In the Matter of a Mail Dispute                                )
Between                                                                )
                                                                               )
LIONEL SUAREZ                                                    )
                                                                               )
and                                                                         )
                                                                               )
RUBEN R. LINARES                                                )
RUDY SUAREZ                                                      )    P.S. Docket No. MD 98-71

APPEARANCE FOR DISPUTANT LIONEL                Lionel Suarez
     SUAREZ:                                                           322 Irma Street
                                                                               Visalia, CA 93292-2610

APPEARANCE FOR DISPUTANTS                          Ruben R. Linares
     RUBEN R. LINARES and RUDY SUAREZ:         744 W. Cleveland Avenue
                                                                               Porterville, CA 93257-3234

INITIAL DECISION

This mail dispute has been docketed pursuant to Postal Operations Manual (POM 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 that addressed to FRONTIER NURSERY and/or FRONTIER WHOLESALE NURSERY at 25790 Road 180, Visalia, CA 93292-9405, and at P.O. Box 1256, Visalia, CA 93279-1256. The mail is currently being held by the Visalia, California Postmaster.

Neither party filed a sworn statement, as required by the Rules of Practice, 39 C.F.R. §965.5, but both submitted signed letters, with some attached documents, in support of their respective positions. Disputant Linares also filed material in rebuttal, in accordance with 39 C.F.R. §965.6. This did include two sworn statements of witnesses, as well as four other statements, including one by Disputant Rudy Suarez, that were "acknowledged" by a notary.⁽¹⁾

The following findings of fact are based on all the materials submitted by the parties, including the material forwarded by the United States Postal Service Law Department, San Francisco Office.

FINDINGS OF FACT

1. On December 18, 1992, a Fictitious Business Name Statement was filed in Tulare County, California for "Frontier Nursery," at 25790 Road 180, Exeter, CA 93221. The form was signed by Lionel Suarez, listing his title as "owner."

2. On November 10, 1997, a Fictitious Business Name Statement was filed in Tulare County, California for "Frontier Wholesale Nursery," at 25790 Road 180, Visalia, CA 93292. This form was signed by Ruben R. Linares. No title was given.

3. The two addresses noted above are the same location, even though one is identified as Exeter and the other as Visalia, with different Zip Codes. Despite the two different names, and the variations in the address, there has been only one business in operation during the time in question.

4. It is unclear exactly what precipitated this mail dispute, but both parties claim to be the owner(s) of the nursery business at 25790 Road 180.

5. Miguel V. Suarez, father of Lionel and Rudy, leased the land at 25790 Road 180 for grazing cattle and growing crops sometime prior to 1991. Sometime later he released the land to his son, Rudy.

6. Ruben Linares and Rudy Suarez formerly worked for a nursery company called L. E. Cooke. In about 1991 they began their own nursery business, called Frontier Nursery. In order to avoid problems with the L. E. Cooke Company, they used Lionel's name, with his permission, on the original Fictitious Business Name Statement. At that time, Lionel was working for Sears, Roebuck and going to school part time.

7. From sometime in 1995, until he was fired in November 1997, Lionel worked for Ruben and Rudy at Frontier Nursery. Lionel never had an ownership interest in the business.

8. Mr. Ramires, a state Farm Service employee, had business dealings with Frontier Nursery from August 1995 through December 1996, and in doing so dealt solely with Rudy Suarez and Ruben Linares.

Contentions of the Parties

Lionel Suarez claims that he has always been the owner of the nursery business, and that it began in 1991 when he and his father, Miguel Suarez, leased the land at 25790 Road 180. He also claims that his brother, Rudy, and Ruben Linares, were only employees of Frontier Nursery, but that the two of them have now conspired to deprive him of the business by various fraudulent acts, as part of a "succession of family disputes between Rudy and myself."

Rudy Suarez and Ruben Linares claim that they started the nursery business in 1992, and that Lionel was never more than an employee, with no ownership interest in the business. In support of their arguments, Mr. Linares attached several witness statements to his final submission. These include statements from Miguel V. Suarez, father of Lionel and Rudy, Miguel G. Suarez, brother of Lionel and Rudy, and other employees of Frontier Nursery.

DECISION

The material submitted by Ruben Linares and Rudy Suarez is more persuasive than that submitted by Lionel Suarez. Even though some of the statements are unsworn, the fact that other Suarez family members and other employees of Frontier Nursery all state that it is Ruben Linares and Rudy Suarez who run the nursery business, and that Lionel was only an employee, constitutes credible evidence in support of Ruben Linares and Rudy Suarez. The mail in dispute should be delivered as directed by Ruben Linares and Rudy Suarez.

This decision deals only with delivery of the mail. It does not attempt to resolve any financial or other disputes between the parties. If either party obtains a court order directing delivery of mail, postal regulations provide that the mail will be delivered in accordance with such an order. POM 616.3.

The attached delivery order should be issued.

Bruce R. Houston
Chief Administrative Law Judge

1. A statement which is merely "acknowledged" before a notary but not sworn to is considered an unsworn statement. Kelley/Pylant, P.S. Docket No. MD-208 (I.D. February 1, 1994).

PROPOSED ORDER

TO THE POSTMASTER AT: VISALIA, CA 93277-9998

                                     RE: Mail Dispute Between

                                            LIONEL SUAREZ
                                                      and
                                            RUBEN R. LINARES
                                            RUDY SUAREZ

                                            P.S. Docket No. MD 98-71

     Mail addressed to FRONTIER NURSERY and/or FRONTIER WHOLESALE NURSERY, 25790 Road 180, Visalia, CA 93292-9405 and  P.O. Box 1256, Visalia, CA 93279-1256, currently held, or hereafter received, should be delivered as directed by Ruben Linares or Rudy Suarez.

Judicial Officer

PROPOSED ORDER - NOT ENFORCEABLE UNTIL DATED AND
SIGNED BY THE JUDICIAL OFFICER