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
"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
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
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. …