IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

THE WORLD EGG BANK, INC., Plaintiff/Appellee/Cross-Appellant,

v.

NESCO INVESTMENTS, LLC, Defendant/Appellant/Cross-Appellee.

No. 1 CA-CV 20-0027

Appeal from the Superior Court in Maricopa County

No. CV2015-095504, CV2016-007439, CV2017-003792

The Honorable Christopher T. Whitten, Judge

REVERSED AND VACATED IN PART; REMANDED

COUNSEL

Anderson Banta Clarkson, PLLC, Mesa

By Adam C. Anderson

Gillette Blackhurst, PLC, Mesa

By Dennis Kent Blackhurst

Co-Counsel for Plaintiff/Appellee/Cross-Appellant

Ahwatukee Legal Office, PC, Phoenix

By David L. Abney

Counsel for Defendant/Appellant/Cross-Appellee

FILED 5-18-2021
WORLD EGG BANK v. NESCO INVEST

Opinion of the Court

2

OPINION

Chief Judge Peter B. Swann delivered the opinion of the court, in which 

Acting Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley1

joined.

S W A N N, Chief Judge:

¶1 Under A.R.S. §§ 10-1302(A)(3) and -1301(4), a shareholder 

may dissent from the sale of the corporation and receive payment for the 

“fair value” of the shareholder’s shares “in the event of . . . [c]onsummation 

of [the] sale,” with “fair value” determined as of the date “immediately 

before the effectuation of the corporate action to which the dissenter 

objects.” We hold that the formation of a contract for sale of the corporation 

is, by itself, insufficient to constitute either consummation or effectuation of 

the sale. The sale must not be merely agreed to in order to trigger a 

dissenter’s right to payment—it must actually occur.

¶2 Here, the individual who owned the majority shareholder of 

The World Egg Bank, Inc., (“TWEB”) obtained authorization at a special 

shareholder meeting to sell TWEB to one of her affiliate entities. But though 

she claimed to have immediately agreed to the sale on behalf of both TWEB 

and the buyer, and though she later executed a written contract claiming 

that the sale closed and was effective as of the date of the special 

shareholder meeting, she provided no evidence that the sale actually was 

consummated or effectuated at that time. We therefore conclude that the 

superior court erred by ruling that the dissenting shareholder’s shares were 

to be valued as of the date of the special shareholder meeting. Our

conclusion requires us to reverse and vacate with respect to all rulings and 

portions of the judgment based on the erroneous valuation date, and to 

remand for further proceedings.

1 The Honorable Maurice Portley, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article 6, Section 3 of the Arizona Constitution.
WORLD EGG BANK v. NESCO INVEST

Opinion of the Court

3

FACTS AND PROCEDURAL HISTORY

¶3 This appeal and cross-appeal arise from three consolidated 

cases with complicated factual and procedural histories. Only the 

following is material to the issues before us.

¶4 At the relevant time, Shari Weiss’s entity Nesco Investments, 

LLC, owned 6.67% of the shares of TWEB, and Diana Thomas’s entity 

DMCT, LLC, owned the remaining 93.33% of the shares.

2

¶5 Thomas wanted to remove Weiss from TWEB. Accordingly, 

on April 2, 2015, she sent Weiss notice of an April 17, 2015, special 

shareholder meeting set for the purpose of considering and voting on 

proposals to immediately sell TWEB’s assets and liabilities and dissolve the 

corporation. A letter accompanying the notice specified that Thomas 

anticipated majority approval of a sale to an affiliate of hers. Weiss 

understood that such a transaction was the plan.

¶6 On April 16, Weiss notified TWEB that she would not vote her 

shares in favor of the proposals and that she intended to demand payment 

for the fair value of her shares in the event of the proposals’ effectuation. 

Before the meeting, TWEB provided Weiss with the written script that 

Thomas would use at the meeting to offer the proposals. Weiss approved 

the script and agreed not to attend the meeting. Thomas read the script at 

the meeting and voted DMCT’s shares in favor of the proposals. Weiss’s 

dissenting votes on behalf of Nesco’s shares were recorded in her absence. 

The meeting resulted in the following resolutions:

RESOLVED, that Diana Thomas, CEO of the Corporation, and 

sole owner of DMCT, LLC, the majority shareholder of the 

Corporation, is appointed the liquidation officer (the 

“Liquidation Officer”) of the Corporation.

RESOLVED, that the Liquidation Officer is authorized, in her 

sole discretion, to sell all or substantially all of the assets and 

liabilities of the Company (the “Assets and Liabilities”) for a 

2 The superior court determined the foregoing share allocation over

Nesco’s objection. But though Nesco asserts in passing on appeal that it 

owned more than 6.67% of the shares, it neither identifies nor develops the 

question of share allocation as an issue on appeal. We therefore deem 

waived any objection to the superior court’s share-allocation determination. 

See ARCAP 13(a)(6)–(7); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 

2009).
WORLD EGG BANK v. NESCO INVEST

Opinion of the Court

4

cash price (the “Cash Price”) equal to the fair market value of 

(i) the Corporation or (ii) all or substantially all of the assets 

and liabilities of the Corporation, as set forth in a valuation 

thereof, prepared by an independent Arizona CPA/CFF, 

CVA, selected by the Liquidation Officer and dated as of, or 

after, December 31, 2014 (the “Sale”).

RESOLVED, the effective date of the Sale shall be determined 

by the Liquidation Officer, in her sole discretion, and may not 

be earlier than April 17, 2015, and not later than May 31, 2015.

RESOLVED, that the Liquidation Officer is authorized, in her 

sole and absolute discretion, to select and approve the buyer 

of the Assets and Liabilities (the “Buyer”) provided the Buyer 

agrees to pay the Cash Price on or before May 31, 2015. To 

the extent that the Buyer, approved by the Liquidation 

Officer, is affiliated to any shareholder, the Cash Price may 

take into consideration the portion of cash proceeds otherwise 

distributable to such Buyer or its affiliate in liquidation of the 

Company.

RESOLVED, that the Sale shall be documented by a sale 

agreement approved by the Liquidation Officer, in her sole 

and absolute discretion, subject to compliance with the 

proposals voted on and approved by a majority of the 

shareholders on April 17, 2015 (the “Sale Agreement”), and 

the Liquidation Officer is authorized to execute the Sale 

Agreement on behalf of the Corporation, in her capacity as 

CEO of the Corporation.

RESOLVED, that the Liquidation Officer is authorized to 

make such additional changes to the Sale Agreement as she 

deems appropriate, in her sole and absolute discretion, other 

than a change to the Cash Price, to carryout [sic] and 

effectuate the Sale on or before May 31, 2015.

RESOLVED, that following the consummation of the Sale, the 

Corporation shall be dissolved no later than June 30, 2015.

RESOLVED, that the Liquidation Officer of the Corporation 

is authorized to perform all acts on behalf of the Corporation

consistent with A.R.S. § 10-1405, et seq. required to dissolve 

the Corporation and liquidate the Corporation’s assets.
WORLD EGG BANK v. NESCO INVEST

Opinion of the Court

5

RESOLVED, that the Liquidation Officer is authorized to take 

all actions she deems necessary and appropriate in her sole 

discretion, consistent with the Proposals approved by the 

Shareholders at the Shareholders Meeting held on April 17, 

2015, including the payment of costs and fees related to 

obtaining the valuation and finalizing the dissolution of the 

Corporation and the sale of the Corporation or all or 

substantially all of its assets and liabilities.

RESOLVED, that the Liquidation Officer be authorized, in her 

sole and absolute discretion, to determine whether and when 

to file suit against Shari Weiss, and/or entities affiliated with 

Ms. Weiss, in connection with multiple alleged breaches of 

duties owed by Ms. Weiss and/or her entities to the 

Corporation.

¶7 Thomas testified that she had long known that the majorityaffiliate buyer, as described in the April 2 letter, would be her solely owned 

company TWEB Resources, LLC. Indeed, she had created the assetless 

TWEB Resources, which had no assets, the previous year in anticipation of 

the sale. Accordingly, on the day of the special shareholder meeting, she 

agreed to the sale on behalf of TWEB and TWEB Resources, with a 

transition period and documentation to follow. The next day, she “advise[d 

her] counsel to begin finishing up the documentation or anything that was 

needed to memorialize and formalize the transaction that occurred.” She 

also set up new bank accounts following the meeting.

¶8 But the sale did not immediately close.3 TWEB continued to 

control bank account and payroll operations, in the case of the latter until 

late 2016. TWEB’s name also continued to appear on marketing materials 

and contracts.

¶9 Thomas did not sign a written asset purchase agreement on 

behalf of TWEB and TWEB Resources until October 2015. And she did not 

engage a Certified Business Valuator to determine the Cash Price (based on, 

consistent with the resolutions, a December 31, 2014, valuation) until later, 

on November 2, 2015—though she understood that she “was going to have 

to pay whatever [the valuator’s valuation] was.” Counsel made final 

changes to the written agreement on November 20, and the Certified 

3 Thomas and counsel acknowledged the same in emails disclosed 

after the trial at issue here.
WORLD EGG BANK v. NESCO INVEST

Opinion of the Court

6

Business Valuator provided his valuation—$407,400—three days later. The 

record is devoid of evidence of a transfer of the Cash Price or assets, or of 

TWEB’s dissolution. But the written agreement between TWEB and TWEB 

Resources nonetheless stated that the sale was made, closed, and effective

as of April 17, 2015. The agreement further provided that TWEB would 

“maintain its bank accounts” and “serve as an escrow agent” for TWEB 

Resource’s benefit, and that if TWEB “fail[ed] to transfer any of the 

Transferred Assets to [TWEB Resources], for any reason, then [TWEB] 

nevertheless [would] convey all economic benefits and burdens of 

ownership of the Transferred Assets to [TWEB Resources] and [would] act 

as [TWEB Resources]’s agent for ownership and possession of the 

Transferred Assets.”

¶10 TWEB provided Nesco with a written dissenter’s notice on 

December 11. Nesco thereafter submitted a written demand for payment 

of the fair value of its shares, and deposited its shares certificate. TWEB 

then gave Nesco a check representing its estimate of the fair value of 

Nesco’s shares: $27,173.58 plus $1,330.58 in accrued interest. Nesco 

disputed that valuation, claiming it was entitled to at least $667,000 plus 

$32,660 in accrued interest. Nesco asked TWEB to commence an appraisal 

action to have the court determine fair value, and TWEB did so.

¶11 After a trial, the superior court defined the fair-value 

valuation date as April 17, 2015. In later proceedings, the court determined 

that TWEB’s fair value as of April 17, 2015, was $457,000, and the court 

entered a judgment from which Nesco appeals and TWEB cross-appeals.

DISCUSSION

¶12 Dissenting shareholders’ rights are defined by statute in 

Arizona. Pro Finish USA, Ltd. v. Johnson, 204 Ariz. 257, 260, ¶ 8 (App. 2003).

We review the superior court’s application of the statutes de novo, abiding 

by its factual findings unless they are clearly erroneous. Vortex Corp. v. 

Denkewicz, 235 Ariz. 551, 557, ¶ 21 (App. 2014). “[T]he ‘best and most 

reliable index of a statute’s meaning is its language,’ and where the 

language is plain and unambiguous, courts generally must follow the text 

as written.” Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529 

(1994) (citation omitted). 

¶13 A shareholder may “dissent from and obtain payment of the 

fair value of the shareholder’s shares in the event of . . . [c]onsummation of a 

sale or exchange of all or substantially all of the property of a corporation 

other than in the usual and regular course of business, if the shareholder is 
WORLD EGG BANK v. NESCO INVEST

Opinion of the Court

7

entitled to vote on the sale or exchange, including a sale in dissolution.” 

A.R.S. § 10-1302(A)(3) (emphasis added). “‘Fair value’ with respect to a 

dissenter’s shares means the value of the shares immediately before the 

effectuation of the corporate action to which the dissenter objects, excluding 

any appreciation or depreciation in anticipation of the corporate action 

unless exclusion is inequitable.” A.R.S. § 10-1301(4) (emphasis added). 

Though the statutes do not define “consummation” or “effectuation,” both 

words commonly connote accomplishment: to “consummate” means “[t]o 

bring to completion; . . . [t]o achieve; to fulfill[;] [t]o perfect; to carry to the 

highest degree,” and to “effect” means “[t]o bring about; to make happen.” 

Black’s Law Dictionary (11th ed. 2019). Accordingly, applying the statutes’ 

plain language, we conclude that when a shareholder dissents from the 

corporation’s sale, the dissenter’s rights are triggered by the occurrence of 

the sale—not by the entry of a contract for sale.

4 

¶14 Conditioning a dissenter’s right to payment on the occurrence 

of the contracted-for event makes sense. If the contract for sale is for some 

reason unperformed, then the dissenter’s basis for dissociating from the 

corporation disappears. The dissenter does not lose its shareholder rights

in such circumstances. See A.R.S. §§ 10-1323(B), -1324(B) (providing that 

dissenter retains shareholder rights “until these rights are canceled or 

modified by the taking of the proposed corporate action”); A.R.S. § 10-

1326(A) (providing mechanism for return of dissenter’s certificates or 

release of transfer restrictions “[i]f the corporation does not take the 

proposed action within sixty days after the date set for demanding 

payment”); see also 6 Arizona Practice, Corporate Practice § 8:15 (“The 

effective date of a corporate action is not always the same as the date of the 

shareholders’ vote on that action. Because fair value is to be determined 

immediately before the effectuation of the corporate action, the statute 

ensures that shareholders are not stripped of their rights until the date the 

corporate action actually becomes effective.”). Were that not the case, 

majority shareholders could easily, and unfairly, force out minority 

shareholders by merely feigning a sale—particularly in the case of a selfdealing sale. And to the extent that the announcement of a contract for sale

might cause an increase in share value in the period before the sale’s 

4 We have recognized the distinction between those two events in 

other contexts. See Lockett v. Drake, 43 Ariz. 357, 360 (1934) (stating general 

rule that real estate broker has fulfilled duties and earned commission once 

buyer and seller have entered binding contract, regardless whether contract 

ultimately is effected or consummated).
WORLD EGG BANK v. NESCO INVEST

Opinion of the Court

8

effectuation, § 10-1301(4) specifically forestalls any unfair sharing in that 

increase by shareholders who have decided not to participate in the sale. 

¶15 Of course, the contracting parties may specify a retroactive 

effective date of sale. See El Paso Nat. Gas Co. v. Ariz. Dep’t of Revenue, 174 

Ariz. 470, 476 (App. 1992); see also F.W. Leisure Indus. v. Cook Pain & Varnish 

Co., 153 Ariz. 342, 343–44 (App. 1987). But they cannot create an effective 

date dissociated from reality: they “may agree retroactively to alter their 

legal rights with respect to each other based on facts that have already 

occurred, but they cannot by agreement alter the nature of those past 

occurrences themselves.” El Paso Nat. Gas Co., 174 Ariz. at 476; but see

Oakridge Energy, Inc. v. Clifton, 937 P.2d 130, 131, 134 (Utah 1997) (holding 

that when sale terms were announced on May 24 and sale was approved 

and closed on September 28 but made effective as of May 1, fair-value 

valuation date was pre-May). That rule is particularly important where, as 

here, the buyer and the seller are controlled by the same individual.

¶16 Here, the superior court established April 17, 2015, the date of 

the special shareholder meeting, as the fair-value valuation date.5 But 

though the resolutions adopted at the April 17 meeting authorized Thomas 

to sell and dissolve TWEB, they did not themselves effect the sale or 

dissolution. And though Thomas testified that she entered the contract for 

sale (on behalf of both seller and buyer, in an unwritten agreement 

unchallenged under Arizona’s statute of frauds, § 44-101) on April 17, and 

months later in the written agreement cited April 17 as the sale’s effective 

and closing date, the court was provided no evidence that the sale was 

either “consummat[ed]” or “effectuated” under A.R.S. §§ 10-1302(A)(3) or 

-1301(A)(4) on April 17. Contrary to the resolutions’ representation, 

5 We reject Nesco’s contention that we should reverse because DMCT

improperly voted at the special shareholder meeting. To be sure, the sale 

was a “director’s conflicting interest transaction” under A.R.S. § 10-860(1)–

(2) because Thomas owned both the majority shareholder and the buyer. 

Accordingly, under §§ 10-861(B)(2) and -863, Thomas was not entitled to 

vote DMCT’s shares to authorize the sale—a fact that the superior court 

overlooked. But Nesco made no timely attempt to raise a challenge under 

§ 10-861(B)(3) and (C), nor under § 10-1302(B). Indeed, before the May 2017 

valuation-date trial, Nesco stated in an interrogatory response that it 

“ma[de] no allegations that the Special Meeting . . . was improperly 

conducted or improperly noticed,” and Nesco reiterated that position in the 

joint pretrial statement. On this record, we must conclude that Nesco 

waived any challenge to DMCT’s votes.
WORLD EGG BANK v. NESCO INVEST

Opinion of the Court

9

Thomas could not by fiat establish the effective or closing date. 

Consummation or effectuation had to be supported by evidence. Similarly, 

the written agreement’s announcement of an agency relationship between 

TWEB and TWEB Resources was insufficient to support the theory that the 

sale closed on April 17—contracting parties cannot by agreement 

circumvent the reality that there has been no transfer of resources by simply 

claiming a retroactive agency arrangement. The earliest evidence of any

sort of post-agreement progress toward sale post-dated April 17. Further, 

Thomas did not act on TWEB’s statutory duty to provide the written 

dissenter’s notice, which is triggered when “the corporate action is taken,” 

A.R.S. § 10-1322(B) (emphasis added), until well after April 17. 

¶17 In our view, none of the evidence presented at the May 2017

valuation-date trial established that the sale was ever consummated at all—

on this record, it is unclear whether there was ever any performance under 

the contract. If there was no performance, then the appraisal action may be 

premature. At a minimum, however, the court clearly erred by assigning 

April 17, 2015, as the fair-value valuation date. 

CONCLUSION

¶18 Because the parties’ experts and the court relied on an 

inaccurate date in determining fair value, we must vacate the fair-value 

award. We also must reverse all rulings and vacate all portions of the 

judgment dependent on the fair-value award, including those orders 

denying or awarding costs, fees, and sanctions.6 We leave the balance of 

the judgment intact. We remand for future proceedings, including 

proceedings to determine when (if ever) the contracted-for sale actually

occurred. We award no fees under A.R.S. § 10-1331(B). We award Nesco 

costs on appeal under A.R.S. § 12-341 upon compliance with ARCAP 21.

6 In view of our conclusion that the court relied on an inaccurate 

valuation date, we do not address Nesco’s challenge to the valuation or the 

parties’ separate challenges to valuation-dependent rulings.