Eric Proe, et al. v. Diamond Homes, et al.

Holdenville, Oklahoma civil litigation lawyer represented the Plaintiff who sued the Defendants on breach of contract and tort theories.



On July 19, 2017, Diamond Homes, through Mike Emery, provided the Proes with an estimate for the construction of a home. [1] The estimate was provided on a form titled "DIAMOND HOMES COST ESTIMATE." Bart Patterson testified that the estimate was left in his daughter's car. In October of 2017, Micah Proe and the Pattersons purchased property on which to build a home. "[T]he Proes and Defendant Diamond Homes entered into a contract to build a home on land owned by the Plaintiffs." [2] Diamond Homes was responsible for constructing the home "in a workmanlike manner, free from defects" and "was responsible for the design and supervision of the preparation of the concrete slab." Denny Emery was doing business as Diamond Homes and agreed that he is financially responsible for any liability incurred by Diamond Homes.



Diamond Homes hired Mike Emery to supervise construction of the Proes' residence. For this work, Mike Emery was paid $1,000 per week by Denny Emery. There were no deductions or withholdings from Mike Emery's check and he was responsible for paying all taxes associated with the payments he received for his work on the Proes' home. Further, "the material and labor [for the Proes' home was] furnished by Diamond Homes, Denny Emery contractor." Mike Emery was "merely a contract employee of Diamond Homes." [3] The Proes failed to prove "that Mike Emery was [doing business as] Diamond Homes."

The case was tried to the district court without a jury. With respect to the Proes' breach of contract claim, the district court found in favor of the Proes against the builder, Denny Emery d/b/a Diamond Homes. That judgment was not appealed and is final.



The district court found that Mike Emery was a contract employee of his brother, Denny Emery, and was not doing business as and was not a partner with his brother in Diamond Homes. The judgment in favor of Mike Emery on the Proes' breach of contract claim is supported by competent evidence and is affirmed.



The court also found in favor of the defendants as to the Proes' negligence claim. Because the Proes failed to prove any damages from the defendants' breach of a tort duty, the judgment in favor of the defendants on the Proes' tort claim is affirmed.