Boarder to Boarder Trucking, Inc. v. Mondi, Inc.

OPINION

KENNEDY, Justice.

Boarder to Boarder Trucking, Inc., (Boarder) appeals from an adverse judgment, in favor of Mondi, Inc., the plaintiff below, following a jury trial. By two points of error, Boarder asserts that the trial court erred in admitting a tape-recorded telephone conversation, and asserts that the trial court abused its discretion in granting a trial amendment after judgment was entered. We modify the judgment, and remand for the calculation of interest.

This case was filed pursuant to Title 49, United States Code, Section 11707, which sets out a comprehensive regulatory system governing transportation of property, contracts of carriage, damage claims and bills of lading in interstate commerce. Section 11707 provides specifically that the liability imposed under this paragraph is for the actual loss or injury to the property. 49 U.S.C.A. § 11707 (West Pamphlet 1991).

Mondi is a company that locates transportation for products so that goods can be shipped from the seller to the buyer. Mon-di released a load of Folger’s coffee to Boarder for shipment. The coffee was to be shipped from New Orleans, Louisiana, to Wegman’s, a grocery store chain in Rochester, New York. Because Boarder did not have one of its own trucks available, they “posted” the information in New Orleans so that another trucker could deliver the load. Boarder received a call from a trucker named Gary Bates regarding the posted information. Boarder’s dispatcher told Bates where to pick up the coffee. A trucker named Gary Bates picked up the coffee, but the coffee was never delivered to Wegman’s. Wegman’s made a demand upon Mondi for payment of the load of coffee. Mondi paid Wegman’s claim, and then sued Boarder.

At trial, the court submitted seven questions to the jury which found 1) Mondi delivered the load of coffee to Boarder, 2) the load of coffee was lost or stolen, 3) Boarder dispatched Gary Bates to pick up the load of coffee, 4) Boarder provided Gary Bates with enough information to pick up the load of coffee, 5) Boarder was negligent in dispatching Gary Bates and in providing Gary Bates with information about the coffee, 6) Boarder’s negligence was the proximate cause of the occurrence in question, and 7) a sum of $85,000.00, if paid now, would fairly and reasonably compensate Mondi for its loss that resulted from the occurrence.

By point one, Boarder asserts that the trial court reversibly erred in admitting a tape-recorded telephone conversation. During discovery, Mondi, by videotape, deposed Linda Shipley Stotts, a former Boarder employee. During her deposition, Mondi’s attorney questioned Stotts about a transcription of a taped telephone conversation between Stotts and Mondi’s insurance company’s investigator. The record *497reflects that Stotts consented to the taping of this telephone conversation, and there is no complaint that she did not. During Stotts’ deposition, however, there was a complaint that the transcription was inaccurate. During the videotaped deposition, the parties took a break and Stotts listened to the taped conversation. After Stotts listened to the tape, and while on the record during the videotape deposition, Mondi’s counsel asked Stotts if the tape accurately reflected her responses; to which she answered that they did as accurately as she could give at that time. Based on this statement, Mondi alleges that Stotts effectively adopted the taped telephone conversation during her deposition.

At trial, Mondi asked that the taped telephone conversation be entered into evidence. Mondi asserted that the taped telephone conversation was a statement made by an agent or servant concerning a matter within the scope of employment, made during the existence of the relationship, is not hearsay, and is admissible. Tex.R.Civ. Evid. 801(e)(2)(B).1 Boarder asserted that the taped telephone conversation was not admissible at trial because nowhere in Stotts’ deposition does Mondi identify when or how the statement was taken or in what manner it was taken. Thus, Boarder asserts that no proper predicate was laid before examining Stotts about the recorded statement. The trial court agreed with Mondi, and held that the taped telephone conversation between Stotts and Mondi’s insurance company’s investigator was admissible under Rule 801.

By point one, Boarder generally asserts, as it did at trial, that the recorded phone conversation should not have been admitted at trial because Mondi failed to lay the proper predicate for the tape’s admission into evidence. However, on appeal, Boarder specifically complains that there was no showing that the recorded telephone conversation was properly preserved and that changes, deletions or additions had not been made. Boarder's first point of error is significantly different from its objection presented to the trial court.

Tape recordings are a fair representation of a transaction, conversation, or occurrence. Seymour v. Gillespie, 608 S.W.2d 897, 898 (Tex.1980). A fair representation may be shown by these seven elements: 1) a showing that the recording device was capable of taking testimony, 2) a showing that the operator of the device was competent, 3) establishment of the authenticity of the correctness of the recording, 4) a showing that changes, additions, or deletions have not been made, 5) a showing of the manner of the preservation of the recording, 6) identification of the speakers, and 7) a showing that the testimony elicited was voluntarily made without any kind of inducement. Id. Some of these elements may be inferred and need not be shown in detail. Id.

We note that a general objection to an insufficient predicate will not suffice to preserve error for appeal. Seymour, 608 S.W.2d at 898. Specific objections must be made. Id. We also note that an objection at trial which is not the same as the objection urged on appeal presents nothing for appellate review. Exxon Corp. v. Allsup, 808 S.W.2d 648, 655 (Tex.App.—Corpus Christi 1991, writ denied).

Nowhere at trial did Boarder object that there was no showing of the tape recording’s preservation, nor was there an objection that there must be a showing that changes, deletions or additions had not been made. Additionally, focusing on Boarder’s trial objection, that nowhere in the deposition does Mondi identify when the statement was taken or how it was taken, we note that the objections raised at trial are not among the seven elements outlined in Seymour for the admissibility of tape recordings. We overrule point one.

By point two, Boarder asserts that the trial court abused its discretion by al*498lowing Mondi to amend its pleadings after the trial court entered judgment.

Mondi responds that Boarder did not preserve this point for appeal because it failed to file an objection or file a response motion to Mondi’s motion for leave to file a trial amendment. It appears to us, however, that Mondi’s motion for leave to file a trial amendment was in response to Boarder’s motion to reform the judgment. Additionally, Mondi asserts that the trial court did not abuse its discretion because Boarder failed to show any evidence of surprise or prejudice by the trial amendment.

In determining the disposition of this point of error we review the record and the events following the trial court’s judgment. Mondi’s petition states that because the shipment of coffee was never received by Wegman’s, Mondi was forced to pay Wegman’s claim under 49 U.S.C. § 11707 in the amount of $74,008.55. Mondi’s petition specifically pleads that as a result of Boarder’s acts or omissions it is entitled to recover its loss from Boarder pursuant to 49 U.S.C. § 11707. Mondi’s prayer for relief asked for damages in the reasonable and just sum of $74,008.55, together with prejudgment interest, from the date of the judgment as allowed by law, all costs of suit and such other and further relief as it may show itself justly entitled.

The trial court’s judgment was signed February 26, 1991. In accordance with the jury’s answer to Question 7 in the charge asking,

what sum of money, if paid now, would fairly and reasonably compensate Mondi, Inc. for its loss, if any, that resulted from the occurrence in question,

the judgment awarded damages in favor of Mondi in the amount of $85,000. Additionally, the court awarded pre-judgment interest.

On March 27, 1991, Boarder timely filed a Motion for New Trial and a Motion to Reform the Judgment pursuant to Texas Rule of Civil Procedure 329b. Boarder asserted that because Mondi pleaded and proved that the value of their claim was $74,008.55, the trial court should vacate, modify, correct or reform the judgment pursuant to the trial court’s plenary power and Texas Rule of Civil Procedure 329b(d) so that the judgment conforms to the pleadings.

On April 5, 1991, thirty-nine days after the trial court signed the judgment, Mondi filed, with the trial court, a Motion for Leave to File a Trial Amendment. By its motion, it asked to amend its pleadings to conform with the jury’s answer and verdict and the trial court’s judgment that $85,000, would reasonably compensate Mondi for its damages. Additionally, Mondi asserts that the Texas Supreme Court requires the trial court to allow trial amendments freely unless the Defendant presents evidence of surprise or prejudice. They claim that since Boarder did not argue surprise or prejudice in its motion to reform the judgment, they are entitled to the trial amendment.

The trial court is vested with discretion to allow trial amendments. Tex.R.Civ.P. 63 & 66. Trial amendments should be freely granted so long as the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. Tex.R.Civ.P. 66. A trial court’s order allowing a trial amendment will not be set aside absent a showing that the trial court abused its discretion. Id. Generally, timing is not determinative of whether the trial court abused its discretion by granting a motion for leave to file a trial amendment. Kirby Forest Indus., Inc. v. Dobbs, 743 S.W.2d 348, 352 (Tex.App.—Beaumont 1987, writ denied).

In support of its position, Mondi relies on Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex.1990). However, we note Greenhalgh presents a different scenario than the case before us. The issue in Greenhalgh was whether the granting of a trial amendment asking to increase exemplary damages to conform to the verdict was within the trial court’s discretion when the trial amendment request occurred in the time period between the jury verdict and entry of the trial court’s judgment. In the Greenhalgh scenario, post-verdict and pre-judgment, granting a *499motion for leave to file a trial amendment is within the trial court’s discretion. Id. at 939-40. Thus, it is well established that a party may ask the trial court for permission to amend its pleading after verdict but before judgment. Id. at 940. Greenhalgh, however, does not address a motion for leave to file a trial amendment presented to the trial court post-judgment.

We recognize that the trend is to give the trial court wide latitude in allowing amendments, even after a jury renders its verdict. However, after judgment is rendered, it is too late to amend, whether by a trial amendment or an amendment complete in itself. Warren v. Ward Oil Corp., 87 S.W.2d 501, 502-03 (Tex.Civ.App.—Texarkana 1935, writ dism’d); see also, Morris v. Hargrove, 351 S.W.2d 666, 668 (Tex.Civ.App.—Austin 1961, writ ref’d n.r.e.) (amendment too late after summary judgment rendered). While we recognize that courts are very liberal in permitting amendments to pleadings, we fail to find where they have gone to the extent that was attempted in this case. There should be a time in the trial of the cause when amendments to the pleadings should end, and it seems to us that time is after judgment has been rendered in a cause. Warren, 87 S.W.2d at 502-03. We conclude that the trial court abused its discretion when it permitted Mondi to amend its pleadings after rendition of the judgment.

Additionally, Mondi asserts that Boarder does not complain by a specific point of error about the sufficiency of the evidence to support the jury finding of $85,000, in damages. However, we note that in Boarder’s second point of error, it states that nowhere is $85,000, proven as an amount of damages, and that the only amount requested by Mondi was $74,-008.55. Mondi suggests that evidence in the record supports the jury’s answer, the verdict, and the judgment on the damages issue. Mondi points our attention to a Proctor & Gamble invoice showing an amount of $97,394.40. However, no evidence shows that this amount represented the actual loss Mondi suffered when paying Wegman’s claim. By its petition, Mondi specifically asserted that it was “forced to pay Wegman’s Pood Market’s claim under 49 U.S.C. Sec. 11707 in the amount of ... $74,008.55.” In our review of the record and statement of facts, we find no evidence that would support a jury finding, verdict or judgment that Mondi’s recoverable loss for damages under U.S.C. Title 49, Section 11707, was $85,000. Pool v. Ford Motor Co., 715 S.W.2d 629, 633-35 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985).

We conclude that the trial court’s judgment was correct in all respects except for the amount awarded as damages. We, therefore, modify the judgment to conform to the $74,008.55, loss Mondi originally pleaded in its petition. Additionally, we remand the case to the trial court for the calculation of interest.

GILBERTO HINOJOSA, J„ concurs.

. Texas Rule of Civil Procedure 801(e)(2)(B) provides that a statement is not hearsay if the statement is offered against a party and is a statement of which he has manifested his adoption or belief in its truth.