Affirmed and Majority and Concurring Opinions filed April 16, 2019.




                                       In the

                     Fourteenth Court of Appeals

                               NO. 14-17-00717-CV

              POLARIS GUIDANCE SYSTEMS, LLC, Appellant
                                         V.
                       EOG RESOURCES, INC., Appellee

                    On Appeal from the 189th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-29381

                   CONCURRING OPINION

      This is an appeal from a summary judgment. Both the civil and appellate rules
require preservation. Tex. R. Civ. P. 166a(c); Tex. R. App. P. 33.1. Preservation is
not optional, and rule 166a(c) is particularly clear: “Issues not expressly presented
to the trial court by written motion, answer or other response shall not be considered
on appeal as grounds for reversal.”

      The court-of-appeals opinion must discuss preservation if the complaint for
appellate review was not made to the trial court. The court must hold the issue was
waived unless the error is fundamental (civil) or systemic (criminal). An opinion that
directly addresses the merits of an issue implies the issue was preserved. If an
appellee presents a nonfrivolous issue that the appellant has not preserved a waivable
complaint for appellate review, then the court should in its opinion address the
waiver issue and conclude there was no waiver before reaching the merits. Only then
will the parties know the court follows the rules. See Tex. R. App. P. 47.1.

      The court of criminal appeals has described preservation of error succinctly:
“Preservation of error is a systematic requirement of every appeal.” Moore v. State,
295 S.W.3d 329, 333 (Tex. Crim. App. 2009). The job of the court of appeals is to
review the trial court’s judgment for (1) fundamental or systemic error and
(2) reversible error as preserved in the trial court and raised on appeal by an
appellant. The job of the court of appeals is not to “fix things.”

      If an appellant in a criminal appeal must follow the rule, when the appellant’s
interest in liberty and perhaps life are at stake, then why is waiver optional in a civil
case? The rules do not provide that option, and rightfully so. How does the trial court
commit reversible error when no party makes a complaint to the trial court at a time
when the trial court can “fix it”?

      In this case, the appellee raised waiver. Because the majority reaches the
merits without addressing the appellee’s waiver issue, I concur in the judgment.




                                         /s/       Charles A. Spain
                                                   Justice


Panel consists of Justices Jewell, Zimmerer, and Spain. Spain, J., concurring.



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