Appeal of MICHAEL J. MOSES, II and DR. ROBERT M. CORBETT, D.O. JANET CORBETT -- P.S. Docket No. MD-206

Administrative Law Judges

In the Matter of a Mail Dispute Between:	)     February 16, 1994
						)
MICHAEL J. MOSES, II 				)
						)
	and					)
						)
DR. ROBERT M. CORBETT, D.O. 			)
JANET CORBETT					)     P.S. Docket No. MD-206

APPEARANCE FOR DISPUTANT 
  MICHAEL J. MOSES, II: 			None

APPEARANCE FOR DISPUTANTS 
  DR. ROBERT M. CORBETT, D.O. and 
  JANET CORBETT:				None

INITIAL DECISION

This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book (DMM) §153.721(c), which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute, which is addressed to 6480 West Gulf to Lake Highway, Crystal River, FL 34429-7622, is presently being held by the Crystal River Postmaster. Both parties have filed the written submittals required by 39 C.F.R. §965.5. The Corbetts also filed comments on Disputant Moses' submission as permitted by 39 C.F.R. §965.6.

FINDINGS OF FACT

1. Judge By Results V, Inc., ("JBR"), is a Florida corporation with Disputant Michael J. Moses as its sole incorporator, registered agent, and one of two members of its Board of Directors (September 16, 1993, submission to Crystal River, FL, Postmaster by Disputant Moses, Tab 1).

2. On February 8, 1993, a limited partnership agreement was entered into between JBR, as general partner, and others including Dr. J. Eric Taylor, Jr., and Disputant Moses as limited partners. The partnership was named "Crystal River Care Station, Ltd." ("Limited"), and its stated purpose was to operate a medical clinic known as "Crystal River Care Station," ("Clinic") located at 6480 West Gulf to Lake Highway, Crystal River, FL 34429 (Id., Tab 2).

3. Under the terms of the limited partnership agreement the general partner, JBR, had full and exclusive power to manage and control Limited and make all decisions regarding Limited's business (Id.).

4. Crystal River Care Station, Inc., ("Crystal"), is a Florida corporation with Disputant Robert M. Corbett as its president. It operated the Clinic located at the 6480 West Gulf to Lake Highway address (Id., Tab 3).

5. On February 8, 1993, a lease and purchase agreement ("Agreement") was entered into between and among Limited, Crystal,

Dr. James E. Taylor and his wife, and the Corbetts.⁽¹⁾ The Agreement stated on its first page and introductory provisions that Crystal operated the Clinic, owned its practice assets, and had registered its fictitious name, Crystal River Care Station, with the State of Florida and that the Taylors owned the Clinic premises (Id.).

6. Under the terms of the Agreement, Crystal leased to Limited all of the Clinic's practice assets for a period of two years at $8,000 per month with an option to purchase, and Limited agreed to assume Crystal's obligations under an equipment lease. Upon execution of the Agreement, Crystal agreed to assign to Limited all its right, title and interest to the fictitious name (Id.).

7. The Agreement also contained a "Premises Lease Agreement", under the terms of which Limited leased the Clinic premises from the Taylors for a period of two years at rental amounts ranging from zero per month for the first three months to $1900 per month for the last 20 months. Limited also received an option from the Taylors to purchase the Clinic premises. During the period of the Premises Lease Agreement, Limited was responsible for payment of all utility charges, taxes, license fees, and assessments on the premises (Id.).

8. The Agreement further provided that Limited had entered into a separate employment agreement with Disputant, Dr. Corbett. The terms of the employment agreement were attached to the Agreement as Exhibit "C", subsequently amended by addendum dated April 23, 1993. The employment agreement designates JBR, not Limited, as the employer, however (Id.). There is no evidence in the record that Mrs. Corbett was an employee of Limited or JBR, or that she had any connection with the operation of the Clinic.

9. The Agreement provided that failure to perform or observe any of its provisions would constitute a default, and that upon such event the non-defaulting party would have the right to terminate the Agreement. However, written notice of default had to be given by the non-defaulting party, and the defaulting party thereafter had 10 days to commence and 60 days to complete curing the default (Id.).

10. On June 24, 1993, Disputant Corbett's attorney by letter advised Disputant Moses that Limited was in default of the Agreement for failure to pay sales taxes and rent (Corbett submission, Exhibit 1).

11. On August 27, 1993, Disputant Moses, through his attorney, tendered a check in the amount of $24,720 to Crystal to cure all defaults under the Agreement. The check was endorsed and cashed by Crystal (September 16, 1993, submission to Postmaster, Tab 14).

12. On September 9, 1993, Disputant Corbett ceased working for Limited (or JBR) and removed 70% of the equipment covered by the Agreement from the premises located at 6480 West Gulf to Lake Highway, Crystal River, Florida (Corbett submission).

13. Subsequently, as a result of a dispute with Mr. Taylor over non-payment of rent, Limited vacated the 6480 West Gulf to Lake Highway premises (Corbett comments).

14. Disputant Moses on behalf of Limited, and Crystal River Care Station and Disputant Corbett on behalf of Crystal and Crystal River Care Station, and on behalf of himself and Janet Corbett, seek all mail delivered to the 6480 West Gulf to Lake Highway address.

CONCLUSIONS OF LAW

1. Resolution of this mail dispute determines only the right to delivery of the mail. It does not determine the ownership of the mail or resolve any disputes between the parties over default or breach of the Agreement, or the related employment agreement.

2. The Agreement between the parties has terminated. The record does not conclusively establish which party initially defaulted under the Agreement, as the record is incomplete as to the amounts Limited was delinquent in payment to Crystal and Dr. Corbett, whether Limited satisfied its obligation to cure any delinquencies in payment, whether such cure, if existent, was timely, whether an accord and satisfaction subsequently existed between the disputants, and whether Dr. Corbett could lawfully remove the equipment covered by the Agreement from the premises.

3. Mr. Moses controlled JBR, which in turn was the general partner of Limited. JBR had full and exclusive power to manage and control Limited and make all decisions regarding Limited's business. Such powers thus rested with Disputant Moses and would include the authority to receive all mail addressed to "Crystal River Care Station Limited" at the 6480 West Gulf to Lake Highway address (the address where it operated the Clinic pursuant to the Agreement), as well as the power and authority to direct the Crystal River, Florida, Postmaster to forward that mail to another address.

4. Under the Agreement, Limited received an assignment of Crystal's fictitious name "Crystal River Care Station," and operated the Clinic under that name. Thus, all mail pertaining to the operation of Crystal River Care Station at 6480 West Gulf to Lake Highway, Crystal River, FL, is more probably intended for Limited than for Crystal or Dr. Corbett.

5. Dr. Corbett was an employee of either JBR or Limited and ceased being an employee on September 9, 1993. The DMM requires that all mail addressed to a former employee of an organization at the address of the organization shall be delivered to the organization (DMM DO 42.4.1). Thus, all mail addressed to Dr. Corbett at the 6480 West Gulf to Lake Highway address should be delivered to Limited.

6. As president of Crystal, Dr. Corbett has full authority to receive mail addressed to Crystal River Care Station, Inc. at the 6480 West Gulf to Lake Highway address whether or not the address also includes Dr. Corbett's name (DMM DO 42.4.1).

7. Inasmuch as Mrs. Corbett was not an employee of JBR or Limited, and no evidence exists of any participation by her in the operation of the Clinic, all mail addressed to her should be delivered to her.

8. All mail addressed to Crystal River Care Station or Crystal River Care Station Limited or Dr. Robert M. Corbett, D.O. at 6480 West Gulf to Lake Highway, Crystal River, FL 34429-7622, is to be delivered in accordance with the direction of Michael J. Moses, II.

9. All mail addressed to Dr. Robert M. Corbett, D.O. and Crystal River Care Station, Inc., at 6480 West Gulf to Lake Highway, Crystal River, FL 34429-7622, or addressed solely to Crystal River Care Station Inc., at that address is to be delivered in accordance with the direction of Dr. Robert M. Corbett, D.O.

10. All mail addressed to Janet Corbett at 6480 West Gulf to Lake Highway, Crystal River, FL 34429-7622, is to be delivered in accordance with the direction of Janet Corbett.

11. If Mr. Moses receives any mail pertaining to the present medical treatment of any of Dr. Corbett's patients or any other mail intended for Dr. Corbett, he is obligated to immediately forward such mail to Dr. Corbett.

12. The attached mail delivery order should be issued.

					James D. Finn, Jr.
					Administrative Judge

1. It appears from the record that Dr. J. Eric Taylor, Jr., and Dr. James E. Taylor, Jr. are one and the same (compare Tab 2, page 20, and Tab 3, page 24).