In the Matter of a Mail Dispute                                )
Between                                                                )
                                                                               )
DR. PAUL HENRYS                                                )
                                                                               )
             and                                                            )
                                                                               )
DR. ANTHONY J. HALL                                          )  P.S. Docket No. MD 97-243

APPEARANCE FOR DR. PAUL HENRYS:                Peter J. Yanowitch, Esq.
                                                                                Yanowitch Law Center
                                                                                800 Brickell Avenue, Suite 550
                                                                                Miami, FL 33131-2914

APPEARANCE FOR DR. ANTHONY J. HALL:         Peter Loblack, Esq.
                                                                               740 NW 203rd Street, Suite 401
                                                                               Miami, FL 33169-2303

INITIAL DECISION

This mail dispute has been docketed pursuant to Postal Operations Manual, Issue 7 (August 1, 1996)("POM"), 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 Miami Orthoneurosurgical Associates, L.C., 16800 NW 2nd Ave., Suite 510, North Miami Beach, FL 33169-5550. The mail is currently being held by the Miami Postmaster.

Both parties submitted sworn statements, and Dr. Henrys submitted additional documents. The findings of facts are based on the parties' submittals and documents they previously submitted to the post office.

FINDINGS OF FACT

1. In May 1996, Dr. Paul Henrys and Dr. Anthony Hall formed Miami Orthoneurosurgical Associates, L.C., a Florida limited liability company (Articles of Organization dated May 7, 1996; Affidavit of Dr. Henrys ("Henrys Aff.") ¶ 4; Affidavit of Dr. Hall dated July 23, 1997 ("Hall Aff.") ¶ 1).

2. Under the company's Membership Agreement, which described the rights of the members and management of the company, Dr. Hall became the president of the company and Dr. Henrys became the vice president. After the first year, the members were to vote as to who would serve as officers, but there is no evidence of a vote or any other action to replace Dr. Hall as president. (Membership Agreement; Henrys Aff. ¶¶ 2, 3, Exhibit 7 (Complaint ¶¶ 3, 4); Hall Aff. ¶ 2).

3. The Membership Agreement provides that the Agreement shall be terminated when the company ceases to conduct business, but it also provides, "Notwithstanding any termination hereunder, the terms and conditions of this Agreement shall govern the parties understandings as to their rights and remedies past termination." (Membership Agreement, Section 18.1).

4. In early 1997, Dr. Henrys and Dr. Hall agreed that the company would cease to conduct its business (Henrys Aff. ¶ 6). In April 1997, the company vacated its offices at 16800 NW 2nd Ave., Suite 510, North Miami Beach, FL 33169-5550, and changed its address to 1190 NW 95th Street, Suite 404, Miami, FL 33150 (Hall Aff. ¶ 3).

5. In a suit filed May 18, 1997, Dr. Henrys sued Dr. Hall and Miami Orthoneurosurgical Associates, L.C., to bring about the dissolution and orderly liquidation of the company (Henrys Aff. ¶ 15, Exhibit 7).

6. No receiver has been appointed for the company, no court order for liquidation of the company has been issued and articles of dissolution have not been filed with the state. Dr. Hall is in the process of winding up the affairs of the company. (Henrys Aff. Exhibit 3; Hall Aff. ¶ 6; Affidavit of Dr. Hall dated August 6, 1997, ¶¶ 2, 3).

7. Under Postal Service regulations, mail addressed to an organization or to an individual by name or title at the address of the organization is delivered to the organization. This applies also to mail addressed to former officials at the organization's address. "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." (POM, Section 614.1).

DECISION

Dr. Hall argues that he is the president of Miami Orthoneurosurgical Associates, L.C., and that, as president, he is entitled to direct delivery of the mail. He further argues that he needs the mail in order to wind up the business of the company.

Dr. Henrys argues that Dr. Hall is no longer authorized to act as president because the company has ceased business operations by agreement of the parties, an act that under the Membership Agreement terminates the Agreement. However, the Membership Agreement continues to define the roles of the parties even after termination (Finding 3) and, therefore, Dr. Hall's designation as president remains valid. The filing of a state court dissolution proceeding does not divest Dr. Hall of authority to act for the company. Until the court exercises control over the affairs of the company, including delivery of the company's mail, the company remains free to wind up its business and affairs, see West's F.S.A. §§ 608.4431 (1), 621.13 (2), and Dr. Hall, as president, may receive the company's mail for that purpose. See Brian Eiland, P.S. Docket No. MD-97 (I.D. October 2, 1990).

Dr. Henrys also argues that as vice president of the company, he is an "equivalent official" within the meaning of the Postal Service regulation governing delivery of mail to organizations (Finding 7) and, thus, has authority to direct delivery of the company's mail equal to Dr. Hall's. That argument misconstrues the delivery provision. The provision governs mail delivery to all types of organizations, including those led by an official who does not bear the title "president". The language "or equivalent official" allows identification of such an organization's leader in order to resolve delivery disputes among members of the organization. Proper application of the provision to the facts of this case establishes Dr. Hall as the official of the company entitled to control delivery of the company's mail.

Additionally, as Dr. Hall is winding up the affairs of the company, it is likely that those sending mail to the business intend that he receive it.

Accordingly, Dr. Hall is entitled to control delivery of mail addressed to Miami Orthoneurosurgical Associates, L.C., 16800 NW 2nd Ave., Suite 510, North Miami Beach, FL 33169-5550.

This decision does not determine ownership of the contents of any mail. If Dr. Hall receives mail that is obviously intended for Dr. Henrys personally, he is to forward it to Dr. Henrys promptly. Additionally, this decision does not address any disputes between the parties except that regarding delivery of the company's mail. This is not the forum to consider Dr. Henrys' allegations that Dr. Hall is misappropriating receipts due the company and is not performing his duties properly. The Postal Service will comply with any directions of the court regarding delivery of the mail. See POM, Section 616.3.

The attached order should be issued.

Norman D. Menegat
Administrative Judge