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

831 S.W.2d 495, 1992 WL 106839
CourtCourt of Appeals of Texas
DecidedJune 18, 1992
Docket13-91-322-CV
StatusPublished
Cited by17 cases

This text of 831 S.W.2d 495 (Boarder to Boarder Trucking, Inc. v. Mondi, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boarder to Boarder Trucking, Inc. v. Mondi, Inc., 831 S.W.2d 495, 1992 WL 106839 (Tex. Ct. App. 1992).

Opinions

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 [497]*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[498]*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.

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Boarder to Boarder Trucking, Inc. v. Mondi, Inc.
831 S.W.2d 495 (Court of Appeals of Texas, 1992)

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831 S.W.2d 495, 1992 WL 106839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boarder-to-boarder-trucking-inc-v-mondi-inc-texapp-1992.