Appeal of P. S. Docket No. MD 94-86 -- AARON BOYETTE

Administrative Law Judges

In the Matter of a Mail Dispute			)	October 13, 1994
Between:					)
						)
AARON BOYETTE					)
						)
	and					)
						)
ANDY BOYETTE					)	P. S. Docket No. MD 94-86


APPEARANCE FOR DISPUTANT
	AARON BOYETTE:				None.

APPEARANCE FOR DISPUTANT
	ANDY BOYETTE:				Marcus J. Ezelle, Esq.
						P. O. Drawer 1308
						Wauchula, FL  33873-1308

INITIAL DECISION

This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book §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 B & S Fruit Harvesters, Inc., or B & S Harvesters, Inc., (hereinafter "B & S") at P. O. Box 338 or P. O. Box 698, Bowling Green, FL 33834 is presently being held by the Bowling Green Postmaster. Disputant Andy Boyette (a/k/a Larry Andrew Boyette or Larry A. Boyette) submitted the sworn statement required by 39 C.F.R. §965.5, while Disputant Aaron Boyette did not.

FINDINGS OF FACT

1. P. O. Box No. 338 was opened in 1986 in the name of "B & S Fruit Harvesters, Inc." with Aaron Boyette as its founder and its president (Field Counsel submission).

2. On June 12, 1991, Boyette Trucking, Inc., was incorporated with Larry A. Boyette (Andy) as its president and Wayne P. McCardle as its vice-president (Id.).

3. On December 31, 1992, Aaron Boyette on behalf of B & S Fruit Harvesters, Inc., and Andy Boyette, on behalf of Boyette Trucking, Inc., executed an "Agreement Proposal" which outlined a future transfer of certain trucks and shipping operations from B & S to Boyette Trucking in exchange for whatever interest Andy Boyette had in B & S (Id.).

4. On June 16, 1994, an "Agreement of Sale and Purchase" was executed between B & S and Boyette Trucking , Inc., which finalized a somewhat different agreement between the parties. The Agreement of Sale and Purchase was signed on behalf of B & S by Aaron Boyette and on behalf of Boyette Trucking by Larry Andrew Boyette (Andy) and Wayne McCardle. The Agreement provided for the sale by B & S of its name, equipment, office furniture, signs, supplies and telephone number to Boyette Trucking for $200,000. The Agreement was closed as contemplated and payment was made (Andy Boyette submission).

5. Disputant Andy Boyette has rented P. O. Box 698, Bowling Green, FL 33834 in the name of "B & S Harvesters and Andy Boyette." Both Disputants seek delivery of all mail addressed to B & S at either P. O. Box 698 or P. O. Box 338, Bowling Green, FL.

CONCLUSIONS OF LAW

1. Disputant Aaron Boyette has failed to make the submission required by 39 C.F.R. §965.5 and thus is in default in this proceeding pursuant to 39 C.F.R. §965.7.

2. DMM DO 42.4.1 provides in pertinent part that "[a]ll mail addressed to a governmental or non-governmental organization ... is delivered to the organization. If disagreement arises where any such mail should be delivered, it must be delivered under the order of the organization's president or equivalent official."

3. Inasmuch as Boyette Trucking purchased the name and certain assets and equipment of B & S pursuant to the terms of the June 16, 1993 Agreement, and inasmuch as Disputant Andy Boyette is president or Boyette Trucking, all mail addressed to B & S is to be delivered in accordance with the instructions of Andy Boyette.

4. This decision deals only with delivery of the disputed mail. If either disputant receives mail clearly intended for the other he must assure that it is forwarded to the other party.

5. The attached mail delivery order should be issued.

							James D. Finn, Jr.
							Administrative Judge