Leskel Nichols v. Progressive Insurance Company

• Court: Court of Appeals of Texas
• Decided: August 23, 2022
• Docket: 05-20-01049-CV
• Status: Published

Opinion

Affirm and Opinion Filed August 23, 2022

In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-01049-CV

LESKEL NICHOLS, Appellant V. PROGRESSIVE INSURANCE COMPANY, Appellee

On Appeal from the 68th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-20-00690

MEMORANDUM OPINION Before Justices Schenck, Molberg, and Pedersen, III Opinion by Justice Pedersen, III Leskel Nichols appeals the trial court’s December 19, 2020 Order Granting

Defendant’s Motion to Reconsider. In four appellate issues, Nichols challenges the

timeliness of the motion for reconsideration filed by appellee Progressive Insurance

Company (Progressive) and the lack of a reporter’s record of the hearing on that

motion to reconsider. We conclude that these issues were not preserved for our

review, and we affirm the trial court’s judgment. Background

Between February 2014 and July 2019, Nichols issued Progressive insurance

policies, and received commissions from Progressive, under the terms of a

Producer’s Agreement. Progressive terminated that agreement after Nichols

purportedly directed a number of abusive and racial insults at a Progressive

commercial customer service representative. In January 2020, Nichols sued

Progressive, seeking damages for the termination under claims of breach of contract,

retaliation, and defamation. Nichols represented himself in the trial court.

Progressive filed its Traditional and No-Evidence Motion for Summary

Judgment challenging each of Nichols’s three claims. Nichols responded to the

summary judgment motion and Progressive replied. On September 13, 2020, the trial

court signed an order granting the motion as to Nichols’s claims for retaliation and

defamation, but denying the motion as to Nichols’s claim for breach of contract.

The following day, Nichols filed a motion asking the trial court to reconsider

its ruling on the retaliation and defamation claims. Nichols never set the motion for

hearing. On October 26, 2020, Progressive filed its own motion to reconsider the

court’s ruling on the breach of contract claim. Nichols filed a motion to strike

Progressive’s motion to reconsider, arguing Progressive’s motion was untimely, but

again he did not set his motion for hearing or otherwise seek a ruling from the trial

court.

–2– Progressive did have its motion to reconsider set for hearing on November 30,

2020, although no record was made of the hearing. On December 19, the trial court

signed the Order Granting Defendant’s Motion to Reconsider, dismissing Nichols’s

breach of contract claim with prejudice.

This appeal followed. Nichols appears pro se in this Court as well.

Timeliness of Progressive’s Motion for Reconsideration

In his first three issues, Nichols argues that Progressive’s motion to reconsider

was untimely and, therefore, should not have been granted.1 Before a complaint may

be reviewed on appeal, the record must show that the issue was properly presented

to the trial court and that the trial court either ruled—or refused to rule—on the issue.

TEX. R. APP. P. 33.1. “Without a proper presentation of the alleged error to the trial

court, a party does not afford the trial court the opportunity to correct the error.”

McCain v. NME Hosps., Inc., 856 S.W.2d 751, 755 (Tex. App.—Dallas 1993, no

writ). Thus, it was Nichols’s burden to obtain a ruling on his motion to strike and to

ensure the record reflected that ruling. See Hagan v. Pennington, No. 05-18-00010-

CV, 2019 WL 2521719, at *4 (Tex. App.—Dallas June 19, 2019, no pet.) (mem.

op.). “Preservation of error reflects important prudential considerations recognizing

that the judicial process benefits greatly when trial courts have the opportunity to

1 Nichols recasts this fundamental complaint in each of his first three issues, stating: (1) Progressive failed to respond and file a timely response to the September 13, 2020 order; (2) Progressive filed an untimely motion to reconsider on October 26, 2020; and (3) Progressive did not move for an enlargement of time and did not seek leave to file its motion to reconsider out of the designated time frame. –3– first consider and rule on error.” Burbage v. Burbage, 447 S.W.3d 249, 258 (Tex.

2014). We may not stray from our preservation rules because Nichols represented

himself in the trial court. See id.

We conclude Nichols has preserved nothing for our review on this issue. We

overrule his first three issues.2

Absence of Reporter’s Record

In his fourth issue, Nichols complains that the appellate record does not

include a transcript of the trial court’s November 30, 2020 hearing on Progressive’s

motion to reconsider. The court reporter informed this Court by letter that no record

of that hearing had been made. At our request, the trial court held a hearing

concerning the existence of a reporter’s record and learned that while no reporter’s

record had been requested or made on November 30, the reporter’s computer did

make an audio recording of the hearing. The trial court made the following written

findings on the matter:

1. No record was made or requested on . . . November 30, 2020.

2. The court asked the Defense attorney [if] she would object to the audio files being transcribed. She did not object. The court then inquired if either party wanted the court reporter to transcribe the audio files. Neither party requested that the audio files be transcribed.

2 We note as well that Nichols’s appellate brief—despite his having the opportunity to amend it—fails to comply with rule 38.1’s requirements of a statement of facts supported by record references and a clear and concise argument supported by applicable legal authorities. See TEX. R. APP. P. 38.1(g), (i).

–4– Thus, our record now reflects that (1) Nichols did not originally request a reporter’s

record of the hearing, and (2) when given the option of preparation of a reporter’s

record after the fact, he declined.

We discussed above that a party must give the trial court the opportunity to

rule on a complaint before that complaint can be reviewed on appeal. See TEX. R.

APP. 33.1. When the trial court offers to cure an appellant’s complaint, and the

appellant declines that assistance, we conclude the appellant has waived appellate

review of the complaint. We overrule appellant’s fourth issue.3

Conclusion

We affirm the trial court’s December 19, 2020 Order Granting Defendant’s

Motion to Reconsider.

201049f.p05 /Bill Pedersen, III// BILL PEDERSEN, III JUSTICE

3 On this issue as well, appellant’s brief is inadequate. Indeed, after identifying the issue, appellant does not mention the reporter’s record—or its absence—again. See TEX. R. APP. P. 38.1. –5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

LESKEL NICHOLS, Appellant On Appeal from the 68th Judicial District Court, Dallas County, Texas No. 05-20-01049-CV V. Trial Court Cause No. DC-20-00690. Opinion delivered by Justice PROGRESSIVE INSURANCE Pedersen, III. Justices Schenck and COMPANY, Appellee Molberg participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee Progressive Insurance Company recover its costs of this appeal from appellant Leskel Nichols.

Judgment entered this 23rd day of August, 2022.

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