IN THE SUPREME = COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 07-0384

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Warwick Towers Council of = Co-Owners,

by and through =

St. Paul Fire = & Marine=20 Insurance Company,

Petitioners,

Park Warwick, L.P., Park Warwick Investments, L.L.C., and =

Park Hotel = Investments,=20 L.L.C., Respondents

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On Petition for Review from = the

Court of Appeals for the Fourteenth = District of=20 Texas

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PER = CURIAM

=20 In this case we decide whether an insurer, asserting rights to=20 subrogation, waived its right to appeal by filing the notice of appeal = in its=20 insured=92s name. The court of appeals concluded that the insurer could = perfect=20 the appeal only in its own name because the underlying judgment denying = it=20 subrogation was on grounds that were independent of the insured=92s = claims. 218 S.W.3d 149, 151. We conclude, however, that the = notice of=20 appeal in the insured=92s name was a bona fide attempt to invoke the = appellate=20 court=92s jurisdiction, and, accordingly, we reverse the court of = appeals=92=20 judgment and remand the case for consideration of the merits.

=20 The Warwick Hotel is located across the street from the = Warwick = Towers, a condominium project. = The hotel=20 has a flood barrier system at its loading dock entrance to prevent = rainwater=20 from entering the building=92s basement. The condominium owners assert = that the=20 hotel failed to use this system during a severe rain storm in 2001, and, = as a=20 result, rainwater invaded the condominium=92s basement through an = underground=20 tunnel. The condominium owners sued the hotel, asserting claims of = negligence,=20 nuisance, and trespass. The condominium=92s insurer, St. Paul Fire & = Marine=20 Insurance Company, asserted its subrogation rights in the lawsuit, = having paid=20 approximately $1 million as the result of water damage.

=20 The hotel filed a motion for partial summary judgment, seeking = dismissal=20 of the condominium owner=92s nuisance and trespass claims. The hotel = also sought=20 dismissal of St. Paul=92s subrogation = claim,=20 asserting that a subrogation waiver in an easement agreement barred = St. Paul=92s = claim in the=20 case. The trial court agreed with the hotel in all respects, dismissing = the=20 nuisance, trespass, and subrogation claims. The condominium owners = thereafter=20 settled with the hotel and dismissed their remaining negligence claim = with=20 prejudice.

=20 St. = Paul=20 thereafter filed a notice of appeal in its insured=92s name. The notice = did not=20 mention St. = Paul=20 by name, but a docketing statement, filed on the same day, identified = the=20 Appellant as =93Warwick Towers Council of Co-Owners by and through St. = Paul Fire=20 & Marine Insurance Company.=94 All other appellate documents were = also styled=20 in this manner. The case was briefed and argued to the court on = September 29,=20 2005.

=20 The court subsequently issued its opinion, concluding the merits = of the=20 appeal were immaterial because St.=20 Paul had failed to name itself as the appellant = in its=20 notice of appeal. 218 S.W.3d at 151-52. One = justice=20 wrote separately that St.=20 Paul was entitled to have its issues addressed on = the=20 merits. Id. at=20 152. (Seymore, J., concurring). St.=20 Paul then filed a motion for rehearing and motion = to=20 amend its notice of appeal, but the court denied both motions. St. Paul = thereupon filed=20 for review in this Court.

=20 When perfecting the appeal, we have repeatedly said =93that the = factor=20 which determines whether jurisdiction has been conferred on the = appellate court=20 is not the form or substance of the bond, certificate or affidavit, but = whether=20 the instrument =91was filed in a bona fide attempt to invoke appellate = court=20 jurisdiction.=92=94 Walker v. Blue Water Garden Apartments, 776 = S.W.2d 578,=20 581 (Tex. 1989) (quoting United Ass'n of = Journeymen=20 & Apprentices v. Borden, 328 S.W.2d 739, 741 (Tex. 1959)); = see=20 also Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) = (per curiam) (court of appeals has jurisdiction over = appeal if=20 party files instrument in bona fide attempt to invoke appellate court's=20 jurisdiction); Grand Prairie Indep. Sch. Dist. v. S. Parts Imp., Inc., 813 S.W.2d 499, 500 (Tex. 1991) (per curiam) (same);=20 Woods Exploration & Producing Co. v. Arkla=20 Equip. Co., 528 S.W.2d 568, 570 = (Tex. 1975)=20 (same). We have further said that, =93[i]f the appellant timely files a document in a = bona fide=20 attempt to invoke the appellate court=92s jurisdiction, the court of = appeals, on=20 appellant=92s motion, must allow the appellant an opportunity to amend = or refile the instrument required by law or our Rules = to=20 perfect the appeal.=94 Grand Prairie Indep. Sch. = Dist.,=20 813 S.W.2d at 500. Our consistent policy has = been to=20 apply rules of procedure liberally to reach the merits of the appeal = whenever=20 possible. See, e.g., Verburgt v. Dorner, 959 S.W.2d=20 615, 616-17 (Tex. 1997); Jamar v. Patterson, 868 S.W.2d 318, 319 = (Tex. 1993) (per curiam);=20 Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121-22 = (Tex. 1991)=20 (per curiam). The court of appeals = here has=20 failed to follow that policy.

=20 St. = Paul=20 made a bona fide attempt to appeal by filing the notice of appeal in the = name of=20 its insured, and by listing its interest in the docketing statement and = other=20 appellate pleadings. See Foster v. Williams, 74 S.W.3d 200, 203 = (Tex.=20 App.=97Texarkana,=20 2002, pet. denied) (holding that filing a docketing statement = constituted a bona=20 fide attempt to perfect an appeal). The court of appeals accordingly = erred in=20 not allowing St. Paul to amend and in = not=20 reaching the merits of St.=20 Paul=92s appeal. The court of appeals=92 judgment = is=20 reversed, and, without hearing oral argument, we remand the case to the = court of=20 appeals for further consideration. Tex.=20 R. App. P. 59.1.

Opinion=20 delivered: January 25, = 2008