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YOUNGSTOWN -- The Chill-Can plant owners don't have legal representation but do have a status court meeting scheduled for today in one of the lawsuits they face regarding a foreclosure complaint filed by MS Consultants Inc. seeking to force the sale of the Youngstown property.
That foreclosure lawsuit in Mahoning County Common Pleas Court is to compel M.J. Joseph Development Corp., the Chill-Can's parent company, as well as Mitchell Joseph, its president and CEO, to force the sale of the Youngstown property at a sheriff's auction in order to pay a $322,908 bill plus 18% annual interest the company owes to MS for design work at the stalled facility.
The court meeting today -- which isn't open to the public -- with Magistrate Dominic DeLaurentis of Mahoning County Common Pleas Court is supposed to be a routine one in the foreclosure case.
But with Judge John M. Durkin agreeing Dec. 13 to let Justin Markota and Brian Kopp -- who had served since May 2021 as attorneys for M.J. Joseph, its sister companies and the president and CEO -- withdraw as their legal counsel, today's meeting may be atypical or may not occur as the Chill-Can owners haven't responded to court requests to find new attorneys. In a Dec. 13 ruling, Durkin gave M.J. Joseph 30 days to obtain new lawyers.
In a Wednesday ruling, Durkin granted a request from Richard A. Briskey, a Sunbury businessman, to intervene in the foreclosure lawsuit.
Briskey won a $2.58 million default judgment Nov. 29 in Franklin County Common Pleas Court against Joseph and four of his companies in a breach-of-contract lawsuit, filed Aug. 28, when Joseph and the companies failed to respond to Briskey's complaint.
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, a judge ruled that most of the money - $2.58 million - is still owed.
Joseph's various companies don't seem to exist on anything but paper. However, they own 21 acres of property on Youngstown's lower East Side where a supposed $18.8 million project broke ground in November 2016 and was supposed to be in full operation by 2018, producing the world's only self-chilling beverage can.
M.J. Joseph was supposed to construct four buildings and create 237 jobs by Aug. 31, 2021, according to its agreement with the city of Youngstown when it received $1.5 million in grants.
There are three unfinished buildings and one employee at last count.
Before Markota and Kopp were allowed to withdraw as M.J. Joseph's attorneys - almost certainly because they were not being paid legal fees - they requested Durkin stop the foreclosure lawsuit until the 7th District Court of Appeals heard an appeal on Judge Maureen Sweeney's March 20, 2023, decision that M.J. Joseph defaulted on the $322,908 owed to MS Consultants. Sweeney made the ruling after Markota and Kopp missed a deadline to file a court brief.
Durkin on Jan. 9 overruled the motion to stay the foreclosure case.
The appeals court wrote in a Dec. 27 judgment entry allowing Markota and Kopp to withdraw that if M.J. Joseph's court brief, which was supposed to be filed by Dec. 6, wasn't filed by Jan. 26, it "may result in dismissal of the appeal for failure to prosecute and failure to comply with the appellate rules."
Sweeney, who is hearing a separate case filed by the city of Youngstown against M.J. Joseph, hadn't ruled as of Monday on the request from Markota and Kopp to withdraw.
The Chill-Can plant owners have faced numerous other legal setbacks.
Among them, Sweeney decided in the city's case that 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 $733,480.80 - $414,948.09 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 that as of Monday.
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.