In the Matter of a Mail Dispute ) January 16, 1996 Between ) ) DONALD LOTT ) ) and ) ) ROBIN CYPRIANO ) P.S. Docket No. MD 95-391 APPEARANCE FOR MR. LOTT: Donald Lott 1845 Winchester Blvd., Ste. C Campbell, CA 95008-1165 APPEARANCE FOR MR. CYPRIANO: Robin Cypriano P.O. Box 4253 Kailua-Kona, HI 96745-4253
INITIAL DECISION
This mail dispute has been docketed pursuant to Domestic Mail Manual Transition Book (DMM) §153.721c, 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 Genesis Credit Reporting Systems at 3097 Moorpark Ave., Ste. 300, San Jose, CA 95128-2543, and at 1845 Winchester Blvd., Ste. C, Campbell, CA 95008-1165, is now being held by the postmasters at San Jose and Campbell, California. Neither party submitted a sworn statement, as required by 39 C.F.R. §965.5,(1) but both sent letters, with several attached documents. The following findings of fact and decision are based on all the material offered by the disputants, and that forwarded by the Postal Service attorney.
FINDINGS OF FACT
1. Donald Lott is, or was, the stepson of Robin Cypriano. It appears that Mr. Cypriano is no longer married to Mr. Lott's mother, but that is unclear and need not be resolved to decide this mail dispute. Mr. Lott resides at 414 Sunnyoaks Avenue, Campbell, California 95008. This was formerly Mr. Cypriano's address as well, but at least since January 1993 he has lived in Hawaii.
2. A form titled Fictitious Business Name Statement, which appears to be dated August 28, 1992, for the name Genesis Credit Reporting Systems,(2) at 1475 Saratoga Ave., San Jose, was filed by Donald James Lott as "Registrant," and was signed by Mr. Lott. A box 4b was checked, stating that the registrant had not yet begun transacting business under the fictitious name listed.
3. Another Fictitious Business Name Statement, dated April 21, 1993, for Genesis at 3097 Moorpark Avenue, San Jose, was filed by Robin Cypriano as "Registrant," and signed by Mr. Cypriano. This form indicated that the registrant had been transacting business under the fictitious name listed since January 2, 1993.
4. A City of San Jose Business Certificate was issued on September 4, 1992 for Genesis at the Saratoga Avenue address, naming Donald James Lott as owner. The expiration date on the form is September 30, 1993.
5. Another City of San Jose Business Certificate was issued on March 16, 1995 for Genesis at 3097 Moorpark Ave., San Jose, naming Donald Lott as owner. The expiration date is December 31, 1995. The file contains no business certificates for the period between September 30, 1993 and March 16, 1995.
6. A form titled Registration Form, Business Tax, City of San Jose was filled out and signed by Mr. Cypriano on January 22, 1993. This form names Robin Cypriano as owner of Genesis at 3097 Moorpark Ave., and gives January 2, 1993 as the start date of the business. It gives a Honolulu, Hawaii address as Mr. Cypriano's residence.
7. A State of Hawaii Form G-50, titled General Excise Branch License Maintenance Form, names Genesis as a new business branch at a Hawaii address, started on January 11, 1993. This form was signed by Mr. Cypriano as owner on January 19, 1993.
8. Mr. Cypriano opened a business checking account (#0014-914758) for Genesis at First Commercial Bank in Campbell, California on July 12, 1993. The signature card used to open the account states that Mr. Cypriano was the "sole owner" of Genesis.
9. Mr. Lott opened a business checking account (#0014-914931) for Genesis, also at First Commercial Bank in Campbell, on March 15, 1995, indicating that he was the sole proprietor of Genesis.
10. In June 1995, Mr. Lott signed a commercial lease agreement with Ron Harris, landlord, to lease the premises at 1845 Winchester Blvd., Suite C, Campbell CA. Mr. Lott signed as "sole proprietor, DBA Genesis Credit Reporting."
11. On May 22, 1995, Mr. Lott submitted a Postal Service Form 3575, Change of Address Order, for Genesis, listing 3097 Moorpark as the old address, and 1845 Winchester Blvd., Campbell, CA 95008 as the new address.
12. On September 15, 1995, Mr. Cypriano submitted a Form 3575 for Genesis, listing 3097 Moorpark as the old address, and Box 4253 Kailua-Kona, HI 96745 as the new address. This precipitated the mail dispute.
13. In late September 1995, Mr. Lott applied for a business license under a new name, Credit Report Services, or Credit Report Services International, at the Winchester Blvd. address.
DISCUSSION
The rule regarding delivery of mail to an organization, as stated in Domestic Mail Manual (DMM) § D042.4.1, is applicable here: "If disagreement arises where any such mail should be delivered, it must be delivered under the order of the organizations's president or equivalent official." For a business like Genesis that "equivalent official" is the owner.
Mr. Cypriano argues that he was the originator and sole proprietor of Genesis, in both California and Hawaii, and that he gave his stepson the opportunity to work with him so that Mr. Lott could "better his occupational status." He says that Mr. Lott was acting as his agent when Lott filed the original Fictitious Business Name Statement and applied for the San Jose business license, while Cypriano was in Hawaii starting that branch of Genesis. He argues that Lott's recent actions constitute an attempt to "steal" Genesis.
Mr. Lott argues that Genesis, at the California addresses, has always been his business, not Cypriano's, as evidenced by the original Business Certificate (September 1992) and Fictitious Business Name Statement (August 1992). He says that he has always "maintained control of the mail" for Genesis in California, and should continue to do so.
Both parties have submitted a number of documents. Most of these do not prove much, however, and the ownership of Genesis is far from clear. Both parties have also provided some names and telephone numbers of other potential sources of information supportive of their respective positions. It should be noted that the Judicial Officer Department does not conduct investigations, but will decide mail disputes on the record submitted to us. One of the principles often used to resolve mail disputes is that mail should normally be delivered to the recipient most likely intended by those who send mail to the disputed address. That is not helpful here, however, because other points that are not clear are the extent to which Genesis has actually been operating as a business since 1993, and who has been in charge of day-to-day operations.
DECISION
I find Mr. Cypriano's evidence, as summarized in his December 8, 1995 letter, more persuasive. Despite the fact that nothing on the August 1992 Ficititious Business Name Statement, or the September 1992 Business Certificate indicates that Mr. Lott was acting as an agent for Mr. Cypriano, there is nothing else between then and March 1995 to demonstrate that Mr. Lott was asserting ownership or control of Genesis in California. I find it more believable that Genesis was conceived and created by Mr. Cypriano. As there is no evidence to show that he ever transferred ownership to Mr. Lott, Mr. Cypriano retains the right to direct delivery of the mail.
This decision deals only with delivery of the mail. It does not decide ownership of the mail, or any other rights or liabilities regarding Genesis Credit Reporting Systems. If either party obtains a court order directing delivery of mail, postal regulations provide that mail will be delivered in accordance with such order. DMM § D042.6.3. Also, if Mr. Cypriano receives mail intended for Mr. Lott personally, it is his responsibility to forward it to Mr. Lott promptly.
The attached delivery order should be issued.
Bruce R. Houston Acting Chief Administrative Law Judge
2. Referred to hereinafter simply as "Genesis."