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Affirmed and Opinion filed February 20,=20 2007.

 

 

In The

 

Fourteenth=20 Court of Appeals

____________

 

NO. 14-05-00080-CV

____________

 

THE STATE OF=20 TEXAS, = Appellant

 

V.

 

TERI N.=20 REINA, JAMES D. REINA, AND CATHERINE L. = DANNA, = Appellees

 

 

On Appeal from the = County Court at Law No. 1

Harris County, = Texas

Trial Court Cause = No. 792,503

 

 

O P I N I=20 O N

This is a=20 condemnation case in which the State of Texas appeals from the = trial=20 court=3Ds judgment=20 in favor of the landowners.  The State contends the trial = court=20 abused its discretion by imposing time limitations on the parties = in the=20 middle of trial and by admitting evidence of remote comparable = sales used=20 by appraisers for the landowners in computing the fair market = value of the=20 condemned land.  We affirm.

I.  Factual and Procedural=20 Background

In the=20 spring of 2003, the State of Texas, through its agent the Texas = Department=20 of Transportation (hereinafter  ADOT@), began=20 condemnation proceedings on property located in Houston near the=20 intersection of North Post Oak and IH-610 as part of the IH-610=20 expansion.  Three adult siblings, appellees Teri Reina, James = Reina,=20 and Catherine Danna (collectively referred to as Athe=20 Reinas@), owned=20 this property.  The property was divided into three separate = parcels,=20 with each sibling owning an interest in each parcel.  The = property,=20 consisting of a total of 2.966 acres, included a restaurant, a = catering=20 business, a veterinary clinic, and two billboards.  =

The=20 special commissioners=3D = hearings=20 for the condemnation proceedings were held in July and August = 2003, and=20 the commissioners assessed $3,250,901, $2,640,379, and $1,507,135 = as the=20 damages to be paid by the State to the Reinas for the condemnation = of=20 these three parcels.  The Reinas filed objections to the = findings of=20 the special commissioners=3D = awards,=20 triggering a trial de novo in the trial court below.  The = sums=20 awarded were then deposited into the registry of the court.  = The=20 Reinas withdrew the funds shortly thereafter.  The State = filed a=20 motion to consolidate the three cases for the purpose of valuation = and=20 trial. The trial court granted the motion.

On the day=20 of the final pre-trial conference, just before the trial de novo = was to=20 begin, the State filed a motion to exclude any testimony of the=20 Reinas=3D = expert=20 witnesses David Bolton and Tom Edmonds in reference to billboard = sales=20 more than five years old.  The trial court heard this motion = along=20 with other matters at the final pre-trial conference.  During = this=20 pre-trial conference, the parties announced that they had reached = an=20 agreement as to the admissibility of certain exhibits, some of = which=20 contained information relating to billboard sales more than five = years=20 old.  The parties stipulated that these exhibits were = admissible, and=20 the trial court admitted them into evidence.  After opening=20 statements, the trial court denied a motion by the State to set = aside its=20 prior agreement as to the admissibility of the exhibits relating = to the=20 billboard sales.  The trial court declined to remove these = exhibits=20 from the trial evidence and later admitted testimony regarding the = billboard sales.

Before the=20 jury trial commenced, the trial court and the parties anticipated = that the=20 trial could be completed in four days. When, during trial, it = became=20 apparent that the trial would not be concluded in that time frame, = the=20 trial court requested that each side=3Ds counsel=20 state how much time would be needed to complete the trial.  = After=20 conferring with the parties, the court imposed time limits as to = the total=20 amount of time each side would have to present evidence and = closing=20 argument.  When the trial court imposed these limits, the = Reinas=20 already had presented some of their case. As a result of the time=20 limitations, by the time of closing arguments the State had only = six=20 minutes remaining and could give only a brief closing = argument.  At=20 the conclusion of the trial, the jury returned a verdict in favor = of the=20 Reinas for $9,398,532. 

II. =20 Issues and=20 Analysis

On appeal,=20 the State asserts the trial court abused its discretion (1) by = imposing=20 time limitations on the parties in the middle of trial and (2) by=20 admitting evidence of remote comparable sales used by appraisers = for the=20 landowners in computing the fair market value of the condemned = land. =20 We review the State=3Ds=20 complaints under the familiar abuse-of-discretion standard.  = Under=20 this standard, a trial court will be found to have abused its = discretion=20 if it acted in an arbitrary and unreasonable manner.  Joe = v. Two=20 Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. = 2004). =20 There is no abuse of discretion, however, simply because a trial = court may=20 have decided a matter within its discretion differently than an = appellate=20 court would have.  Id. at 242.  When reviewing = matters=20 committed to the trial court=3Ds=20 discretion, a court of appeals may not substitute its own judgment = for=20 that of the trial court.  See Flores v. Fourth Court of=20 Appeals, 777 S.W.2d 38, 41 (Tex. 1989).

A.     =20 Did the trial court abuse its discretion by limiting the=20 State=3Ds trial=20 time?

In its=20 first issue, the State contends the trial court abused its = discretion by=20 imposing time limitations in the middle of trial.  Thus, we = begin by=20 examining the circumstances surrounding the trial = court=3Ds decision=20 to set time limitations in this case.

The Reinas=20 began their case-in-chief by calling the State=3Ds=20 appraisers, followed by their own appraisers.  During the = lunch break=20 on the fourth day of trial, the trial court met with counsel for = both=20 parties outside the presence of the jury to discuss how much time = each=20 side needed to conclude the trial, including closing = arguments.  The=20 record reflects the following exchange between the trial court and = the=20 parties:

The=20 = Court:           &= nbsp;          =20 The Court, like pulling teeth, has extracted from both sides how = much=20 additional time they need. My adding up the individual additional = time=20 that they need, the Landowners need an additional three and a half = hours,=20 plus thirty minutes for closing, that the Court has put on the = clock.=20

Reinas=3D counsel:=20 =              = As the Court noted, subject to what comes out in these number of=20 hoursCI think they said = four=20 hoursCof their direct = examination=20 of the appraisal witnesses.

The Court:=20 =             &= nbsp;        =20 Two hours of that was allocated toward the recross of these = witnesses that=20 have already been on the stand for a half day apiece.  In = other=20 words, these two witnesses will be on the stand for a total of a = half day=20 from you, two hours from them, and then another hour of recross = from=20 you.  I think that every syllable these people could shed, = every ray=20 of hope, of light, or shadow of darkness could have been examined = in this,=20 what now adds to about a day apiece.

Reinas=3D=20 = counsel:           = ;  =20 That=3Ds what my hopes = are, too,=20 Your Honor.

State=3Ds=20 = counsel:           = ;   =20 I don=3Dt think = he=3Ds talking about the = hope.

The=20 = Court:           &= nbsp;          =20 With regard to that four hours for the plaintiff, the Court added = up the=20 time the StateCnot for the = plaintiff. The=20 Landowner.

Court added up the=20 State=3Ds time, came up to = six and a=20 half hours, two hours apiece for the witnesses that have already = been on=20 the stand for a half day apiece, that are the State=3Ds witnesses. =

On the ultimate = question of=20 put up or shut up, the State has asked for an additional hour, and = I=3Dm giving that to=20 them.

Court is now going = to hold=20 the two parties to four hours for the Landowner, seven and a half = hours=20 for the State.  That includes thirty minutes for each side = for a=20 closing argument.  If you reserve some of your time, you can = add it=20 to your closing, if you wish.

All right? =

State=3Ds=20 = counsel:           = ;   =20 Right.

The=20 = Court:           &= nbsp;          =20 Okay from the Landowner?

Reinas=3D = = counsel:           = ;  =20 Yes, Your Honor.

Neither=20 side lodged any objections during this exchange, and the parties=20 affirmatively agreed to the time limitations. 

After the=20 Reinas finished their case-in-chief, the State called its first=20 witness.  When the Reinas concluded cross-examination of the=20 State=3Ds first=20 witness, the trial court announced that the State had sixty-one = minutes of=20 trial time remaining.  At this time, the State requested = three=20 additional hours to complete its case-in-chief plus closing=20 argument.  The State acknowledged that it had underestimated = the time=20 it would need, and the State complained that it was unfair for the = Reinas=20 to have more time overall because they had presented most of their = case=20 before the court imposed time limitations.[1] =20 The trial court, holding the State to its agreed time limitation, = denied=20 the request for additional time.

After the=20 trial court refused to grant the State any additional time, the=20 State=3Ds counsel=20 continued his re-direct examination of its first witness, = concluding the=20 examination with forty-four minutes remaining.  During the = direct=20 examination of the State=3Ds second=20 witness, the trial court informed the State that it had = twenty-eight=20 minutes remaining and was using time allocated to closing = argument. =20 Every five minutes for the last hour, the trial court reminded the = State=20 of its remaining time.[2] =20 Before the State began re-direct examination of its second = witness, the=20 trial court stated that only six and a half minutes = remained.  The=20 State used thirty seconds to conclude re-direct examination, = leaving six=20 minutes for its closing argument.  After the State rested, = the trial=20 court, outside the presence of the jury, expressed its concerns = regarding=20 time management:

The Court:=20 =             &= nbsp;        =20 The Court wishes to make a statement on the record concerning the = time=20 management issue in this case.

This Court, when = asked what=20 each party needed to complete the case, took the parties at their = face=20 value and then began to docket and to arrange other cases to come = in,=20 because this case has, by it=3Ds [sic] very = footprint, made=20 a rather significant mark upon this Court=3Ds docket, which is = all=20 right.  We are equipped to handle that.

By my reckoning, = because we=20 have a ratio of for every 1 case that is tried we normally settle = about=20 14, during the  period of time in which this case has been = tried, we=20 would have normally tried five other cases, maybe four, depending = upon the=20 circumstances.  So, there are a large number of other cases = we have=20 not reached. That=3Ds okay. We are = equipped to=20 handle that as well.

We have off = weeks. =20 We=3Dll be able to catch = up. Not=20 behind in our docket at all. We are busy, but we=3Dre able to manage = our=20 docket.  But it becomes very difficult to continue to = postpone other=20 cases as this begins to build.

That=3Ds why the Court = stopped when=20 this case began to expand in its footprint beyond the four days = that was=20 represented to the Court this case would take, to make everyone = tell me=20 how much additional time was needed.

I am certain that = if we go=20 back to the time that I made that request, that I told = everyone I=20 was not going to tell you how to manage your time.  I was not = going=20 to tell the State how much time to spend per witness or how to do = their=20 cross-examination. Wasn=3Dt going to tell the = Landowner=20 how to manage their time. 

So, before my next = comment, I=20 want to give you a context, Biblical context.  Chapter 25 of = Matthew,=20 the parable of the ten virgins.

[trial court = recites=20 Matthew 25:1B13]

As the Judge, = I=3Dm the one that has = the lamps=20 with the oil in it and time is our enemy.  I feel like the = State has=20 not kept oil in its lamp.  Now we=3Dre about to go into = closing=20 argument where there is only six minutes left for the State to try = to put=20 down into a form for these jurors so they can understand that = case. =20 That=3Ds not = right.

And every five = minutes, for=20 the last hour, I think, I have been diligent in putting into the = record,=20 AYour time is = running out.=20 Time is running out.@

I believe that at = least on a=20 30-minute basis before that, I kept telling the State, = AYour time is = running out.=20 Your time is running out.@

I want a = representation from=20 the State that you have not intentionally tried to cause a = mistrial in=20 this case.

State=3Ds=20 = counsel:           = ;   =20 Absolutely not, Your Honor.

The=20 = Court:           &= nbsp;          =20 Because it appears that from when I got your representation as to = how much=20 time that was taken, that you have tried to bust that, and put = this Court=20 in an awkward position of either doing an injustice to these = jurors and an=20 injustice to this case, or sticking with what you said you could = live=20 with. Plus, I gave you extra time on top of it.  And = I=3Dm very concerned = about that.=20

State=3Ds=20 = counsel:           = ;   =20 We made a mistake, as I represented earlier, Your Honor. We did = not=20 accurately anticipate the amount of time that would be necessary. = As I=20 stated earlier, the property owners used approximately = 14C14 and 2 hours. = We=3Dve had 7 to 7 and=20 2 hours.

The=20 = Court:           &= nbsp;          =20 Now, all of that discussion occurred Friday, when I asked you,=20 AHow much time do = you=20 need?@

And you said to the = Court,=20 AJudge, = they=3Dve gone that=20 long.@

I said, = AThat=3Ds fine.  Tell = me, based=20 upon how long they=3Dve gone, how much = time you=20 need?@

Do you recall that=20 discussion?

State=3Ds=20 = counsel:           = ;   =20 I recall it, yes, Your Honor.

The=20 = Court:           &= nbsp;          =20 Okay.  I=3Dm at a loss, = because when I=20 asked you for how much time you needed, that was in the context of = what=20 had gone on before.

State=3Ds=20 = counsel:           = ;   =20 We made the mistake, again, trying, as the Court was, to get this = done as=20 quickly as possible. We simply made an error in judgment with = regard to=20 how much time would be necessary. 

I certainly = apologize to this=20 Court for any inconvenience we have caused the Court. That was not = our=20 intention.  Also not my intention, Your Honor, to upset the=20 Court.

We are simply doing = the very=20 best we can in uncertainCwith uncertain = circumstances,=20 to get our case heard by this jury. And I will apologize to this = Court for=20 any inconvenience that was created by our error in judgment.  = We=20 simply made a mistake with regard to how much time we thought = would be=20 necessary.

The=20 = Court:           &= nbsp;          =20 All right.

 

(emphasis=20 added).  At the end of this exchange, the State did not make = another=20 request for more time before closing arguments. =

With six=20 minutes of allocated time remaining, the State began its closing=20 argument.  After the State had used five minutes, the trial = court=20 stated, AFive=20 minutes,@ = and the=20 State=3Ds counsel=20 continued with its closing argument.  After another minute = elapsed,=20 the trial court announced that the State=3Ds time had=20 expired, but allowed the State=3Ds counsel=20 to finish his thought.  At this time, the State complained = that it=20 had misunderstood the judge=3Ds=20 Afive=20 minutes@ = statement, thinking that the trial court=3Ds warning=20 was as to how much time remained, not as to how much time had been = used.  The State, however, did not object or ask for more = time;=20 rather, its counsel concluded his thought and ended the = State=3Ds closing=20 argument.  The trial court allowed the Reinas an extra minute = at the=20 end of their closing argument to balance the extra time the State = was=20 allotted. 

The=20 State=3Ds basic=20 complaint is that the trial court abused its discretion by = enforcing the=20 agreed time limits, which, the State complains, left the = State=3Ds counsel=20 only six minutes to present the State=3Ds closing=20 argument.  The State asserts that six minutes is not nearly = enough=20 time to make a fair presentation to the jury.  Within this = complaint,=20 the State asserts the trial court erred in the following=20 respects:

(1) requesting and = enforcing=20 rigid time limits,

(2) allowing = unequal amounts=20 of time to the parties,

(3) imposing time = limits in=20 the middle of trial,

(4) refusing the=20 State=3Ds request for an = additional=20 three hours, and

(5) limiting the=20 State=3Ds closing argument = to six=20 minutes. 

As a=20 threshold matter, we must determine, which, if any, of these = complaints=20 were preserved for appellate review.

1.      =20 Did the State preserve error on its complaint that the trial could = erred=20 in imposing time limitations on the fourth day of trial?=20

After it=20 became apparent on the fourth day of the proceedings that trial = would not=20 be completed in four days as the parties and the court had = anticipated,=20 the trial court requested that each side state how much time would = be=20 needed to complete the trial, and the State responded that = six-and-a-half=20 hours would be sufficient.  Although the record is not = completely=20 clear in this regard, the trial court either gave the State an = additional=20 hour or gave the State all the time it requested, including an = additional=20 hour the State requested beyond what it thought it needed.  = The State=20 agreed to be bound by this time limitation (seven-and- a-half = hours total)=20 and did not object to this limitation.  Other than its = subsequent=20 request for an additional three hours, the State did not object to = (1) the=20 trial court=3Ds=20 imposition or enforcement of firm time limits or (2) any alleged = disparity=20 in the amount of trial time allowed as between the State and the=20 Reinas.

If the=20 State had a complaint regarding these matters, it was incumbent = upon the=20 State to make its objections known at the time.  See = Tex. R. App. P. 33.1; = Schwartz=20 v. Forest Pharms., Inc., 127 S.W.3d 118, 126B27 (Tex.=20 App.BHouston=20 [1st Dist.] 2003, pet. denied) (concluding that party failed to = preserve=20 error as to court=3Ds time=20 limit because he failed to object when he first knew of the time = limit);=20 Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 600 = (Tex.=20 App.BAmarillo=20 1995, no writ) (finding error waived where the record failed to = disclose=20 that specific complaint was brought to court=3Ds=20 attention after party previously had represented to court that it = had no=20 problem with the relief sought).  Because the State failed to = voice=20 any objection to the trial court=3Ds time=20 limitations when imposed in the middle of trial, the State waived = its=20 complaints regarding the first three matters.  See = ante at p.=20 9.  We now address whether the trial court erred by refusing = the=20 State=3Ds request=20 for additional time and by allegedly limiting the State to six = minutes for=20 its closing argument.

2.      =20 Did the trial court abuse its discretion in refusing the=20 State=3Ds request=20 for additional time?

The trial=20 court is vested with great discretion over the conduct of the = trial, and=20 this discretion includes its intervention to Amaintain=20 control in the courtroom, to expedite the trial, and to prevent = what it=20 considers to be a waste of time.@ =  See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 = (Tex.=20 2001).  In this case, the trial court exercised its = discretion on the=20 fourth day of trial when it asked the parties to reach an = agreement on how=20 much time each side needed to conclude the trial.  The trial = court=20 did not exclude any witnesses or prohibit either side from = re-direct or=20 re-cross examination; rather, when the court denied the = State=3Ds request=20 for additional time, the court was merely upholding a time limit = to which=20 the State had agreed.  This case is similar to Irwin v. = Atlas=20 Truck Line, Inc., in which Irwin complained that the trial = court had=20 abused its discretion by depriving him of his right to make a = closing=20 argument to the jury.  517 S.W.2d 637, 640 (Tex. = App.CHouston=20 [14th Dist.] 1974, writ ref=3Dd=20 n.r.e.).  In that case, after asking all counsel how much = time they=20 wanted for opening statement and closing argument, the trial court = assigned each party an aggregate of one hour for opening statement = and=20 closing argument.  Id.  At his request, = Irwin=3Ds counsel=20 was warned when he had used forty-five minutes of this time during = his=20 opening statement.  Id.  Nevertheless, = Irwin=3Ds counsel=20 continued his opening statement for another fifteen minutes, = leaving no=20 time for a closing argument.  Id.  Irwin asserted = that=20 the trial court erred in enforcing the time limitation and = preventing him=20 from making any closing argument.  Id.  This = court held=20 that because Irwin himself had decided to use all of his allotted = time=20 during his opening statement, the trial court did not abuse its = discretion=20 in enforcing the time limitation and denying Irwin additional time = for=20 closing argument.  Id.

Similarly,=20 the trial court in the present case, held the State to its prior = agreement=20 in denying the request for an additional three hours. =  The=20 State presented no extenuating circumstances, such as a change in = trial=20 strategy, newly discovered witnesses or evidence, or anything else = that=20 was unanticipated at the time it agreed to the self-imposed time=20 limitation.  The trial court considered the effect that an = extension=20 might have on the jury, because the trial court had informed the = jurors=20 when they could expect their jury service to end.  In = determining=20 whether the trial court abused its discretion, we may not = substitute our=20 judgment for that of the trial court and we may not disturb the = trial=20 court=3Ds decision=20 unless it is shown to be arbitrary and unreasonable.  = See=20 Joe, 145 S.W.3d at 161.  Taking into consideration all = of the=20 facts and circumstances surrounding the trial court=3Ds=20 decision, we cannot say it was arbitrary or unreasonable and thus = we=20 conclude that the trial court=3Ds refusal=20 of the State=3Ds request=20 for additional time was not an abuse of discretion. =

3.      =20 Did the trial court abuse its discretion by allegedly limiting the = State=3Ds closing=20 argument to six minutes?     

The State=20 contends that by refusing its request for additional time, the = trial court=20 effectively limited the State to six minutes for closing argument, = thereby=20 denying the State the right to make a fair presentation to the = jury. =20

When the=20 State completed its evidence and was informed that it had only six = minutes=20 left for closing argument, the State made no objection, nor did it = request=20 additional time to close or offer any indication of what it would = have=20 argued had it been given more time to argue.[3]=20 In addition, at the end of its closing argument, when the trial = court=20 announced, AThat=3Ds good=20 enough,@ = the State=20 did not object, but thanked the jurors and sat down.  Thus, = as to any=20 specific complaint on the time limitation on closing argument, the = State=20 waived its complaint.  See Tex. R. App. P. 33.1; = Walton=20 v. Canon, Short & Gaston, 23 S.W.3d 143, 148, = 153B54 (Tex.=20 App.CEl Paso=20 2000, no pet.) (holding party failed to preserve error as to trial = court=3Ds=20 imposition of aggregate time limitation on each side during trial = based on=20 the parties=3D = estimates=20 of how much time they needed because the party voiced no objection = in the=20 trial court); Ray v. Pecos & N.T. Ry. Co., 88 S.W. 466, = 467=20 (Tex. Civ. App. 1905, no writ) (holding that appellant failed to = preserve=20 error as to limitation on closing argument because he did not = object until=20 after closing argument was finished and he never requested more = time for=20 closing argument); see also Madry v. State, 200 S.W.3d 766, = 772=20 (Tex. App.CHouston=20 [14th Dist.] 2006, pet. ref=3Dd)=20 (concluding that defendant failed to preserve error as to his = claim that=20 trial court erred in limiting closing argument to five minutes = during=20 punishment phase of trial because appellant never made a record in = the=20 trial court as to the issues his trial counsel wanted to address = but could=20 not because of the trial court=3Ds time=20 limitation on closing argument). 

In any=20 event, even if the State had preserved this issue for review, we = still=20 would not conclude there was error.  Although the State = asserts the=20 trial court limited the State to a six-minute closing argument, = the record=20 does not reflect such a limitation.  The trial court did not = impose a=20 six-minute time limit for the State=3Ds closing=20 arguments.  Rather, the trial court imposed agreed-upon = aggregate=20 time limits based on the amount of time requested by the = State.  The=20 trial court even reminded the State when it was cutting into its=20 closing-argument time, which had been projected at thirty = minutes. =20 The trial court repeatedly reminded the State of the time = remaining, and=20 it was the State=3Ds=20 responsibility to allocate its time.  Therefore, the trial = court did=20 not limit the State to six minutes for closing argument; the State = voluntarily chose to give a six-minute closing argument by using = the=20 preceding minutes for examination of witnesses rather than for = closing=20 argument.  Even if the State had preserved its complaint, = there would=20 be no error.  See Walton, 23 S.W.3d at 148,=20 153B54=20 (stating that, even if appellant had preserved complaint regarding = aggregate time limit for conduct of trial, court would be = hard-pressed to=20 find error since the time limitations were set by the parties = themselves);=20 Irwin, 517 S.W.2d at 640 (holding trial court did not abuse = its=20 discretion in preventing party from making closing statement = because party=20 choose to use all of his allotted time for opening and closing for = his=20 opening statement rather than for his closing argument).  =

Having=20 rejected all of the State=3Ds=20 arguments under the first issue, we overrule that = issue.

B.     =20 Did the trial court abuse its discretion by admitting into = evidence sales=20 of billboard signs that were too remote in time to be used as = comparable=20 sales?

In its=20 second issue, the State asserts the trial court erred in admitting = evidence of billboard sales made in 1995 and 1996, which the State = claims=20 are too remote in time to be used as comparable sales.  The=20 Reinas=3D = appraisal=20 witnesses relied on these sales to establish their estimated value = of the=20 condemned property, a value to which the jury ultimately = agreed.  The=20 State also contends that, even though it agreed to the admission = of=20 several different exhibits with various information regarding = these dated=20 sales, the trial court abused its discretion by denying the=20 State=3Ds motion=20 to set aside its stipulation.

During the=20 pre-trial conference, the parties agreed to admission of several = exhibits,=20 including exhibits 33, 33A, 34, and 34A, which are the exhibits = concerning=20 the billboard sales from 1995 and 1996.  Based on this = agreement, the=20 trial court admitted these exhibits into evidence.  On this = same day,=20 the State submitted a motion in limine that included a request for = the=20 following exclusion:

Any=20 question, comment, or evidence of comparable sales occurring more = than=20 five (5) years prior to or five (5) years subsequent to the date = of taking=20 and the sales prices thereof for the reason that such transactions = are so=20 stale and remote in time that they are unreliable, dissimilar, = lack=20 comparability, and provide an unfair and misleading basis for = comparison=20 to the subject property as of the date of taking; and there have = been=20 subsequent material changes in market conditions as compared to = the date=20 of taking and valuation herein.

The State=20 also filed a motion to exclude the testimony of the = Reinas=3D = expert=20 witnesses David Bolton and Tom Edmonds in reference to billboard = sales=20 more than five years old.   After admitting exhibits 33, = 33A,=20 34, and 34A into evidence at the pre-trial conference, the trial = court=20 granted the State=3Ds motion=20 in limine as to the above item, but it did not rule on the motion = to=20 exclude.

On the=20 first day of trial, before opening statements, the trial court = considered,=20 among other things, the State=3Ds motion=20 to exclude the testimony of the Reinas=3D = expert=20 witnesses (Bolton and Edmonds).  At that time, however, the = Reinas=20 reminded the trial court that the parties had stipulated to the=20 admissibility of exhibits 33, 33A, 34, and 34A, which are the = exhibits=20 concerning these billboard sales, and that the court already had = admitted=20 these exhibits into evidence.  The trial court did not rule = at that=20 time.  Later, however, after opening statements, but before = any=20 witnesses were called, the State again moved to bar admission of = evidence=20 relating to the two billboard sales referenced in these = exhibits. =20 The State filed a motion to set aside its agreement on grounds of = mistake=20 and informed the trial court that it inadvertently had agreed to = admission=20 of these exhibits at the pre-trial conference.  The trial = court=20 denied the State=3Ds motion,=20 declined to remove these exhibits from the trial evidence, and = admitted=20 testimony regarding these billboard sales.

In its=20 appellate brief, the State acknowledges that it agreed to the=20 admissibility of exhibits containing information regarding the = billboard=20 sales, but it maintains that the trial court abused its discretion = by=20 refusing to allow the State to withdraw the stipulation. A = Astipulation@ = is an=20 agreement, admission, or concession made in a judicial proceeding = by the=20 parties or their attorneys respecting some matter incident=20 thereto.  Shepherd v. Ledford, 962 S.W.2d 28, 33 (Tex. = 1998).  Stipulations are generally favored by trial courts as = a way=20 of expediting litigation and generally they will be upheld unless = good=20 cause is shown for rejecting them. Gulf Const. Co., Inc. v. = Self,=20 676 S.W.2d 624, 630 (Tex. App.CCorpus=20 Christi 1984, writ ref=3Dd=20 n.r.e.).  Whenever possible courts should give effect to = voluntary=20 agreements freely made by the parties.  Johnson v. = Swain, 787=20 S.W.2d 36, 38 (Tex. 1989).

Stipulations=20 may be modified or withdrawn, however, at the discretion of the = trial=20 court.  Uvalde County Appraisal District v. F.T. Kincaid=20 Estate, 720 S.W.2d 678, 681 (Tex. App.C = San=20 Antonio 1986, writ ref'd n.r.e.).  The decision to allow a = party to=20 withdraw a stipulation is a matter within the sound discretion of = the=20 trial court.  We conclude that the trial court did not abuse = its=20 discretion in refusing the State=3Ds request=20 to withdraw its stipulation.  See Early v. Burns, 142 = S.W.2d=20 260, 263 (Tex. Civ. App. 1940, writ ref=3Dd)=20 (holding that trial court did not err in refusing to set aside=20 stipulations made by counsel for both parties in open court); = Westridge=20 Villa Apartments v. Lakewood Bank & Trust Co., 438 S.W.2d = 891,=20 894B95 (Tex.=20 Civ. App.CFort Worth=20 1969, writ ref=3Dd n.r.e.)=20 (holding trial court did not abuse its discretion in denying=20 party=3Ds motion=20 to withdraw stipulations). 

Furthermore,=20 even if the parties had not stipulated to the admission of the = exhibits=20 relating to billboard sales from 1995 and 1996, we would not = conclude that=20 admission of these exhibits and related testimony was an abuse of=20 discretion.  We recognize that Texas law generally = discourages the=20 use of remote comparable sales.  See Holiday Inns, Inc. v. = State,=20 931 S.W.2d 614, 623B24 (Tex.=20 App.CAmarillo=20 1996, writ denied) (concluding that seven years was too far = removed);=20 Reynolds v. State, 390 S.W.2d 493, 497B98 (Tex.=20 Civ. App.CTexarkana=20 1965, no writ) (concluding that the trial court did not abuse its=20 discretion by not admitting testimony about two sales more than = five years=20 prior to the taking when five more recent sales were = admitted). =20 However, when comparable sales are scarce, the decision of whether = a sale=20 offered to establish fair market value is too remote in time to be = admissible is left largely to the discretion of the trial = court. =20 See Holiday Inns, 931 S.W.2d at 623.  In Reynolds,=20 although two sales were not admitted because they were deemed = too=20 remote, there were five other comparable sales on record.  = 390 S.W.2d=20 at 497.  In contrast, in the case before us, the evidence = shows that=20 the 1995 and 1996 sign site sales were two of the four most recent = sales=20 of sign sites along IH-610 in the same area as the billboards in=20 question.  Even the State=3Ds=20 appraiser acknowledged that the 1995 and 1996 sales warranted some = consideration in estimating the market value of the = Reinas=3D = sign site=20 on IH-610 in 2003.  Given the limited number of comparable = sales near=20 the Reinas=3D = property,=20 we still would conclude that the trial court did not abuse its = discretion=20 in admitting evidence of the 1995 and 1996 billboard sales, even = if the=20 State had not entered into the stipulation in question.  = See U.S.=20 v. 320.0 Acres of Land, More or Less in Monroe County, 605 = F.2d 762,=20 798 (5th Cir. 1979) (stating that, in eminent domain proceedings, = sound=20 trial practice is to admit as many of the Amost=20 comparable@ = sales=20 available as is necessary to fairly permit each side to present = its fair=20 market value argument to the jury).  We overrule the=20 State=3Ds second=20 issue.

Having=20 overruled all issues presented on appeal, we affirm the trial=20 court=3Ds=20 judgment.

 

 

 

/s/     =20 Kem Thompson Frost

Justice

 

 

Judgment=20 rendered and Opinion filed February 20, = 2007.

Panel=20 consists of Justices Anderson, Edelman, and = Frost.


[1]  Although it appears that the = Reinas may=20 have gotten more time merely because they had presented most of = their case=20 before the time limitations were imposed, the record shows that = the pages=20 of examination by the Reinas does not greatly exceed the pages of=20 examination by the State.  In any event, on the fourth day of = trial,=20 the trial court did not impose the time limitations without = conferring=20 with counsel, but rather, requested that each side state the time = each=20 side would need to conclude the trial.  Thus, at that point, = the=20 State could have asked for more time than the amount of time it = requested,=20 and there is nothing in the record to indicate the trial court = would not=20 have allotted more time.

[2]  On appeal, the State appears to = contend=20 that these interruptions belittled and disrupted the = State=3Ds case.  However, the State never = objected to=20 the trial court=3Ds frequent reminders regarding time, and = the State=20 did not request that the trial court refrain from making such = reminders in=20 the presence of the jury.  Indeed, in most cases, the State = thanked=20 the trial court for its reminders.  In like fashion, the = court gave=20 reminders to the Reinas.

[3]  The only time the State = specifically asked=20 for or suggested that it needed additional time for closing = argument is=20 the point at which the State=3Ds counsel requested the additional three = hours=20 after the State already had agreed to the seven-and-a-half hours.=20

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