Appeal of P.S. Docket No. MD-106 -- DIANE B. HURST and DR. LOIS M. SOMERVILLE

 In the Matter of a Mail Dispute Between:

 DIANE B. HURST
 and
 DR. LOIS M. SOMERVILLE

 P.S. Docket No. MD-106

 2/8/91

 Grant, Quentin E., Chief Administrative Law Judge

 APPEARANCE FOR DIANE B. HURST: Diane B. Hurst, 337 Howard Blvd.,
 Longwood, FL  32750-4616 

 APPEARANCE FOR DR. LOIS M. SOMERVILLE: Dr. Lois M. Somerville, 641 W.
 Lake Mary Blvd., Suite 131, Lake Mary, FL  32746-6159

INITIAL DECISION

The Office of Field Legal Services, Southern Region, USPS, has forwarded this mail dispute pursuant to Domestic Mail Manual (DMM) § 153.72 and 39 C.F.R. Part 365. The parties dispute the right to delivery of mail addressed to Advanced Neuro Systems, Inc., P. O. Box 950870, Lake Mary, FL 32746.

Both parties have filed submittals and comments pursuant to the Rules of Practice. The following findings of fact are based on such submittals and comments.

FINDINGS OF FACT

1. The disputants are Diane B. Hurst, 337 Howard Boulevard, Longwood, FL 32750-4616 and Dr. Lois M. Somerville, 641 West Lake Mary Boulevard, Suite 131, Lake Mary, FL 32746-6159.

2. The mail in dispute is that addressed to Advanced Neuro Systems, Inc., P. O. Box 950870, Lake Mary, FL 32746.

3. Advanced Neuro Systems, Inc. (ANS) is a Florida corporation, incorporated on or about April 4, 1990. The principal place of business of the corporation is 641 W. Lake Mary Blvd., Suite 131, Lake Mary, FL, the same address as Dr. Somerville's chiropractic practice.

4. The Articles of Incorporation of ANS, filed with the Florida Secretary of State on April 4, 1990, name Dee Hurst (an a/k/a of disputant Diane B. Hurst) as "President/Director" to hold office the first year of the corporation's existence or until the election of a successor. No other officers or directors are named in the articles and there are in the record no minutes of board of director's meetings showing the election of other officers or directors.

5. Disputant Somerville rests her claim of right to direct delivery of the disputed mail mainly on her assertion that she is the sole owner and stockholder of ANS. Aside from her signature as "owner" on copies of two agreements between Hurst and ANS which Somerville included in her submittal n1 the only evidence tending to support her claim is a copy of a certificate showing that she was issued 500 shares of ANS capital stock on April 15, 1990. The certificate bears the signatures of Lois Henz as Secretary and David Peter Burlini as Vice President/Treasurer. There is no evidence showing the election of Henz and Burlini to these offices as of that date.

n1 Copies of the same agreements submitted by Hurst do not contain Somerville's signature.

6. Dr. Somerville also rests her claim on the minutes of a "Reorganization Meeting" whereat on October 29, 1990, she, as "sole owner" of ANS, purported to appoint herself chairman (presumably of the Board of Directors) and Lois Henz as President, Secretary and Treasurer replacing Dee Hurst as President, Secretary and Treasurer of the corporation. This meeting was not identified as a meeting of the Board of Directors and the sole director, Dee Hurst, does not appear to have received notice thereof nor to have attended the meeting. The minutes of the meeting are dated October 23, 1990, but state that the actions recited therein were taken on October 29, 1990, six days later.

7. On the application of disputant Hurst, as president of ANS, dated July 20, 1990, P. O. Box 950870 at Lake Mary, FL was assigned to receive mail addressed to ANS. On October 29, 1990, disputant Somerville filed a form 3575 with the Lake Mary postmaster changing the address of mail addressed to ANS from PO. Box 958070 to 641 W. Lake Mary Blvd., Suite 131, Lake Mary, FL

32746. On November 9, 1990, disputant Hurst initiated this mail dispute by advising the postmaster that she, as president of ANS, not Dr. Somerville, controlled the mail of ANS addressed to Box 950870 and directing that ANS mail continue to be delivered to that box.

CONCLUSIONS OF LAW

DMM 153.51 provides that mail addressed to corporations is delivered as addressed or to an authorized agent and that where disagreement arises among corporate officers and others connected with the company, the mail is delivered in accordance with the order of the president of the corporation.

On the record provided by the disputants in their submittals and comments and the applicable Florida statutes, I conclude that disputant Hurst is the president of ANS and, as such, entitled to direct the delivery of the disputed mail. My reasons for this conclusion are as follows:

1. Hurst was named president and director of the corporation in the Articles of Incorporation filed April 4, 1990, to hold office the first year of the corporation's existence or until her successor was elected.

2. The Florida Business Organizations law, Fla. Stat. Ann. $Z607.0840 and .0842 (West) provides that officers shall be elected and may be removed by the board of directors. No other mode of election and removal relevant to this dispute is provided in the Business Organization law.

3. The "Reorganization Meeting" conducted by Somerville on October 29 was not a board of directors meeting. In fact, the only director, Hurst, did not receive notice of, and did not attend, the meeting. It, therefore, did not result in a valid removal of Hurst as president or the election of Lois Henz to replace her.

4. Fla. Stat. Ann. § 607.067 (West) requires that certificates representing corporate shares must be signed by the president or vice president and the secretary or assistant secretary. The stock certificate on which Somerville rests her claim to being sole owner and sole shareholder of ANS appears to be invalid because the persons who signed it (Henz and Burlini) were not as of April 15, 1990 (the date of the certificate) the officers of the corporation they represented themselves to be. This is confirmed by the minutes of the "Reorganization Meeting" conducted by Somerville which show that prior to October 29, 1990, there was no vice president and that Hurst held all the remaining corporate offices.

This decision determines only the right to delivery of the disputed mail, not the ownership thereof. If ANS receives any mail which belongs to Dr. Somerville, it will be responsible for assuring that it is forwarded to her.

The attached proposed mail order should be issued.