In the Matter of a Mail Dispute                       )
Between                                                       )
                                                                      )
DAVID E. MARTINELLI                                   )
                                                                      )
               and                                                 )
                                                                      )
DONALD L. COX                                           ) P.S. Docket No. MD 96-140

APPEARANCE FOR MR. MARTINELLI:          David E. Martinelli
                                                                     2605 Thomas Drive
                                                                     Suite 245
                                                                     Panama City, FL 32408-6216

APPEARANCE FOR MR. COX:                      Donald L. Cox
                                                                     P.O. Box 18245
                                                                     Panama City, FL 32417-8245

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 GLOBAL BUSINESS SERVICES, INC. and BLUE DOLPHIN ADVERTISING AGENCY, INC., 2111 Thomas Drive, #6 & #6A. Panama City, FL 32408-5832, is now being held by the Panama City Postmaster.

Both parties have submitted sworn statements, as required by 39 C.F.R. §965.5, along with other documents supporting their claims. The following findings of fact are based on all the material submitted by both parties, including that forwarded by the Postal Service Law Department in Atlanta.

FINDINGS OF FACT

1. In February 1995, Disputants Martinelli and Cox, along with a third member, Stephenson, formed a business called Global Business Services, Inc. Mr. Martinelli provided the money needed to start the business.

2. A document titled, "Agreement Between All Parties Involved in Creation/Operation (To Be) Global Business Services, Inc.," was signed by Martinelli, Cox, and Stephenson on February 21, 1995. Among its provisions are the following:

A Corporation to be established, for which all stock is to be signed over on issuance by Gil Stephenson and Don Cox and possession given to D. E. Martinelli immediately in consideration for his investment in financially making it possible to start and exist.

. . . . . . .

[all parties] Understand all final decisions will be the full responsibility of D. E. Martinelli - that no major decision will be made as to operations-personnel-expenditures and overall operation of the company unless all three (3) individuals have first discussed all matters relating to that particular decision and that final decision is to be solely the full responsibility of D. E. Martinelli.

. . . . . . .

A bank account will be opened in Panama City and all checks will require two signatures but at all times must have the signature of D. E. Martinelli.

3. Documents from the Florida Department of State show that both Global Business Services and Blue Dolphin Advertising Agency were incorporated on June 14, 1995, with Donald L. Cox signing the Articles of Incorporation as incorporator, and listing his title as "President and CEO." The bottom of that form, however, contains the following: "NOTE: Affixing an officer title after a signature of an incorporator does not constitute the designation of officers."

3. At some time thereafter, Mr. Stephenson left the business, and Disputants Martinelli and Cox had a falling out. On March 14, 1996, Mr. Martinelli submitted two Change of Address Orders (PS Forms 3575), one for each company, directing that mail be forwarded to 2605 Thomas Drive, Suite 245, thereby precipitating this mail dispute.

4. There is a lawsuit, and countersuit, between the two disputants now pending in a Bay County, Florida, Circuit Court.

5. Beyond this, very few facts are clear from the case file. There is no evidence as to who, if anyone, has actually been conducting business at the disputed address.

Contentions of the Parties

Mr. Cox relies on the Articles of Incorporation, which he signed as incorporator; Internal Revenue Service Form 2553, Election by a Small Business Corporation, which he signed as President on August 21, 1995; Minutes of a Special Meeting of the Board of Directors and Shareholders of "Global" on March 11, 1996; and a "Corporate Resolution," adopted at that March 11, 1996 meeting. These documents state that Mr. Cox is the sole Director and Shareholder, that he was elected President, Secretary and Treasurer, and that only he is authorized to conduct financial transactions on behalf of Global with the First National Bank of Northwest Florida.

Mr. Martinelli describes the aforementioned Minutes and Resolution as "fraudulent," and states that Mr. Cox is only an "employee." Mr. Martinelli also presents a memorandum dated March 11, 1996, in which he states that he is the sole director and shareholder of Global. He relies primarily on the document signed on February 21, 1995 by himself, Stephenson and Cox.

DECISION

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 organization's president or equivalent official."

Although several of the documents submitted by Mr. Cox list his title as "President," those documents were generated by Mr. Cox himself. There is nothing to show how he came by the title. The "minutes" of the March 11, 1996 meeting, while not proven to be fraudulent, as Mr. Martinelli alleges, are of questionable legal effect. There is nothing to show that any one member of this group had authority to hold a meeting and elect himself to any particular office. The one document in the file which I find to have the most probative value is the February 21, 1995 "Agreement" signed by both disputants. At least as of that date, it is clear that Mr. Martinelli was the "president or equivalent official" of Global Business Services, Inc., because he had the ultimate decision-making authority.

There is no such "Agreement" for Blue Dolphin Advertising Agency, Inc., and the case file contains almost nothing to connect Mr. Martinelli with Blue Dolphin. However, as nearly everything in the file focuses on Global, and neither party makes an argument that the two are separate and distinct, I find no reason to treat them separately in resolving this mail dispute. Based on the "Agreement," quoted from in paragraph 2, above, I conclude that Mr. Martinelli has authority to direct delivery of the disputed 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 Global Business Services, Inc. or Blue Dolphin Advertising Agency, Inc. 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. Martinelli receives mail intended for Mr. Cox personally, it is his responsibility to forward it to Mr. Cox promptly.

The attached delivery order should be issued.

                                                                                       Bruce R. Houston
                                                                                       Acting Chief Administrative Law Judge