In the Matter of a Mail Dispute ) October 17, 1995 Between ) ) TODD C. GASKILL, Esq. ) MARTIN L. GOODRICH ) and ) ) RICHARD T. KENNEDY ) P.S. Docket No. MD 95-321 APPEARANCE FOR Todd C. Gaskill and Martin L. Goodrich: Martin L. Goodrich 603 Hernandez Ln Roseville, CA 95678-4317 APPEARANCE FOR Richard T. Kennedy: Richard T. Kennedy P.O. Box 2146 Fair Oaks, CA 95628-2146
INITIAL DECISION
The United States Postal Service Law Department has referred this mail
dispute to this office for resolution. The mail in dispute is that addressed to three
business entities -- Forest Estates Planning Associates, Redwood Empire, and
Douglas Fir -- at 151 N. Sunrise Avenue, Suite 1016, Roseville, CA 95661. Each
party has submitted a sworn statement, as required by 39 C.F.R. §965.5, or a
declaration under penalty of perjury, which is the equivalent of a sworn statement.
The following findings of fact and decision are based on the parties' statements and
on the documents forwarded by the Law Department.
FINDINGS OF FACT
1. In January 1994, Ronald Chappell and Disputant Todd Gaskill formed a business entity with the name Forest Investments. In April 1994, the principals in Forest Investments decided to conduct business using the name Forest Estates Planning Associates (FEPA). FEPA is a business that creates legal entities known as Unincorporated Organizations for its clients. Douglas Fir and Redwood Empire are business entities created by FEPA for its clients and were in existence at least as early as May 1994.
2. In the Spring of 1994, Disputant Richard Kennedy became associated with FEPA. The exact nature of Mr. Kennedy's association (as an employee of, or a principal in, FEPA) is in dispute. However, that question need not be resolved in order to resolve this mail dispute.
3. In October 1994, Messrs. Chappell, Gaskill and Kennedy entered into a lease for premises at the disputed address. The lessees entered into the lease as individuals, although the lease recited that they were doing business as FEPA. The term of the lease commenced on November 1, 1994.
4. On November 23, 1994, Mr. Kennedy and Messrs. Gaskill and Chappell had a falling out, and after that date Mr. Kennedy no longer was associated with the entity then known as FEPA. Whether Mr. Kennedy was expelled or resigned is in dispute, but that question also need not be resolved at this time.
5. On January 3, 1995, Mr. Kennedy filed a fictitious name statement in Sacramento County, California for the names Forest Estates Planning Associates, Redwood Empire, and Douglas Fir. On March 6, 1995, Mr. Kennedy filed a fictitious name statement for the same names in Placer County, where the disputed address is located.(1) Mr. Kennedy did not begin to use the names until after his association with Messrs. Gaskill and Chappell ended, and did not use the disputed address except during the period he was associated with those principals. Mr. Gaskill and Mr. Goodrich (who became associated with FEPA after the departure of Mr. Chappell in 1995) continue to do business from the disputed address, using the disputed names.
6. In August 1985, Mr. Kennedy filed change-of-address orders for the three business names in dispute, thereby precipitating this mail dispute.
DECISION
From the record in this matter it is clear that Messrs. Gaskill and Chappell were doing business using the names Forest Estates Planning Associates, Douglas Fir, and Redwood Empire from at least the Spring of 1994, continued to do so after the business moved to the disputed address in November 1994, and continue to do so at the present time. Although Mr. Kennedy was associated with Messrs. Gaskill and Chappell at the time the businesses moved to the disputed address, that association ended on November 23, 1994. Further, although Mr. Kennedy appears to have been first in registering the three names as fictitious business names in Placer County, there is no evidence that he did business under the three names at the disputed address except during the period that he was associated with Messrs. Gaskill and Chappell.
Mr. Kennedy argues that he is the sole owner of the business entity known as Forest Estates Planning Associates and its related business entities. Based on the record, it appears that Mr. Kennedy's claim is based on the fact that he may have been the first to register those names as fictitious business names in Placer County. However, the record shows that the names were being used by Messrs. Gaskill and Chappell as early as May 1994, nearly a year before Mr. Kennedy registered the names. Further, Mr. Kennedy did not begin to use the names until after his association with Messrs. Gaskill and Chappell ended in November 1994, and did not use the disputed address except during the period he was associated with those principals.
Based on this record, I conclude that the most likely recipients intended by those who send mail to Forest Estates Planning Associates, Douglas Fir, and Redwood Empire at the disputed address are the entities using those names that were and are being operated by Messrs. Gaskill and Chappell (now Gaskill and Goodrich). The fact that Mr. Kennedy is a named lessee at the disputed address is irrelevant to a determination of entitlement to delivery of the mail, inasmuch as he is no longer associated with the three business entities that are still being operated out of that address. Further, while there may be some question as to whether Messrs. Gaskill and Goodrich ultimately may continue to use the three disputed names (because of the fictitious name registration by Mr. Kennedy), the fact remains that mail addressed to those names at the disputed address is most likely intended for the business entities now using those names and operated by Messrs. Gaskill and Goodrich.
This decision addresses only the right to delivery of the mail. It does not decide the question of ownership of the mail. If mail intended for Mr. Kennedy personally, and not in connection with the three business entities, is received by Messrs. Gaskill and Goodrich, they are to have the mail forwarded promptly.
The attached delivery order should be issued.
David I. Brochstein Administrative Judge