In the Matter of a Mail Dispute ) March 9, 1994 Between: ) ) RICHARD J. VANDENBERG ) Chief Financial Officer ) CIMERRON HEALTH CARE, INC. ) ) and ) ) C. JO LUCKE ) FOSTER DEVELOPMENT CO. ) ) BILL FOSTER ) FOSTER DEVELOPMENT CO. ) P. S. Docket No. MD-214 APPEARANCE FOR CIMERRON HEALTH CARE, INC.: Richard J. Vandenberg Suite 200 1144 Canton Street Roswell, GA 30075-3683 APPEARANCE FOR FOSTER DEVELOPMENT CO.: William M. Foster 146 Spring Street Macon, GA 31201-1917
The Atlanta Law Office, United States Postal Service, has referred this mail dispute for resolution pursuant to Domestic Mail Manual (DMM) Transition Book §153.721 (c). The mail in dispute is that addressed to Oceanside Nursing Center and Savannah Beach Nursing Center, P.O. Box 870, Tybee Island, GA 31328-0870. Disputant Richard Vandenberg, on behalf of Cimerron Health Care, Inc., has filed a sworn statement as required by 39 C.F.R. §965.5. Disputant William Foster has filed an unsworn statement. The findings of fact and conclusions of law which follow are based on the parties' submittals(1) and on the documents forwarded by the Atlanta Law Office.
FINDINGS OF FACT
1. The business entities then known as Oceanside Nursing Center and Savannah Beach Nursing Center were purchased by Karen and Robert Hagan in 1988. As of the time of the purchase and for some time before, the businesses were receiving mail addressed to the disputed address, P.O. Box 870. In July 1989, the businesses were incorporated under the names Oceanside Nursing Center, Inc., and Savannah Beach Nursing Center, Inc., (the "Nursing Center corporations") and continued to use P.O. Box 870 as their mailing address. Cimerron Health Care, Inc., (in which Karen Hagan is the sole stockholder) was contracted to manage the facilities in December 1991. Disputant Richard Vandenberg is the Chief Financial Officer of Cimerron Health Care, Inc., and an officer in the Nursing Center corporations.
2. On September 1, 1993, the real estate of the Nursing Center corporations was purchased by HHS Property Corporation (a subsidiary of the bank which loaned the Hagans funds in connection with the 1988 purchase) pursuant to a foreclosure sale. The Nursing Center corporations, however, continued to exist as business entities. At that time, HHS contracted the management of the nursing facilities to Horizon HealthCare until it could resell the facilities. Pursuant to an unwritten agreement, at that time Horizon was given the key to P.O. Box 870 to be used until the property was resold.
3. On September 21, 1993, the real property was resold by HHS to Disputant William Foster. That sale apparently included the rights to the trade names Oceanside Nursing Center and Savannah Beach Nursing Center.(2) The real estate closing transaction took place in late December 1993. At that time, the key to P.O. Box 870 was returned to Cimerron personnel pursuant to the earlier agreement. On the day of the settlement, a representative of the bank asked whether Mr. Vandenberg (as a representative of Cimerron and the Nursing Center corporations) would be willing to give up P.O. Box 870. He declined to do so.(3)
CONCLUSIONS OF LAW
1. As the record contains no evidence of any contrary intent, I conclude that when the Hagans purchased the nursing facilities in 1988, they also acquired the right to continue the use of P.O. Box 870 as the mailing address for the facilities. Incorporation of the facilities in 1989 did not affect their right to continued use of the post office box.
2. Based on the agreement giving Horizon HealthCare only temporary possession of the key to P.O. Box 870 at the time of the foreclosure sale to HHS Property Corporation, I conclude that the parties involved were in agreement at that time that the right to use P.O. Box 870 had not passed to HHS with the real estate, but had been retained by the Nursing Center corporations.
3. Based on Mr. Vandenberg's refusal to agree to give up the right to use P.O. Box 870 at the time of the December 1993 settlement, I conclude that the right to use P.O. Box 870 did not transfer to Mr. Foster, notwithstanding his acquisition of the trade names Oceanside Nursing Center and Savannah Beach Nursing Center from HHS. Accordingly, I conclude that the right to delivery of mail addressed to P.O. Box 870 remains with Oceanside Nursing Center, Inc., and Savannah Beach Nursing Center, Inc.
4. Resolution of this mail dispute resolves only the issue of the right to delivery of the mail addressed to P.O. Box 870. It does not resolve the issue of ownership of that mail. If Oceanside Nursing Center, Inc., and/or Savannah Beach Nursing Center, Inc., receives delivery of mail intended for the Oceanside or Savannah Beach nursing facilities or any person other than those corporations, that mail is to be forwarded immediately to the correct destination.
5. The attached mail delivery order should be issued.
David I. Brochstein Administrative Judge
2. The right to use those trade names had been acquired by HHS as part of the settlement of a lawsuit between the bank (and HHS) and the Hagans (and their various corporations).
3. I do not accept Mr. Foster's contrary contention that there was an agreement at the settlement that he would be given the key to P.O. Box 870 within five days.