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YOUNGSTOWN -- An attorney for the owners of the stalled Chill-Can plant wants a judge to disqualify a magistrate who has ruled against the company in a legal fight with the city of Youngstown.
Justin Markota, one of the attorneys for M.J. Joseph Development Corp., wrote in a court filing with Judge Maureen Sweeney of Mahoning County Common Pleas Court that her magistrate, Dennis J. Sarisky, should be disqualified from the ongoing case because of his "pattern of rulings in this case, without first holding the requisite hearings, demonstrate a propensity to prejudge the issues without maintaining the appearance (of) impartiality."
Markota wants a hearing in front of Sweeney on the request.
In his filing, Markota said there is "no statutory procedure for disqualification of magistrates," but it is "within the discretion of the trial judge."
Pointing to multiple failures to comply with court orders by M.J. Joseph in the lawsuit, Sarisky awarded $733,480.80 in sanctions from the company in a July 20 ruling to the city.
In that decision, Sarisky wrote that "the history of this case includes multiple discovery failings by (M.J. Joseph) and lack of legitimate excuses or mitigating factors surrounding (its) repeated noncompliance and the number of failed opportunities this court provide the (company) to correct their faulty behavior and the fact that (its) behavior has resulted in substantial delays and expense to the city."
In the latest filing, Markota argued that Sarisky awarded sanctions without first obtaining any evidence of damages, awarded an amount that is disproportionate to his client's alleged noncompliance conduct and ignored that M.J. Joseph has "substantially complied with the court's discovery order in this matter."
In the same filing seeking to have Sweeney disqualify Sarisky from this case, Markota also asked the judge to set aside the sanction awarded to the city.
'BLAME THE REFEREE'
City Law Director Jeff Limbian said Tuesday: "Some litigants act like soccer parents. When your child starts losing, blame the referee. This is an unfortunate turn of events, even by Mitchell Joseph (head of M.J. Joseph) standards. There have been many times when the city has lost or not agreed with a court and we don't suddenly claim the court is biased or can't be fair. The city is confident that the right decisions will continue to occur in the Chill-Can matter."
The $18.8 million proposed project broke ground in November 2016 and was supposed to be in full operation by 2018 to produce the world's only self-chilling beverage can.
The project was supposed to be a key part of the revitalization of the city's lower East Side. Instead, three unfinished buildings are on the 21-acre site.
The sanctioned amount of $733,480.80 by the city is $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.
Sarisky also agreed July 20 with the city that is it "entitled to reimbursement of its reasonable attorneys' fees expended on the discovery motions it had to file in this case." That amount will be determined at a future hearing.
Sweeney on Nov. 21 agreed with a Sept. 28 ruling from Sarisky that M.J. Joseph breached a $1.5 million agreement with the city to receive water and wastewater grants for the project and the city was entitled to get the money returned.
Markota and Brian Kopp, another M.J. Joseph attorney, in a Feb. 6 court filing wrote that Sweeney's decision on the $1.5 million "is not a final judgment or final appealable order."
LAWSUITS
M.J. Joseph failed to construct four finished buildings and create 237 jobs by Aug. 31, 2021, as per its agreement with the city for the $1.5 million in grants. To date, the plant has one employee and three unfinished buildings.
The city filed a $2.8 million breach-of-contract lawsuit June 17, 2021, contending the company failed to live up to its promises to develop the site.
In addition to the $1.5 million and the $733,480.80 for property acquisition and demolition is a city claim that as of June 2021, it lost at least $575,000 in income tax revenue from the project's failure. That lawsuit said the "full amount of lost income tax revenue will be proven at trial," but the city was losing about $18,333 per month. At that rate, the city would have lost almost $500,000 in additional income tax revenue.
The city is seeking its money back as well as the Chill-Can site. M.J. Joseph attorneys have said if the city would stop litigating, the company would develop the business.
Knowing the city's lawsuit was coming, M.J. Joseph and Joseph Manufacturing Co. Inc., a sister company, filed a May 24, 2021,lawsuit against the city to stop it from reclaiming the $1.5 million in grants. That suit also contends the city doesn't have any legal rights to money, property and buildings.
In a March 29, 2021, certified letter, the city informed Joseph he had 60 days to construct a number of buildings and hire about 150 workers or it would file a lawsuit. The city followed through June 17, 2021, with the lawsuit that was postponed because of the Joseph legal action.