In
the Matter of a Mail Dispute Between
and
ROBERT
RIFFE
P.S. Docket No. MD 05-191
APPEARANCE FOR DISPUTANT LAWRENCE ROMEO:
Charles R. Maxwell, Esq.
APPEARANCE FOR DISPUTANT ROBERT F. RIFFE:
Patrick A. McGee, Esq.
McGee & Powers, P.A.
201 E. Pine Street, Suite 600
INITIAL DECISION
This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) 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 that addressed to Development Compliance and Inspections, Inc., at P.O. Box 677217, Orlando, FL 32876-7217. The Orlando Postmaster is currently holding the mail.
Both parties filed sworn written statements, as required by the Rules of Practice, 39 C.F.R. §965.5. Mr. Riffe’s statement was accompanied by other supporting documents. Mr. Riffe also filed rebuttal to Mr. Romeo’s statement, as permitted by 39 C.F.R. §965.6. The following findings of fact are based on all the material submitted by the parties, including that forwarded by the United States Postal Service Law Department, Tampa, Florida Office.
FINDINGS
OF FACT
1. Development Compliance and Inspections, Inc. (DCI), was incorporated in Florida in July 2004. Mr. Romeo acted as the Incorporator. The Articles of Incorporation state that the Board of Directors shall consist of two Directors and name Mr. Romeo and Danny Farrer as the two original Directors. (Articles of Incorporation attached to Law Department forwarding letter).
2. The Articles of Incorporation state that the principal corporate domicile is P.O. Box 677217, Orlando, Florida, and also state that the corporation is authorized to issue 1,000 shares of common stock at a par value of $1.00 per share.
3. On July 15, 2004, an Organizational Meeting of Directors was held at Mr. Riffe’s home. The minutes of the meeting do not show who was present, but they show that Mr. Riffe was elected President, Secretary and Treasurer. The minutes are signed by Mr. Riffe. (Riffe statement, Ex. B).
4. Also on July 15, 2004, Mr. Riffe was issued 100 shares of stock of Development Compliance and Inspections, Inc. The stock certificate is signed by Mr. Riffe as President and Secretary. (Riffe statement, Ex. C).
5. The corporation filed various IRS tax forms for calendar year 2004, including Form 2553, Election by a Small Business Corporation; and Form 1120S, U.S. Income Tax Return for an S Corporation, both of which are signed by Mr. Riffe as President, and a Form 1120S, Schedule K-1, that lists Mr. Riffe as the owner of 100% of the stock. (Riffe statement, Exs. G and I).
6. Sometime prior to August 30, 2005, a dispute arose between the parties over control of the corporation. On August 30, 2005, Mr. Romeo and Mr. Farrer, citing a section of the Florida Business Corporation Act, purported to take action under a procedure called “Unanimous Written Consent In Lieu of First Meeting of Board of Directors.” Among other actions, they named Larry Romeo as President of the Corporation and issued 1,000 shares of stock to Mr. Romeo for the purchase price of $1,000. (Document attached to Law Department forwarding letter).
7. On September 17, 2005, Mr. Riffe wrote to a Postal Service Station Manager in Orlando, protesting actions Mr. Romeo had taken regarding mail addressed to P.O. Box 677217, and this mail dispute arose. (Letter attached to Law Department forwarding letter).
8. POM
Section 614.1 provides:
All mail addressed to a governmental or nongovernmental organization (including
. . . corporations, . . .), . . . at the address of the organization is
delivered to the organization. . . . If
disagreement arises about where any such mail should be delivered, it must be
delivered according to the order of the organization’s president or equivalent
official.[1]
DECISION
Mr. Riffe contends that he is the founder of DCI and owner of 100% of the stock, and that Mr. Romeo acted as incorporator in July 2004 because he (Mr. Riffe) was bound by a non-competition agreement with a former employer until July 31, 2004. He acknowledges that Mr. Romeo and Mr. Farrer were the original Directors, but also asserts that an initial Directors’ meeting and organization meeting of the corporation was held on July 15, 2004, that he was designated as the President, Secretary and Treasurer of the corporation, and that all the corporate stock was issued to him at that meeting.
Mr. Romeo contends that he and Mr. Farrer are the only Directors the corporation has ever had, that no officers were elected until the August 30, 2005 action, and that no shares of stock were issued to anyone before they were issued to him on August 30, 2005. Each of the disputants claims that he is the sole shareholder and owner of the corporation and that the other was never more than an employee.
The key issue here is whether Mr. Riffe was elected President of the corporation in July 2004 and has acted in that capacity since that time. The affidavits of the two disputants cannot be reconciled. However, because Mr. Riffe’s assertions are supported by other documents, and because Mr. Romeo filed nothing to contest the authenticity of the documents filed by Mr. Riffe, I find Mr. Riffe’s arguments more persuasive.
While the minutes of the July 15, 2004 meeting are flawed because they are signed only by Mr. Riffe and do not show who, if anyone, else was present, there is nothing on their face that demonstrates they are not authentic. In addition, there appears to be no reason to doubt the authenticity of the tax forms that show Mr. Riffe to be the President and sole shareholder. Further, Mr. Riffe submitted copies of several email messages, most in October 2004 and February 2005, between himself and the corporation’s accountant. These messages also make reference to the July 15, 2004 meeting, and to Mr. Riffe being the President and sole shareholder. Copies of some of the messages making reference to Mr. Riffe being a shareholder were sent to Mr. Romeo. In the absence of anything casting doubt on the authenticity of these messages, they give strong support to Mr. Riffe’s argument that he was an officer and a shareholder long before August 2005.
As to the actions taken by Mr. Romeo and Mr. Farrer on August 30, 2005, the corporation’s By-Laws, if they exist, are not part of the record. There is nothing, therefore, that describes procedures for the removal of officers. It is noted, however, that Mr. Romeo did not claim that Mr. Riffe was removed from the office of President. Rather, he argues that no one was ever elected President until August 30, 2005. The weight of the evidence is to the contrary.
This decision deals only with delivery of the mail. It does not attempt to decide underlying financial disputes or any other dispute between the parties. If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order. POM §616.3.
The Judicial Officer should issue an Order to the Orlando, Florida Postmaster that mail addressed to Development Compliance and Inspections, Inc., at P.O. Box 677217, Orlando, FL 32876-7217, be delivered as directed by Robert F. Riffe.
Bruce
R.
Chief Administrative Law Judge