Appeal of P.S. Docket No. MD-75 -- KRISTINE JOHNSON and LOUIS FELDMAN

In the Matter of a Mail Dispute Between: KRISTINE JOHNSON and LOUIS FELDMAN P.S. Docket No. MD-75 03/07/90 Thompson, Joan B., Administrative Judge APPEARANCE FOR KRISTINE JOHNSON: Kristine Johnson, pro se, 30960 Poin te-of-Woods Drive, Apartment 21, Farmington Hills, MI 48018-3310 APPEARANCE FOR LOUIS FELDMAN: Louis Feldman, pro se, 29929 Mayfair, Farmington Hills, MI 48331-2153

INITIAL DECISION

This mail dispute was transferred by the Field Counsel/General Law, Chicago, Illinois, for resolution in accordance with Domestic Mail Manual (DMM) § 153.72 and 39 C.F.R. Part 965. The dispute concerns conflicting change of address orders by the Disputants over mail addressed to Visual Dynamics, Inc., 26877 Northwestern Highway, Suite 110, Southfield, Michigan 48034. The Findings are made from documents transmitted with the mail dispute (including letters and attached materials from each Disputant) and a subsequent submission by Disputant Feldman.

Although, on January 12, 1990, Disputant Johnson telephoned the Assistant Recorder that she would send a letter stating that all information she has regarding this dispute has been submitted, no such letter has been received to date. Also, a copy of the file and Disputant Feldman's submission sent to her on January 25, 1990, by certified mail, return receipt requested, was returned as unclaimed and re-sent by regular mail on February 16, 1990.

FINDINGS OF FACT

1. Disputant Johnson formed the company Visual Dynamics in July 1983 and in February 1986 she incorporated the company as Visual Dynamics, Inc. (hereafter the "Corporation"). She was the sole shareholder, director, president, and registered agent of the Corporation.

2. Article VII of the Articles of Incorporation permitted a meeting of shareholders to be held without prior notice if "the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote thereon were present and voted" consented in writing. An Amendment to the Articles on October 1, 1987, authorized a total of capital stock in the amount of 25,000 shares of Class A Common voting stock and 25,000 shares of Class B Common non-voting stock.

3. On November 19, 1987, Disputant Feldman and two other individuals (not including Disputant Johnson) guaranteed a note of the Corporation in the amount of $75,000 for a bank line of credit. According to Disputant Feldman, the note is now delinquent and the bank is looking to the guarantors for payment. On October 6, 1989, the Corporation executed a promissory note in the amount of $50,000 to Triple Tool, Inc., a division of a corporation of which Disputant Feldman is an officer.

4. Due to financial problems, the Corporation's Northwestern Highway office was closed in November 1989. On November 17, 1989, Disputant Johnson filed a Change of Address Order to have the Corporation's mail sent to 28440 Southfield Road, # 108, Southfield, MI 48076-2885.

5. On November 27, 1989, Disputant Johnson signed an assignment of a stock certificate for 1,000 Class A Common shares to Disputant Feldman. The next day, November 28, Disputant Feldman filed a Change of Address Order to have the Corporation's mail sent to 29929 Mayfair, Farmington Hills, MI 48331-2153.

6. The following day, November 29, Disputant Feldman, as the majority stockholder, held a special meeting of the Corporation's shareholders, waiving notice, and approving resolutions to: "terminate" the Corporation, wind up its business matters, "terminate" all directors and officers of the Corporation (including Disputant Johnson, as President and Director), and designate Disputant Feldman to be the Trustee of the Corporation to use all assets and funds of the Corp- oration to pay the debts and obligations of the creditors of the Corporation and to have all mail subject to his direction and control. Disputant Feldman signed the document setting forth these resolutions as Trustee for the Corporation.

7. When Disputant Johnson became aware of Disputant Feldman's Change of Address request for the Corporation, she complained to Postal Service officials. By letter dated December 20, 1989, to the Manager, Customer Service, at Southfield, MI 48034-9996, she asserted she was entitled to the mail as president of the Corporation. She also asserted the mail being held at the Post Office included funds which the Corporation needed to pay the Internal Revenue Service, the State of Michigan for payroll withholding and sales taxes, and for repayment of customer deposits. She contended that Disputant Feldman's only relationship with the Corporation has been to make it loans and as an independent contractor for sales referrals, and that his position as a creditor is at a much lower priority than the Internal Revenue Service and the State of Michigan. Furthermore, she declared that he "has never been a stock holder, officer or director of the corporation and any documents subsequently indicated in this would be fraudulent." This assertion is unsupported by any evidence which would explain the assignment of the stock certificate to Disputant Feldman or show that he had no rights to act as the majority stock holder after receiving the certificate.

CONCLUSIONS OF LAW

1. As Disputant Johnson failed to file the submittal required by the rules of practice, she is in default under the rules (39 C.F.R. § 965.5, 965.7). Also, she has not responded to Disputant Feldman's submittal, nor shown persuasively that he is not entitled to receive the mail as Trustee for the Corporation.

2. The rules authorize a decision that mail may be delivered to the other party when one party is in default (39 C.F.R. § 965.7). Therefore, in accordance with 39 C.F.R. § 965.7 and in the absence of a showing of an agreement of the parties or a court order directing mail delivery, mail addressed to Visual Dynamics, Inc., shall be delivered in accordance with the instructions of Disputant Feldman. The attached mail delivery instruction should be issued.

3. This mail dispute resolution is to enable the Postal Service to carry out its responsibility to deliver mail. The ownership of the mail and other legal rights between the parties are not determined.