Attorneys Seek Permission to Withdraw as Chill Can Counsel

YOUNGSTOWN, Ohio – In an unexpected twist, attorneys representing the developer of the beleaguered Chill Can project have filed motions asking they be withdrawn as its legal counsel.

Attorneys Brian Kopp and Justin Markota of Betras, Kopp and Markota LLC on Dec. 6 filed motions asking a Mahoning County Common Pleas court and the 7th District Court of Appeals for permission to withdraw as counsel for M.J. Joseph Development Corp. 

The move comes as M.J. Joseph and company chairman Mitchell Joseph are embroiled in legal battles with the city of Youngstown, a lawsuit filed earlier this year by engineering firm MS Consultants, and a foreclosure complaint that company filed against M.J. Joseph this summer. The motions did not give reasons as to why the attorneys want to withdraw. Kopp and Markota have not responded to The Business Journal’s request for comment.

According to court papers, the attorneys’ withdrawal from the cases would not have a “material adverse effect” on their client since the cases are not scheduled for trial.

Kopp has represented the company since June 2021, when M.J. Joseph, anticipating legal action by the city of Youngstown, filed a complaint against the city in May of that year. That complaint asked for a declaratory judgment against the city that would prohibit it from collecting more than $2 million from the developer for breach of contract. 

The city countersued the following month, seeking a $1.5 million repayment of a development grant it awarded the developer in 2017. The city also sought an additional $733,480 to compensate for costs it incurred for demolition and relocation expenses. 

Mitchell Joseph had pledged in 2016 to invest nearly $20 million to construct a technology and manufacturing campus on 22 acres on the East Side that would produce self-chilling beverage cans and employ more than 230 people. Three empty buildings were constructed, and the project has yielded just a single employee. Not a single can was produced.

In November 2022, Judge Maureen Sweeney upheld an earlier ruling by Magistrate Dennis Sarisky that ordered M.J. Joseph to repay the $1.5 million to the city. In July of this year, the court also awarded the city another $733,480 in sanctions related to the stalled project.

Youngstown interim Law Director Lou D’Apolito said the latest developments are likely to delay the case even further.

“Nothing’s been resolved,” he said. “There’s a lot going on. They’ll have to get the court to approve new counsel, and that stalls the case.”

Kopp and Markota have also asked the court to approve their withdrawal from MS Consultant’s lawsuit against M.J. Joseph, documents show. 

The Columbus-based engineering and architectural firm sued the developer in January of this year, alleging M.J. Joseph owes it $322,907 for work the company completed on the Chill Can project but was never paid. 

The court on March 20 issued a default judgment in favor of MS Consultants, ordering M.J. Joseph to pay the engineering firm $322,907.54 plus 18% interest calculated since Oct. 5, 2018, according to court documents.

In a related matter, MS Consultants filed a separate foreclosure action against the company in July. MS Consultants is asking a court to approve a lien on property at the Chill Can development and that certain parcels be sold. The proceeds of the sale would be used to repay the company.

M.J. Joseph appealed the decision to the 7th District Court of Appeals, but the court dismissed it, citing the filing as untimely. However, it was revealed that the filing was improperly time stamped by the clerk’s office. The appeal has since been reinstated.

Kopp and Markota have also filed a request for withdrawal as M.J. Joseph’s counsel with the 7th District.

However, MS Consultants’ attorney on Thursday filed a memorandum asking the appeals court to deny Kopp and Markota’s request until a substitute counsel is appointed, citing delays to the proceedings. 

The filing also cites that the attorneys had failed to file a merit brief on behalf of their client, which was due Dec. 6, the day the withdrawal motions were filed.

“Appellant’s counsel offers no consideration of the delay caused in the pursuit of this appeal,” the filing says.

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