In the Matter of a Mail Dispute ) July 15, 1998
Between )
)
GERRY J. STRICKLIN and )
JANET STRICKLIN )
)
and )
)
RONALD MOODY and )
SANDRA MOODY ) P.S. Docket No. MD 98-248
APPEARANCE FOR DISPUTANTS Gerry J. Stricklin
GERRY J. and JANET STRICKLIN 11403 Grapewood Drive
Houston, TX 77089-5412
APPEARANCE FOR DISPUTANTS Peter Costea, Esq.
RONALD and SANDRA MOODY: One Riverway, Suite 1700
Houston, TX 77056-1997
This mail dispute has been docketed pursuant to Postal Operations Manual, Issue 7 (August 1, 1996), Section 616.21, which requires the chief field counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution. The mail in dispute is all business mail addressed to 11403 Grapewood Drive, Houston, TX 77089-5412. The mail is currently being held by the Houston Postmaster.
Mr. Moody submitted a sworn statement and additional documents. Mr. Stricklin submitted an unsworn statement and additional documents. The findings of fact are based on the parties' submissions plus documents each provided to the Houston Post Office, copies of which were submitted by the Postal Service field counsel as part of this proceeding.
1. In 1986, Mr. Stricklin and Mr. Moody incorporated Systems Balancing, Inc., and operated it jointly until 1993. In 1993, Mr. Moody left the company, and he and his wife sued Mr. Stricklin and his wife for fraud and breach of fiduciary duty regarding management of the corporation. The Moodys eventually obtained a judgment in excess of $2 million against the Stricklins. Stricklin v. Moody, 1996 Tex. App. LEXIS 5194 (1996).
2. The Moodys obtained a writ of execution and bought the assets and stock of Systems Balancing, Inc., at the resulting constable's sale on April 2, 1998. The Moodys also obtained pursuant to the constable's sale the stock and assets of SBI Systems Balancing, Inc. The origins of that company are not explained in the record. (Moody Affidavit dated May 5, 1998; June 1, 1998 Court Order; Notice of Constable's Sale of April 2, 1998).
3. Prior to the writ of execution and constable's sale, Systems Balancing, Inc., and SBI Systems Balancing, Inc., had used the 11403 Grapewood Drive address as their business address. The premises are owned by or are otherwise under the control of the Stricklins. (See Stricklin Letter dated June 17, 1998; Stricklin Letter dated May 19, 1998).
4. In late 1997, a friend of Mr. Stricklin incorporated a business identified as HVAC Systems Balancing Interests, Inc., to operate at the disputed address. Mr. Stricklin works with that company, which is in the same line of business as was Systems Balancing, Inc. (Certificate of Incorporation dated December 22, 1997; Stricklin Letter dated June 17, 1998; Moody Affidavit dated June 18, 1998).
5. The Stricklins also operate businesses from the disputed address under the names S.B.I. HVAC Systems Balancing, HVAC Systems Balancing Int., Inc., SBI HVAC Systems, and HVAC SBI Systems Balancing. (Moody Affidavit dated June 18, 1998).
6. By order dated June 1, 1998, the 270th Judicial District Court, Harris County, Texas, in an action brought by the Moodys against the Stricklins, ordered the Stricklins to produce the books and accounts of the companies identified in Findings 4 and 5, above, and directed them not to dispose of any of the assets or funds of those entities. The Moodys asked the court to direct that the mail addressed to those companies be delivered to them, but the court did not do so. (June 1, 1998 Order).
7. The Moodys have asked that all mail to Systems Balancing, Inc., and SBI Systems Balancing, Inc., as well as that to the businesses identified in Findings 4 and 5, at the disputed address, be forwarded to them. The Stricklins do not contest the Moodys' entitlement to mail addressed to Systems Balancing, Inc., and SBI Systems Balancing, Inc., but they seek all other mail addressed to the disputed address. (Stricklin Letter dated June 17, 1998).
The Moodys concede that the Stricklins do not use the exact names of the businesses they acquired through the constable's sale (Finding 2) in conducting business at 11403 Grapewood Drive, but contend that the businesses all are a continuation of Systems Balancing, Inc., which the Moodys now own. They argue that all assets and revenues of the Stricklins' businesses and the business mail to 11403 Grapewood Drive belong to them regardless of the name of the business appearing as the addressee on the mail.
The Stricklins argue that the businesses they now operate at the disputed address are new businesses, unrelated to Systems Balancing, Inc., and SBI Systems Balancing, Inc., which they contend are defunct.
When two firms that have used the same or confusingly similar names and mailing addresses enter conflicting orders at the post office for the delivery of the same mail, delivery will be made to the firm that is the most likely recipient intended by the senders. R. Michael Joyce, P.S. Docket No. MD 95-175, June 14, 1995; see Vol. I, Opinions of the Solicitor of the Post Office Department, p. 860 (1883). All of the business names attributed to the Stricklins (Findings 4 and 5) include the term "HVAC" while neither of the companies belonging to the Moodys (Findings 1, 2 and 7) has ever used that term in its name. Thus, any mail addressed to a version of the business name containing "HVAC" is likely intended by the sender for delivery to the Stricklins' businesses, and such mail should be delivered as addressed.
Mr. Moody asserts that the senders of mail are only using the new business names (those containing "HVAC") because of Mr. Stricklin's misrepresentations regarding ownership of the business and that Mr. Stricklin is receiving checks, orders, etc., that Mr. Moody is entitled to as the owner of Systems Balancing, Inc., and SBI Systems Balancing, Inc. The Postal Service's mail dispute resolution procedures provide a method of effecting delivery of disputed mail, but they are not intended to resolve all disputes between the parties or to determine who is entitled to the contents of particular mail. In this case, there is insufficient evidence from which we could determine that those sending mail using "HVAC" in the business name intend that it be delivered other than to the Stricklins' businesses using that term as part of their name.
The Stricklins do not contest the Moodys' entitlement to receive mail addressed to Systems Balancing, Inc., or SBI Systems Balancing, Inc. Moreover, where there is a dispute between organizations with similar names and there is doubt about the intentions of the senders, delivery is made to the party first adopting the name. J. Stanton Keck, P.S. Docket No. MD-95, August 31, 1990; see Vol. I, Opinions of the Solicitor of the Post Office Department, p. 930 (1884). In this case, the companies now owned by the Moodys, Systems Balancing, Inc., and SBI Systems Balancing, Inc., first used those names at the address in dispute. Accordingly, mail addressed to Systems Balancing, Inc., or SBI Systems Balancing, Inc. (or to variants of those names that include "SBI" but do not include the term "HVAC"), is to be delivered as directed by the Moodys.
There is insufficient evidence of a dispute regarding other business mail addressed to 11403 Grapewood Drive, so any business mail not discussed above is to be delivered as addressed.
As this decision only decides to whom delivery of the mail should be made and not ownership of the contents, if either party receives mail that belongs to the other, they are to promptly forward it to the proper party.
If the district court directs that the mail be delivered other than as provided by this decision, the post office is to comply with such order.
The attached delivery order should be issued.
Norman D. Menegat Administrative Judge