CROSSOVER: Object Now, Proffer Now: Dallas Court Enforces Rule 33.1 When Trial-Time Limits Cut Off Evidence

Fariborz Hadjebian v. Sandra Dunning, 05-25-01054-CV, November 09, 2026.

On appeal from 14th Judicial District Court, Dallas County, Texas

Synopsis

When a trial court’s time limit prevents a party from presenting evidence, Texas Rule of Appellate Procedure 33.1 requires a timely objection and an offer of proof identifying the excluded evidence. A complaint raised for the first time in a motion for new trial does not preserve the issue for appellate review.

Relevance to Family Law

Time limits are common in Texas divorce, conservatorship, modification, enforcement, and property-division proceedings, particularly on crowded associate-judge and district-court dockets. If a court-imposed limit prevents counsel from calling a custody evaluator, treating professional, forensic accountant, appraiser, or other material witness, counsel must object when the restriction affects the presentation of the case and must make a record of the evidence that would have been presented. A motion for new trial generally cannot cure the failure to preserve the complaint during trial.

Case Summary

Fact Summary

Fariborz Hadjebian sued Sandra Dunning and others after a multi-vehicle accident. The case was tried to a jury on negligence and related theories. Before trial, Hadjebian’s counsel advised the trial court that the case would require three to four days and that Hadjebian intended to call five witnesses. After learning how many witnesses each side planned to present, the trial court stated that the trial would be completed by the end of the following day. Counsel did not object.

After the jury was sworn, a juror disclosed that he had final examinations the next afternoon. The trial court commented that the parties would proceed more quickly in light of the juror’s schedule. Hadjebian again did not object to the anticipated trial schedule or advise the court that the schedule would prevent him from presenting specific evidence.

Near the end of Hadjebian’s case, counsel stated that the parties were waiting for a doctor who was “running a tad bit late.” The trial court asked whether Hadjebian had testimony to present other than the doctor’s testimony. Counsel responded that she intended to recall Hadjebian. When the court asked whether counsel wanted to present any other testimony, counsel answered, “Not other than Plaintiff, Your Honor.”

The record did not show a contemporaneous objection that the trial court’s time limit was preventing Hadjebian from presenting the doctor. Nor did counsel make an offer of proof explaining the doctor’s anticipated testimony, its relevance, or how it would affect the disputed issues.

The jury found that Dunning’s negligence proximately caused the accident but awarded Hadjebian zero damages. Hadjebian raised the trial-time complaint in a motion for new trial, arguing that the one-day limitation prevented him from calling his doctors. The trial court denied the motion and rendered a take-nothing judgment.

Issues Decided

1. Whether Hadjebian preserved his complaint that the trial court abused its discretion by limiting the trial and thereby preventing him from presenting testimony from a medical witness.

2. Whether the jury’s zero-damages findings were factually insufficient or against the great weight and preponderance of the evidence.

Rules Applied

Texas Rule of Evidence 611(a) requires a trial court to exercise reasonable control over the mode and order of examining witnesses and presenting evidence so that the procedures are effective for determining the truth, avoid wasting time, and protect witnesses from harassment or undue embarrassment.

A trial court’s imposition of trial-time limits, including the resulting exclusion of evidence, is reviewed for abuse of discretion. The Dallas Court relied on Cooper v. Cooper, No. 05-24-00766-CV, 2026 WL 2286507, at 11 (Tex. App.—Dallas Aug. 7, 2026, no pet.) (mem. op.); In re M.A.S., 233 S.W.3d 915, 924 (Tex. App.—Dallas 2007, pet. denied); and Dow Chemical Co. v. Francis*, 46 S.W.3d 237, 240–41 (Tex. 2001).

Under Texas Rule of Appellate Procedure 33.1, a complaint ordinarily must be presented to the trial court through a timely request, objection, or motion stating the grounds with sufficient specificity, and the trial court must rule or refuse to rule. When a time limit prevents a party from presenting evidence, preservation also requires an offer of proof identifying the evidence the party was unable to present. The court relied on In re B.P., No. 05-23-01322-CV, 2025 WL 1083615, at *2 (Tex. App.—Dallas Mar. 10, 2025, no pet.) (mem. op.).

A complaint first raised in a motion for new trial is untimely when the alleged error could and should have been brought to the trial court’s attention during trial. The court cited In re S.C.S., No. 05-06-01600-CV, 2008 WL 1973570, at *3 (Tex. App.—Dallas May 8, 2008, no pet.) (mem. op.).

On damages, the jury has substantial discretion to evaluate credibility, resolve conflicts, and determine whether an injury or claimed expense was caused by the occurrence at issue. Under Grant v. Cruz, 406 S.W.3d 358, 363–64 (Tex. App.—Dallas 2013, no pet.), a jury may reject subjective testimony concerning pain and may conclude that an injury resulted from causes other than the defendant’s negligence. The fact that an accident occurred does not, by itself, establish compensable pain, mental anguish, medical expenses, or other damages.

Application

The appellate court focused on what counsel did—and did not do—when the trial schedule was announced and when the medical witness had not yet arrived. Although counsel initially estimated that the trial would take three to four days, that estimate did not constitute an objection to the court’s schedule. Counsel also did not object when the trial judge indicated that the matter would be completed by the following day or when the juror’s examination schedule created additional pressure to expedite the presentation.

The same preservation problem remained when counsel stated that the doctor had not yet arrived. Counsel did not inform the trial court that the imposed time limit was preventing the presentation of material medical testimony. More significantly, counsel did not make an offer of proof describing the doctor’s opinions, the subjects the doctor would address, or how that testimony would establish injury, causation, or damages.

The record therefore did not permit the appellate court to determine what evidence had actually been excluded or whether the exclusion was harmful. Raising the issue in the motion for new trial came too late because the trial court had not been given a contemporaneous opportunity to reconsider the time limit, accommodate the witness, or evaluate the importance of the anticipated testimony.

As to damages, the jury could find that Dunning caused the accident while also finding that Hadjebian failed to prove that the accident caused compensable damages. The evidence included preexisting back problems, prior treatment, and another accident shortly before the accident at issue. Although Hadjebian presented his testimony, his mother’s testimony, and extensive medical records, the jury remained responsible for resolving causation and credibility. The jury was not required to infer that the accident caused the conditions, treatment, expenses, pain, impairment, or mental anguish claimed.

Holding

The Dallas Court of Appeals held that Hadjebian failed to preserve his complaint concerning the trial-time limitation. A party who contends that a time limit prevented the presentation of evidence must timely object and make an offer of proof identifying the excluded evidence. Raising the complaint for the first time in a motion for new trial did not satisfy Rule 33.1.

The court also rejected the factual-sufficiency challenge to the jury’s zero-damages findings. The jury could accept that Dunning’s negligence caused the accident while declining to find that the accident caused the damages Hadjebian claimed. The court affirmed the take-nothing judgment.

Practical Application

In family-law litigation, counsel should treat every announced trial-time limitation as a potential preservation event. A preliminary estimate that the case will require several days is not the same as an objection that a subsequently imposed limit will prevent the presentation of material evidence.

The issue may arise in several recurring settings:

• Conservatorship and possession disputes: If the court’s deadline prevents testimony from a custody evaluator, therapist, school official, physician, or collateral witness, counsel should identify the witness and summarize the testimony that cannot be presented.

• Property characterization and valuation: If time expires before a forensic accountant, business appraiser, tracing expert, or real-estate appraiser can testify, counsel should explain the opinions, supporting methodology, and property issues affected by the exclusion.

• Temporary-orders hearings: Even in expedited proceedings, counsel should object when a time allocation prevents presentation of evidence material to conservatorship, possession, support, exclusive use of property, or interim attorney’s fees.

• Enforcement proceedings: If counsel cannot complete proof concerning the terms of the order, alleged violations, defenses, inability to comply, or requested relief, the objection and proffer must be made before resting or closing.

• Modification proceedings: When excluded testimony concerns a material and substantial change, best-interest considerations, geographic restrictions, or changed financial circumstances, counsel should connect the proposed evidence to the applicable statutory element.

• Property-division trials: If the limitation affects evidence concerning value, characterization, reimbursement, fraud on the community, tax consequences, or a proposed just-and-right division, the proffer should identify both the evidence and the issue it supports.

An effective objection should do more than state that counsel needs additional time. It should explain that the time limit is preventing the presentation of identified, material evidence and request a specific remedy, such as additional trial time, a brief continuance, testimony out of order, remote testimony, or permission to complete the offer of proof after the jury or witness has been excused.

If the court maintains the limitation, counsel should make an offer of proof before the proceeding concludes. Depending on the circumstances, that may consist of question-and-answer testimony outside the factfinder’s presence, a narrative summary accepted by the court, marked exhibits, deposition excerpts, or another record sufficient to disclose the substance and relevance of the excluded evidence.

Checklists

When the Court Announces a Time Limit

• Identify the total time allocated to each side.
• Clarify whether the limit includes opening statements, direct examination, cross-examination, objections, and closing argument.
• State whether the allocation will prevent presentation of material evidence.
• Identify the witnesses or exhibits likely to be affected.
• Explain why the evidence is relevant to a pleaded claim, defense, or statutory element.
• Request a reasonable modification of the schedule.
• Obtain an express ruling on the objection or request.

When a Witness Is Late or Unavailable

• Inform the court promptly that the witness is expected but unavailable at that moment.
• Identify the witness and the anticipated time of arrival or availability.
• Explain the substance and materiality of the anticipated testimony.
• Request permission to call another witness out of order.
• Consider remote testimony, a brief recess, a continuance, or deposition testimony if procedurally available.
• Object expressly if the court’s deadline will prevent the witness from testifying.
• Obtain a ruling on the requested accommodation.

Making the Offer of Proof

• Make the offer before resting or before the evidentiary phase concludes.
• Identify the excluded witness or exhibit.
• State the substance of the proposed testimony or evidence.
• Connect the evidence to the controlling legal issue.
• Include the material opinions, facts, calculations, and conclusions.
• Mark excluded documents or demonstratives for identification.
• Use question-and-answer testimony outside the factfinder’s presence when feasible.
• Confirm that the court reporter has transcribed the offer.
• Obtain a ruling excluding the evidence or refusing additional time.

Preserving Error Under Rule 33.1

• Make a timely and specific objection.
• State that the trial-time limitation is preventing presentation of identified evidence.
• Explain the legal and factual grounds for the objection.
• Request a specific form of relief.
• Secure an express ruling or make a record that the court refused to rule.
• Make an offer of proof establishing the substance of the omitted evidence.
• Do not rely solely on a motion for new trial to preserve the complaint.
• Confirm that the clerk’s and reporter’s records contain the objection, ruling, and proffer.

Preparing for Time-Limited Family-Law Proceedings

• Rank witnesses by importance to the required statutory findings.
• Prepare abbreviated direct examinations for each essential witness.
• Organize exhibits for rapid authentication and admission.
• Consider stipulations concerning authenticity, admissibility, or undisputed facts.
• Prepare written summaries of expert opinions and calculations.
• Arrange remote availability for professional witnesses when permitted.
• Obtain deposition testimony or affidavits where authorized.
• Prepare a written proffer before trial for any witness likely to be affected by scheduling.
• Track remaining time throughout the proceeding.
• Raise the issue before the time expires, not after the court directs the party to rest.

Citation

Hadjebian v. Dunning, No. 05-25-01054-CV (Tex. App.—Dallas Nov. 9, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion

Family Law Crossover

The crossover rule is procedural and straightforward: when a Texas family court’s trial-management decision prevents a party from presenting evidence, appellate preservation requires action at the time the limitation affects the party’s proof. Counsel must object, identify the evidence that cannot be presented, explain its relevance, request appropriate relief, and obtain a ruling. If the evidence remains excluded, counsel must make an offer of proof sufficient to show the appellate court what the witness would have said or what the exhibit would have established.

This mechanism can arise whenever a divorce, custody, modification, enforcement, or property case is assigned a fixed hearing window. For example, if a court ends a conservatorship hearing before a custody evaluator can testify, counsel must preserve the evaluator’s anticipated opinions and their relevance to the best-interest analysis. If a divorce trial concludes before a valuation expert can address a closely held business, the proffer should include the proposed value, methodology, assumptions, and effect on the requested property division.

The procedural lesson is that an appellate court cannot evaluate exclusion, abuse of discretion, or harm from a silent record. A later motion for new trial may explain that additional evidence existed, but it ordinarily does not substitute for a contemporaneous objection and trial-level proffer. Counsel should therefore create the preservation record before resting and while the trial court still has an opportunity to modify the schedule or admit the evidence.

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