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YOUNGSTOWN -- A businessman who won a nearly $2.6 million lawsuit against the stalled Chill-Can plant's owners asked to be allowed to intervene in a foreclosure complaint filed by MS Consultants Inc. seeking to force the sale of the Youngstown property in order to pay the debt it is owed.
Richard A. Briskey of Sunbury, who owns a concrete business and a financing company, won a default judgment Nov. 29 in Franklin County Common Pleas Court against M.J. Joseph Development Corp., Chill-Can's parent company, as well as three sister companies and Mitchell Joseph, who is president and CEO of all of the companies that appear to be out of business.
Judge Andrea C. Noble granted Briskey's request for default judgment in a breach-of-contract lawsuit after M.J. Joseph, the other companies, and Joseph never responded to the complaint, filed Aug. 28, after being properly served.
Andrew Lichtman, an attorney for Briskey, declined to "discuss the underlying case."
Joseph didn't respond Friday to an email seeking comment. Joseph's cellphone and the telephone number for his company office are disconnected, and its websites no longer exist.
The lawsuit states Briskey had six loan agreements with M.J. Joseph and the sister companies between May 22, 2018, and Sept. 9, 2020. While a small amount of the loans were repaid, Noble ruled that most of the money - $2.58 million - is still owed.
On behalf of Briskey, Lichtman filed a motion to intervene in MS Consultants' foreclosure complaint against Mitchell and M.J. Joseph in Mahoning County Common Pleas Court.
The MS lawsuit, filed July 12, seeks to force the Chill-Can site to be appraised, advertised for sale and then sold at a sheriff's auction.
MS previously filed a lien affidavit on the property, and M.J. Joseph failed to file a stay against the lien.
MS received a breach-of-contract default judgment from Judge Maureen Sweeney for $322,908 and 18% annual interest March 20 after attorneys representing Chill-Can missed a March 13 deadline to file a court brief.
In the Jan. 6, 2023, lawsuit, MS, an architectural firm, 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 case was appealed to the 7th District Court of Appeals.
But Justin Markota and Brian Kopp, who have represented M.J. Joseph Development Corp. since legal action against the Chill-Can owners started in May 2021, asked Dec. 6 to be removed as the company's lawyers on this and two other pending cases.
The appeals court and Judge John M. Durkin of Mahoning County Common Pleas Court, who is hearing the foreclosure case, granted the motions. Sweeney, who is hearing a separate case filed by the city of Youngstown against M.J. Joseph, hadn't ruled as of Friday on the request.
A status hearing in the foreclosure case is set for Jan. 16.
As of Friday, M.J. Joseph has filed nothing with Durkin's court or the court of appeals stating it has new legal counsel.
The proposed $18.8 million project broke ground in November 2016 in Youngstown and was supposed to 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 and create 237 jobs by Aug. 31, 2021, as per its agreement with the city for $1.5 million in grants.
The project was supposed to be a key part of revitalizing the city's lower East Side, but more than seven years after the groundbreaking, only three unfinished buildings and one employee are on the 21-acre site.
In addition to Sweeney ruling M.J. Joseph defaulted on the contract with MS Consultants, she also decided in the city's case the owners had to return $1.5 million from water and wastewater grants it received from Youngstown for the stalled project.
Dennis J. Sarisky, Sweeney's magistrate, ruled July 20 that M.J. should be sanctioned $733,480 - $414,948 the city spent on acquiring 15 properties bought for the project, which also included relocation expenses, and $318,532.71 in demolition and abatement costs.
Markota and Kopp appealed that decision to Sweeney and asked that Sarisky be removed from the case. Sweeney hasn't ruled on either as of Friday.
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 grant and the property and demolition / abatement costs, the city's lawsuit contended it had lost at least $575,000 in income tax revenue from the project's failure at the time of the court filing. That lawsuit said the "full amount of lost income tax revenue will be proven at trial," but the city was losing about $18,333 a month. At that rate, the city would have lost about $550,000 in additional income tax revenue.
Knowing the city's lawsuit was coming, M.J. Joseph and Joseph Manufacturing Co. Inc. 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.
dskolnick@vindy.com