, Inc. v. Puckett, 156 Tex. 456, 295 S.W.2d 894, 895, = 899-900=20 (1956).

^{^[6]} =20 In any event, St. Paul=3Ds brief sought relief only regarding the = disposition of the subrogation claims it asserted in its own name, = and did=20 not seek any relief from the judgment entered on the claims = asserted and=20 dismissed by the Council.

^{^[7]} =20 This issue is further compounded in that St. Paul sued in its own = name in=20 the trial court whereas it has sought to appeal in the name of the = Council, a posture in which it: (1) did not appear in the trial = court; (2)=20 presumably could not have so appeared there in that the Council = was itself=20 a party; and (3) suffered no adverse result.

^{^[8]} =20 See Tex. R. App. = P.=20 25.1(f).

^{^[9]} =20 Similarly, although an appellate court may order substitution of a = party=20 on any party's motion at any time, no such motion was ever filed = in this=20 case. Nor have we found authority suggesting that a party to = a trial=20 court action for whom a notice of appeal was not filed may be = substituted=20 in place of another party to the trial court action for whom such = a notice=20 was filed unless the former has succeeded to rights asserted in = the case=20 by the latter (apart from those asserted by the former), such as = by=20 assignment, or is otherwise affected by the judgment against the = latter,=20 such as by an indemnity obligation. See Tex. R. App. P.=20 = 7.1(c).