Waiver of Appellate Review Without an Offer of Proof After a Motion in Limine Excludes Undisclosed Damages Evidence

Introduction

In William Gordon Lacher v. Terry Case; Case Concrete, LLC; and Case Construction, 2026 WY 82 (Wyo. July 16, 2026), the Wyoming Supreme Court addressed two trial fundamentals that often determine outcomes in construction disputes: (1) how a party preserves appellate review of an evidentiary exclusion entered via motion in limine, and (2) what proof is required to recover damages for defective or unfinished construction.

The dispute arose from an oral agreement for a home project in Green River: a wheelchair ramp and an enclosed/covered porch addition. After delays, permitting issues, and alleged code deficiencies, homeowner William Gordon Lacher sued contractor Terry Case and his companies for breach of contract and related theories. A key turning point was the contractor’s motion in limine seeking to exclude damages evidence because Mr. Lacher had not disclosed a damages computation during discovery. The district court partially granted the motion (allowing only previously disclosed damages evidence), conducted a bench trial, found the oral contract unenforceable due to indefiniteness, and—most importantly— found the evidence insufficient to award damages. Mr. Lacher appealed.

Summary of the Opinion

The Supreme Court affirmed on two dispositive grounds:

  • No meaningful appellate review of the motion-in-limine ruling was possible because Mr. Lacher made no offer of proof at trial identifying what excluded damages evidence would have been offered.
  • The district court’s finding that Mr. Lacher failed to prove damages by a preponderance of the evidence was not clearly erroneous. Evidence that he paid $73,000, without proof of diminution in value or reasonable cost to complete/repair (and without proof the project required total demolition and rebuild), did not establish recoverable damages under the governing construction-damages framework.

Because damages were not proven, the Court held it need not reach the district court’s conclusion that the oral contract was unenforceable.

Analysis

Precedents Cited

1) Motions in limine, discretion, and evidentiary review

  • Elsner v. Campbell Cnty. Hosp. Dist., 2025 WY 37, ¶ 75, 566 P.3d 894, 914 (Wyo. 2025), and Three Way, Inc. v. Burton Enters., Inc., 2008 WY 18, ¶ 18, 177 P.3d 219, 225 (Wyo. 2008): cited for the basic function of a motion in limine (a pretrial ruling on admissibility) and the principle that granting or denying such a motion lies within the district court’s sound discretion.
  • Int. of AC, 2026 WY 65, ¶ 9, 590 P.3d 1235, 1238 (Wyo. 2026) (quoting Interest of AM, 2021 WY 119, ¶ 17, 497 P.3d 914, 920 (Wyo. 2021)), and relying on Boyer v. State, 2025 WY 100, ¶ 25, 576 P.3d 30, 38 (Wyo. 2025): these authorities frame the deferential posture for evidentiary rulings—affirmance so long as a legitimate basis exists and the ruling was reasonable.

2) Preservation: offer of proof as a prerequisite to claiming exclusion error

  • Parker v. Cook, 2022 WY 3, ¶ 9, 501 P.3d 1253, 1256 (Wyo. 2022), and Contreras v. Carbon Cnty. Sch. Dist. No. 1, 843 P.2d 589, 596 (Wyo. 1992): cited for the rule that a party generally cannot claim error from excluded evidence without an offer of proof showing the substance of the excluded evidence, because appellate courts cannot evaluate propriety or prejudice in the abstract.
  • Silva v. State, 2012 WY 37, ¶¶ 20–21, 271 P.3d 443, 450 (Wyo. 2012): the Court used Silva to emphasize both trial-level utility (an offer of proof gives the trial judge a fair chance to reconsider at the right time) and appellate necessity (without a proffer, meaningful review is inhibited, and the issue is waived).
  • Bloomfield v. State, 2010 WY 97, ¶ 23, 234 P.3d 366, 375 (Wyo. 2010) (quoting Rudolph v. State, 829 P.2d 269, 275 (Wyo. 1992)): cited to reject the notion that counsel can passively await an opportunity; the proponent should “take the initiative” to make the offer of proof.

3) Construction damages and burden principles

  • Legacy Builders, LLC v. Andrews, 2014 WY 103, ¶ 18, 335 P.3d 1063, 1068 (Wyo. 2014): adopted as the operative framework via Restatement (Second) of Contracts § 348(2) for defective/unfinished construction damages—diminution in value or reasonable cost to complete/repair (if not clearly disproportionate). Legacy Builders also supplies the burden-allocation point: after the plaintiff proves damages, the defendant bears the burden to challenge reasonableness/disproportionality or to support an alternate measure. The Court held that burden never shifted here because Mr. Lacher did not first prove recoverable damages.
  • Knight v. TCB Const. & Design, LLC, 2011 WY 27, ¶ 17, 248 P.3d 178, 184 (Wyo. 2011) (quoting Capshaw v. Schieck, 2002 WY 54, ¶ 10, 44 P.3d 47, 52 (Wyo. 2002)): cited for the plaintiff’s baseline burden to produce sufficient evidence to prove damages.
  • Holloway v. Hidden Creek Outfitters, LLC, 2025 WY 59, ¶ 18, 569 P.3d 756, 760 (Wyo. 2025) (quoting Ruby Drilling Co., Inc. v. Duncan Oil Co., Inc., 2002 WY 85, ¶ 29, 47 P.3d 964, 973 (Wyo. 2002)): cited for two propositions: damages findings are factual and reviewed for clear error; and damages must be proven with reasonable certainty (not speculation).
  • Robinson v. Black, 2025 WY 25, ¶ 20, 564 P.3d 1030, 1037 (Wyo. 2025): cited for the “reasonable degree of certainty” standard and that exactitude is not required, but conjecture is insufficient.
  • Crouch v. Cooper, 2024 WY 98, ¶ 35, 556 P.3d 199, 210 (Wyo. 2024): used as an illustration of when burden-shifting becomes relevant—only after the plaintiff meets the initial damages burden.

4) Bench-trial review standards

  • Anderson v. Messinger, 2026 WY 42, ¶ 28, 587 P.3d 519, 527–28 (Wyo. 2026) (quoting Leeks Canyon Ranch, LLC v. Jackson Hole Hereford Ranch, LLC, 2025 WY 63, ¶ 31, 569 P.3d 1120, 1130 (Wyo. 2025)): supplies the “clearly erroneous” standard for findings of fact after a bench trial, emphasizing deference to the trial judge’s credibility assessments and reasonable inferences.

Legal Reasoning

A. Preservation: the motion-in-limine ruling did not become reviewable error without a proffer

The Supreme Court treated the preservation issue as a practical necessity: even though the district court had ruled that undisclosed damages evidence would be excluded, Mr. Lacher never attempted to introduce specific damages evidence that the court then excluded, and he made no offer of proof describing what that evidence would have been.

Under Wyo. R. Evid. 103(a)(2) and Parker v. Cook, exclusion-based error is not reviewable unless the record reveals the substance of the excluded evidence “by offer or [as] apparent from the context.” The Court concluded there was no excluded evidence to evaluate for relevance, admissibility, or prejudice—making appellate review effectively impossible and resulting in waiver.

The Court also rejected the implicit argument that a party “can’t” make an offer of proof when the evidence is undisclosed: the offer-of-proof requirement is about creating a record of what was excluded and why it mattered, not about proving the evidence will ultimately be admitted.

B. Damages: paying the contract price does not, by itself, prove § 348(2) damages

On the merits of damages, the Supreme Court applied Restatement (Second) of Contracts § 348(2) (via Legacy Builders, LLC v. Andrews) for defective or unfinished construction: damages are generally measured by either:

  • diminution in market value caused by the breach, or
  • reasonable cost to complete or repair, so long as not clearly disproportionate to the probable loss in value.

Mr. Lacher’s sole quantified figure was the $73,000 he paid. But the Court accepted the district court’s view that this amount only makes sense as damages if the factfinder also accepts a further premise: that the project is entirely unsalvageable and must be torn down and rebuilt.

The district court found there was no credible evidence supporting that premise. The record supported repairability and classification uncertainty (addition vs. covered porch), and showed some issues—like truss concerns— could potentially be resolved without removal. With no proof of (1) market value loss or (2) reasonable completion/repair costs, the district court could not select a lawful measure of damages under § 348(2) without speculation. Under Holloway v. Hidden Creek Outfitters, LLC, conjecture cannot support an award, and the Supreme Court held the no-damages finding was not clearly erroneous.

Impact

  • Trial preservation is outcome-determinative: Even when a motion in limine announces a category of exclusion (e.g., undisclosed damages computations), an appellant must still create a record—typically by attempting to introduce the evidence and making an offer of proof—or the issue will likely be deemed waived.
  • Construction plaintiffs must prove a § 348(2) measure, not just payments: Proof of amounts paid may support liability narratives, but it does not necessarily establish either diminution in value or reasonable repair/completion costs. If the plaintiff’s theory is “total loss,” the plaintiff should expect to prove why demolition/rebuild is required and provide a non-speculative cost basis.
  • Burden-shifting arguments depend on first proving damages: The defendant’s obligation to rebut the reasonableness/disproportionality of a repair-cost measure (discussed in Legacy Builders, LLC v. Andrews) does not arise until the plaintiff puts a valid damages measure into evidence.
  • Appellate courts may avoid contract-formation questions when damages fail: By affirming on damages, the Court left oral-contract indefiniteness unresolved, signaling that in many disputes damages proof can be a cleaner, dispositive ground.

Complex Concepts Simplified

  • Motion in limine: A pretrial request for the judge to rule on whether certain evidence will be admitted or excluded at trial.
  • Offer of proof (Wyo. R. Evid. 103(a)(2)): A formal statement (sometimes with a document marked for identification or testimony summarized outside the factfinder’s presence) showing what the excluded evidence would have been and why it matters. Without it, an appellate court cannot tell whether exclusion was harmful.
  • Restatement (Second) of Contracts § 348(2): A standard for construction-contract damages. If construction is defective/unfinished and “loss in value” is uncertain, damages may be measured by either: (a) the property’s reduced market value, or (b) the reasonable cost to complete/repair (if not disproportionate).
  • Clearly erroneous: The standard of review for a judge’s factual findings after a bench trial. An appellate court will not reweigh evidence and will reverse only if, on the whole record, it has a firm conviction the trial court made a mistake.

Conclusion

2026 WY 82 reinforces two practice-critical rules in Wyoming: (1) a party who complains on appeal about excluded evidence must generally make an offer of proof, even when the exclusion was forecast by a motion in limine; and (2) in defective/unfinished construction disputes, recoverable damages must be anchored to Restatement (Second) of Contracts § 348(2)—diminution in value or reasonable repair/completion costs—rather than resting solely on the amount paid or an assumed “total loss” theory unsupported by credible evidence.