In the Matter of a Mail Dispute ) May 12, 1994 Between: ) ) STEPHEN HUMMEL ) and ) LEONARD LONG ) and ) WILLIAM W. LOVETT ) P. S. Docket No. MD-213 APPEARANCE FOR STEVEN HUMMEL: None. APPEARANCE FOR LEONARD LONG: None. APPEARANCE FOR WILLIAM LOVETT: None.
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 49er Security Services; Burk Security; Novato Patrol; Riley Security Services; Ross-Mill Valley Patrol; San Leandro Patrol; San Jose Patrol; San Leandro Security Services and Santa Clara Patrol, 26200 Industrial Blvd., Hayward, CA 94545-2922; 555 Old County Road, San Carlos, CA 94070-2522; and P. O. Box 3244, Half Moon Bay, CA 94010-3244 is presently being held by the respective postmasters. All disputants submitted the sworn statements required by 39 C.F.R. §965.5. Additionally, Disputant Lovett submitted a sworn rebuttal to Disputant Hummel's submission. In his rebuttal Disputant Lovett asks for a default judgment in his favor based upon Disputant Hummel's alleged late submission filing (39 C.F.R. §965.7).
1. Prior to April 24, 1992, Mr. Lovett operated Viable Alternatives Consultants, Inc. (VACI), as its president. VACI did business in California under the fictitious names 49er Security Services, Burk Security, Novato Patrol, Riley Security Services, Ross-Mill Valley Patrol, San Jose Patrol, San Leandro Security Services and Santa Clara Patrol. The evidence in the record is inconclusive as to whether VACI operated as San Leandro Patrol (Lovett Declaration; Field Counsel submission).
2. On April 24, 1992, VACI, as seller, conveyed all its assets, including trade goodwill, trade names, trademarks and proprietary information to Paradox Corporation and The Viable Corporation, as buyers. Mr. Hummel executed the Agreement on behalf of Paradox and The Viable Corporation as the president of those companies. The Agreement did not specifically list the fictitious names of VACI (Finding of Fact No. 1) which were included in the sale as trade goodwill or trade names (Purchase and Sale Agreement, dated April 24, 1992).
3. The April 24, 1992 Agreement was not modified in writing subsequent to April 24, 1992, and no other written agreement exists in the record which would support a finding that subsequent to April 24, 1992, Mr. Hummel agreed to convey back to Mr. Lovett the right to use the fictitious names under which VACI had previously operated (April 24, 1992 Purchase and Sale Agreement).
4. Subsequent to April 24, 1992, for various reasons, Mr. Hummel was unable to obtain a business license under any of the fictitious names set forth in Finding of Fact No. 1 (Lovett Declaration; Hummel Affidavit).
5. Subsequent disagreements between Mr. Lovett and Mr. Hummel have led to litigation between the parties which is still pending (Lovett Declaration; Hummel Affidavit).
6. Both Mr. Lovett and Mr. Hummel seek release and delivery of the mail addressed to 49er Security Services, Burk Security, Novato Patrol, Riley Security Services, Ross-Mill Valley Patrol, San Jose Patrol, San Leandro Security Services, and Santa Clara Patrol (Lovett Declaration; Hummel Affidavit). Neither Disputant seeks release and delivery of the mail addressed to San Leandro Patrol (Id.).
7. Mr. Long, the third named Disputant in this proceeding, owns and operates Bear Security and Patrol Company. Mr. Long does not seek release and delivery of any of the mail in dispute (Long Affidavit).
Mr. Lovett seeks a default judgment based upon Mr. Hummel allegedly filing his submittal with the Recorder out-of-time. Mr. Hummel did not receive the Recorder's notice of docketing and submittal due date until January 20, 1994. Thereafter he had 15 days, or until February 4, 1994, to file his submittal. His affidavit (submittal) was executed on January 31, 1994, and received by the Board on February 7, 1994. Allowing three days for mail delivery from California it is most probable that the affidavit was mailed by the February 4, 1994 filing date and was not untimely. In any event a holding of default under 39 C.F.R. §965.7 is discretionary on the part of the presiding officer and such a holding is not appropriate in this instance.
Mr. Lovett contends that (a) the fictitious name "Burk Security" was never part of the conveyance to Mr. Hummel in the April 24, 1992 Agreement, and (b) that the parties orally agreed that the right to use the other fictitious names was given or conveyed back to VACI since Mr. Hummel was unable to obtain a business license under any of such names.
Mr. Hummel contends that while he is not operating a business under any of the names, he owns the names pursuant to the terms of the April 24, 1992 Agreement, and is entitled to the mail addressed to those fictitious names.
Mr. Lovett has not presented persuasive evidence that the name Burk Security was excluded from the conveyance or that any oral modification to the April 24, 1992 Agreement was made. Nor has Mr. Lovett presented any evidence that the use of the fictitious name Burk Security came into being after the April 24 Agreement and therefore not covered by it. Since both parties dispute the right to the name "Burk Security" in addition to the other disputed names covered by the April 24, 1992 Agreement, it seems more probable that Burk Security's name was encompassed by the April 24, 1992 conveyance.
The Agreement itself is quite specific in conveying to Mr. Hummel's companies all trade goodwill and trade names, which would include the fictitious names now in dispute. Mr. Lovett's unsupported contention that the right to use these names somehow reverted back or were re-conveyed to VACI is contrary to the written evidence in the record and is rejected.
Accordingly, the mail in dispute should be released to and delivered in accordance with the instructions of Stephen Hummel. Since neither Mr. Lovett nor Mr. Hummel seeks the mail addressed to San Leandro Patrol it should be delivered as addressed.
Resolution of this dispute determines only the right to delivery of the mail, not the question of ownership. Should any of the parties to this dispute receive any mail intended for another party it should be forwarded to the rightful intended recipient.
The attached mail delivery order should be issued.
James D. Finn, Jr. Administrative Judge