Chill-Can Seeks to Vacate Judgment in MS Consultants Lawsuit
YOUNGSTOWN, Ohio – The developer of the stalled Chill-Can project on the city’s East Side has asked a court to vacate an earlier judgment that ordered it to pay more than $300,000 to MS Consultants Inc., an engineering and architectural firm with offices downtown.
Justin Markota, the attorney representing M.J. Joseph Development Corp., filed the papers in Mahoning County Common Pleas Court this morning. The motion requests that the court vacate its order of March 20, which awarded a default judgment of $322,907.54, plus interest, to MS Consultants.
The court awarded the default judgment because M.J. Joseph failed to timely respond to a lawsuit MS Consultants filed on Jan. 17, documents show. According to court documents, the company was given until March 13 to respond to the pleadings and failed to do so.
MS Consultants sued M.J. Joseph for money it says it’s owed for work the company performed on the Chill-Can project, according to documents.
M.J. Joseph filed a notice of appeal to the Seventh District Court of Appeals on April 19. However, a clerk did not time stamp the documents until the following day, April 20, which was one day outside the 30-day allotted time frame to file the appeal, according to court records.
The mistake led the court on June 30 to dismiss M.J. Joseph’s appeal as untimely. The clerk’s office has since acknowledged the error.
M.J. Joseph’s filing today asks the court to correct the date stamp on the notice of appeal. However, it is also requesting the court to vacate the entire judgment, citing it does not comply with civil statutes, documents say. According to the defendants, M.J. Joseph was entitled to notice and a hearing before the default judgment was issued.
M.J. Joseph had earlier filed a motion in March to vacate its ruling, arguing that the plaintiffs did not provide proper notice and service to the defendant.
However, in a memo to the court also filed this morning, attorneys for MS Consultants said while M.J. Joseph’s appeal may be reinstated after the record is amended, the court’s decision of default judgment should remain in place.
According to Luther Liggett Jr., the attorney representing MS Consultants, no hearing was required in this particular case, the filing said.
“Given the lack of any allegation of excusable neglect, defendant’s motion to vacate the judgment should be denied,” according to the memo.
MS Consultants Inc., based in Columbus, filed a complaint alleging that M.J. Joseph is in breach of contract and owes the company $322,907.54 of a $614,829.21 bill for services rendered, according to court papers.
According to the complaint, M.J. Joseph contracted with MS Consultants to provide design professional services for the project in December 2016.
As of Nov. 24, 2018, M.J. Joseph had paid just $291,921.67 toward the invoice and had not yet paid the outstanding balance of the bill, according to exhibits filed with the court.
The court awarded MS Consultants damages in excess of $322,907.54 plus 18% interest from Oct. 5, 2018, the date the final payment was due. The interest should be applied “not as a penalty, but to make MS Consultants whole,” court papers say.
To secure payment, the company has placed a lien on the property on the city’s East Side, court documents say.
On July 12, MS Consultants filed a foreclosure action against M.J. Joseph to force the sale of the property to satisfy the debt.
The MS Consultants lawsuit coincides with ongoing litigation between the city and M.J. Joseph regarding the same project.
Last week, Magistrate Dennis Sarisky awarded the city sanctions amounting to $733,480, ruling that M.J. Joseph had failed to comply with a court order and numerous discovery requests from the city to produce relevant documents in the case.
In November, Judge Maureen Sweeney affirmed an earlier ruling by Sarisky that the city is entitled to $1.5 million in grant money it awarded M.J. Joseph toward the project.
The project – first announced in 2016 – involved constructing a $20 million campus devoted to the development of self-chilling technology and the production of self-chilling beverage cans.
The project was supposed to create more than 230 jobs; the company today lists just one employee, and three buildings remain empty at the site more than six years later.
Anticipating a lawsuit, M.J. Joseph filed a complaint in May of 2021 against the city saying it wasn’t entitled to a refund of the $1.5 million.
The city countersued for return of the grant money, plus $414,948 in property acquisition and relocation costs, and another $318,523 in demolition and abatement expenses the city incurred for the project.
According to earlier filings, the city also seeks return of the land and buildings now on the site.
Copyright 2024 The Business Journal, Youngstown, Ohio.
