October 21, 2011 

In the Matter of a Mail Dispute Between    

GARY & DIANA HICKS
and 
MARK VAN DINTER                                   

P.S. Docket No. MD 11-249

APPEARANCE FOR DISPUTANTS        
GARY AND DIANA HICKS:
William W. Palmer, Esq.

APPEARANCE FOR DISPUTANT           
MARK VAN DINTER:
Mark Van Dinter                               

INITIAL DECISION

This mail dispute has been docketed pursuant to Postal Operations Manual §616.21, under the procedures established at 39 C.F.R. Part 965 to resolve conflicting claims to receive mail.  The disputants, former business associates, claim mail addressed to Revenue Recovery Services LLC, 43525 Ridge Park Drive, Temecula, CA 92590-3609.  The Judicial Officer has ordered that the disputed mail be held by the Temecula Postmaster until this mail dispute is resolved.

Both disputants filed declarations, comments to the other’s submissions, and documents.  The following findings of fact are based on these submissions as well as documents the parties previously filed with the Temecula Post Office, which have been forwarded to this office.

FINDINGS OF FACT

1.  Disputants Gary and Diana Hicks began operation of Revenue Recovery Services as a sole proprietorship in 2001.  The Controller of the State of California takes possession of certain unclaimed financial assets, and  Revenue Recovery Services helped the rightful owners recover their assets. (Declaration of Gary Hicks filed September 19, 2011 (“Hicks I”), ¶ 1; Opposition Declaration of Gary Hicks; see Investigative Agreement).

2.  On September 30, 2010, Gary and Diana Hicks and disputants Mark and Paula Van Dinter formed a limited liability company, Revenue Recovery Services LLC (the “LLC”), to operate in a building owned in part by Mr. Van Dinter at 43525 Ridge Park Drive in Temecula.  The business of the LLC was to locate the rightful owners of unclaimed assets held by the Controller and submit claims on their behalf.  The LLC received a commission paid directly by the Controller for each successful claim.  (Hicks I, ¶ 9 and Exhibit D; Revenue Recovery Services LLC Operating Agreement (Attachment to Mark Van Dinter’s September 26, 2011 declaration (“Van Dinter III”)).

3.  The four members of the LLC had equal ownership shares of 25% each, and each was a director of the LLC.  They agreed in the Operating Agreement that profits were to be divided 65% to Gary and Diana Hicks and 35% to Mark and Paula Van Dinter.  (Operating Agreement).

4.  In January 2011, the Hicks moved the business to their home at 32562 Campo Drive, Temecula.  They continued to operate the business at that address, and Mr. Van Dinter no longer participated in the LLC’s operation.  On January 10, 2011, Diana Hicks filed a change of address order asking the Postal Service to forward LLC mail addressed to the Ridge Park Drive address to the Campo Drive address.  (Van Dinter letter to Temecula Post Office (“Van Dinter I”) and Exhibit 3).

5.  Mr. Van Dinter’s letter carrier advised him that the Postal Service would not recognize the forward order (Van Dinter I, Exhibit 4).  For several months, Mr. Van Dinter delivered to the Hicks by hand any LLC mail received at 43525 Ridge Park Drive.  (Van Dinter III; Hicks I, ¶¶ 7, 9; Van Dinter I, Exhibits 2, 4; August 25, 2011 declaration of Mark Van Dinter).

6.  The LLC mail included commission payments from the Controller resulting from successful claims filed during the time the disputants operated the business together (Van Dinter I, Exhibit 8).  Mr. Van Dinter expected the Hicks to send him 35% of the commissions, as provided by the Operating Agreement (Finding 3) (Van Dinter I and Exhibit 2).

7.  In June 2011, Mr. Van Dinter became concerned because the Hicks were not sending him any payments, and he stopped delivering the LLC mail he received to the Hicks (Van Dinter I, Exhibit 7).

8.  In July 2011, Gary Hicks met with the postmaster and asked that mail addressed to Revenue Recovery Services LLC at 43525 Ridge Park Drive be forwarded to his home at 32562 Campo Drive (Hicks I, ¶ 9).  The postmaster decided to hold the mail in dispute, attempted to work out a resolution with the parties (July 25, 2011 letter to disputants), and failing that, forwarded the matter to the Judicial Officer.  The Judicial Officer ordered that the mail addressed to Revenue Recovery Service at 43525 Ridge Park Drive be held pending resolution of the dispute over its delivery.[1]

DECISION

A primary objective of the rules used to resolve mail disputes is to assure that mail is delivered consistent with the intent of the senders.  William R. Cole and Richard Gillson, P.S. Docket No. MD 97-272 (October 10, 1997).  Those dealing with Revenue Recovery Services LLC, including the California Controller, intend that their mail be delivered to the business, which is now operated by Diana and Gary Hicks at the Campo Drive address.  Under these circumstances, we decline Mr. Van Dinter’s suggestion that the intent of the senders should be determined by the address to which they sent the mail.  The LLC’s mail should be delivered as directed by the operators of the business, Diana and Gary Hicks.  See Kevin R. Sheele and Frank Marco, P.S. Docket No. MD 97-322 (October 28, 1997).

Mr. Van Dinter argues that the Hicks, being only two of the four members of the LLC, had no authority to file a change of address order redirecting the LLC’s mail.  However, the LLC’s Operating Agreement provides, “Any Member may bind the Company in all matters in the ordinary course of business.”  However, there is no need under the circumstances of this mail dispute to divine the scope of authority granted under the Operating Agreement, because the decision herein is based on evidence that the senders of mail to the LLC intend that it be delivered to the business now operated by the Hicks on Campo Drive.

Both parties submitted as evidence various official government documents—e.g. City Business License, Secretary of State Statement of Information (LLC), Articles of Organization, etc.—showing the LLC’s address.  However, many of the forms reflect or are the result of self-reporting, and they are not conclusive as to where the business is currently operating and where the mail should be delivered.  The intent of the senders that their mail be delivered to the business is a more reliable basis for determining to whom the mail should be delivered.

Mr. Van Dinter no longer participates in the operation of the LLC, at the Ridge Park Drive address or elsewhere (Finding 4).  What he seeks in this proceeding is to require the Hicks to pay him the share of commissions to which he is entitled (Findings 3, 6, 7).  This is not the forum to consider Mr. Van Dinter’s allegations that the Hicks are not living up to their obligations under the LLC Operating Agreement.  The Postal Service will comply with directions of a court regarding delivery of the mail.  See Postal Operations Manual §616.3.

Mail addressed to Revenue Recovery Services LLC at the disputed address should be delivered as directed by the business’s operators, Diana and Gary Hicks.  The Judicial Officer should issue an Order to the Temecula Post Office directing that mail addressed to Revenue Recovery Services LLC, 43525 Ridge Park Drive, Temecula, CA 92590-3609, be delivered as requested by Gary and Diana Hicks.

Norman D. Menegat
Administrative Judge

[1] Documents submitted in this proceeding identify the business name as Revenue Recovery Services LLC.  Neither party has claimed prejudice or confusion over the identification of the business in the Judicial Officer’s August 15, 2011 Order as Revenue Recovery Service LLC and the slight variance in the name between the Order and the documents is harmless.