In the Matter of a Mail Dispute ) June 16, 1994 Between: ) ) MIKE EDWARDS ) ) and ) ) ALAN GRANT ) ESR INDUSTRIES ) P. S. Docket No. MD-220 APPEARANCE FOR MR. EDWARDS: Mike E. Edwards 3209 South Cobb Drive, Suite F2 Smyrna, GA 30080-4160 APPEARANCE FOR MR. GRANT and ESR INDUSTRIES: H. Walter Indermark, Esq. Brock & Clay, P.C. 49 Atlanta Street Marietta, GA 30060-1977
This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book §153.72, which requires the chief field counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is that addressed to Telespec USA, 4806C Wright Drive, Smyrna, Georgia, 30082-4952. The mail is currently being held by the Smyrna Postmaster. Mr. Edwards submitted two notarized statements and Mr. Grant submitted a sworn statement. Both parties filed additional documents in support of their claims to the mail.
1. Alan Grant incorporated ESR Industries, Inc. ("ESR"), in April 1993, listing the address of the corporation as 4806 Wright Dr., Annex C, in Smyrna, Georgia. Mr. Grant continues to own and control ESR.
2. At least as early as June 1993, Mr. Grant entered negotiations with Telespec Ltd., a British company, regarding a relationship between ESR and Telespec Ltd. for the marketing of Telespec Ltd.'s products in the United States. The parties to the negotiations contemplated that Mr. Grant and/or ESR would form a new company in the United States to deal in Telespec Ltd.'s products. As early as October 18, 1993, Mr. Grant referred to the new entity as Telespec USA.
3. Beginning January 1, 1994, Mr. Grant was authorized by Telespec Ltd. to use and did use the name Telespec in the conduct of his business.
4. In December of 1993, Telespec Ltd. put Mr. Grant in touch with Mike Edwards, and, after an interview, Mr. Grant offered Mr. Edwards a job. Mr. Edwards accepted the offer and began working for Mr. Grant in January, 1994.
5. On January 10, 1994, a bank account application on behalf of "ESR Industries Inc., Telespec USA" listed Mr. Edwards as president and Mr. Grant as vice-president. The application bears both their signatures.
6. In the months after January 1994, at least until March 21, 1994, Mr. Edwards signed a number of documents and correspondence that identified him as president of Telespec USA.
7. On March 4, 1994, Mr. Edwards applied to register with the county superior court clerk the trade name Telespec USA at 4806C Wright Drive, Annex C in Smyrna, listing himself as the person using the trade name. On March 7, 1994, the Secretary of State reserved the name Telespec, Inc., for 90 days to be used by a corporation to be formed. The registration was returned to Mr. Edwards in care of ESR.
8. After months of correspondence and discussions, Telespec Ltd., on March 22, 1994, sent Mr. Grant the terms under which Telespec Ltd. would allow him to market its products. The March 22 letter contemplated that the agreement would be between Telespec Ltd. and an entity referred to as Telespec, Inc., and would require the latter to market Telespec Ltd.'s products in the United States and pay Telespec Ltd. a fee based on sales.
9. On March 22, the business relationship between Mr. Edwards and Mr. Grant ended.
10. In a March 27 letter apparently transmitted to Telespec Ltd., Mr. Edwards asked to honor the offer Telespec Ltd. made to Mr. Grant the previous week (presumably the March 22 offer (Finding 8)).
11. Telespec Ltd. responded to Mr. Edwards in a letter dated March 30, 1994, which pointed out that Telespec Ltd.'s dealings were exclusively with Mr. Grant and that it understood Mr. Edwards to have been an employee of Mr. Grant's. The letter continued that Telespec Ltd. had not authorized Mr. Edwards to use the Telespec name and that it would not supply Mr. Edwards with any of its products.
12. By letter of April 15, 1994, Telespec Ltd. advised Mr. Grant that it considered Mr. Edwards to have been Mr. Grant's employee and confirmed its authorization in December, 1993, for Mr. Grant to use the Telespec name and sell Telespec Ltd. products. That letter confirmed that Telespec Ltd. and ESR had reached agreement regarding marketing of Telespec Ltd. products.
13. On April 11, 1994, Mr. Grant applied to register the trade name "Telespec USA" to be used by ESR Industries, Inc., at the 4806C Wright address.
1. Neither side has presented any evidence that there ever was a corporation or other business entity formed named Telespec USA. In fact, registering Telespec USA as a trade name for himself by Mr. Edwards and for ESR by Mr. Grant demonstrates neither believed a separate business entity named Telespec USA had been formed. Neither party has persuaded me that he controls a business entity known as Telespec USA. Therefore, it does not matter who, from time to time, signed papers purporting to be on behalf of
Telespec USA or what titles in Telespec USA they purported to hold.
2. Since Mr. Grant was the first to use the name Telespec USA at the 4806C Wright Drive address, he is entitled to receive the Telespec USA mail so addressed. See Kelley/Pylant, P.S. Docket No. MD-208, February 1, 1994; Opinions of the Solicitor of the Post Office Department, Vol I, Opinion 397 (October 18, 1884), Vol II, Opinion Nos. 598 (April 27, 1886) and 766 (April 28, 1888).
3. Moreover, since the sole apparent purpose of operating a business using the name Telespec USA was to market Telespec Ltd. products in the United States, and Telespec Ltd. has flatly stated it will not supply its products to Mr. Edwards,(1) it is likely that mail addressed to Telespec USA is intended for Mr. Grant, the only person with authority to sell Telespec Ltd. products.
4. Therefore, the mail addressed to Telespec USA at 4806C Wright Drive, Smyrna, Georgia 30082-4952, is to be delivered as directed by Mr. Grant.
5. This decision deals only with delivery of the disputed mail. If Mr. Grant receives mail clearly intended for Mr. Edwards personally, he must assure that it is promptly delivered to Mr. Edwards.
6. The attached order should issue.
Norman D. Menegat Administrative Judge