YOUNGSTOWN — The Mahoning County clerk of courts acknowledged an error on its part in time-stamping the wrong date on an appeal from an attorney for the Chill-Can site owners.

This led to the 7th District Court of Appeals dismissing a case on a $322,908 default ruling as untimely.

“It was a mistake as to when it was received by this office,” said Kathi McNabb Welsh, chief deputy clerk of courts.

The court of appeals ruled June 30 that the appeal from M.J. Joseph Development Corp., owners of the Chill-Can site on Youngstown’s East Side, on a breach-of-contract lawsuit was untimely because it was filed April 20.

Appeals must be filed within 30 days of a court’s decision. April 20 was 31 days after Mahoning County Common Pleas Court Judge Maureen Sweeney had ruled March 20 in favor of MS Consultants Inc. on a default judgment related to an unpaid design contract.

McNabb Welsh said Thursday that Justin Markota, M.J. Joseph’s attorney, had filed the appeal electronically at 3:59 p.m. April 19. It wasn’t time stamped by her office until the next day, she said.

Markota said: “We are going to correct the record. The notice of appeal was timely filed. It was an error on the part of the clerk of courts. I know the appeal was filed on time.”

Markota later Thursday sent an email to Magistrate Dennis J. Sarisky of Mahoning County Common Pleas Court, asking the clerk to clarify the record.

In a sworn affidavit Thursday, McNabb Welsh stated the clerk should have stamped the notice April 19.

WHAT HAPPENED

The clerk of courts accepts electronic filings of civil and appeals cases but is still working on the process of electronic notices of appeals and filing fees, McNabb Welsh said. Until that is resolved, the office takes electronic filings of notices of appeals and files them manually, she said.

In this case, Markota filed the notice about 30 minutes before clerk of courts employees were finished working that day, McNabb Welsh said. The next day, April 20, the notice was filed manually by the clerk’s office, but should have been stamped as being received April 19, she said.

In the June 30 decision, the court of appeals wrote that a rule “expressly prohibits the court from enlarging or reducing the time for filing a notice of appeal. Accordingly, IT IS ORDERED that this appeal is hereby DISMISSED as untimely. Any and all remaining motions and unresolved filings are dismissed as moot.”

The lone outstanding motion was filed June 19 by Markota asking for a 30-day extension on filing an appellate brief that was due the next day.

Luther L. Liggett Jr., MS’s attorney, filed a motion March 15 with Sweeney for default judgment because of M.J. Joseph’s “failure to plead” by the March 13 deadline in response to the lawsuit.

M.J. Joseph attorneys had asked Feb. 13 for a one-month extension to file their response, which the court granted.

Markota asked Sweeney the day after Liggett’s default judgment request was filed for a second extension, this time for seven days.

Instead, Sweeney granted MS’s motion for default judgment on March 20 for the $322,908 in unpaid design fees owed by M.J. Joseph since Oct. 5, 2018, and 18 percent annual interest, which adds up to more than $200,000.

FIVE CLAIMS

In the Jan. 6 lawsuit, MS listed five claims against M.J. Joseph, including two counts of breach of contract for paying $291,921 on a $614,829 bill.

M.J. Joseph was to make its final payment to MS on Oct. 5, 2018, and failed to do so, according to the lawsuit.

M.J. Joseph signed a contract with MS on Dec. 21, 2016, for design services for its proposed Chill-Can plant in Youngstown, according to the lawsuit.

The project remains undeveloped and the subject of litigation between the city of Youngstown and M.J. Joseph and Joseph Manufacturing Co. Inc., a sister company.

Mitchell Joseph, who owns the companies and was raised in Youngstown, had said the project, which broke ground in November 2016, would cost about $18.8 million and be in full operation by 2018 to produce the world’s only self-chilling beverage can.

M.J. Joseph failed to construct four finished buildings at the location and create 237 jobs by Aug. 31, 2021, Sweeney wrote in a Nov. 21 judgment entry in which she decided the company “breached the agreements” it had with the city to receive $1.5 million in water and wastewater grants for the project, and “the city is entitled to damages” in that amount. M.J. Joseph hasn’t repaid the $1.5 million to the city.

To date, there is one employee and three unfinished buildings at the 21-acre Chill-Can location.

The city wants Magistrate Sarisky of Mahoning County Common Pleas Court to award sanctions against M.J. Joseph in the amount of $733,480.80 for failing “to present any meritorious reason for why they repeatedly have failed to comply with this court’s order and their discovery obligations under the civil rules,” Thomas F. Hull II, an attorney for Youngstown, wrote.

The sanctioned amount of $733,480.80 by the city represents $414,948.09 it spent on acquiring 15 properties bought for the project, which also included relocation expenses, and $318,532.71 in demolition and abatement costs. The city also is seeking undisclosed attorney fees.

A May 24 hearing took place in front of Sarisky, who hasn’t rendered a decision as of Thursday.