GULF FIRE SPRINKLERS, INC. FROM A DISTRICT COURT PROFIT SHARING PLAN AND TRUST, APPELLANT, v. FIRST TEXAS BANK, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00174-CV
 
GULF FIRE SPRINKLERS, INC.                FROM A DISTRICT COURT
PROFIT SHARING PLAN
AND TRUST,
 
        APPELLANT,
 
 
v.
 
 
FIRST TEXAS BANK,
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES WHITHAM, THOMAS, AND BURNETT
OPINION BY JUSTICE BURNETT
July 17, 1989
ON MOTION FOR REHEARING
        In their motion for rehearing, Gulf Fire Trust asserts that their third point of error concerning objections on cross-examination by an attorney who did not conduct direct examination presents a situation that we must address because it is likely to arise on retrial. See Newspapers, Inc. v. Love, 397 S.W.2d 469, 471 (Tex. Civ. App.--Austin 1965) writ ref'd n.r.e., 405 S.W.2d 300 (Tex. 1966); Levermann v. Cartall, 393 S.W.2d 931, 937 (Tex. Civ. App.--San Antonio 1965, writ ref'd n.r.e.). In the interest of clarity we will address that issue now. Specifically, on appeal, Gulf Fire Trust maintained that the trial court erred in ruling that their counsel could not assert objections during cross-examination if that attorney did not conduct the direct examination because the ruling denied Gulf Fire Trust's right to effective assistance of counsel.
        During the trial, Gulf Fire Trust was represented by two attorneys, Ben Krage and Martin Sweeney. Sweeney conducted the direct examination of Gulf Fire Trust's first witness, Andy French. During the cross-examination of French by the Bank's attorney, Krage began making objections to certain cross-examination questions. The Bank's attorney objected to Krage asserting objections because Krage had not conducted the direct examination of French. Krage explained to the trial court that he did not intend to conduct any additional examination of the witness, and only intended to make objections because that was how he and co-counsel had divided responsibility. The trial court sustained the objection.
        The trial court based its decision of Rule 265 which states that "one counsel on each side shall examine and cross-examination the same witness, except on leave granted." TEX. R. CIV. P. 265(g). While Rule 265 does not appear to mandate that the attorney who conducted the direct examination must be the attorney to object during cross-examination, we perceive no reversible error in this case. A trial judge is vested with broad discretion in the manner in which a trial is controlled and a judgment will not be reversed unless probable prejudice is shown. Texas Employers' Ins. Assoc. v. Garza, 557 S.W.2d 843, 845 (Tex. Civ. App.--Corpus Christi 1977, writ ref'd n.r.e.); Best Investment Co. v. Hernandez, 479 S.W.2d 759, 761 (Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.); See TEX. R. APP. P. 81(b)(1).
        In the instant case, after the objection was sustained, Sweeney interposed objections to protect Gulf Fire Trust's interests. We cannot say that requiring Sweeney, instead of Krage, to object during the cross-examination resulted in any harm to Gulf Fire Trust. Accordingly, we overrule Gulf Fire Trust's point of error on rehearing.
        First Texas Bank has also filed a motion for rehearing. Because the first five points were adequately addressed in our original opinion, we overrule points of error on rehearing numbers one through five. Originally we held that in the absence of a properly filed cash deposit or cost bond, we were without jurisdiction to consider First Texas Bank's crosspoints. However, we will now follow the dictates of the Texas Supreme Court and address those crosspoints a s requested in points of error on rehearing numbers six and seven. See Donwerth v. Preston II Chrysler-Dodge, Inc., 32 Tex. Sup. Ct. J. 517, 520 (July 5, 1989); Hernandez v. City of Fort Worth, 617 S.W.2d 923 (Tex. 1981).
        In its first crosspoint, First Texas Bank argues that the trial court erred when it held that the contract between Gulf Fire Trust and the Bank created a special deposit relationship. The elements of a special deposit are as follows: 1) a contract, 2) restricting the deposit of money, 3) made for a specific purpose agreed to by the bank. Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 295 (Tex. 1976); Citizens Nat'l Bank v. Hill, 505 S.W.2d 246, 248 (Tex. 1974). The evidence clearly reflects that 1) there was a written contract between the trust and the bank, 2) concerning the deposit of the trust's money at the bank, 3) which was restricted to being loaned to Kitchen to finance his dealership. We overrule crosspoint of error one.
        First City Bank maintains in its second crosspoint that an action in conversion is not appropriate for the breach of a depository contract. However, because the contract was a special deposit, as discussed with regard to crosspoint of error one conversion was the appropriate cause of action for a breach. See Southwest Industries Inv. v. Berkeley House Investors, 695 S.W.2d 615 (Tex. App.--Dallas 1985, writ ref'd n.r.e.). Accordingly, we overrule crosspoint of error two.
        In its third and final crosspoint, First Texas Bank contends that the trial court erred in granting Gulf Fire Trust's partial motion for summary judgment on the draft issue. A summary judgment is proper when, in the light most favorable for the nonmovant, there is no genuine issue of material fact. TEX. R. CIV. P. 166a. The court in the instant case determined that the word "draft" was unambiguous and that the thirteen white envelopes were not drafts within the meaning of the contract.
        Whether a term in a contract is ambiguous is a question of law for the court to determine by whether it is genuinely uncertain about the meaning of the term. Dallas Bank & Trust Co. v. Frigiking, Inc., 692 S.W.2d 163, 166 (Tex. App.--Dallas 1985, no writ). In Texas, a contract must be construed according to its plain language. Citizens Nat'l Bank v. Texas Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941).
        As discussed in our original opinion with regard to point of error number one, a draft is a "requirement or a request in writing for payment of a specified sum of money to a third person or the drawer himself . . . directed by the drawer of the writing to one of whom payment was required." Travis Bank & Trust, 660 S.W.2d at 854-55. In all, the word draft was used nineteen times in the contract as issue. Additionally, Gulf First Trust's trustee separately told the Bank to use a draft as verification from the seller before loaning any money to Kitchen. The evidence reflects that there was no seller verification on any of the thirteen white
envelopes. Accordingly, the trial court properly granted a partial summary judgment on the draft issue. We overrule crosspoint three.
        
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-00174.RHF
 
 
File Date[01-02-89]
File Name[880174RH]