In the Matter of a Mail Dispute Between: PAUL C. THOMPSON and JOHN GRAHAM

P.S. Docket No. MD-68

Mason, Randolph D., Administrative Law Judge

APPEARANCES FOR MR. THOMPSON: William A. Ingersoll, pro se,
Paul C. Thompson, pro se, P. O. Box 243, Shalimar, FL 32579-0243

APPEARANCE FOR MR. GRAHAM: John Graham, pro se, 139 Fulmar Circle NE, Ft. Walton Beach, FL 32548-6431

INITIAL DECISION

This mail dispute was forwarded for resolution pursuant to Domestic Mail Manual (DMM) § 153.72 and 39 C.F.R. Part 965. The matter involves a dispute between Paul C. Thompson and William Ingersoll, who jointly represent the Sea Dome Condominium Association, Inc., and John Graham of Destin Resorts, Inc. concerning the right to receive mail addressed to P. O. Box 337, Destin, FL.

After the matter was docketed as a mail dispute, the disputants filed submittals and comments in support of their respective claims to receive the mail in dispute.

FINDINGS OF FACT

1. Sea Dome is a condominium established in Destin, Florida. Sea Dome Condominium Association, Inc. (“Association”) was created in 1981 to operate and administer the condominium.

2. Association subsequently entered into a Management Agreement with Sea Dome Management Corporation, Inc. (“Management”) under which the latter became the exclusive manager of the condominium.

3. On July 31, 1987, Management transferred all of its interest in the Management Agreement, plus certain assets, to Destin Resorts, Inc. (“DRI”), and the latter became the manager of the condominium. Also on that date, DRI took title to the unsold unit weeks of the original developer, in lieu of foreclosure, by means of a quitclaim deed.

4. In response to DRI’s allegation that Association was wrongfully intercepting certain assessments, on November 2, 1988, the Circuit Court of Okaloosa County, Florida, certified DRI as the “sole agent for collection of all assessments for common expenses.” However, DRI was required to deposit all moneys collected in a separate account.

5. On March 2, 1989, the state court entered a Final Declar- atory Judgment holding that a 1984 Amendment to the Declaration of Condominium was valid, thereby significantly increasing the number of units to “132,” each unit consisting of 51 marketable weeks, allowing for the sale of 6,732 unit weeks. The Court advised that all unit week owners, including DRI, could participate in the April 8, 1989, annual meeting of Association.

6. On April 8, 1989, Association held an owners’ meeting which was attended by about 250 people and the current directors of the Board. The meeting was directed by the Chairman of the Board and President of Association, Paul C. Thompson. Prior to the meeting, DRI claimed to have 3,783 votes, representing a majority vote of the units. Contrary to the statement in the Final Declaratory Judgment that 132 units existed, Mr. Thompson announced at the meeting that there were actually only 131 units and a total of 6681 possible votes.^1/ Accordingly, he stated that DRI has only 3,337 votes, which is less than 50%. The Board based this finding in part upon foreclosure documents issued in 1988 and the quitclaim deed by which DRI obtained the units.

7. At the meeting, a letter from the Board to DRI was read to the owners and hand delivered to Mr. Graham. The letter gave DRI 45 days notice of the cancellation of its Management Agreement. Also, the attorney for DRI announced at the meeting that if DRI was not permitted to vote as a majority, then it would conduct another meeting of owners immediately after this meeting to elect a new board of directors.

8. DRI’s candidates for the Board, including John Graham, were defeated in the vote taken at the April 8, 1989, meeting. Instead, the owners elected William A. Ingersoll, Bernadette S. Cover, Ted A. Wilkinson, and Paul C. Thompson (“Ingersoll board”).

9. Later that day after the above meeting was adjourned, DRI held its own unauthorized “owners’ meeting” for Association to elect a new board controlled by DRI representatives. The meeting was neither called nor conducted by the Ingersoll board or the previous board led by Paul C. Thompson. Only 15 unit week owners attended the meeting. They elected three DRI representatives, including Mr. Graham, and two other board members (“Graham board”).

10. On May 25, 1989, in accordance with the 45 day notice, the Ingersoll board cancelled the Management Agreement with DRI due to alleged violations of the agreement.

11. Since DRI had failed to vacate the premises, on August 4, 1989, the Ingersoll board took physical possession of the Sea Dome offices, and took over the active management of the resort.

12. The Ingersoll board also filed suit for Association against DRI and John Graham in the Circuit Court of the First Judicial Circuit, Okaloosa County, Florida (Case No. 89-2612 CAB), alleging, inter alia, unauthorized spending of funds and breach of fiduciary duty. DRI has also filed suit against the Ingersoll board. These suits have not been resolved.

13. On or about August 14, 1989, DRI sent notices to vendors stating that it was no longer in possession of the premises and that it was not responsible for payment of the bills of Association.

14. Prior to the time that DRI entered into the July 1987 Management Agreement with Association, Sea Dome was assigned P. O. Box 337, Destin, Florida. DRI, doing business as Sea Dome Condo- minium, subsequently used the box in performing its management responsibilities as agent for Association.

15. Effective August 10, 1989, DRI filed a Change of Address Order requesting that mail addressed to P. O. Box 337 be delivered to 139 Fulmar, Fort Walton Beach, FL. Messrs. Ingersoll and Thompson, representing Association, also claim the right to receive such mail.

CONCLUSIONS OF LAW

1. The Association is ultimately responsible for the management of the condominium. Fla. Stat. § 718.111(a) (1988); Articles of Incorp., Exhibit 7 to Thompson letter dated August 23, 1989. The Ingersoll board was duly elected at the owners’ meeting on April 8, 1989. This board subsequently terminated the management contract with DRI, and physically took over the management of the condominium. The Ingersoll board now seeks to receive all mail addressed to P. O. Box 337, which has long been used for communication with management.

2. In contrast, the Graham board was “elected” without legal validity at its own subsequent meeting at another location without formal notice by the current directors of Association. Although legal means existed to resolve the dispute concerning the voting interest, the Graham board failed to take such measures. Accordingly, its challenge to the validity of the Ingersoll board and the termination of the Management Agreement is rejected.

3. When a dispute arises between officers or others associated with a corporation, over delivery of mail, the mail is delivered in accordance with the direction of the president. DMM § 153.51. Accordingly, all mail addressed to Box 337 should be delivered in accordance with the direction of William A. Ingersoll, president of Sea Dome Condominium Association, Inc.

4. Moreover, since the majority of, if not all, letters addressed to Box 337 are intended for Association and its current management, it is appropriate to deliver such mail to Association, which is now actively managing the condominium. If any mail is intended for DRI without regard to any relationship with Association, then the latter is responsible for assuring that DRI obtains delivery of such mail.

5. Resolution of this mail dispute determines only who is entitled to control delivery of the mail, but is not intended to be dispositive of the question of ownership of the mail.

6. Although it is concluded for the purpose of this delivery dispute that the Ingersoll board was properly elected, that matter is the subject of current litigation in the Florida state court. If a court orders that the mail should be delivered to another entity, then delivery will be made in accordance with that order. DMM § 153.73.

7. The attached mail delivery order should be issued.

1/ Only 131 units were actually listed on Exhibit 5 to the Declaration of Condominium (Graham submittal, Exh. 4). Apparently, this one-unit discrepancy was not an issue before the Florida court, which was concerned with the validity of the entire 1984 Amendment.