In Re: 9.6 Shares of Stock of Shelburne Supermarket, Inc., No. 1172-04 

CnC (Norton, J., May 25, 2005) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

 

STATE OF VERMONT SUPERIOR COURT 

Chittenden County, ss.: Docket No. 1172-04 CnC 

 

IN RE 9.6 SHARES OF STOCK OF 

SHELBURNE SUPERMARKET, INC. 

ENTRY 

 This case is the latest in a series of corporate disputes that have 

arisen over the organization and control of Shelburne Supermarket. It 

arises from the Supermarket’s consolidation of stock shares and forced 

buyout of fractional shares. Defendants, all shareholders whose shares 

would become fractional after consolidation, contend: 1) that they properly 

asserted their dissenter’s rights under Chapter 13 of the Vermont Business 

Corporation Act; 2) that even if they didn’t, the corporation improperly 

proceeded with its consolidation plan without first amending the articles of 

incorporation; and 3) that the corporation undervalued their shares for 

buyout. With the exception of this final question of valuation, the parties 
have motioned for summary judgment on all issues. 

 As a preliminary matter, shareholders seek to block, through collateral 

estoppel, the corporation’s claim that several of the shareholders 

improperly asserted their dissenter’s rights. This is an important issue to the 

shareholders claims of undervaluation because a dissenting shareholder 

cannot contest a valuation unless she properly gives written notice prior to a 

shareholder’s meeting that she intends to demand payment for her shares. 

11A V.S.A. § 13.21(a)(1). To this argument, shareholders make much of 

the corporation’s answer to a parallel suit filed by shareholders. In that 

answer the corporation “Admitted that Plaintiffs [defendant shareholders in 

this case] have dissented timely to Supermarket’s valuation of its shares.” 

Clayton v. Shelburne Supermarket, Verified Answer, at ¶ 35, No. S0876-

04 CnC (Aug. 31, 2004). They argue that this admission bars the 

corporation from now denying this admission, and therefore, it cannot deny 

the shareholders’s right to challenge the corporation’s valuation.1 

 This argument has two flaws. First, the doctrine of collateral 

estoppel requires, among other things, that there be a final judgment on the 

merits of the issue that the party seeks to preclude. Scott v. City of 

Newport, 2004 VT 64, at ¶ 8 (mem.). This limits what courts may preclude 

to those issues that have been resolved to some semblance of finality. 18 C. 

Wright, et al., Federal Practice and Procedure § 4420 (2002). As the 

 

1

 The shareholders further argue that because collateral estoppel applies, the 

claims against Kevin Clayton, Alan Clayton, and Catherine Clayton-Richardson were 

filed out of time under 11A V.S.A. § 13.26 (a) (requiring a corporation to take action to a 

valuation challenge within 60 days). This argument does not follow logically from the 

facts. Even if collateral estoppel prevented the corporation from challenging the 

Claytons’ assertion of dissenters’ rights, its second claim requesting a determination of 

fair value for the shares would satisfy § 13.26. 
Clayton case is currently pending there is no final judgment against the 

corporation on this issue. It would hardly be fair to preclude the 

corporation from litigating an issue that has not yet been adjudicated. 

 Characterizing this issue as one of collateral estoppel is also 

misleading. Instead, this statement should be seen for what it is, an 

admission by a party against its interest. V.R.E. 801(d)(2). At best, the 

corporation’s answer is an admission that, in its opinion, the shareholders 

dissented in a timely manner. Shareholders are free to use that statement, as 

they have, in arguing that even the corporation has on some level 

acknowledged the timeliness and merit of their dissent, but it is hardly 

preclusive. While it is up to the parties to explain the import of this 

statement, its ultimate character is one of evidence rather than binding 

precedent. 

 This leads to the second problem with using the corporation’s 

answer to “prove” whether shareholder’s dissent was effective. As neither 

party disputes what the shareholders did before the stock consolidation 

meeting, the real disagreement is whether their actions were sufficient to 

provide notice under § 13.21. This is a legal conclusion for the court, not 

the parties, to make. While the corporation’s admission may provide 

evidence of what it understood the situation to be, the ultimate question 

here is whether shareholders met the legal requirements of § 13.21. One 

party simply saying so does not settle the issue. To draw an analogy, a 

party to a car accident may “admit” in a deposition that she filed a 

document too late for the statutes of fraud, but such an admission does not 

mean her claim is barred for being out of time. What bars her claim is 

whether she actually filed her document after a date that the court 

determines. Certainly, this is evidence that would inform a legal 

determination but is not in and of itself a legal conclusion. So too, the 
corporation’s admission is evidence of their beliefs but is far from 

determinative. As shareholders cite to no authority to the contrary, the 

court is unpersuaded by their line of reasoning. 

 As final preliminary matter, it is important to briefly discuss the 

purpose and function of the Vermont Business Corporation Act. As one 

commentator phrased it: 

Business corporation law also must be flexible. It must be 

adaptable to the particular needs of the individuals forming and 

operating corporations and to changes in the business environment. 

In good times and bad, corporations change their structure, sell and 

repurchase shares of stock, and combine with other companies. . . . 

The need for flexibility is constant. Rigid rules quickly become 

outdated, increase the costs of doing business, and cause corporate 

flight to other states. . . . [C]orporate law must further state policies 

and also permit corporations to operate without undue restraint.

L.Smiddy, Vermont’s Business Corporation Law: A Call for Much Needed 

Reform, 17 Vt. L.Rev. 3, 11 (1992). In the context of dissenter’s rights, 

this balance between state policies and corporate freedom is embodied in 

the remedial rights given to dissenters as a way of redress “when 

fundamental corporate changes are involuntarily imposed on them.” Id. at 

44. As that statement suggests, dissenter’s rights are not intended to limit 

or proscribe corporate action, but rather to give dissenting shareholders a 

way out that preserves their investment interest in the company when they 

disagree with a significant action that a corporation is taking. Id. at 45. 

 Dissenter’s rights are not a new idea to corporate governance and 

were embodied in the predecessor to 11A V.S.A.’s chapter 13. Id. at 46 

(citing 11 V.S.A. §§ 2003, 2004 (1984)). The difference between that 

system and the present one is that chapter 13 was adopted to expand the 

availability of dissenter’s rights and streamline the procedures for 
exercising them. Id. at 47–48. Thus, the byzantine and rigorous procedure 

of 11 V.S.A. §§ 2003, 2004 was supplanted by the more straightforward 

and expansive regime of chapter 13. Similarly as a remedial statute, 

chapter 13 “must be liberally construed in order to ‘suppress the evil and 

advance the remedy’ intended by the Legislature.” Human Rights Comm’n 

v. Benevolent & Protective Order of Elks, 2004 VT 104, at ¶ 13 (quoting 3 

N. Singer, Statutes and Statutory Construction § 60:1, at 183 (6th ed. 

2001)). 

 At the same time, dissenter’s rights are not meant to give 

shareholders an extraordinary ability to delay or stifle the will of the 

majority either to raise the “nuisance value” of their shares or to thwart the 

majority’s intentions. 3 Am. Bar Assoc., Model Business Corporation Act 

Annotated 13-5 (3d ed. Supp. 1998–99) [hereinafter MBCA Annotated].2 

The intent of chapter 13 is to motivate parties “to settle their differences in 

private negotiations” without resort to judicial proceedings. Id. This is, 

after all, a remedial statute meant to give dissenters a way to protect their 

investment but little to nothing more. While it has been suggested that 

these rights provide an important check on improper management 

decisions, they are not inherent tools to neutralize corporate activity. Cf. 

Smiddy, supra, at 45 (“If enough dissenting shareholders exercise appraisal 

rights for a transaction approved by the majority, then the cost of 

purchasing the dissenting shares may cause management to rethink its 

course of action.”). With these principles in mind, the court will address 

 

2

 The Vermont Business Corporation Act was adopted from the 1984 version of 

the Model Business Corporation Act. Towle v. Robinson Springs Corp., 168 Vt. 226, 

228 (1998); Smiddy, supra, at 5 n.1. This discussion will reference the MBCA and its 

commentary where it is applicable or insightful to the language and function of the 

VBCA. See also MBCA Annotated, at 13-12 (marking differences between the 1984 and 

1999 versions of the MBCA).
the substantive parties claims. 

 The facts of this case are not disputed. On June 17, 2004, Shelburne 

Supermarket’s Board of Directors approved a stock consolidation plan. 

Under this plan, the corporation would issue one new share of stock for 

every five shares of old stock. Any resulting fractional shares would be 

purchased by the corporation at a price set by an accounting valuation made 

the previous year. Shelburne Supermarket is a predominately family 

owned affair. Prior to the consolidation action, all of the shares were 

owned by Clayton siblings but for one non-familial shareholder.3 For the 

purposes 11A V.S.A. §§ 6.01, 6.02, Shelburne Supermarket had only one 

class of stock with equal voting and shareholder rights. After the 

consolidation, there was still only one class of stock. As this consolidation 

required shareholder approval, a meeting was scheduled June 30. All 

shareholders were given proper notice of the meeting and their dissenter’s 

rights, should they disagree with the consolidation. This was done in 

conformance with 11A V.S.A. § 13.20. 

 The minority Clayton shareholders, Kevin, Lisa, Alan, and Catherine 

sent notice to the corporation on June 28 that they intended to dissent. In 

the same letter, the dissenting siblings notified the corporation that they had 

given all their shares to Lisa who demanded appraisal rights under §13.21 

for her and her sibling’s shares, which she claimed to hold as beneficial 

owner. This transfer was further noticed by papers filed at the June 30 

meeting memorializing the sibling’s intent to vest Lisa with control and 

 

3

 Kevin Clayton, Lisa Clayton, Alan Clayton, and Catherine Clayton-Richardson 

each owned 2.4 shares respectively. Their brother Steven Clayton owned 27.9 shares, 

and Bradley Miller, the only non-Clayton shareholder owned 12.5 shares. 
ownership of all 9.6 dissenting shares. At the June 30 meeting, however, 

each sibling voted their own shares. Steven Clayton and Bradley Miller 

voted their 40.4 collective shares in favor of the consolidation. The siblings 

voted their 9.6 shares against it. 

 Following the meeting, the corporation sent notice to the dissenting 

shareholders that the consolidation had been approved and that their 

resulting fractional shares would be sold to the corporation. The 

corporation included a check with each these letter reimbursing the siblings 

for their fractional shares based on the previously announced valuation. All 

four dissenting siblings returned their checks on August 4 and made written 

demands for a higher valuation of their shares.4 They also filed suit 

challenging the legitimacy of the corporation’s actions under previous 

shareholder agreements. Clayton v. Shelburne Supermarket, No. S0876-04 

CnC (Jul. 23, 2004). The corporation subsequently commenced this action 

on October 1 in accordance with § 13.30 to settle the issue of valuation. In 

the complaint, the corporation disputes that the shareholders’ June 28 letter 

gave proper written notice of their intent to demand appraisal rights under § 

13.21, in so far as Lisa Clayton was the only one who asserted any 

appraisal rights. 

 The corporation’s claim is that Kevin, Alan, and Catherine failed to 

give proper written notice of their intent to assert appraisal rights, that is the 

right to demand that the corporation buy back their shares at a fair market 

value. This argument is based entirely on what the corporation 

 

4

 Under § 13.28, the dissenting shareholders could have kept the payment and 

still preserved their right to demand a higher valuation. 11A V.S.A. § 13.28; Smiddy, 

supra, at 48–49. 
characterizes as shortcomings in the siblings’s June 28 letter. In that letter, 

all four siblings notified the corporation that they intended to dissent from 

the consolidation proposal but only Lisa, on behalf of herself and as 

beneficial owner of other shares, notified the corporation that she intended 

to assert her appraisal rights. As previously noted, § 13.21 establishes that 

a dissenting shareholder must give the corporation written notice of her 

intent in order to properly establish appraisal rights. This notice may 

appear in this case to be somewhat superfluous since the corporation 

intended to compensate all four of the dissenting shareholders with what it 

asserts is a fair market value price, but properly asserted appraisal rights 

give dissenting shareholders the opportunity to demand a higher payment 

for their shares. This is what the corporation seeks to block through its 

claim against Kevin, Alan, and Catherine. 

 Much of the confusion surrounding this issue stems from the 

siblings’ attempt to transfer their interest in their shares to Lisa. This 

transfer violated a 1988 shareholders’ agreement, which required that a 

majority of the shareholders must approve of any intra-shareholder stock 

transfers, and the Clayton siblings have since withdrawn the attempted 

transfer presenting themselves in this case and their other action as the 

owners of 2.4 shares of Shelburne Supermarket stock. But in late June 

2004, the Claytons were operating under the belief that their transfer was 

valid and that Lisa was the beneficial owner of all 9.6 shares. The 

corporation urges this court to follow the letter of § 13.21 in this matter and 

ignore what the siblings thought they had done. It adopts the position that a 

voided transfer flows back to the point at which it was attempted. Thus, 

title and control never left the individual siblings, and Lisa’s notice on 

behalf of her siblings’ shares was never effective because she was never the 

“beneficial owner” of any such share. Since the other three siblings never 
gave written notice of their intent to assert appraisal rights, they should not 

benefit from a voided transaction.5

 This is an overly technical reading § 13.21 for its purpose of 

notifying the corporation of a party’s intent to assert dissenter’s rights. As 

noted in Professor Smiddy’s commentary, chapter 13 was adopted to 

streamline and ease the process for asserting such rights. Smiddy, supra, at 

48; see also H. Johnson & P. Bartlett, Jr., Is a Fistful of Dollars the 

Answer? A Critical Look at Dissenters' Rights under the Revised Model 

Business Corporation Act, 12 J.L. & Comm. 211, 216, 221 (1993). To 

properly assert appraisal rights, a dissenting shareholder must make her 

intent and demand known to the corporation at two separate times. The 

first, embodied in § 13.21, comes before the shareholders’ meeting and has 

the stated purpose of giving the corporation notice of a shareholder’s intent 

to dissent and demand appraisal rights. The second, embodied in § 13.23, 

comes after the shareholders’ meeting and is the formal demand for 

payment and valuation. The difference between these two demands is 

illuminating. According to the official comment, the first notice “enables 

the corporation to determine how much of a cash payment may be 

required” and “to limit the number of persons to whom the corporation 

must give further notice.” M.B.C.A. Annotated, at 13-59. This is 

essentially an opportunity for a company to get a head count and figure out 

what if any money it may have to lose if its action is passed. This may 

provide pause for a company, but it is by no means a formal ceremony. 

 

5

 This argument seems to rely on a void/voidable distinction that is not apparent 

in § 13.21. See Klein v. Wolf Run Resort, 162 Vt. 506, 513 (1995) (Dooley, J., 

dissenting) (discussing the distinction between void and voidable contracts). The 

important question here is not about the validity of the transaction but whether the letter 

provided adequate notice to the corporation at the time.
Courts in other jurisdictions have looked quite liberally at attempts to 

satisfy this notice requirement. See, e.g., Raab v. Villager Indus. Inc., 355 

A.2d 888, 891 (Del. 1976); Jaquith & Co. v Island Creek Coal Co., 219 

A.2d 514, 516 (N.J. 1966) (shareholder’s modified proxy form satisfied 

pre-meeting notice requirements for dissenter’s rights). This may be in part 

because the initial notice can be informal and the satisfying its purpose is 

much more important than satisfying any punctiliousness. 

 In contrast, the post-meeting demand for payment is considered a 

much more formal transaction between the dissenting shareholder and the 

corporation. As one court noted: 

A demand for payment under § 262(b), on the other hand, requires 

the formality and legal technicality befitting a last step in the final 

transaction between the corporation and its dissenting stockholder. 

A demand for payment must be properly and formally signed by or 

for all stockholders of record.

Raab, 355 A.2d at 892. Many of Shelburne Supermarket’s arguments about 

the shortcomings of the June 28 letter mirror this elevated concern toward 

the post-meeting demand for payment communication. Yet, the Claytons’ 

later communication is not at issue here as it appears to have satisfied the 

requirements of § 13.23. 

 In this case, the corporation hangs its argument around the botched 

stock transfer to Lisa Clayton. This line of reasoning, however, is 

ultimately irrelevant to analyzing the § 13.21 merit of the letter. As the 

siblings shareholders note, the letter adequately states that all four of them 

intended to dissent from the consolidation plan. The letter, in its own way, 

is also unambiguous about the identity of the owners for whom Lisa is 

acting as the beneficial owner. The third sentence of the June 28 letter 
states that Kevin, Alan, and Catherine had transferred their interest in their 

stock to Lisa to hold as beneficial owner.6

 Thus, there is no serious 

question of identity when in the same letter Lisa gives § 13.21 notice for 

herself and “those for whom she is the beneficial owner.” While this 

transfer would later be voided under the corporation’s rules, at the time the 

siblings were fairly clear that they intended to dissent and to assert their 

dissenter’s rights through Lisa. The corporation admits as much in its brief 

when it explains that it sent individual notices on July 2 to the Claytons, 

notwithstanding the alleged failure of three of them to properly serve notice 

under § 13.21, “in an abundance of caution.” That is the corporation knew 

that the siblings had dissented and intended to assert their appraisal rights. 

Their notice, while imperfect, had certainly triggered some awareness on 

the part of the corporation. 

 Any other concerns embodied in § 13.21 are not particularly relevant 

here. As a small corporation, there was no danger or equitable problem in 

allowing the four siblings to assert their dissenters’ rights since there were 

no other dissenting shareholders. The corporation was aware of just how 

many shareholders were dissenting and given their familial connection to 

the business it was highly likely that they would attempt to fully assert their 

dissenters’ rights. The fact that the corporation was already planning on 

purchasing the siblings’ shares also mitigates any lingering concerns about 

allowing the June 28 letter satisfy § 13.21. As this plan was already in place 

prior to the June 30 meeting, it would be somewhat disingenuous for the 

corporation to argue that any unexpected hardship attached to allowing the 

 

6

 The briefs are silent as to why this transfer was attempted. It is possible that the 

dissenting siblings wanted to combine their stock so that at least one share could survive 

the consolidation. 
siblings to assert their full appraisal rights. After all, this discussion is 

really just about the ability of the dissenting shareholders to make a 

challenge to the corporation’s valuation. Therefore, the court concludes 

that the June 28 letter satisfied the sibling’s duty under § 13.21, in that it 

put the corporation on notice that the siblings intended to assert appraisal 

rights for all 9.6 shares of dissenting stock. 

 The remaining question, whether the corporation properly complied 

with its articles of incorporation in the consolidation, is irrelevant to the 

present case. Dissenters have elected to pursue their appraisal rights under 

chapter 13. That election gives them the sole remedy of appraisal rights 

that they have chosen to pursue. As previously noted, chapter 13 represents 

a compromise between minority and majority interests. By electing to 

dissent and asserting appraisal rights, the siblings have chosen to leave the 

corporation and recoup their financial interest. Any arguments about 

corporate process, short of unlawful action or fraud, are outside the scope 

of this review. 11A V.S.A. § 13.02 (b). Therefore, beyond fraud or 

unlawfulness, scrutiny over the procedure that the corporation chose to use 

to conduct a consolidation is outside the scope of a dissenters’ rights case. 

 To the extent that the shareholders’ argument can be understood to 

mean that the consolidation was unlawful, a brief discussion is warranted. 

The dissenters argue that the consolidation was invalid because 1) it did not 

include a change to the articles of incorporation and 2) such a change would 

require the dissenters’ approval as a voting group under 21 V.S.A. § 

10.03(e)(1). To this second point, the dissenters rely on an improper use of 

the term “voting group.” According to them, they qualify as a voting group 

because the consolidation would result in their disenfranchisement from the 

corporation. Thus, they would define the term to mean any group of 
shareholders who are disproportionately affected by a fundamental change. 

Presumably, this would mean that almost any dissenting shareholder in a 

fundamental corporate change would qualify as a voting group. Under such 

a definition, dissenters seem to be proposing § 10.04 as a way of reasserting 

the old common-law principle of unanimity for corporate changes. Cf. 

Johnson & Bartlett, supra, at 212–16 (describing how the MBCA and 

chapter 13 replaced the common-law requirement unanimity). Of course, 

such an interpretation would violate the limits of chapter 13 and the 

compromise it represents. Id. 

 “Voting group” is actually a term of art that is defined in 11A V.S.A. 

§ 1.40 (24) as 

[A]ll shares of one or more classes or series that under the articles 

of incorporation or this title are entitled to vote and be counted 

together collectively on a matter at a meeting of shareholders. All 

shares entitled by the articles of incorporation or this title to vote 

generally on the matter are for that purpose a single voting group.

Cf. Black’s Law Dictionary at 1608 (8th ed. 2004) (classification of 

shareholders by the type of stock held for voting on corporate matters). In 

other words, a corporation has only one voting group unless it issues shares 

with different voting rights. See 11A V.S.A. §§ 6.01, 6.02 (defining how 

incorporators can issue different classes and series of stock). The evidence 

here shows that the corporation issued only one class and series of stock. 

While dissenters as minority shareholders may have been disproportionally 

affected by the consolidation, they had equal voting rights with the majority 

shareholders. Therefore, the requirements they cite in § 10.03 are 

inapposite and the second part of their argument must fail. 

 As to the dissenters’ first point, the question is by and large moot. 
At this point, any technical flaws that the consolidation has will not affect 

the purpose for which the court is involved with this case, namely the 

judicial appraisal of shares. 11A V.S.A. § 13.30. The corporation argues 

that it did not need to amend its articles of association to consolidate its 

shares. To support this, the corporation cites the permissive language in § 

10.03 governing amendments. There is also additional language in § 

6.04(1)(2) that empowers a corporation to “arrange for the disposition of 

fractional shares by the shareholders.” Other jurisdictions working with the 

Model Business Corporation Act have either affirmed the power of the 

corporation to make such consolidations without amendment or have 

allowed the corporation to amend its articles afterwards. Goldman v. 

Union Bank & Trust, 765 P.2d 638, 640–41 (Colo. App. 1988) (affirming

the corporation’s power); Seed Products Intern., Inc. v. Owen, 768 P.2d 

973, 975 (Utah App. 1989) (allowing for later amendment). Such 

flexibility fits with the general purpose of the Vermont Business 

Corporation Act to give corporations flexibility within the rules to allow 

them to adopt procedures to their individual needs. Smiddy, supra, at 11. 

In this case, either option would leave the dissenters in the same position: in 

the minority with their dissenting rights. Whether the corporation violated 

its corporate structure, however, is irrelevant as it does not void the 

consolidation. 

 Dissenters also challenge Steven Clayton’s ownership of a majority 

of the shares in the corporation. This challenge refers to a dispute between 

Steven and his parents that is pending in Chittenden Superior Court. In re 

Shelburne Supermarket, No. S0065-03 CnC (Jan. 17, 2003). That case is 

an appeal from an arbitration giving Steven control over a majority of 

Shelburne Supermarket shares. The dissenters in this case argue that 

because the Shelburne Supermarket case is about the ownership of the 
shares and is still pending Steven cannot prove that he controls a majority 

of Shelburne Supermarket stock. This argument mis-characterizes the 

case’s present disposition. On September 11, 2003, this court issued a 

decision on the issue of ownership. In re Shelburne Supermarket, Findings 

of Fact, Conclusions of Law, and Notice of Decision, No. S0065-03 CnC 

(Katz, J., Jan. 17, 2003). There, this court affirmed the arbitration 

agreement and ordered that Steven be vested with title to and control over 

the stock shares. To the extent that this case remains open, it is only about 

tangential issues that do not affect the question of ownership for this case. 

The conclusion is that there is no evidence to support the claim that Steven 

Clayton lacks or lacked ownership and control over the majority stock 

shares that he voted in the consolidation plan. 

 Finally, dissenters have made an unsupported motion for fees and 

costs under § 13.31. Dissenters have not included any evidence or 

affidavits to support this motion. V.R.C.P. 7(b)(1). Briefly, § 13.31 does 

not appear to support a motion for expenses mid-trial. As discussed before, 

the provisions of § 13.23 allow dissenters to accept the corporation’s 

payment and still retain the right to dissent. Smiddy, supra, at 48–49. 

Dissenters chose not to accept this payment. It is somewhat disingenuous 

for them to argue hardship now. Finally, there has been no evidence that 

the corporation failed to comply with its obligations under chapter 13. Nor 

does merely challenging dissenters’ compliance equate to vexatious 

behavior. Dissenters’ motion is dismissed. 

 In conclusion, the court finds that the dissenting shareholders 

properly asserted their appraisal rights prior to the June 30 shareholders 

meeting, and the corporation had enough notice to satisfy the requirements 
of § 13.21. The corporation’s actions were legitimate within the context of 

its corporate structure. To the extent such actions may or may not have 

completely conformed to the corporation’s articles of incorporation, they do 

not affect the validity of the consolidation. Moreover, as dissenters have 

invoked chapter 13, they are limited from further challenging the fairness or 

sensibility of the consolidation. They have chosen to leave the corporation. 

11A V.S.A. § 13.02(b). This raises a point that neither party has briefed. 

As § 13.02(b) makes appraisal rights the exclusive remedy for shareholders, 

the question is whether the other case, Clayton v. Shelburne Supermarket, 

No. S0876-04 CnC, has been mooted and should be consolidated with this 

one to as to avoid any further costs and unnecessary delay. V.R.C.P. 42. 

Apart from this, the sole remaining issue is whether the corporation 

properly valuated the payment that it made to the dissenting shareholders. 

 Based on the foregoing, plaintiff’s motion for summary judgment is 

denied in part and granted in part. Defendants’ motion for summary 

judgment is denied in part and granted in part. Defendants’ motion for fees 

is dismissed. 

 

 Dated at Burlington, Vermont________________, 2005. 

 

________________________ 

Judge