Ohio's Sixth District Court of Appeals has allowed key parts of an appeal by Tony Packo's Inc. co-owner Robin Horvath to move forward in the ongoing case that is attempting to stabilize ownership of the Toledo restaurant chain.
The appellate court said a Sept. 20 order by Lucas County Common Pleas Judge Gene Zmuda denying Mr. Horvath relief from a financial judgment that eventually forced Tony Packo's Inc. into receivership was wrong and that the judgment, which was granted in August, 2010, can be appealed.
The judgment was obtained by Fifth Third Bank, which sought payment for a $2.6 million loan it made to Tony Packo's Inc. The judgment eventually forced the company into the control of a court-appointed receiver, but Mr. Horvath had contended the bank sought the judgment only after consultation with the restaurant's co-owner, Tony Packo, Jr., and Mr. Packo's son, Tony Packo III. The ruling is key because Mr. Horvath has alleged Mr. Packo, Jr., and Mr. Packo III had withheld records that concealed company funds misappropriated by Mr. Packo III, who is under indictment.
Mr. Packo III and company controller Cathleen A. Dooley are each charged with three counts of theft in the taking of $170,000 in company funds.
Mr. Horvath owns half of Tony Packo's Inc. Mr. Horvath's uncle, Mr. Packo, Jr., and cousin, Mr. Packo III, own the other half.
Tom Matuzsak, Mr. Horvath's attorney, said neither he nor Mr. Horvath would comment.
The appellate court denied Mr. Horvath's attempt to appeal orders by Judge Zmuda denying Mr. Horvath's request to inspect company records, reject contracts, and extend a deadline for making offers to purchase assets of the company. The appellate court said they cannot be appealed yet because they do not constitute final orders by Judge Zmuda.
The Sixth District Court also said Mr. Horvath's attempt to appeal a judgment by Judge Zmuda that a "derivative lawsuit" — a claim in which Mr. Horvath is requesting that money allegedly taken Mr. Packo III be repaid to the company — now belongs to the company and the court-appointed receiver, cannot be appealed at this time because the judge's decision is not final.
Also, the appellate court said Mr. Horvath could not yet appeal an Oct. 7 decision to sell the company to TP Foods LLC because that decision was not a final order and merely represented the "first step in the sales process." The appeals court order confirming an actual sale, when and if it takes place, would be subject to an appeal.