Chill Can Appeal in MS Consultants Lawsuit Dismissed

YOUNGSTOWN, Ohio – An appeal filed by the developer of the stalled Chill Can project that challenged an earlier ruling ordering the company to pay an engineering firm more than $322,000 has been dismissed by the 7th District Court of Appeals.

In March, Mahoning County Common Pleas Court ordered developer M.J. Joseph Development Corp. to pay MS Consultants Inc. $322,907.54 plus 18% interest for work the company says it performed at the Chill Can site but was never paid. 

M.J. Joseph Development – then represented by attorneys Brian Kopp and Justin Markota of Betras, Kopp and Markota – appealed the decision to the 7th District. 

In December, however, Kopp and Markota withdrew from the case and a related foreclosure matter that is now before the Common Pleas Court. The attorneys have also withdrawn from another ongoing legal matter between M.J. Joseph and the city of Youngstown.

According to a judgment entry filed Dec. 22, the appeals court noted that M.J. Joseph’s brief was overdue and that the company must find new counsel and file the brief within 30 days. The merit brief was due Dec. 6, the day the attorneys filed their request for withdrawal.

“Failure to file the appellant’s brief by January 26, 2024, may result in dismissal of the appeal for failure to prosecute and failure to comply with the appellate rules,” the judgment said.

On Jan. 27, counsel representing MS Consultants filed a motion to dismiss the case. The court granted the motion Feb. 20, records show.

MS Consultants, an engineering and architectural firm based in Columbus with offices in Youngstown, filed a lawsuit in Mahoning County Common Pleas Court in January 2023 seeking to collect from M.J. Joseph.

There is no counsel of record representing M.J. Joseph Development, court documents show. Nor has M.J. Joseph appointed new representation in the related foreclosure matter. MS Consultants, along with a Columbus-area businessman who says he is owed nearly $2.6 million from the developer, are parties in a foreclosure case seeking the sale of property and buildings at the Chill Can site on the city’s East Side. 

In October 2016, M.J. Joseph Development CEO Mitchell Joseph pledged to invest nearly $20 million to construct a complex 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 after the company and city entered into a development agreement that awarded M.J. Joseph Development $1.5 million toward the project and incurred more than $730,000 in additional costs.

Anticipating legal action by the city, attorneys representing M.J. Joseph filed a complaint against the city in May of 2021. That complaint asked for a declaratory judgment that would prohibit the city 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 and an additional $733,480 to compensate for costs for demolition and relocation expenses. 

In November 2022, Judge Maureen Sweeney upheld an earlier ruling by Magistrate Dennis Sarisky that ordered M.J. Joseph to repay the city its $1.5 million. In July 2023, the court also awarded the city another $733,480 in sanctions related to the stalled project.

That money has not been paid, and there is no outside legal counsel named. According to court records, M.J. Joseph now lists “pro se” as its legal representation.

Copyright 2024 The Business Journal, Youngstown, Ohio.