Bezanson v. Fleet Bank, NH CV-90-118-B 08/27/93
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Dennis Bezanson
v. Civil No. 90-118-B
Fleet Bank, NH
O R D E R
Plaintiff, Dennis Bezanson, Trustee in Bankruptcy for
Unitex, Inc. ("Unitex"), obtained a jury verdict of $379,779.21
against Fleet Bank, N.H. ("Fleet") as a result of Fleet's alleged
failure to dispose of security it seized from Unitex in a
commercially reasonable manner. Fleet challenges the verdict in
a motion for judgment as a matter of law and a new trial arguing
that its actions were commercially reasonable, that plaintiff
failed to prove damages, and that the jury was given erroneous
instructions concerning Fleet's duty to dispose of the security
in a commercially reasonable manner. As I explain in greater
detail below, I grant Fleet's motion for judgment as a matter of
law because no reasonable finder of fact could conclude that
plaintiff proved his damages with reasonable certainty. I. FACTS
Unitex manufactured and sold graphics equipment to newspaper
and magazine publishers. By the time it began to experience
financial difficulties in early 1985, Unitex owed approximately
$3 million to Fleet's predecessor, Indian Head National Bank (the
"Bank") .1 In March 1985, Unitex reached an agreement with the
Bank to surrender its accounts receivable, inventory, and other
assets (collectively "Unitex Assets") that were subject to the
Bank's security interest. Four months later, Unitex filed for
bankruptcy protection and listed debts of approximately $3.7
million to other unsecured creditors. Bezanson was appointed
trustee of the Bankruptcy estate and is representing the
interests of Unitex's unsecured creditors in this action.
After taking possession of the Unitex Assets, the Bank
determined that the assets would command a substantially higher
price if Unitex was sold as an ongoing business. Accordingly,
the Bank hired consultants to run Unitex until a buyer could be
found for the business. The Bank also worked closely with a
group of Unitex's customers ("Users Group") whose support was
1 Between the time it took possession of the Unitex Assets and the time it agreed to sell the assets, the Bank collected certain accounts receivable and incurred certain expenses that resulted in a net figure of $3,020,220.29, which was owed to the Bank as of June 20, 1985.
2 crucial to the viability of the business. The Users Group
informed the Bank that it would have to find a new owner for
Unitex before the Annual Newspaper Products Convention ("ANPA
Convention") in early June in order to keep members of the group
from finding new suppliers at the Convention. In an effort to
sell the business prior to the ANPA Convention, the Bank held
discussions with more than 20 potential buyers. However, it met
with little success prior to late May when Graphics Technology,
International, Inc. ("GTI") emerged as a potential purchaser.
A. GTI's Offer
GTI was a shell corporation formed by Robert Dambach, James
McCauley, and John Vergoz for the purpose of purchasing Unitex.
All three men had worked in the graphics technology field and
were generally familiar with Unitex. Their proposal reguired GTI
to identify private lenders who would loan GTI the money to
purchase Unitex and fund operating expenses until the business
could be reestablished. GTI characterized its proposal as a
leveraged buyout in which the Unitex Assets would serve as the
sole security for GTI's loan. To assist in identifying potential
lenders, GTI retained a financial advisor, A R Technology, Inc.
("A R Technology"), and a small investment banking firm, Parker
Benjamin, Inc. ("Parker Benjamin").
3 On May 22, 1985, GTI made its initial offer to purchase
Unitex for $3.25 million. In its letter transmitting the offer,
GTI stated that it intended to use investment banking to finance
the purchase and added that the offer was "subject to [its]
receipt of a complete list of International Distributors and
users from the Indian Head National Bank." In the days that
followed. Bank officials attempted to evaluate GTI's offer by (i)
holding discussions with the principals in GTI and their
financial advisor and investment banker, and (ii) checking into
the credit history of Dambach, McCauley, and Vergoz, as well as a
business with which they were affiliated. In this regard, a Bank
official spoke with Dr. Mierza of A R Technologies, who reported
that GTI had selected an investment bank, and it was enthusiastic
that financing for the transaction could be obtained.2 Another
Bank official spoke with Mr. D'Avanzo of Parker Benjamin, who
told the official that Parker Benjamin had a "high level of
confidence [the] deal can be done and rather guickly."
2 At trial, a bank official testified about a conversation that occurred one week later in which Dr. Mierza acknowledged, in the words of the official, that "the likelihood of GTI raising the type of dollars that we were talking about to complete this transaction was speculative at best." Trial Transcript ("Tr.") at 2 0 0.
4 The principals in GTI met with Bank officials to discuss the
GTI offer on May 2 9 , 1985. Two significant points of
disagreement were discussed at this meeting. First, GTI objected
to the Bank's demand that GTI post a $200,000 non-refundable
deposit. Second, the parties disagreed concerning the management
of Unitex during the interim period between acceptance of the
offer and closing. GTI suggested in its initial proposal that it
would run the business, that funds generated by the business
would be paid into an escrow fund to be managed by Parker
Benjamin, and that business expenses would be paid from the
escrow fund. The Bank, however, objected because it was
concerned that the value of Unitex might decline before the sale
could be completed if GTI were allowed to use the proceeds of the
escrow account to pay operating expenses.
On June 1, 1985, GTI revised its offer and increased the
purchase price to $3.4 million. GTI made no mention of the
Bank's earlier demand for a $200,000 non-refundable deposit in
its revised offer. However, GTI did propose that two escrow
accounts be opened and managed by the Bank and that all monies
received by Unitex during the transition be paid into these two
accounts. One account would contain "monies received for the
shipment of everything going out of the factory at Inventory
5 Value." Monies placed in this account would be deducted from the
purchase price. The other escrow account would contain "deposits
reflecting an increase in any value over and above the current
value . . . ." Proceeds from the second account would be used to
fund business operations during the transition. GTI also
proposed that it would form a separate entity to manage Unitex
until the sale could be completed.
The parties met again on June 4, 1985. At the meeting, GTI
refused the Bank's demand for the $200,000 non-refundable
deposit, claiming it had not been provided information on Unitex
that GTI needed to complete its due diligence review. During
discussions concerning the upcoming ANPA Convention, GTI also
reguested an advance of $120,000 from the Bank to fund the cost
of representing Unitex at the ANPA Convention. These differences
were not resolved and the meeting adjourned. Two days later, GTI
was informed that the Bank had elected to sell Unitex to another
party.
A Bank official testified that the Bank rejected GTI's offer
because it had significant concerns as to whether GTI would be
able to obtain the financing needed to complete the transaction.3
3 The Bank official also testified that he was concerned with the GTI offer in part because another company with which two of GTI's principals were involved had a loan with the Bank which
6 Further, given the Bank's perceived need to find a buyer prior to
the ANPA Convention and GTI's inability to complete the purchase
prior to the convention, the official testified that the Bank
decided to accept an alternative proposal made by another entity
in whom Bank officers had more confidence. Notwithstanding these
concerns, the official testified that the Bank would probably
have accepted GTI's offer if it had produced the non-refundable
deposit.
B. Chorus' Offer
On June 3, 1985, while negotiations between the Bank and GTI
were ongoing. Chorus Data Systems, Inc. ("Chorus") submitted a
proposal to form a joint venture with the Bank to purchase
Unitex. Pursuant to this proposal. Chorus and the Bank would
form a new corporation to acguire the Unitex Assets, and the Bank
would receive 49% of the stock in the new corporation in exchange
for the assets. Chorus would receive warrants on the Bank's
stock exercisable for $3 million plus compounded interest of 2.5%
per month. However, if the new corporation was later sold or
was in a non-accrual status. Moreover, Bank records were produced at trial in which Bank officials expressed uncertainty concerning GTI's ability to obtain financing. However, one of the principals in GTI testified that the Bank had never expressed any concern during the negotiations that GTI might not be able to obtain financing.
7 merged with another corporation, the proposed agreement specified
that the Bank would reap a substantial additional profit -- the
size of which would depend on the value of the business when it
was sold or merged. Anticipating the possibility that other
creditors of Unitex might object to the transaction, the proposal
also stated that "[i]f, under an extremely conservative reading
of the Bank's duty, the transaction is not sufficiently 'arms
length,' warrants on a tiny fraction of the JV's [joint venture]
shares can be issued to a junior creditors' trust after
negotiation with creditors."
Bank officials met with representatives of Chorus on June 5,
1985 and informed Chorus that it was not interested in a joint
venture because of unspecified regulatory problems. The parties
then discussed an alternative proposal under which Chorus would
form a new entity that would give the Bank a $3 million note in
exchange for the Unitex Assets. The note would be converted to
convertible preferred stock in the new entity after a specified
period. According to Bank records and the testimony of a Bank
official, the Bank and Chorus reached an agreement in principle
along these lines either at the June 5, 1985 meeting or the next
day. As a result. Chorus went to the ANPA Convention to assure
members of the Users Group that Unitex would soon be operating under new ownership.
The agreement between Chorus and the Bank was reduced to
writing and signed after the ANPA Convention on June 20, 1985.
The agreement provided that a new entity, Cuniform Systems, Inc.
("Cuniform"), would purchase the Unitex Assets for $3 million.
The purchase price would be funded with a note that would be
exchanged by the Bank within 120 days for convertible preferred
stock in Cuniform. If Cuniform was liguidated or dissolved, the
agreement specified that the Bank's stock would be valued at $3
million plus compounded interest of 1.5% per month. If the stock
was redeemed at Cuniform's option, the Bank would be paid $3
million plus compounded interest of 2.5% per month. Finally, if,
as the parties anticipated, Cuniform went public, was sold, or
was merged with another entity, Cuniform's conversion rights
would terminate, and the Bank's stock would be converted to
common stock at an agreed-upon ratio. Thus, if Cuniform proved
to be successful, the Bank would recover the approximately $3
million it loaned to Unitex plus an additional amount that would
depend upon the value of Cuniform. Chorus was not reguired to
put down a deposit under the agreement. Nor was it reguired to
guarantee the $3 million loan. Although the Bank never recovered anything under its
agreement with Cuniform, Unitex's debt to the Bank was reduced by
the $3 million purchase price Cuniform agreed to pay for the
Unitex Assets.
II. DISCUSSION
Fleet challenges the jury's verdict by arguing that
plaintiff failed to produce sufficient evidence to sustain the
jury's finding that the Bank disposed of the Unitex Assets in a
commercially unreasonable manner. Fleet also argues that
plaintiff failed to prove his damages even if the Bank
unreasonably disposed of the assets. In reviewing these
arguments, I first consider the standards of review against which
I consider Fleet's motion for judgment as a matter of law and a
new trial. I then address the merits of Fleet's arguments.
A. Standards of Review
In considering Fleet's motion for judgment as a matter of
law, I will apply the same standard of review that formerly
governed a motion for judgment notwithstanding the verdict.
Putnam Resources v. Bateman, 958 F.2d 448, 459 n.7 (1st Cir.
1992). Accordingly, in ruling on the motion, I will not
consider the credibility of witnesses, resolve conflicts in the testimony, or
10 evaluate the weight of the evidence. Rather, [I] must examine the evidence and the inferences reasonably to be drawn therefrom in the light most favorable to the nonmovant . . . . A judgment notwithstanding the verdict should be granted only when the evidence, viewed from this perspective, is such that reasonable persons could reach but one conclusion.
I d . at 459 (guoting Wagenmann v. Adams, 829 F.2d 196, 200 (1st
Cir. 1987) (citations omitted)).
The standard I will apply in considering Fleet's motion for
a new trial is somewhat different:
A trial judge may not grant a motion for a new trial merely because he or she might have reached a conclusion contrary to that of the jurors, rather the trial judge may set aside a jury's verdict only if he or she believes that the outcome is against the clear weight of the evidence such that upholding the verdict will result in a miscarriage of justice.
I d . (guoting Conway v. Electro Switch Corp., 825 F.2d 593, 598-99
(1st Cir. 1987) (citations omitted)).
With these standards in mind, I turn to the specific
arguments Fleet makes in support of its motion.
B. Commercial Reasonableness
1. A Definition
N.H. Rev. Stat. Ann. ("RSA") § 382-A:9-504(3) provides in
pertinent part that the "[s]ale or other disposition [of
11 collateral] may be as a unit or in parcels and at any time and
place and on any terms but every aspect of the disposition
including the method, manner, time, place and terms must be
commercially reasonable." (emphasis added).
Although the Uniform Commercial Code does not define the
term "commercially reasonable," it is apparent from the context
in which it is used that commercial reasonableness encompasses
the totality of circumstances surrounding the disposition of
collateral. Moreover, except for certain specified exceptions
not applicable here, no single factor, even price, will
conclusively determine the commercial reasonableness of a secured
party's actions. See RSA 382-A:9-507(2) ("[t]he fact that a
better price could have been obtained by a sale at a different
time or in a different method from that selected by the secured
party is not of itself sufficient . . . ."). Although the New
Hampshire Supreme Court has not addressed this issue, the view
that commercial reasonableness can only be determined upon a
consideration of all of the surrounding circumstances is
consistent with the meaning that other jurisdictions have given
the term. In re Zsa Zsa Ltd., 352 F. Supp. 665, 670 (S.D.N.Y.
1972), a f f 'd mem., 475 F.2d 1393 (2d Cir. 1973). See generally
Richard C. Tinney, What is "Commercially Reasonable" Disposition
12 of Collateral Required by UCC § 9-504(3), 7 A.L.R. 4th 308, 316
(1981) :
Generally, the courts which have considered the question have held, either expressly or by necessary implication that the determination of whether a secured party has disposed of repossessed collateral in a commercially reasonable manner . . . should be based on a consideration of all relevant factors in each individual case, with emphasis being given to the aggregate of circumstances rather than to specific details taken in isolation . . . .
This understanding is also consistent with the standard the New
Hampshire Supreme Court used in describing a mortgagee's duty to
obtain a fair price at a foreclosure sale. Murphy v. Financial
D e v . Corp., 126 N.H. 536, 541 (1985) ("[w]hat constitutes a fair
price . . . depends on the circumstances of each case.
Inadequacy of price alone is not sufficient to demonstrate bad
faith unless the price is so low as to shock the judicial
conscience"). Accordingly, in ruling on Fleet's post-trial
motions, I will use a definition of commercial reasonableness
that does not assign dispositive significance to any single
factor, but instead considers all relevant circumstances,
including matters such as price, contingencies, time of
performance, and the Bank's good faith. The commercial
reasonableness of the Bank's actions thus will depend upon
13 whether, under the totality of circumstances, a secured party
that is mindful of its duty to exercise reasonable efforts to
obtain the highest price for the seized collateral could have
accepted Chorus' offer in light of GTI's higher but contingent
offer.4
2. Application
In its post-trial motion. Fleet argues for the first time
that its commercial reasonableness must be evaluated from
Unitex's perspective. What I understand Fleet to mean by this is
that it was irrelevant from Unitex's perspective that the Bank
financed Cuniform's purchase of the Unitex Assets since its sale
of the assets reduced Unitex's debt by $3 million, even though
the Bank failed to recover on the loan to Cuniform. According to
Fleet, the jury should have viewed Chorus' offer as a firm offer
without contingencies because the Bank had made a commitment to
finance the sale when it accepted Chorus' offer. Thus, Fleet
argues that no reasonable jury could find for plaintiff since the
4 Fleet argues that it is entitled to judgment as a matter of law because a secured party can never act in a commercially unreasonable manner by rejecting an offer that is contingent on some future event or which involves delays or deferred payment. I reject this argument because I believe that it is inconsistent with the correct definition of commercial reasonableness. Accordingly, I also reject Fleet's argument that a new trial is reguired because I failed to properly instruct the jury on Fleet's theory of commercial reasonableness.
14 Bank's rejection of GTI's contingent offer in favor of Chorus'
lower but non-contingent offer could not as a matter of law have
been commercially unreasonable.
While I generally agree that the reasonableness of a secured
party's disposition of collateral ordinarily will be determined
by looking to the effect of the disposition on the debtor, I am
not persuaded that this new argument warrants either the entry of
judgment as a matter of law or a new trial. One aspect of
commercial reasonableness not addressed by Fleet's theory of the
case is its good faith. See, e.g.. In re Excello Press, Inc.,
890 F.2d 896, 905 (7th Cir. 1989); Swanson v. M a y , 697 P.2d 1013,
1017 (Wash. A p p . 1985)(and cases cited therein); Peoples
Acceptance Corp. v. Van Epps, 60 Ohio App. 2d 100, 106-07, 395
N.E. 2d 912, 916-17 (1978) . Because good faith may be considered
in assessing a secured party's commercial reasonableness, a juror
might reject the secured party's claimed reasons for turning down
a larger offer and instead find that the secured party's actions
were prompted by a bad faith desire to recover more than the
party was entitled to recover from the disposition of the
collateral. Thus, so long as sufficient evidence was produced at
trial to justify a juror's conclusion that the secured party
rejected the higher offer in bad faith, a verdict finding that
15 the secured party disposed of security in a commercially
unreasonable manner should not be overturned.
In the present case, plaintiff produced ample evidence of
the Bank's bad faith to sustain the jury's decision that the Bank
acted unreasonably. First, viewing the evidence in the light
most favorable to plaintiff, the jury was presented with evidence
that the Bank had rejected a $3.4 million offer in favor of a
substantially lower offer. While it is true that the GTI offer
contained contingencies that could not be resolved until after
the ANPA Convention, the jury was also presented with evidence
from which it could reasonably conclude that the offer the Bank
accepted remained only an oral agreement in principle which was
not reduced to writing and signed until well after the ANPA
Convention. Thus, the jury might well have attached little
importance to the Bank's claim that it had to have a new owner
for Unitex in place prior to the Convention.
Second, while the Bank claimed to have serious concerns
about GTI's ability to finance its offer, the jury may well have
viewed this assertion with skepticism since the Bank did little
to investigate this issue beyond placing calls to GTI's
investment advisors and eliciting statements indicating that the
advisers were optimistic that financing could be found.
16 Moreover, the jury might well have questioned the sincerity of
the Bank's concern about GTI's ability to obtain financing if it
accepted the testimony of one of plaintiff's witnesses that the
Bank never expressed any such concern during its negotiations
with GTI. Similarly, the Bank's demand for a non-refundable
deposit might well have been viewed by the jury as a pretext for
refusing GTI's offer since the Bank agreed to provide 100%
financing to Cuniform even though (i) Cuniform too was a shell
corporation, and (ii) Chorus refused to guaranty Cuniform's debt.
Finally, and most importantly, the jury might reasonably
have concluded that the Bank's rejection of GTI's offer was
prompted by a bad faith effort to reap a benefit from the
transaction which it would not have to share with Unitex's
creditors. There is no dispute that the proposal the Bank
accepted would have allowed the Bank to recover substantially
more than it was owed if Cuniform was successful. Moreover,
evidence was produced at trial that the Bank was aware that other
creditors of Unitex might make a claim to any excess money the
Bank recovered from the disposition of the Unitex Assets unless
provisions were made to shield such money from the creditors'
claims. Accordingly, there was substantial evidence to support a
finding that the Bank's actions were driven by a bad faith desire
17 to reap an unjustified profit from the disposition of the assets.
This evidence, when considered with the evidence of the higher
price of the GTI offer, was sufficient to permit a reasonable
juror to find for plaintiff on this issue. For the same reason,
the jury's decision is not against the clear weight of the
evidence. Therefore, neither judgment as a matter of law nor a
new trial is warranted on this issue.
C. Damages
If a secured party unreasonably disposes of a debtor's
assets, the debtor may recover as damages "any loss caused by"
the secured party's unreasonable conduct. RSA 382-A:9-507.
Although the New Hampshire Supreme Court has not established a
standard against which to test the sufficiency of the evidence
needed to support a damage award for the commercially
unreasonable disposition of collateral, it has many times
considered the sufficiency of a claim for damages in other
commercial contexts. For example, in Grant v. Town of Newton,
117 N.H. 159, 162 (1977), the Court stated that "[i]t is general
law that one who claims damages has the burden of proof. He must
by a preponderance of the evidence show that the damages which he
seeks were caused by the alleged wrongful act and he must show
the extent and amount of such damages." In other decisions, the
18 Court has consistently admonished the trial courts that a damage
award for lost profits in a breach of contract case will not be
allowed unless it was reasonably certain that profits would have
been earned in the absence of the breach. Great Lakes Aircraft
Co. v. City of Claremont, 135 N.H. 270, 296-97 (1992) (setting
aside jury award for lost profits where such profits were
dependent in part upon a financing scheme that "was still in
flux"); Hydraform Prods. Corp. v. American Steel & Alum Corp.,
127 N.H. 187, 197 (1985).
In the present case, plaintiff's sole argument on damages is
that GTI's $3.4 million offer would have generated approximately
$400,000 for Unitex's creditors that they did not receive because
the Bank wrongly accepted Chorus' $3 million proposal. To
sustain the verdict against Fleet's argument that plaintiff
failed to prove damages, plaintiff must establish that it
produced sufficient evidence to permit a reasonable juror to
conclude by a preponderance of evidence that GTI would have been
able to perform under the contract if the Bank had given GTI the
opportunity. Without such evidence, plaintiff's reguest for
damages is nothing more than an invitation to speculate about the
harmful conseguences of the Bank's wrongful conduct.
19 The principal obstacle plaintiff faces in his effort to
sustain the jury's verdict is that GTI's offer was contingent on
financing. Plaintiff argues, however, that the optimism
concerning GTI's ability to obtain financing expressed by GTI's
investment advisors was sufficient to sustain the jury's
verdict.5 In their entirety, these statements are as follows:
1. "They [GTI] have selected a regional investment bank, and based on their enthusiasm about a successful placement, are ready to move the proposed closing date to six weeks from the time we accept their o ffe r ; "
2. "[Parker Benjamin has] a high level of confidence [the] deal can be done and rather guickly;"
3. [Parker Benjamin is] "very confident [the] deal can be done;" and
4. "Based on the information he [Mr. D'Avanzo] had there was a high probability of raising the monies."
Even construing this evidence in the light most favorable to
plaintiff, these statements amount to nothing more than
5 The statements on which plaintiff relies were out-of-court statements made to Bank officials during the course of negotiations. Accordingly, the statements would have been inadmissible heresay if they had been offered to prove that GTI would have been able to obtain financing if the Bank had accepted GTI's offer. However, since Fleet failed to object to the admissibility of the statements or reguest a limiting instruction, I will consider them in ruling on Fleet's motion.
20 speculation about the GTI's ability to obtain financing.
Plaintiff argues that the Bank withheld information about Unitex
which GTI needed before it could decide whether to proceed with
its proposal. Since GTI's investment advisors also lacked this
information, plaintiff, in effect, must argue that even though
GTI did not know enough about Unitex to decide whether to
purchase the assets, its investment advisors had enough
information to make credible assessments as to the likelihood
that GTI would be successful in obtaining financing. Standing in
isolation, such statements are simply insufficient to establish
plaintiff's damages with reasonable certainty.
Plaintiff argues that its evidence of damages should be
liberally construed since it was the Bank's unreasonable refusal
of GTI's offer that prevented GTI from demonstrating that it had
the ability to obtain financing. I disagree. This is not a case
where a defendant's wrongful conduct made it impossible for the
plaintiff to prove his damages. Plaintiff could have subpoenaed
GTI's investment advisors or produced other experts at trial to
testify about the general availability of financing for similar
proposals at the time this transaction would have occurred.
Moreover, plaintiff could have obtained all available information
about the value of the Unitex Assets during discovery. Thus, its
21 experts could have provided informed testimony on the real
availability of financing for GTI's proposal. In short, nothing
prevented plaintiff from producing something more than mere
unsworn expressions of optimism from GTI's investment bankers to
prove that GTI would have been able to obtain financing if the
Bank had accepted its offer. Plaintiff's failure to do so here
deals a fatal blow to his case.
Because plaintiff failed to offer competent evidence of
damages which were sufficient to permit a reasonable juror to
conclude that plaintiff proved his damages with "reasonable
certainty," Fleet is entitled to judgment as a matter of law.
See University of R.I. v. A.W. Chesterton Co . , No. 92-1034, 1993
U.S. App. LEXIS 20646, at *67 (1st Cir. Aug. 16, 1993)(directed
verdict upheld where insufficient evidence of damages was
presented); TK-7 Corporation v. Estate of Ihsan Barbouti, 993
F.2d 722, 726-36 (10th Cir. 1993)(directed verdict); Belanger v.
Boise Cascade Corporation, 968 F.2d 254, 258-59 (2d Cir.
1992)(directed verdict).
III. CONCLUSION
Fleet's Motion for Judgment as a Matter of Law (document no.
22 32) is granted. In light of this ruling. Fleet's Motion for a
New Trial is moot.
SO ORDERED.
Paul Barbadoro United States District Judge
August 27, 1993
cc: Dennis G. Bezanson, Esg. N. Charles Remmel, II, Esg. Francis L. Cramer, III, Esg.