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YOUNGSTOWN -- With the stalled Chill-Can project's owners failing to hire lawyers and missing another deadline in a 7th District Court of Appeals breach-of-contract case, the opposing attorney asked the matter be dismissed.
Luther L. Liggett Jr., an attorney representing MS Consultants Inc. in the case against M.J. Joseph Development Corp., which owns the Chill-Can property, filed a request with the appeals court to dismiss the case.
The appeals court gave M.J. Joseph until last Friday to find a new attorney and file a court brief.
"Failure to file the appellant's brief by Jan. 26 may result in dismissal of the appeal for failure to prosecute and failure to comply with the appellate rules," the court wrote in the Dec. 22 judgment entry.
Liggett filed a motion Saturday, stating M.J. Joseph "failed to appear, let alone file a merit brief," and given the company's "entire absence from these proceedings" the "appeal should be dismissed."
The court hadn't ruled as of Monday.
M.J. Joseph appealed a March 20, 2023, ruling from Judge Maureen Sweeney of Mahoning County Common Pleas Court that the company owes $322,908 to MS for breach of contract. Sweeney sided with MS after M.J. Joseph attorneys missed a filing deadline.
In the appeals case, Justin Markota and Brian Kopp, who had represented M.J. Joseph since legal action commenced against the company in Mary 2021, were supposed to file a legal brief by Dec. 6. Instead, the two filed a request that same day to withdraw as the company's attorneys in three separate cases.
Those withdrawal requests -- likely over owing the attorneys money -- were granted by the court of appeals and Judge John M. Durkin of common pleas court in a case brought by MS seeking foreclosure on the Chill-Can property in Youngstown in order to recover the $322,908 in unpaid architectural fees. The Chill-Can owners haven't filed court documents in the latter case either to hire new legal counsel.
Sweeney still hadn't ruled as of Monday on the request from Markota and Kopp to withdraw from a separate $2.8 million breach-of-contract lawsuit filed by the city of Youngstown against M.J. Joseph and Joseph Manufacturing Co. Inc., a sister company.
Attempts to reach Mitchell Joseph, owner of the Chill-Can property and companies, have been unsuccessful. The companies don't seem to exist on anything but paper. However, they own 21 acres on Youngstown's lower East Side that MS and the city want.
It was the location of a proposed $18.8 million project that 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 required to construct four buildings and create 237 jobs by Aug. 31, 2021, according to its agreement with the city when it received $1.5 million in grants.
There are three unfinished buildings at the site and one employee at last count.
The Chill-Can plant owners have lost numerous legal cases.
A Franklin County Common Pleas Court judge ruled Nov. 29 that the companies and Joseph owed $2.58 million to Richard A. Briskey, a Sunbury businessman, in a breach-of-contract lawsuit. Briskey won the case by default when the companies and Joseph never responded to the lawsuit. Briskey is now a party in the foreclosure lawsuit.
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.
dskolnick@vindy.com