By Heather Clower
The Parsons Advocate
There were no empty seats to be found when the Honorable Judge James Courrier opened the courtroom for the hearing related to Timberline Four Season Resort and other entities potentially being placed into receivership. The motion was filed by Prosecuting Attorney Ray LaMora on behalf of the best interest of the citizens of Tucker County to place the managerial duties of the entities under the control of a proprietor other than those currently filling the position.
In February of this year, The Tucker County Sheriff’s Department served the Herzes official notice of a Recommended Decision filed by LaMora requesting that, in addition to the Timberline Four Seasons Utilities (TFSU), that is now in receivership of Canaan Valley PSD, that the entities of Timberline Four Seasons Resorts Management, consisting of Fred and Tracy Herz, Rose Marie Herz, Frederick Reichle, Long Run Realty, and Timberline Four Seasons Realty be placed into receivership as well. In addition to the TFSU receivership request that was granted by Judge Lynn Nelson, F. Herz also faces charges of unpaid hotel/motel taxes in excess of $18,000.
This request to place the remaining Timberline associates into receivership stated, “This tax goes directly to the benefit of the Tucker County EMS, Fire Departments, and our Parks and Recreation of the county”. It continued, “That a continuation of Timberline Four Seasons Resort Management operating at the hands of the Herz and Reichle families will bankrupt, if it has not already, the Utility Company, causing irreparable harm to the County”. In addition to all the above listed Timberline entities being placed into receivership, the plaintiff’s request, “Frederick Herz, Frederick Reichle, Rose Marie Herz, and Tracy Herz, as well as their employees, agents, and assigns, be restrained, prevented, prohibited and stopped from utilizing any and all personal property now owned or thereafter acquired by Timberline Four Seasons Resort Management including but not limited to all goods, products, equipment, furniture, money, instruments, accounts, accounts receivable, documents, contractual rights, until further Order of this court.”
Last week, Frederick and Tracy Herz entered the packed court room and took their seats before the Judge. Upon seating, Chief Deputy M. J. Sigley served them with yet another pack of documents. LaMora opened the hearing stating, “The is not something the state is used to filing,” but said in this particular situation they felt it necessary and that the he believed the entities should in fact be in receivership. Several witnesses were on hand to testify to support LaMora’s intentions to give their examples of how the Timberline businesses have been operating in the last several months. Courrier gave the defendants the opportunity to make an opening statement, which they informed the court, “We were not able to find an attorney. No one would take our case.” The defendants claim its due to lack of specialization in the receivership law, however LaMora disagreed, stating their history of failure to pay not only hotel/motel tax, but payroll to their employees probably played a strong role in their inability to secure council.
Courrier questioned LaMora to the second amended motion the Herzes were provided upon entering and the differences between the first and second. LaMora informed it was mostly to “clean up the style of the first motion,” and that the substance for motion and prayer for relief remain unchanged. Courrier hesitated before explaining, “Circuit Court may not be able to proceed because it requires council.” LaMora responded, “If they haven’t found council by this point, I doubt they will after.” He continued to plead his case referring to the failure to pay taxes which support amenities, such as the EMS and Fire Department, resulting in a lack of protection of the citizens of Tucker County. He also referred to the unfortunate employees of Timberline who have been having payroll issues and noted a safety concern continues at the property informing the day of court was in fact the 30 days given by the Department of Environmental Protection to clean up the areas of concern, which according to LaMora has not been done.
Courrier addressed the defendants, asking how recently they have been attempting to secure an attorney. T. Herz responded, saying “Fred saying several weeks was not precise,” claiming they have been contacting attorneys sometimes on a daily basis including out of state options, adding, “We’re scared, we don’t understand this.” “An integrated council is what we need and we can’t find that,” she continued. F. Herz said he believes part of the difficulty securing a representing attorney lies in the fact two of the involved parties are out of state residents.
“I don’t like delaying things any longer than we have to,” said Courrier, but felt it important for the Herzes to have representation. “I’m not going too far down the road as this is a very significant issue,” he confirmed, offering the date of May 8 as a follow up hearing. “This requires you to do even more diligent work,” Courrier addressed to the Herzes. T. Herz addressed Courrier requesting 45 to 60 days with F. Herz adding information that an appraisal is being done for recapitalization and needs at least 30 days for that process alone. Recapitalization is a method of corporate restructuring with a goal of making their capital structure more stable or optimal. An example of this approach is when a company issues debt to buy back its equity shares. He claims this potential loan would extinguish all debt owed by Timberline.
LaMora responded to their comments, saying “All of this can be done at the hands of a receiver,” feeling May 8 was more than enough time. “Forty-five or more days is putting the citizens at a disadvantage,” he confirmed. Courrier said, “As far as I can go is May 28, which is about 40 days. I will do that as a compromise.”
This matter will be decided upon May 28 at 2:30 p.m. At this time, Courrier stated he would proceed with witness testimonies and a ruling on receivership. When the hearing was adjourned, the Herzes left and the crowd began to discuss their dissatisfaction on delaying the process and sharing stories amongst themselves about Timberline and the situation. LaMora later confirmed that Courrier made the right decision and he will be ready to continue on the 28 of May.
