FILED IN DISTRICT COURT IN THE DISTRICT COURT OF OKLAHOMAGBENPMA COUNTY STATE OF OKLAHOMA JUL 22 2022 State of Oklahoma, ex rel. Oklahoma i Tourism and Recreation Department, Stier cate 73. Plaintiff, a Case No. CJ-2022-2001 Hon. C. Brent Dishman Swadley’s Foggy Bottom Kitchen, LLC, an Oklahoma limited liability company, Defendant, SWADLEY’S FOGGY BOTTOM KITCHEN, LLC’S ANSWER TO AMENDED PETITION AND AMENDED COUNTERCLAIM Defendant, Swadley’s Foggy Bottom Kitchen, LLC (“Swadley's FBK") for its answer to the Amended Petition filed by Plaintiff, State of Oklahoma, ex rel. Oklahoma Tourism and Recreation Department (the “Stitt, Pinnell, and Winchester Tourism Department” or “State”), and for its Amended Counterclaim alleges as follows: ‘TRODUCTION The Stitt, Pinnell, and Winchester Tourism Department's Amended Petition is little more than an effort to manufacture controversy and generate headlines. The fact remains that the Stitt, Pinnell, and Winchester Tourism Department (1) proposed and drafted the agreements with Swadley’s FBK; (2) constantly changed, oversaw, and directed, Swadley’s FBK’s work down to the smallest details; and (3) approved Swadley’s FBK’s invoices for additional work and pricing. Indeed, in its March 2022 report, the Legislative Office of Fiscal Transparency (“LOFT”) points out that the August 2021 Second Amendment to the agreement between the Stitt, Pinnell, andWinchester Tourism Department “approved” the amounts spent.! Similarly, in a hearing before the Oklahoma House Special Investigative Committee, LOFT’s Executive Director, Mike Jackson, repeatedly testified that the Stitt, Pinnell, and Winchester Tourism Department had “ratified” Swadley’s FBK’s i Woices by agreement. Moreover, on or about November 30, 2021, representatives of Swadley’s FBK requested and met with Stitt, Pinnell, and Winchester Tourism Department officials to return monies for a double invoice that was sent to the State for the Lake Murray restaurant and credits for rebates received for the Quartz Mountain and Robbers Cave restaurants. At the meeting, Swadley’s FBK, not the State, brought these issues to the attention of the Stitt, Pinnell, and Winchester Tourism. Department officials and offered to write a check or credit the funds back to the Stitt, Pinnell, and Winchester Tourism Department. The Stitt, Pinnell, and Winchester Tourism Department's Director of Finance, Katherine Nichols, surprisingly said that Swadley’s FBK did not need to worry about the credit at “this” time, that it would be addressed in subsequent billings, and directed ‘Swadley’s FBK to continue working and complete the construction. On its own, Swadley’s FBK ultimately credited $463,960.77 back to the Stitt, Pinnell, and Winchester Tourism Department. Furthermore, in August of 2020 Swadley’s FBK issued a credit in the amount of $279,991.96 back to the Stitt, Pinnell, and Winchester Tourism Department, and in June of 2020, Swadley’s FBK issued a credit in the amount of $106,900.00 back to the Stitt, Pinnell, and Winchester Tourism Department. When Swadley’s FBK, a small family-owned business, discovered any mistakes, it rectified them as is evidenced by Swadley’s FBK issuing credits returning more than $743,000 to the State, ' Oklahoma Legislative Office of Fiscal Transparency Rapid Response Evaluation: State Parks, March 2022 (“LOFT Report”) at p. 14.Unfortunately, now that its mismanagement and gross incompetence has been exposed in the LOFT Report and otherwise (in an election year), the Stitt, Pinnell, and Winchester Tourism Department has filed an Amended Petition asserting a litany of misleading, self-serving, and in some instances, categorically false, allegations aimed at passing the buck to a respected small family-owned business that did little more than execute the Stitt, Pinnell, and Winchester Tourism Department's misguided and constantly changing plans for the state park restaurants, ANSWER TO AMENDED PETITION 1. Swadley’s FBK admits that the Stitt, Pinnell, and Winchester Tourism Department is an agency of the State of Oklahoma, with s principal office in Oklahoma County, Oklahoma, 2. Swadley’s FBK admits that it is an Oklahoma limited liability company with its principal office in Oklahoma County, Oklahoma. Swadley’s FBK admits that jurisdiction and venue are proper in Oklahoma County, Oklahoma. 4, Swadley’s FBK admits that, among other things, the Stitt, Pinnell, and Winchester Tourism Department promotes tourism and visitation to Oklahoma’s state parks. However, Swadley’s FBK lacks sufficient knowledge to admit or deny statements regarding the subjective intent or policy goals of the Stitt, Pinnell, and Winchester Tourism Department. However, Swadley’s FBK would note that the LOFT Report is critical of the Stitt, Pinnell, and Winchester Tourism Department's plan for state park restaurant investment. Specifically Survey respondents indicated that the top 3 most important amenities and activities were an RV camping area (with 36.1% of respondents choosing this option), then hiking (34.4%), and cabins (28.4%). Restaurants were ranked as the twelfth most important amenity or activity, after selections including a place that is quiet and restful, clean restrooms, and watchable wildlife, among other things. (emphasis in 2 2LOFT Report at p. 20.The LOFT Report went on to note that the Stitt, Pinnell, and Winchester Tourism Department's decision to invest heavily in capital intensive amenities such as restaurants “does not align with customer data” and “if the Legislature’s goal is to improve the level of self-sufficiency of Oklahoma's State Parks, the recent actions of [the Stitt, Pinnell, and Winchester Tourism Department] are making that goal harder to achieve” (emphasis in original); In short, the Stitt, Pinnell, and Winchester Tourism Department's decision to renovate the restaurants at the state parks amounted to little more than an unwarranted, constantly changing, and expensive political vanity project. Thus, to the extent that paragraph 4 is intended to portray the Stitt, Pinnell, and Winchester Tourism Department’s decision to renovate the restaurants at issue as a prudent, laudable, or even competent policy decision, Swadley’s FBK denies such allegations. Further, Swadley’s FBK denies that the Stitt, Pinnell, and Winchester Tourism Department has “limited resources” to the extent the phrase implies that available funds are scarce. As noted in the LOFT Report, in 2020, the Legislature authorized $48.6 million in bonds for the Stitt, Pinnell, and Winchester Tourism department to use for capital improvements in addition to the millions appropriated annually. Finally, Swadley’s FBK admits that the Stitt, Pinnell, and Winchester Tourism Department sought it out when no one else was interested, but denies that it was “experienced” in dealing with government contracting, In fact, Swadley’s FBK informed the Stitt, Pinnell, and Winchester Tourism Department that did not have experience with government contracting and indicated that it would “take your lead on how to proceed from here.” SLOFT Report at p. 15.5. Swadley’s FBK admits that it is a successful small family-owned Oklahoma restaurant company that operates locations in Ardmore, Bethany, El Reno, Enid, Midwest City, ‘Mustang, and Oklahoma City. 6. Swadley’s FBK admits that related Swadley’s entities have previously remodeled existing restaurants. However, to the extent that paragraph 6 is intended to portray Swadley’s FBK as an experienced governmental contractor, Swadley’s FBK denies such allegations. Swadley’s FBK informed the Stitt, Pinnell, and Winchester Tourism Department that it was fearful this project could bankrupt the small family-owned business and that it did not have experience with government contracting and indicated that it would “take your lead on how to proceed from here. 7. Swadley’s FBK admits that it had to to remodel and operate restaurants, but denies that it represented to the Stitt, Pinnell, and Winchester Tourism Department that it was “qualified” as a contractor for a governmental agency or that it had ever operated a state facility. In fact, the opposite is true. On October 14, 2019, Swadley’s FBK informed the Stitt, Pinnell, and Winchester Tourism Department: “This is [the Swadley Family's] first venture working with a State Department so [the Swadley Family] will take your lead on how to proceed from here” (emphasis added). Swadley’s FBK further admits that the Stitt, Pinnell, and Winchester Tourism Department “selected” Swadley’s FBK to serve as the independent contractor to manage the state park restaurant improvement projects, but only because it had no other options. No other “independent contractor” was interested in the project. 8 Swadley’s FBK lacks sufficient knowledge to admit or deny the subjective basis upon which the Stitt, Pinnell, and Winchester Tourism Department entered into the Master “Despite these concerns, the Stitt, Pinnell, and Winchester Tourism Department insisted that this would be a “good thing” for the Swadley Family because the State would absorb all construction costs, provide management fees, absorb operational losses, and provide advertising. 5Concession Lease on March 4, 2020 (“First Agreement”). Therefore, the allegations in paragraph 8 are denied with regards to the State’s “reliance.” Swadley’s FBK specifically denies that it represented that it was a “qualified” or “experienced” government contractor or operator. To the contrary, Swadley’s FBK directly informed the state that it had never done governmental contracting of this nature before and indicated that it would take the Stitt, Pinnell, and Winchester Tourism Department's “lead.” 9. Swadley’s FBK. admits that it entered into the First Agreement with the Stitt, Pinnell, and Winchester Tourism Department on March 20, 2020 and that, thereafter, the parties entered into (1) an Addendum “E” to the First Agreement; (2) a First Amendment on February 23, 2021 (“Second Agreement”); and (3) a Second Amendment on August 27, 2021 (“Third Agreement”) (the First Agreement, Addendum “E”, the Second Agreement, the Third Agreement, and the verbal agreements which Swadley’s FBK performed pursuant to Title 15 of the Oklahoma Statutes will collectively be referred to herein as the “Agreements”), The State admits that it “approved” or “ratified” Swadley’s FBK’s work and expenses in the Third Agreement.’ To the extent that the allegations in paragraph 9 purport to describe documents and state legal conclusions. Swadley’s FBK answers that the documents and verbal agreements speak for themselves and denies any allegation that goes beyond the documents. Additionally, Swadley’s FBK alleges that the State demanded and entered into numerous written and verbal change orders that Swadley’s accepted and performed pursuant to Title 15 of the Oklahoma Statutes. 10. To the extent that the allegations in paragraph 10 purport to describe documents and state legal conclusions, Swadley’s FBK answers that the documents speak for themselves and # See generally LOFT Report at p. 14 and testimony of LOFT Executive Director, Mike Jackson to the House Special Investigative Committee.denies any allegation that goes beyond the documents and verbal agreements. With respect to the specific allegations contained in paragraph 10, Swadley’s FBK responds as follows a Swadley’s FBK admits that paragraph 10a generally describes portions of the written and verbal Agreements as to the renovations of the restaurants but denies that it accurately or completely describes the Agreements between the parties. Moreover, Swadley’s FBK denies that paragraph 10a accurately describes the multitude of verbal and written change orders from the Stitt, Pinnell, and Winchester Tourism Department which Swadley’s FBK fully performed. ‘Swadley’s FBK denies allegations in paragraph 10b in that it mischaracterizes the Agreements between the parties and does not account for the multitude of verbal and written change orders from the Stitt, Pinnell, and Winchester Tourism Department which Swadley’s FBK fully performed. Swadley’s FBK admits the allegations contained in paragraph 10c. ‘Swadley’s FBK admits the allegations contained in paragraph 10d. However, to the extent that paragraph 10d is intended to allege that Swadley’s FBK failed or refused to obtain required permits, Swadley’s FBK denies such allegation. Further, in practice, State employees such as Jerry Winchester and Gino DeMarco took on the responsibility for obtaining relevant permits, including the permit from the State Fire Marshall®: © Messages from Jerry Winchester appear on the left and messages from Brent Swadley appear on the right.|'ve already talked tothe state fire marshal. He's going to call me back after he checks with his guys. Dor't call everyone yet {im saying | haven't got fixed but Fm close. Swadley’s FBK admits the allegations contained in paragraph 10e. However, to the extent that paragraph 10e is intended to allege that Swadley’s FBK kept inaccurate books and records Swadley’s FBK denies such allegation, Additionally, Swadley’s FBK affirmatively alleges that some books and records were stolen by a disgruntled former employee. Swadley’s FBK admits the allegations contained in paragraph 10f, However, to the extent that paragraph 10fis intended to allege that Swadley’s FBK failed or refused to make copies of its books and records available for inspection, Swadley’s FBK denies such allegation Swadley’s FBK admits the allegations contained in paragraph 10g, However, to the extent that paragraph 10g is intended to allege that Swadley’s FBK refused to have its financial statements audited annually by a Certified Public Accountant licensed to practice in Oklahoma, Swadley’s FBK denies such allegation. Swadley’s FBK admits the allegations contained in paragraph 10h, However, to the extent that paragraph 10h is intended to allege that Swadley’s FBK failed or refused to timely file state and federal income tax returns, Swadley’s FBK denies such allegation. Swadley’s FBK admits the allegations contained in paragraph 10i. However, to the extent that paragraph 10i is intended to allege that Swadley’s FBK failed or refused toobtain background checks from the Oklahoma State Bureau of Investigation for all owners and potential employees, Swadley’s FBK denies such allegation. Swadley’s FBK has provided the background checks. j. Swadley’s FBK admits that, prior to its involvement, the restaurants were operating at a substantial loss. On information and belief, the State of Oklahoma has never operated a profitable restaurant at its state parks, Swadley’s FBK further admits that the Stitt, Pinnell, and Winchester Tourism Department agreed to cover Swadley’s FBK’s operational losses up to $1,000,000. 11, Swadley’s FBK denies the allegations contained in paragraph 11. First, Swadley’s lacks sufficient information to admit or deny the subjective basis upon which the Stitt, Pinnell, and Winchester Tourism Department decided to enter into the Agreements. Thus, such allegations are denied, Second, Swadley’s denies that it made “representations” as to expected costs to be incurred for furniture, fixtures, equipment, remodeling, and branding, Third, Swadley’s FBK affirmatively alleges that the Agreements were entered into based upon the representations and direction of the Stitt, Pinnell, and Winchester Tourism Department. Fourth, due to both the COVID-19 pandemic and the written and verbal change orders made by the Stitt, Pinnell, and Winchester Tourism Department, the cost projections for this project were, at best, a moving target. Fifth, Swadley’s FBK denies that it “negotiated” the First Agreement with the Stitt, Pinnell, and Winchester Tourism Department. Swadley’s FBK presented a proposal which the Stitt, Pinnell, and Winchester Tourism Department immediately rejected. The Stitt, Pinnell, and Winchester proposed, drafted, and/or verbalized all the terms in the Agreements. Finally, Swadley’s FBK denies that it represented to the Stitt, Pinnell, and Winchester Tourism Department that it was an experienced governmental contractor/operator. To the contrary, Swadley’s FBK directly informedthe Stitt, Pinnell, and Winchester Tourism Department that this was its first experience as a governmental contractor. 12. Swadley’s FBK denies the allegations in paragraph 12. First, Swadley’s FBK denies that it has experience as a contractor for a governmental agency. Second, Swadley's FBK denies that it based its cost projections solely upon pre-contract site inspections. For example, after visiting the Beavers Bend location, Swadley’s FBK feared the remodeling of a restaurant in such poor condition could bankrupt it. With the complete direction, guidance, and consent of the Stitt, Pinnell, and Winchester Tourism Department, Swadley’s FBK eventually determined that the Beavers Bend restaurant would require a complete structural rebuild. Finally, the COVID-19 pandemic and the constant verbal change orders from the Stitt, Pinnell, and Winchester Tourism Department made cost projections a moving target, at best. 13. Swadley’s FBK denies the allegations contained in paragraph 13. First, Swadley’s FBK denies that the Stitt, Pinnell, and Winchester Tourism Department entered into the Agreements “believing it to be a mutually beneficial arrangement that would benefit the State of Oklahoma, its citizens, and Swadley’s.” As noted in paragraph 4 above, this was little more than a political vanity project that “[did] not align with customer data.” When surveyed, customers overwhelmingly indicated that they wanted improvements to less capital-intensive amenities such as RV sites, camping areas, hiking trails, and cabins. Moreover, as the LOFT Report points out, “[t}he significant capital improvement investments in several restaurants exceed [the Stitt, Pinnell, and Winchester Tourism Department’s] own asset management plan to reinvest in no more than one restaurant per year."? ? See LOFT Report at p. V. 1014, Swadley’s FBK denies the allegations in paragraph 14. The State received tremendous benefit from Swadley’s FBK’s work which has unjustly enriched the State. First, it now owns six first-class newly renovated restaurants at six state parks. In social media posts, Lt. Governor Pinnell described the work Swadley’s FBK had done as “massive improvements” and commented that the “new renovations and restaurant are great!” Moreover, the State wrongfully insisted that Swadley’s FBK continue working from September of 2021 to April of 2022 despite the fact that it had no intention of paying Swadley’s FBK. Thus, the State’s deceit caused the Stit, Pinnell, and Winchester Tourism Department to receive the benefit of eight months of Swadley’s FBK’s work without paying for it. 15. Swadley’s FBK denies all of the allegations contained in paragraph 15 and all of its subparts. Specifically: a, Swadley’s FBK denies that it “overcharged” the Stitt, Pinnell, and Winchester Tourism: Department or that it acted in “bad faith.” To the contrary, all of Swadley’s FBK’s work was performed with the approval, consent, direction, and control of the State. With respect to the specific example of smokers, and as detailed at length in the Amended Counterclaim below, Swadley’s FBK installed and invoiced the smokers at issue with the full knowledge, consent, and direction of Stitt, Pinnell, and Winchester Tourism, Department. The following is an example of a text exchange between Brent Swadley and former Executive Director, Jerry Winchester:4 say we dont want to give up the patio space. Get a fant blow the ‘smoke over the wall. We Ike the BBC option Further, and as noted above, when it discovered an instance of an alleged “overcharge,” Swadley’s FBK immediately informed the Stitt, Pinnell, and Winchester Tourism Department, scheduled a meeting to disclose it, offered to write a check to return the funds, and ultimately credited hundreds of thousands of dollars back to the Stitt, Pinnell, and Winchester Tourism Department. Swadley’s FBK denies that it made arbitrary price markups to equipment and furniture that were invoiced to the Stitt, Pinnell, and Winchester Tourism Department and alleges these were requested and approved by the State Swadley’s FBK denies that it submitted invoices for reimbursement of equipment that it never delivered to the facility. It is worth noting here that, even though the State has been “investigating” its relationship with Swadley’s FBK since as early as September of 2021, itis unable to provide any specific details as to equipment that Swadley’s FBK. allegedly did not deliver. This is yet another example of politically self-serving, ‘unsupported, and headline-baiting sensationalism, More importantly, this ignores the fact that the State wrongfully demanded that Swadley’ FBK continue to work on an 12expedited basis for eight months without any intention of paying Swadley’s FBK. This, is a classic case of wrongful deceit and unjust enrichment by the State. Swadley’s FBK denies that it improperly accounted for any expenses. Swadley’s FBK further denies that it engaged in any practice to reduce the net revenue or prevent the State from receiving “royalty payments” on the restaurants, Pursuant to the terms of the Agreement, the State was to receive royalty payments only “[i]f there is a Total Profit at the end of any Fiscal Year.” As detailed more fully below, Swadley’s FBK. informed the Stitt, Pinnell, and Winchester Tourism Department that there was no scenario under which the restaurants would operate at a profit during any fiscal year. nurism Department Indeed, in the First Agreement, the Stitt, Pinnell, and Winchester 1 acknowledged that it was “currently operating the Restaurants at a loss.” Upon information and belief, the restaurants at Oklahoma state parks have never retuned a profit at the end of any fiscal year. Swadley’s FBK denies that it improperly accounted for employee bonuses as “losses.” ‘The Stitt, Pimnell, and Winchester Tourism Department is falsely attempting to paint a picture that Swadley’s FBK paid large bonuses to its owners and management. To the contrary, bonuses were paid out as end-of-yeat/Christmas bonuses to retain quality employees at remote locations. Accordingly, Swadley’s FBK properly accounted for these end-of-year incentive-based employee bonuses as “expenses.” Swadley’s FBK, further denies that there “are numerous other improper accounting entries that served to the State's detriment.” 13Swadley’s FBK denies that it failed to install a commercial fire alarm and commercial fire suppression system in one of the facilities it remodeled. Further, Swadley’s denies that it installed non-operational residential fire detectors in any of the facilities Swadley’s FBK denies that it “was not performing background checks on its employees.” Paragraph 15g is a classic example of the Stitt, Pinnell, and Winchester Tourism Department attempting to reverse engineer “issues” to obtain politically beneficial headlines. During its time operating the state park restaurants, Swadley’s FBK employed hundreds of people. Out of these hundreds of employees, the Stitt, Pinnell, and Winchester Tourism Department is only able to raise ome who had any criminal issue. The employee in question was terminated immediately. Swadley’s FBK denies the allegations contained in paragraph 15h and demands strict proof thereof. Swadley’s FBK denies that it “refused” to provide the State with any documentation that it requested. Swadley’s FBK denies that the State made “explicit requests” for such documentation and requests proof thereof. Swadley’s FBK admits that it stopped providing the monthly Profit/Loss statements in December of 2021. Obviously, this is because the State wrongfully stopped paying Swadley’s FBK in September of 2021 Swadley’s FBK denies the allegations in paragraph 15j. Swadley’s FBK has provided the relevant tax retums to the Stitt, Pinnell, and Winchester Tourism Department. As to audits, on information and belief, the State wrongfully directed the accounting firm of Finley and Cook not to audit the State’s restaurants. Swadley’s categorically denies the allegations contained in paragraph 15k. On March 23, 2022, the Finance Director of the Stitt, Pinnell, and Winchester Tourism 14Department, Katherine Nichols (“Nichols”), emailed Swadley’s FBK and asked if Swadley’s FBK could “send me the operating models document you presented at our budget meeting? I need a clean copy and I wrote all over mine.” The document to which Nichols was referring was a detailed spreadsheet created by Swadley’s FBK that modeled various scenarios that was intended as a Profit/Loss forecast for the various restaurants being “[o]pen 365 days per Year.” Swadley’s FBK presented two separate scenarios as follows: Scenairo 1 - Open 365 (11:00am - 8:00pm) Est.Annual Est. Annual —_ Est. Annual FBK Location _ Revenue Expense Net Income BeaversBend|$_1,903,051[$ 2,662,134[$ (758,083) Quarzmin* [$1,275,000 [$ 1,782,960 |$ _ (507,916)| Sequoyah__[$_1,166,422|$ 1951118 |$ (784,697) lake Murray [$1,303,643 [$1,966,078 |S (662.434)| RomanNose |$ 977,995 $ 2,229,755 |$ (1,251,760) $6,626,155] $ 10,591,035 | $ _(3,964,890)| "Based upon 1.5 months fate Scenairo 2- Open 365 (8:00am - 8:00pm) Est. Annual Est. Annual Est. Annual FAK Location _ Revenue Expense__Net Income BeaversBend|$ 2,188,509|$ 3,026,420|$ (837,911) QuartzMtn*_|$ 1,466,301 | $ 2,027,701 | $ (561,400) Sequoyah_[$ 1341,385[$ 2,209,909 |$ (868,524) lake Murray | $ 1,499,190 | $ 2,226,635 | $ (727,445)| Roman Nose [$ _1,124,695[$ 2,530,475 |$ (1,405,780) $7,620,079 $32,023,139 | $ (4,401,063) In other words, under scenario #1, in which the restaurants would be open for lunch and dinner only, Swadley’s FBK informed the Stitt, Pinnell, and Winchester Tourism Department that the total loss for all restaurants would be $3,964,890 annually. In scenario #2, in which the restaurants ‘would be open for breakfast, lunch, and dinner, Swadley’s FBK forecasted that the total loss would 15be approximately $4,401,061 annually. The proposal indicated that Swadley’s FBK would explore other scenarios such as “Open all Holidays but close the sites that don’t make sense to be open and account for Catering.” Swadley’s also noted that it would explore a “breakeven scenario” but concluded that this was “not doable” because it would require the restaurants to “be closed in such a way as to not keep employees or drop quality outside our standards.” Of course, in text messages from Jerry Winchester, the Stitt, Pinnell, and Winchester Tourism Department insisted that ‘Swadley’s FBK serve breakfast—the most expensive of the scenario’s Swadley’s FBK modeled: [had some fried Watonga cheese curds. Wicked Alsojyoulnsedia) The bottom line is that the Stitt, Pinnell, and Winchester Tourism Department (1) developed and directed the “business model” for Swadley’s FBK; (2) knew that the “business model” could never result in a profit; and (3) nevertheless insisted upon the most expensive of the proposed business models. 16. Swadley’s FBK. admits that it provided the Stitt, Pinnell, and Winchester Tourism Department operational revenue, cost, and expense projections. 17. Swadley’s FBK denies the allegations contained in paragraph 17. The truth is that the expenses related to this project increased because (1) the Stitt, Pinnell, and Winchester Tourism Department's verbal and written change orders and micromanagement; and (2) the unanticipated rising costs associate with the COVID-19 pandemic. Swadley’s FBK categorically denies that its initial projections were intended to mislead the Stitt, Pinnell, and Winchester Tourism Department. 18. Swadley’s FBK denies the allegations contained in paragraph 18 in the strongest possible terms. In truth, the Stitt, Pinnell, and Winchester Tourism Department was involved with and constantly micromanaged Swadley’s FBK’s work down to the smallest detail. Further, it 16“approved” and “ratified” every payment and reimbursement made to Swadley’s FBK. Moreover, the State wrongfully and by deceit induced Swadley's FBK to perform work for approximately eight months when it knew it had no intention of paying Swadley’s FBK for its work. 19, Swadley’s FBK denies that the Stitt, Pinnell, and Winchester Tourism Department terminated its agreement with Swadley’s FBK to “protect taxpayers and the State of Oklahoma.” Additionally, Swadley’s FBK affirmatively alleges that the Stitt, Pinnell, and Winchester Tourism Department breached the Agreements by failing to give notice of termination pursuant to the terms of the Agreements. This breach caused untold damage to the 246 employees who had to be immediately terminated. 20, Swadley’s FBK denies that the Stitt, Pinnell, and Winchester Tourism Department has been “damaged” or that it is “entitled to be paid” any amount of money. In fact, the Stitt, Pinnell, and Winchester Tourism Department unlawfully and wrongfully terminated the Agreement to score political points only after its mismanagement and incompetence became a political hot potato, Further, the Stitt, Pinnell, and Winchester Tourism Department induced Swadley’s FBK to continue the remodeling and operations of the state park restaurants when it knew it had no intention of paying Swadley’s FBK for its work. The bottom line is that the Stitt, Pinnell and Winchester Tourism Department engaged Swadley’s FBK to execute its unwarranted and expensive political vanity project. When the costs directed and controlled by the State became public, the Stitt, Pinnell, and Winchester Tourism Department sought to reverse-engineer a litany of unsupported and wholly unreasonable “problems” with Swadley’s FBK’s work. However, the evidence will ultimately show that Swadley’s FBK gave the Stitt, Pinnell, and Winchester Tourism Department exactly what it wanted-—the remodel, rebranding, and operation of six first-class restaurants in the midst of a global pandemic.ai. 23. 24, 25. 26. 28. 29. 30. 31 33. 34, 35. 26. 37. 39. 40. 4 Swadley’s FBK denies the allegations in paragraph 21. Swadley’s FBK denies the allegations in paragraph 22. Swadley’s FBK denies the allegations in paragraph 23 Swadley’s FBK denies the allegations in paragraph 24. Swadley’s FBK denies the allegations in paragraph 25. Swadley’s FBK denies the allegations in paragraph 26 Swadley’s FBK denies the allegations in paragraph 27. Swadley’s FBK denies the allegations in paragraph 28 Swadley’s FBK denies the allegations in paragraph 29. Swadley’s FBK denies the allegations in paragraph 30. Swadley’s FBK denies the allegations in paragraph 31 Swadley’s FBK denies the allegations in paragraph 32. Swadley’s FBK denies the allegations in paragraph 33. Swadley’s FBK denies the allegations in paragraph 34. Swadley’s FBK denies the allegations in paragraph 35, Swadley’s FBK denies the allegations in paragraph 36. Swadley’s FBK denies the allegations in paragraph 37. Swadley’s FBK denies the allegations in paragraph 38. Swadley’s FBK denies the allegations in paragraph 39. Swadley’s FBK denies the allegations in paragraph 40 Swadley’s FBK denies the allegations in paragraph 41 AFFIRMATIVE DEFENSES The State has failed to state a claim upon which relief can be granted. 182. The State’s claims are barred or abated substantially by the State’s unclean hands. 3. To the extent the State seeks to recover damages, the State's claims fail in whole or in part to the extent that it has suffered no damages. 4, To the extent the State seeks to recover damages, and (o the extent that the State did suffer any alleged damage, its claims are barred in whole or in part because it failed to use reasonable means to prevent and/or mitigate the alleged damage. 5. To the extent the State seeks to recover damages, the State’s alleged claims for damages are barred, in whole or in part, by the right to a set-off against any such damages. 6. To the extent the State seeks to recover damages, the State is barred from recovery of damages or other relief to the extent that it or others failed to perform conditions precedent, concurrent, or subsequent under pertinent Agreements. 7. The State’s claims are barred by the doctrine of estoppel (legal and equitable), 8. The State’s claims are barred by the doctrine of waiver. 9. The State's claims are barred by the defense of release. 10. The State's claims are barred by the defense of payment. 11, The State’s claims are barred, in whole or in part, because Swadley’s FBK’s acts and/or omissions of which the State complains were ratified by the State and/or the State’s duly authorized agent(s) and/or representative(s). The State accepted the benefits of the parties’ agreements and, therefore, has ratified the agreements. The State should not now be permitted to disavow the prior ratification. 12, The State’s claims are barred by the doctrines of unjust enrichment and/or quantum meruit.13, The State’s claims are barred by the defenses of knowledge, acquiescence, and/or consent, 14. The State’s claims are barred by breach of duty or contract, default, or other failure or misconduct by the State and/or persons beyond the control of Swadley’s FBK. 15. The State’s rights and remedies are restricted and limited by agreements and/or by statute. 16. The actions and/or inactions of third parties, specifically Curt Breuklander, Jerry Winchester, Gino DeMarco, Matt Pinnell, Kevin Stitt, and other State officials caused and/or contributed to any loss that the State alleges to have incurred. AMENDED COUNTERCLAIM For its Counterclaim against the Stitt, Pinnell, and Winchester Tourism Department, Swadley’s FBK alleges as follows: INTRODUCTION AND FACTUAL BACKGROUND 1 Governor Stitt is authorized by statute to appoint the Executive Director of the Oklahoma Tourism and Recreation Department, In granting the governor this authority, the legislature made the Oklahoma Tourism and Recreation Commission an advisory board and granted power to conduct the day-to-day operations of the Oklahoma Tourism and Recreation Department exclusively to the Executive Director. 2. Lieutenant Governor, Matt Pinnell, serves as the Secretary of Tourism on Governor Stitt’s cabinet. 3. Governor Stitt appointed the (now former) Executive Director of the Oklahoma Tourism and Recreation Department, Jerry Winchester (“Winchester”), to oversee the day-to-day operations of the Oklahoma Tourism and Recreation Department4, The Stitt, Pinnell, and Winchester Tourism Department's lawsuit merely seeks to pass the blame onto Swadley’s FBK for in-state political bickering and sensationalism, Unfortunately, while the State proudly touts the achievements of its “partnerships” with private businesses to achieve the administration’s public policy goals, the State will happily throw its private business “partners” under the bus at the slightest hint of negative political sensationalism and rhetoric.® 5. Swadley’s Smoked Meat’s, Inc. (“Swadley’s Smoked Meats” or “Swadley Family”) is a small family-owned and family-run restaurant business based out of Oklahoma City * Over 80 years ago, Brent Swadley’s grandfather was in the business of smoking meats in his small general store in Texas. Brent Swadley took some of those same recipes and began cooking and selling barbeque in retail business parking lots in the Oklahoma City metro. In 2000, Swadley’s ‘Smoked Meats opened its first permanent location in Oklahoma City. Since then, through hard work and dedication, the Swadley Family has opened seven permanent Swadley’s Smoked Meats restaurant locations across the State of Oklahoma. Additionally, the Swadley Family has become the State of Oklahoma’s largest caterer with the ability to serve up to 20,000 people and provides catering for businesses, schools, and other organizations across Oklahoma, Today, Swadley’s Smoked Meats and its related entities employ over 400 people throughout Oklahoma." Through the Swadley Family's commitment to quality, it has won numerous awards including the following: * See e.g. htips:/www.oklahoman.com/storv/news/2022/05/0d/stitt-gave- chool-supplies-they-bought-500-tvs/9630872002/ * Swadley’s Smoked Meats is not a party to this litigation. » The number of people employed by the Swadley Family does not include the 246 people who lost their jobs with Swadley's FBK because of the State’s politically motivated and wrongful termination of its Agreement with Swadley’s FBK. 21a, 2019, 2020, and 2021 “Best BBQ” awards by 405 Magazine's Best of the 405; b. the 2019, 2020, and 2021 “Best BBQ” awards by The Oklahoman Readers’ Choice; c. the 2021 “Best All-Around Restaurant” and “Best Carry Out” awards by The Oklahoman Readers’ Choice; 4d. being a Finalist for the “Best Caterer” award by The Oklahoman Readers’ Choice; e. the 2019, 2020, and 2021 “Best BBQ” awards by Oklahoma Magazine’s The Best of the Best; and £, the 2020 and 2021 “Best BBQ” awards by Oklahoma Gazette’s Best of OKC. Four generations of Swadley family members have contributed to the suecess of the Swadley’s Smoked Meats businesses. A large part of the Swadley Family's success rests upon its reputation and goodwill in the community. 6. Govemor Stitt took office in January 2019 and appointed Winchester as the Director of the Oklahoma Tourism and Recreation Department in April of 2019. The State also named Gino DeMarco (“DeMarco”) as the Deputy Director of the Oklahoma Tourism and Recreation Department, Neither Winchester nor DeMarco had any previous governmental or tourism-related experience. Instead, they were given high-ranking governmental positions due to their prior business experience. Winchester was formerly an oil and gas executive, and DeMarco ‘was an entrepreneur. 7. With respect to Oklahoma’s state parks, DeMarco made the Stitt, Pinnell, and Winchester Tourism Department's goals clear. In an August 25, 2020 article in the Oklahoman, Demarco was quoted as follows: “The most common feedback from parks visitors used to be that the parks are full of incredible natural resources, but the man-made features are outdated or falling into disrepair. Improving visitors’ perception of the parks is Key to bringing in more guests becausepeople are more likely to come back if they like what they see.” DeMareo further questioned whether the State was “going to focus on the health of this park system, or are we going to treat it like a hospice and we're going to keep it alive until it dies?” The remodeling, rebranding, and ‘management of the state park restaurants was a signature part of the Stitt, Pinnell, and Winchester Tourism Department's policy goal of “improving visitors’ perception of the parks” to help keep the state parks system “alive.” 8. From day one, the Stitt, Pinnell, and Winchester Tourism Department acknowledged the state park restaurants have never been profitable and could not be profitable because the state park restaurants generally see low usage on weekdays and in the winter months. . However, the Stitt, Pinnell, and Winchester Tourism Department also acknowledged from day one that not all families can afford to take expensive out-of-state vacations to places like Disney World and that families that vacation at Oklahoma state parks should have access to nice, clean, and affordable dining options, even if the restaurants themselves are not profitable 10. Many governmental services operate at a loss for the benefit of the citizens. For example, the United States Postal Service, mass transit, veterans’ hospitals, and parks and related amenities such as restaurants all typically operate at a financial loss—a loss that is a small price to pay in exchange for the benefits these services provide to the public. 11. Inlate 2019, the Stitt, Pinnell, and Winchester Tourism Department approached the Swadley Family with a proposal to engage the Swadley Family to remodel, rebrand, and ultimately manage the restaurants at five of the State’s parks. The Swadley Family was told that Governor Stitt said, “the State needs to be fired from hospitality.”12. As a small, family-owned business with only seven restaurants and no prior experience building restaurants for a governmental agency, the Swadley Family was very reluctant to embark upon a project of this magnitude, After secing the restaurant at Beavers Bend State Park, the Swadley Family told Winchester that this was a waste of time because this project has “bankruptcy” written all over it. The Stitt, Pinnell, and Winchester Tourism Department insisted that this would be a “good thing” for the Swadley Family because the State would absorb all construction costs, provide management fees, absorb operational losses, and provide advertising, As a result, on October 14, 2019, the Swadley Family informed Winchester: “This is [the Swadley Family's] first venture working with a State Department so [the Swadley Family] will take your Iead on how to proceed from here.” (emphasis added). 13. In. an email to Brent Swadley and Curt Breuklander dated November 5, 2019, Winchester wrote: “We are looking forward to making this deal happen and thanks for your interest and help for the State of Oklahoma.” (emphasis added). 14, In an email dated November 14, 2019, DeMarco outlined the State’s detailed proposal for a “contractual concession agreement”! with Swadley’s Smoked Meats (eventually Swadley’s FBK). In the State’s proposal, DeMarco said: “Under this agreement, Swadley’s [FBK| should make money from day one since all the fixed costs are covered by the State and labor costs are set at a pre-determined rate.” (emphasis added). DeMarco’s proposal laid out that the State would pay for branding, kitchen equipment, and dining facilities. Additionally, DeMarco proposed that “Swadley’s [FBK] and the State would mutually agree upon an operating "A concession agreement is a contract that gives a company the right to operate a specific business within a government's jurisdiction, subject to particular terms. A concession agreement typically grants the concessionaire exclusive rights to operate its business in the facility for a stated time and under specified conditions. See https:/vww.investopedia.com/terms/c/eoncessionagreement.asp. 24schedule and breakeven sales level for each restaurant based upon [a] schedule, anticipated menu, ‘management requirement, etc.” Finally, DeMarco proposed that “Swadley’s [FBK] would take charge of restaurant operations and run it as their own.” 15. On March 4, 2020, the State and Swadley’s FBK signed the Master Concession Lease Agreement State Parks Restaurant Operation (the “Agreement”).'? The Agreement largely tracks DeMarco’s November 15, 2019 proposal. It calls for Swadley’s FBK to remodel, rebrand, and ultimately manage five restaurants at five different Oklahoma state parks: (a) Sequoyah Lodge; (b) Roman Nose Lodge; (c) Lake Murray Lodge; (d) Beaver’s Bend State Park; and (¢) Robbers Cave State Park. 16, The Stitt, Pinnell, and Winchester Tourism Department prepared the March 4, 2020 Agreement and Winchester signed on behalf of the State. In the March 4, 2020 Agreement, the State represented it had the authority to execute, deliver, and perform the Agreement and that the Agreement “does not and will not violate any material provision of federal, state, or local law, or regulation.” (emphasis added). Based on this contractual representation, Swadley’s FBK believed, followed, and relied upon the Stitt, Pinnell, and Winchester Tourism Department's agreements, change orders, directions, and control with the understanding that they were all in compliance with federal, state, and local laws, 17. The State was so satisfied with the work that Swadley's FBK did at these initial five locations that, eleven months later, on February 23, 2021, the State and Swadley’s FBK entered into a First Amendment to the Agreement wherein Swadley's FBK agreed to remodel, ® Again, as used herein, the “Agreements” globally refers to the Master Concession Lease Agreement State Parks Restaurant Operation, Addendum E dated March 20, 2020, the First Amendment dated February 23, 2021, the Second Amendment dated August 27, 2021, and all verbal and written change orders from Winchester, DeMarco, and other State officials. 25rebrand, and ultimately manage the restaurants at Quartz Mountain State Park and Little Sahara State Park. 18. The truth in this case is the Stitt, Pinnell, and Winchester Tourism Department got exactly what it wanted with rapid construction of first-class restaurants during a pandemic. In the Agreements the State stated that it “seeks a private entity to operate five restaurants...located throughout the State Parks System.” The Swadley Family’s reputation for quality food, commitment to its employees, and hard work is what initially caused the State to seck out the Swadley Family to redevelop, revitalize, rebrand, and ultimately manage what had been dilapidated, abandoned, and failing restaurants located in Oklahoma's state parks and lodges 19. — It is important to note that the Stitt, Pinnell, and Winchester Tourism Department had previously had no success finding private entities willing to revitalize and operate these restaurants for a variety of reasons, As noted above, the Swadley Family was very reluctant to take on such a large project and initially rejected the idea. Nevertheless, the State persisted in seeking out “help” from the Swadley Family and ultimately induced it to enter into the Agreements with the promise that “Swadley’s [FBK] should make money from day one.” It has since come to light that Swadley’s FBK was the only “private entity” that was willing to take on this large project. 20. The first and most obvious obstacle to the Stitt, Pinnell, and Winchester Tourism Department finding a “private entity” to accept this project was the fact that the restaurants at the various state parks have historically operated at a loss. In fact, the State acknowledges in the Agreements that it was “currently operating the Restaurants at a loss.” In truth, the restaurants at the Oklahoma state parks have operated at a loss for years, if not decades. Generally, private businesses are not willing to enter into an agreement to conduct large scale renovations and to operate multiple large restaurants that will most likely operate at a loss. As an inducement to enter 26into the Agreements, therefore, the Stitt, Pinnell, and Winchester Tourism Department not only offered to pay Swadley’s FBK’s monthly management fees to operate the restaurants, but also agreed to (a) cover the expenses for remodeling and rebranding, and (b) pay the amount of any total loss not to exceed one million dollars as an “Additional Management Fee.” 21. Another problem the Stitt, Pinnell, and Winchester Tourism Department had with inducing private entities into the Agreements was the sheer size and scope of the work. This project required a restaurant operator who could not only rebuild but also operate multiple large, full- service, sit-down-style restaurants in remote locations all over the state of Oklahoma. This was an undertaking that private restaurateurs were unwilling and unable to handle. Per the Agreements with the State, Swadley’s FBK was to renovate, rebrand, and manage six large restaurants as follows a, Beavers Bend State Park — a 5,160 square foot restaurant in far southeastern Oklahoma (just northeast of Broken Bow). b, Lake Murray Lodge —a 6,596 square foot restaurant in far south-central Oklahoma (south of Ardmore), ©. Sequoyah Lodge — a 5,160 square foot restaurant in eastem Oklahoma (northeast of Muskogee). d. Robbers Cave Sate Park — a 7,801 square foot restaurant located in eastern Oklahoma (north of Wilburton). e. Roman Nose State Park — an approximately 5,100 square foot restaurant located in west-central Oklahoma (north of Watonga), £. Quartz Mountain State Park ~ a 7,801 square foot restaurant located in southwestern Oklahoma (north of Altus), The remote locations, distance between locations, and size of the various facilities presented logistical and human resources complications that restauranteurs were unwilling to risk. As stated, the size of these restaurants, in terms of square footage, classifies them as “large.” According to one industry expert, “{iJn general, a large family restaurant might need up to 6,000 square feet.” 8 See hutps://bizfluent.com/info-12010139-much-room-need-restaurant, html, 222. The next obstacle to the State finding a private entity to enter into the Agreements was the horrible condition of all six restaurants, The restaurants at the state parks were in a completely dilapidated and rancid condition due to what the State euphemistically refers to as “decades of deferred maintenance.” '* The following images of the restaurant located at Beaver’s Bend State Park illustrate the State’s failure to maintain these restaurants for decades * “Deferred maintenance” refers to repairs to infrastructure and assets that get delayed and/or backlogged because of budget limitations or a lack of funding. 28Sees Seo23. Similarly, when Swadley’s FBK representatives arrived at the Robbers Cave State Park Restaurant to assess the site, State employees provided them with a case (not a can) of wasp 31spray so they could safely enter the premises. The following photographs illustrate the extent of the wasp infestation at the Robbers Cave State Park restaurant But the decay at the Robbers Cave location was not limited to just wasp infestation. The photographs below further illustrate just how badly the Robbers Cave State park restaurant was neglected when Swadley’s FBK entered the Agreements with the State: 3224, — Immediately upon signing the First Agreement on March 4, 2020, Swadley’s FBK hit the ground running and went to work. By March 9, 2020 (only five days after the First Agreement was signed), Brent Swadley texted Winchester the following images of the significant progress that had already been made in renovating the restaurant at Roman Nose State Park: 3425. By April 28, 2020, Brent Swadley texted Winchester images showing the progress of the total rebuild of the restaurant at Beavers Bend State Park: 353626. Brent Swadley provided Winchester with near-daily updates on Swadley’s FBK’s progress. As demonstrated by the text exchange below, it was notable and rare for Brent Swadley to go more than twenty-four hours without providing Winchester with a “report” on Swadley’s FBK’s progress:Have you fallen and can't get up? haven't gone this long without a report in months. 27. Less than two months after signing the First Agreement, Swadley’s FBK had its “soft opening” at the Roman Nose State Park Restaurant, Brent Swadley sent the following images to Winchester to document the event: 3828, Over time, the Stitt, Pinnell, and Winchester Tourism Department not only wanted to expand the project, but also began to completely control and direct the smallest of details. To demonstrate the degree to which State officials directed and controlled Swadley’s FBK’s work, Winchester texted the following list of demands regarding the restaurant at Roman Nose: 3920,6:35 PM Roman Nose Need something on the tables - tent, flower, candle, centerpiece ‘The big steak plate slides on the table when you are trying to eat. | spoke to Greg tonight about getting the windows professionally cleaned ‘Ok with switching the opening for the gift shop. Need the cool stuff in there Remember the small plates with the appetizers Restring the banner out by the road. It's loose. Consider automatically bringing ketchup out with onion rings or at lease ask: Those chairs in the banquet room are sketchy ‘The door for the screen in the banquet room is hanging open Vil make sure to visit with Greg about the tree trimming {like the enhanced sign plans. They need to stick out more, This is but one of a multitude of examples of top State officials micromanaging Swadley’s FBK’s work down to the smallest detail. Per the Agreements, Swadley’s FBK was contractually obligated to follow all instructions from State officials: “Lessee will comply with the reasonable direction of Tourism’s authorized agents.” See First Agreement, Section 13(d) (emphasis added). 29. The verbal and written change orders from Winchester included, but were not limited to: a. With respect to the roof at the Robbers Cave State Park restaurant, Winchester demanded Swadley’s FBK: Take the roof off. 40b. In discussions regarding drawings for the design of the restaurant at Robbers Cave State Park, Winchester texted: That looks better. We need to tweak the roofline. It will be a for sure novelty. ¢. With respect to the construction of a dock at the Lake Murray Lodge restaurant, Winchester texted: Big crowd at Murray last night. Should have some dock plans next week. 4. With respect to the menus at the restaurants, Winchester demanded: So Rae and | studied your menu more closely. Only three additions we could think of; fried pickle chips, Jim's pinto beans, fried pies and seasonal meatloaf And the Jim's rolls. €. Additionally, Winchester demanded with respect to Swadley’s FBK’s menus: had some fried Watonga cheese curds. Wicked. Also}yeulneed) £ With respect to the rebuild of the Beavers Bend Restaurant, Winchester provided the plan for the size and layout of the restaurant: 4* POF Beavers Bend PLAN-D-Size Layout pt Winchester also told Swadley’s FBK to provide “an opening lunch at Roman Nose with the local legislators”: We need to chat about an opening lunch at Roman Nose with the local legislators. With respect to certain promotional materials, Winchester requested: Looks good. You might want to consider making sure it doesn't clash with any park related promotional items. With respect to the use of state parks logos, Winchester advised Brent Swadley: Just run any of those by Jennifer and she can help you get the right versions and approved uses. She is the logo master. With respect to changes to the parking lot at Lake Murray Lodge, Winchester required: Make sure you submit the parking lot proposed changes to Ann as soon as practicable. With respect to dumpsters at one of the restaurants, Winchester texted: Why are those dumpsters sitting in parking spaces? With respect to Swadley’s FBK operating hours, Winchester requested: 42We need to visit about the operating hours / days. m. Winchester texted the “Lodge at Robbers Cave Park Concept Design” to Brent Swadley on May 26, 2020: di POF 051120 Lodge at Robbers Cave Park Concept Design paf n, With respect to the opening of the restaurant at Sequoyah State Park, Winchester and Brent Swadley had the following exchange: ‘So when do you think we kickoff Sequoyah? Me Ru ees eee eee por ©. With respect to landscaping, Winchester requested: Would you text me the contact info for Josh the landscape guy. The lieutenant governor wants to talk to him. p. With respect to “operating days” Winchester texted: 615120, 5:59 PM We need to talk about the operating days when I see you on Tuesday. q. With respect to menu items at the Sequoyah State Park Restaurant, Winchester demanded: ‘Sequoyah isn't far from Porter. Might need to work some fresh peaches into a fried pie. 43With respect to “food quality,” Winchester requested: We need to orbit back thru the kitchen to ensure the food quality stays strong. We had record attendance this year. s. Winchester requested to know the status of Swadley’s FBK’s liquor licenses: What's the status on your liquor licenses? t. With respect to the Beavers Bend Restaurant, Winchester demanded: We need to put some lights up at Beavers Bend. Trees for sure. We need to get a plan together. u, Winchester requested Swadley’s FBK to dredge the lake near the Lake Murray Restaurant: Nice. We've got some dredging to do. v. With respect to a smoker at one of the restaurants, Winchester and Brent Swadley exchanged the following text messages: 44Ronee eee ceca i I say we don't want to give up the patio space. Get a fan to blow the ‘smoke over the wall We like the BBQ option w. With respect to the “ambiance” at the restaurants, Winchester weighed in: No, I'm with you. I'd love to do one exposed like that and incorporate that ambiance in the restaurant. I'm struggling with giving up the patio space Looks like the plumbing is squared away x. With respect to the patio area at one of the restaurants, Winchester and Brent Swadley had the following exchange: 45| thought we were leaving this area open? ct errs ‘50 te jut going to be open ght? | hought you were rooting it y. With respect to the restaurant at Quartz Mountain State Park, Winchester requested that Swadley’s FBK open for a “cabinet meeting:” (QM Foggy open forthe cabinet meeting? 2Ast oes | won't know for about 7-10 days from now ‘So you know the governor will roll up in there wanting some chow. z. Winchester continued to press Swadley’s FBK to open the Quartz Mountain Restaurant to host political leaders: 46‘Any update on Quartz Mountain opening? eee eee a back on frying to hire for openings. hav Se hoe ereye ca) handled from catering | need to know so | can plan for having all he egistators and the Ike out for the opening aa. With respect to the restaurant at Robbers Cave State Park, Winchester demanded: Robbers Cave opening no later than Feb 22 bb. With respect to signage, Winchester demanded: Don't forget about sign size, number and placement. After Quartz Mountain, I don’t want to have that mistake again. 1 visit with them because my explicit instructions were no signs without my approval. | would never have approved Quartz Mountain. If the Robbers Cave sign is that big they might as well start removing it. ce, With respect to dealings with the State fire marshal, Winchester and Brent Swadley had the following exchange: Ive already talked to the state fire marshal. He's going to call me back ‘after he checks with his guys. Don't call everyone yet. ‘Tm saying | haven't got it fixed but I'm close. 47dd, With respect to a Swadley’s FBK employee cleaning one of the restaurants, Winchester demanded: Can you get the guy to stop cleaning during our meeting Winchester was not the only Department of Tourism official who made verbal and written change orders. Deputy Director DeMarco also demanded a number of changes, including, but not limited to; With respect to lighted signs, DeMarco texted: Lighted signs could be an issue, | need to discuss with some people. I'll get back with you later today. DeMarco directed Swadley’s FBK on roofing color: Roof colors Everglade MBC! Sig 300, DeMarco demanded that Swadley’s FBK. shut down construction work due to COVID-19: You should probably consider shutting down all construction work at the lodges. We don't have any confirmed positive carriers but it's still escalating. We are stopping new reservations at lodges as of today. DeMarco directed the design of the restaurant at Sequoyah State Park: When will you be in OKC next so we can meet to review Sequoyah design? | can send some stuff by email but some stuff we're need to discuss. DeMarco directed Swadley’s FBK on the design and placement of a large trailer as a decoration in one of the restaurants: 48,Cut the side of off the 24 footer then paint it. Use an awning as the roof and hang the Foggys sign from the ceiling with wire, suspended above the awning. £ DeMarco requested that Swadley’s FBK send an estimate for a “dock repair” change order at Sequoyah State Park: Also, send need estimate for dock repair, i need to get that into the ‘Sequoyah change order. g. DeMarco demanded that the tables and chairs at the Sequoyah State Park, Robbers Cave State Park, and Beavers Bend State Park restaurants conform to certain standards: Claret for seat color on the wood chairs. Booth color coming soon. All sequoyah tables- low, bar and booth- this finish. But they like the two tone finish you sent for Beavers Bend and/ or Robbers Cave. h, DeMarco directed that the booths in the restaurants be a certain color: Booth color is Graystone If they can't do the stitching in the booth picture, go with the plain back. 49DeMarco specified that the wood slats on top of granite at the restaurant at Roman Nose conform to certain standards: But the louvered slats on top of the granite should be one species. And the thickness should be 5/4 or 6/4. Ask your wood guy, he'll know. DeMarco demanded that an exposed metal pillar at one of the restaurants conform to certain standards: Acircle of 3/16" plate just for looks. Make it look like it's a floor flange but it's only decorative. Has to be less than 1/4" thick for ADA. Maybe 18 “circle or less, just big enough to go around whole post and cover hole in floor. Let me know what you think. poten k, DeMarco requested that a deck at one of the restaurants be constructed to certain, specifications: 30‘Are you going o deck around that tree? Teer net Weer "det closer, maybe 4”. And make sure there's some sort of collar that's flush with the floor (no thicker than 1/4") and within 1" ofthe tree so that| no kid can get his foot caught in the hole. The collar can be remaved, cut back and replaced in the future as the tree grows. Can you draw that for me please htips://1drv ms/bistAiOY 1AfddFhNg7V7fizJ14yVSSBY 1A ‘There's a sketch DeMarco directed that Swadley’s FBK not include “religious symbols” in its promotional materials: pacers Cant have religious symbols since is a State concession. But the sandwich looks good. stm, DeMarco and other State employees directed Swadley’s on the dredging at Lake Murray. Adam said we do have to get dredging permit but it will be easy, Kris is working on it. n, DeMarco demanded that floor plans for the Beavers Bend restaurant be changed to insert a window “for the natural light”: Sino De Marco It's not marked but we said there would be a window where the edge of the porch next to the hall meets the planter. Right now it's a walkthrough, you we're going to put in a full length window to match kitchen window. This drawing has a table placed there, which is okay, but we need a window for the natural light and to help join the spaces together even though they are separate. 03:21:51 PM CDT 31. Of course, if Swadley’s FBK did not do what the Stitt, Pinnell, and Winchester Tourism Department demanded, the State could do the work itself and charge Swadley’s FBK for reimbursement and a 25% “administration fee.” See First Agreement, Section 16(b): If after ten days [Swadley’s FBK] has not performed the maintenance or repair, Tourism may (but is not required to) proceed and following completion, [Swadley’s FBK] shall reimburse Tourism for_the cost thereof plus twenty-five percent (25%) administration fee, (emphasis added), 32. Further, Swadley’s FBK’s work at the six state parks was not confined to just the restaurants themselves. At the State’s demand, and pursuant to the State’s complete direction and control, Swadley’s FBK made substantial improvements to the landscaping, banquet halls, patios, docks, outdoor lighting, parking lots, driveways, dumpster areas, lobbies, loading ramps and receiving docks, and many other improvements that were outside the scope of the Agreements. 52.The Stitt, Pinnell, and Winchester Tourism Department demanded and directed these in verbal and written change orders from Winchester, DeMarco, and other State officials, because it believed they would improve the aesthetics, accessibility, convenience, and overall visitor experience. 33. Winchester was not the only official from the State of Oklahoma who was aware of the tremendous and substantial work Swadley’s FBK had done in quickly renovating and reopening the restaurants at the state parks during a global pandemic. The following is an image of Governor Stitt and Brent Swadley at the newly renovated and reopened Roman Nose Restaurant on May 8, 2020:34, As Swadley’s FBK. got Roman Nose open for business, it continued to receive additional requests from the Stitt, Pinnell, and Winchester Tourism Department regarding the substantial work being put into the total rebuild of the restaurant at Beavers Bend State Park. Brent Swadley texted Winchester the following: 5/27/20, 12:54 PM with rain that's Dedication Winchester responded: 54So once the roof is on, the inside takes off? Reckon there is any way to finish this by July 4? In other words, the State not only directed the smallest details of Swadley’s FBK’s work, but also pressed Swadley’s FBK to complete work on the fastest possible timetable. In the above text messages, Winchester was essentially asking if Swadley’s FBK could complete an entire rebuild of the Beavers Bend restaurant in just four months from the signing of the First Agreement. 35. Despite the weather and the COVID-19 pandemic, Swadley’s FBK completed a total rebuild and opening of the restaurant at Beavers Bend State Park by August 7, 2020,'$ as documented in a tweet by Lieutenant Governor, Matt Pinnell: & Lt. Governor Matt Pinnell @ wv @LtGovPinnell Coming at you from Beavers Bend State Park today, where we just opened the newest @swadleysBBQ Foggy Bottom Kitchen! Our State Parks are seeing massive improvements, and we're eager to greet you on your next #travelOK trip. ! 1:52 PM - Aug 7, 2020 * Swadley’s FBK opened the Beaver's Bend restaurant a mere five months after the First Agreement was signed.36. Lieutenant Governor Pinnell was similarly impressed with renovations Swadley’s FBK completed at Sequoyah State Park, describing them as “great” ie ery Was able to stop by and thank our amazing staff at the Sequoyah State Park Lodge this morning during a speaking engagement on site. This is a perfect getaway spot, and our new renovations and restaurant are great! Plan a trip. 37. In his capacity as Lieutenant Govemor, Pinnell also “approved” a $1.5 million invoice from Swadley’s FBK on July 22, 2021 56From: att Pinnell Sent: Thursday, uy 22, 2021 1:58:00 PM To: Matt Pinnel crattpinnell@ltgov.ok gov> Subject: FW: FBX Purchase Appoval Pease ep to hs ema approved a» puchase approval to Fogey Bottom Kichen for $1 othe emalde of mote 21 Noatiachmen, st ea approvers prove blow since Katrine Wo | Dre! nace ant Adin Tourien & Recreation | Finance 9. 405 522-9558 | ¢ 405-889-5085 38. The Stitt, Pinnell, and Winchester Tourism Department's micromanagement and timetable pressures contributed significantly to the increasing cost of Swadley’s FBK’s work, particularly amid the COVID-19 global pandemic." In the aftermath of the pandemic, construction ‘6 Ttis worth noting that Swadley’s FBK signed the Agreement and began work on March 4, 2020. On March 17, 2020, Governor Stitt signed an executive order declaring a state of emergency caused by the impending threat of COVID-19. 37industry commentators and experts have widely noted rising costs of material and labor and delays in delivery of materials.”” 39. In fact, in the Second Amendment to the Agreements dated August 27, 2021, the State acknowledged that “due to the Pandemic, prices of goods, labor, materials, and costs of doing business have increased significantly in the [sic] since the execution of the [Agreement].” As a result, Swadley’s FBK and the State “renegotiated several terms as a result of the changes due to the Pandemic.” Specifically, the State agreed to increase all previous amounts for capital costs at Beavers Bend State Park, Roman Nose Lodge, Lake Murray Lodge, and Sequoyah Lodge to $6,864,986.00. Additionally, the State agreed to capital costs for Robbers Cave State Park to $2,350,677.00 already incurred, and $2,185,270.00 yet to be incurred. Finally, the State agreed to capital costs at Quartz Mountain State Park in the amount of $1,159,977.00 already incurred and another $684,941.00 yet to be incurred. This does not include the written and verbal change orders that the State constantly requested and that Swadley’s FBK fully performed. 40. Despite all the significant challenges with this project and the voluminous written and verbal change orders demanded by the State, Swadley’s FBK completed the work and opened six first-class restaurants at the state parks in record time in the midst of a pandemic. The following, photos are just a small example of the excellent work Swadley’s FBK did to revitalize, rehabilitate, and rebrand these previously failing and dilapidated restaurants: 7 See eg, —https://www.facilitiesnet.com/designconstruction/article/How-Has-COVID-19- Affected-Construction-Pricing-19156 dated February 21, 2021 58SRILA) aes6041, The quality of the restaurants Swadley’s FBK opened at the state parks is reflected in the overwhelmingly positive reviews from locals, visitors, and high-ranking State officials alike It is also reflected in the increased revenue numbers. Brent Swadley periodically sent Winchester updates as to guest and revenue numbers once the various restaurants opened. With respect to the Lake Murray Restaurant numbers, Winchester commented: dy I'm going to have our CFO verify it. If that’s correct we are currently doing more revenue in one night than in some months. Winchester also texted Brent Swadley that the increased guest and revenue numbers “[vJalidates the decision.” 6142. On March 31, 2022, the Oklahoma Legislative Office of Fiscal Transparency (LOFT) released a report that was critical of the Stitt, Pinnell, and Winchester Tourism Department’s fiscal management of state parks. With respect to restaurants, the LOFT report found that “the [state park restaurant expenditures) exceeded the restaurant's replacement value multiple times.” The LOFT report also found “[t]he investment in restaurants also exceeds [the Oklahoma Tourism and Recreation Department's] own asset management plan, which states that a maximum of one restaurant was to be reinvested every year. However, LOFT found in FY20 and FY21 that le restaurants had significant capital improvement expenditures.” 43. Neither of these criticisms relate to Swadley’s FBK in any way. First, the State, not Swadley’s FBK, determines the “replacement value” of its own assets.'S Second, Swadley’s FBK did the work it was contracted and repeatedly directed to do by Winchester and other State officials. Third, and most importantly, it was the State, not Swadley’s FBK, who decided to exceed the Stitt, Pinnell, and Winchester Tourism Department’s own asset management plan by making capital improvements to more than one restaurant per fiscal year. Nothing in the First Agreement or any of the amendments thereto restricted improvements to one restaurant per year. Indeed, implied in the Agreements, the Amendments, and written and verbal change orders with Winchester and other State officials is that Swadley’s FBK was to make these improvements as quickly as possible despite rising costs of building materials and labor during the COVID-19 pandemic. 44, Affer the LOFT report was released, a flood of news articles and reports began to paint Swadley’s FBK in a negative light, A sampling of the headlines illustrates the degree to **It is worth noting that the LOFT report is also critical of the State’s methodology in determining state park asset values. 02which Swadley’s FBK and Swadley’s Smoked Meats were painted in a negative light in the media blitz that followed © “OSBI to investigate criminal activity between state Tourism Department, Swadley’s barbeque.” The Oklahoman, April 27, 2022. © “Oklahoma Tourism Department cancels contract with Swadley’s over suspected fraud,” The Oklahoman, April 25, 2022. © “State Getting to Foggy Bottom of Swadley’s Swindle...” The Lost Ogle, April 5, 2022. ‘* “Swadley’s whistleblower alleges overcharges, excessive fees in Oklahoma tourism deal.” The Oklahoman, April 15, 2022.!" ‘* “Gov. Kevin Stitt vows to get to the bottom of Swadley’s scandal, recoup any misspent money.” The Oklahoman, April 19, 2022. © “DA requests forensic audit in Swadley’s deal with Tourism as part of criminal probe.” The Oklahoman, April 19, 2022. * “Oklahoma tourism leader resigns, state files lawsuit against Swadley’s after parks deal.” The Oklahoman, April 29, 2022. In this small sampling of news articles, it is implied, if not directly stated, that Swadley’s FBK engaged in fraudulent or other wrongful behavior. As set forth above, Swadley’s FBK did what it ® Swadley’s FBK denies all the allegations made in this article in the strongest possible terms. Former employee Curt Breuklander is the source for this article. Swadley’s FBK disagrees with the characterization of Breuklander as a “whistleblower.” Breuklander is a disgruntled former employee who a related Swadley’s entity sued last year in Oklahoma County District Court for violation of the federal Computer Fraud and Abuse Act, defamation and commercial disparagement, misappropriation of trade secrets under federal and state law, deceptive trade practices, unfair competition, and interference with contracts and business relations. 63was contracted and directed by the Stitt, Pinnell, and Winchester Tourism Department to do. Nevertheless, the damage to the reputation of Swadley’s FBK and the Swadley Family because of these news articles is imeparable. 45. Despite Governor Stitt’s promise that “[b]y granting the Governor hiring and firing authority, you will know exactly where the buck stops—at my desk,””? the State quickly sprang into action to ensure that “the buck” would land nowhere near Governor Stitt’s desk. On April 1, 2022, the State announced that the Oklahoma State Bureau of Investigation had opened an investigation related to “allegations of potential criminal conduct.” On April 14, 2022, Lieutenant Governor, Matt Pinnell, publicly stated with respect to the Agreements: “That contract is going to bbe changed. We're having those conversations now and will continue to.” 46. Despite Lieutenant Governor Pinnell’s false statements to the press that the State was going to “change” the Agreements with Swadley’s FBK, on April 25, 2022, the State unilaterally and wrongfully terminated the Agreements with Swadley’s FBK due to “suspected fraudulent activity and questionable business practices.” Of course, the Agreements contain a “Termination” clause that allows for termination “with or without cause” only “with ninety (90) day written notice to the non-terminating party.” The State provided no such ninety-day written notice to Swadley’s FBK. Further, the Stitt, Pinnell, and Winchester Tourism Department refused to discuss the unpaid work performed by Swadley’s FBK from September 2021 until the State’s wrongfill termination of the Agreements on April 25, 2022. 47. On April 29, 2022, the State filed the instant lawsuit. Initially, the only substantive allegations relating to Swadley’s FBK were the alleged failure to “make its financial books, records, and documents available to [the State] at all reasonable times.” %® Governor Kevin Stitt, “State of the State Address,” February 4, 2019. 6448. Pethaps most gallingly, the State falsely alleges that it “repeatedly requested [that Swadley’s FBK] make its financial statements, books, records, reports, and such documents available for examination by (the State].” This is simply untrue. The first and only time the State requested such documents was on March 7, 2022, when State official, Katherine Nichols, emailed Swadley’s FBK to deliver the audited financials for Swadley’s FBK. Swadley’s FBK was in the process of complying with this request before the State unilaterally and wrongfully terminated the Agreements. . On May 7, 2022, the State issued a “Solicitation” for bids to operate the restaurants at the state parks. Of course, these are the same restaurants that Swadley’s FBK worked hard to transform from dilapidated, neglected, and unprofitable operations into first-class restaurant facilities that saw both increased guests and improved revenues in 2020, 2021, and 2022. In July of 2022, the State extended the request for proposal deadline until August 28, 2022. The Stitt, Pinnell, and Winchester Tourism Department has refused to answer media inquiries about how many bids it has received and why the deadline for requests for proposal had been extended." Upon information and belief, the deadline for requests for proposal was extended duc to a lack of interest and/or qualified bids. Upon information and belief, businesses are not interested in pursuing this request for proposal due to a lack of weekday and winter month visitors at the state park restaurants, 50, Pethaps most egregiously, Oklahoma Tourism and Recreation Department's Director of Public Information, David White, told the media: “In early fall 2021, the department initiated an internal investigation after reports of financial irregularities were brought to our % See generally: https://www.youtube.com/watch?v=LIeSdeVcLBU. 65attention, Financial payments for construetion costs were immediately halted in September, while management fees were suspended = in._— December.” See hutps:/nondoc.com/2022/04/25/tourism-department-cancels-controversial-swadleys-contract- for-state-park-restaurants/ (emphasis added). In other words, rather than contacting Swadley’s FBK in September of 2021 to address any concerns, the State stopped paying Swadley’s FBK and wrongfully allowed it to continue construction work and management of the state park restaurants for months without pay. Thus, Swadley’s FBK paid for months of construction work, labor, and restaurant management and operations without reimbursement from the State. SL The bottom line in this case is simple. The Stitt, Pinnell, and Winchester Tourism Department wanted a private entity who could quickly and efficiently tum the neglected, dilapidated, and frankly embarrassing restaurants at the state parks into first-class facilities. When no other restauranteur would step up, the Stitt, Pinnell, and Winchester Tourism Department tumed to Swadley’s FBK. Seeing the potential problems, Swadley’s FBK was very reluctant to take on such a massive challenge. The Stitt, Pinnell, and Winchester Tourism Department persisted and induced Swadley’s FBK into a deal that it claimed would work financially. Swadley’s FBK overcame tremendous obstacles, including the COVID-19 pandemic, and opened six first-class restaurants as requested by the Stitt, Pinnell, and Winchester Tourism Department. The Stitt, Pinnell, and Winchester Tourism Department was heavily involved in the process at every step of the way—in some instances, micromanaging details as small as what was on the tables. Once the restaurants opened, the reviews from locals, visitors, and even high-ranking State officials were overwhelmingly positive. The increased guest and revenue numbers only reinforced these anecdotal reviews. However, once the cost of this project became a political hot potato for the Stitt, Pinnell, and Winchester Tourism Department, it decided to “pass the buck” on to Swadley’s FBK. 66The Stitt, Pinnell, and Winchester Tourism Department unilaterally and wrongfully terminated the Agreements with Swadley’s FBK without proper notice, sued Swadley’s FBK, and pushed a public narrative aimed at falsely suggesting that Swadley’s FBK had engaged in fraudulent and other wrongful behavior. Moreover, the Stitt, Pinnell, and Winchester Tourism Department now seeks to take all the hard work Swadley’s FBK did and hand it off to another bidder. But worst of all, in the wake of the media coverage and statements by public officials, the reputation of Swadley's FBK and the Swadley Family has been irreparably damaged. These purely political decisions by the State and the Stitt administration fall far short of the “business friendly policies” Governor Stitt called for in his 2021 State of the State Address and are only for the purpose of passing this political hot potato onto the only private entity who was willing to take on this difficult and ambitious project of remodeling, revitalizing, and ultimately managing and operating the restaurants at the Oklahoma state parks. CLAIMS FOR RELIEF Count I - Breach of Contract 52. Swadley’s FBK and the State entered into the First Agreement on March 4, 2020. The Agreements were subsequently amended on March 20, 2020, February 23, 2021 and August 27, 2021, and by Swadley’s FBK performance of numerous written and verbal change orders from the Stitt, Pinnell, and Winchester Tourism Department, 53. Swadley’s FBK performed its obligations under the Agreements. 54. The first Agreement and all subsequent amendments allowed cither party to terminate “with or without cause with ninety (90) day written notice to the non-terminating party.” See Agreement, Section 12(d). 655. _ The State breached its obligations by terminating the Agreements on April 25, 2022 without any prior notification to Swadley’s FBK. 56. As a direct and proximate consequence of the State’s breach of the Agreements, Swadley’s FBK has suffered actual and consequential damages in excess of the jurisdictional limit of this Court. 57. Because of the above-described breaches, Swadley’s FBK was required to retain attorneys to prosecute this Counterclaim and agreed to pay the retained attorneys a reasonable fee. Accordingly, Swadley’s FBK is entitled to recover reasonable and necessary attorney's fees associated with the State's breach ‘Count I — Quantum Meruit (Unjust Enrichment) 58. The State requested services from Swadley’s FBK related to the remodeling, rebranding, and ultimate management and operation of the restaurants located at six different (Oklahoma State parks. The State agreed to pay Swadley’s FBK for those services. 59. Swadley’s FBK provided the services the State requested and in reliance on the State’s promises to compensate Swadley’s FBK for that work. 60. Asadirect result of Swadley’s FBK's rendition of services, benefits were conferred on the State, including but not limited to the State receiving first-class remodeled and rebranded restaurants that attract increased visitors and revenue to its state parks. 61. The State accepted the benefits of Swadley’s FBK’s services and repeatedly recognized and ratified the value of the services. 62. If the State believed, in September of 2021, that an alleged issue or problem existed as to Swadley’s FBK’s performance under the Agreements, then the ordinary duties of good faith, honesty, and fair dealing that are implicit in every contract required the State to immediately notify Swadley’s FBK of any such alleged issues or problems. Instead, the State said nothing, which 68amounts to a material and bad-faith omission of fact, This omission led Swadley’s FBK to continue performing under the Agreements in detrimental reliance on its terms for roughly eight months, all the while unaware that the State had decided to no longer honor the Agreements (or was actively seeking an avenue for doing so). These circumstances amount to actual or constructive fraud and amply demonstrate that the State’s conduct toward Swadley’s FBK has been, at a minimum, unfair and inequitable, The State should not, in equity and good conscience, be allowed to retain the full benefit of Swadley’s FBK’s performance under the Agreements— which performance the State knowingly and voluntarily accepted, see 15 0.8. § 75—without compensating Swadley’s FBK for the reasonable value thereof. 63. After it wrongfully terminated the Agreements with Swadley’s FBK, the State has published a “Solicitation” for bids on the management and operation of the restaurants at the Oklahoma state parks. The State is now able to bid the management of these restaurants because of the work Swadley’s FBK performed in remodeling and revitalizing the neglected and dilapidated state park restaurants. 64. Accordingly, Swadley’s FBK is entitled to recover the reasonable value of the services it performed for the State for which the State has not yet paid. Count I1I—Breach of the Contractual Covenant of Good Faith and Fair Dealing 65. The State owed a duty of good faith and fair dealing with respect to the Agreements. 66. By making false representations, failing to comply with its own asset management plan, failing to disclose that the Agreements violated the Oklahoma Tourism and Recreation Department's asset management plan, and allowing Swadley's FBK to continue restaurant construction and management services for months when the State knew it had no intention of 09paying Swadley’s FBK for its work, the State has intentionally frustrated the purposes of the Agreements and has deprived Swadley’s FBK of the benefit of the bargain thereunder. Count IV—Reformation 67. The Agreements between the State and Swadley’s FBK should be reformed insofar as the Agreements do not correctly express the meaning that the parties agreed upon and the work actually performed by Swadley’s FBK. 68. Aswritten, the Agreements were obtained either through (a) mutual mistake of law or fact; or (b) through mistake of law or fact by Swadley’s FBK and/or the inequitable conduct on the part of the State. 69. The State’s inequitable conduct includes, but is not limited to, the deceit, intentional, false, and malicious false statements described above. Further, the State materially changed the meaning of the Agreements after the fact by issuing numerous written and verbal change orders. Pursuant to the terms of the Agreements, Swadley’s FBK was contractually obligated to conform to the State’s control and direction on all the written and verbal change orders from Winchester, DeMarco, and/or other State officials which Swadley’s FBK fully performed. 70. The Agreements should be reformed to reflect the expressions of intent embodied in the numerous written and verbal change orders from Winchester, DeMarco, and other State officials, PRAYER FOR RELIEF For its counterclaim against the State, Swadley’s FBK prays for judgment against the State as follows: 70Actual damages (general and special) in excess of $75,000.00 to compensate Swadley’s FBK for work performed and completed per the Agreements and pursuant to the direction and control by the Stitt, Pinnell, and Winchester Tourism Department; Actual damages (general and special) in excess of $75,000.00 to compensate Swadley’s FBK for the management and operation of the restaurants at issue herein, the labor provided, and the restaurant supplies provided per the Agreements and pursuant to the direction and control by the Stitt, Pinnell, and Winchester Tourism Department; Actual damages (general and special) as a result of the Stitt, Pinnell, and Winchester ‘Tourism Department wrongfully terminating the parties’ Agreements, including but not, limited to, the breach of the termination provision in Section 12(d) of the First Agreement; An order of restitution in the amount equal to the reasonable value of the services Swadley’s EBK provided to the State, at the State’s request, and for which Swadley’s FBK has not been paid but has fully performed (unjust enrichment/quantum meruit); An order enjoining the State, its officers, agents, servants, employees, attorneys, and affiliated entities and subdivisions, its assigns and successors in interest, and those persons in active concert or participation with it, from continued acts in breach of the parties’ Agreements; An order awarding Swadley’s FBK actual and consequential damages it has sustained for all other wrongful acts committed by the State in an amount according to proof: Reformation of the Agreements to reflect the parties" expression of intent reflected in the written and verbal change orders from Winchester, DeMarco, and other State officials; 1Prejudgment and postjudgment interest at the applicable statutory rate; An award of Swadley’s FBK’s reasonable costs, expenses, and attorneys’ fees, if appropriate; and All other legal or equitable relief as the Court may deem proper. Respeptfully submitted, in N.B. King, OBA No. {6673 C. Eric Shephard OBA No. 22299 A. Wayne Billings, OBA No. 31483 FELLERS, SNIDER, BLANKENSHIP, BAILEY & TIPPENS, P.C. 100 North Broadway Avenue, Suite 1700 Oklahoma City, OK 73102-8820 Telephone: (405) 232-0621 Facsimile; (405) 232-9659 Email: bking@fellerssnider.com shephard@fellerssnider.com whillings@fellerssnider.com Attorneys for Defendant nCERTIFICATE OF SERVICE This is to certify that on the 22nd day of July 2022, a true and correct copy of the above and foregoing was sent by U.S. Mail, postage prepaid, to the following: Erin N. Moore, OBA No. 20787 Assistant Attorney General Oklahoma Attorney General's Office Litigation Section 313 NE. 21" Street Oklahoma City, Oklahoma 73105 Telephone: (405) 521-3921 Facsimile: (405) 521-6246 Email: erin.moore@oag.ok.gov Attorney for Plaintiff Brfan N.S. King se7284i06448 B