Philtower redeveloper James F. Hawkins Jr. has challenged the Arco Building LLC counterclaim that drew him into its dispute with Oklahoma City-based Wiggin Properties.
Attorneys for Hawkins made their first entry in the Tulsa County District Court case Monday, filing a motion to dismiss charges of conspiracy and fraud filed by Arco. That affiliate of Kanbar Properties Management also made the counterclaim against Wiggin, which had sued Arco in December to enforce its July 30 contract to buy that downtown Tulsa building. Arco Building LLC filed its counterclaim earlier this month as Wiggin asked Judge Dana Kuehn for a summary judgment.
Unlike previous filings by Oklahoma City-based Wiggin, Hawkins did not openly deny partnership in Wiggin's attempt to buy and renovate the 119 E. Sixth St. office building into commercial space and for-lease apartments. But in a filing, an attorney for Hawkins did say Arco Building LLC's fraud and conspiracy claims were fatally flawed.
"Arco fails to state a viable fraud claim with particularity as required under Oklahoma's pleading code," wrote Jenks attorney Mark S. Rains, representing Hawkins. "The same is true for the civil conspiracy claim. The third-party petition fails to establish that Hawkins, in combination with plaintiff Wigging Properties LLC, committed an unlawful act or used any unlawful means to accomplish an improper goal that supposedly damaged Arco, prerequisites for a conspiracy."
Kanbar officials actually claimed to cancel that sale contract on Nov. 16, three days after Wiggin Properties owner Charles Wiggin asked to extend its 120-day inspection period. Without that delay, Wiggin said it would be difficult to identify all risks involved in transforming that six-story building. It also would hinder efforts to obtain historic tax credits and other financial means to successfully complete the deal by their agreed July 2013 deadline.
That admission alone supported defendant Arco Building LLC's move to terminate the contract, Kanbar attorney C. Michael Copeland wrote in a filing last week contesting Wiggin's summary judgment request. Wiggin maintains that the contract remains in effect.
"While plaintiff would like to ignore the language it chose to include in this letter, the language is unequivocal," wrote Copeland, an attorney with the Tulsa firm Jones Gotcher & Bogan. "There is, at the very least, a question of fact as to whether plaintiff's Nov. 13 email was an anticipatory breach of the contract."
Hawkins suddenly became a dividing line on Nov. 27. Wiggin, who admitted to consulting with Hawkins during an earlier court hearing, had shared his Kanbar emails with Hawkins and asked for his advice.
Hawkins, who had successfully redeveloped downtown Tulsa's Philtower into commercial space and residences, then emailed San Francisco attorney and business adviser Kendrick D. Nguyen, who works with Kanbar. Hawkins thanked Nguyen for his help in his own dispute with Kanbar and asked if he could help Wiggin, casually adding, "I am a 50/50 partner with Chuck on the Arco deal and I can assure you much has been accomplished (much skin is in the game) in the first three months of the PSA that will go a long way to enhance the assets of every downtown Tulsa office building owner."
Nguyen then responded, "Jim, How did you forget to disclose to me when we met in Tulsa that you were 50/50 partner with Chuck on the Arco deal? Should I construe that as an intentional omission?"
That hit home because, as Hawkins alluded, he had just settled a lawsuit against his River City Development by Arco Building LLC, drawing from Hawkins' failed 2009 bid to buy and transform the now 64-year-old Arco Building into commercial space and for-sale lofts.
Arco Building LLC, which had sued Hawkins for breach of contract and unrepaired structural damages, cited Hawkins' admission in its Friday filing as a basis for challenging many of Wiggin's contract fulfillment claims and supporting its discovery requests. …