**UN PUBLISHED** 

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

**No. 15**  **- 2184** 

BRIAN A. EISEN ,
Intervenor

- Appellant ,

v.
DCG&T, f/b/o Jack Battaglia/IRA; JACK BATTAGLIA; DCG&T f/b/o Lori Battaglia/IRA , Plaintiffs

– Appellees,

and

GLADE M. KNIGHT; MICHAEL S. WATERS; ROBERT M. WILY; BRUCE H. MATSON; JAMES C. BARDEN; APPLE REIT NINE, INC., now known as Apple Hospitality REIT, Inc.,

Defendants

– Appellees,

KRISTAN GATHRIGHT; JUSTIN KNIGHT; DAVID MCKENNEY; BRYAN PERRY ; DOES 1

- 10,

Defendants

.

**No. 15**  **- 2262** 

DCG&T, f/b/o Jack Battaglia/IRA; JACK BATTAGLIA; DCG&T f/b/o Lori Battaglia/IRA,

Plaintiffs

- Appellants ,

v.2 BRIAN A. EISEN,

Intervenor

– Appellee,

and

GLADE M. KNIGHT; MICHAEL S. WATERS; ROBERT M. WILY; BRUCE H. MATSON; JAMES C. BARDEN; APPLE REIT NINE, INC., now known as Apple Hospitality REIT, Inc.; KRISTAN GATHRIGHT; DAVID MCKENNEY; JUSTIN KNIGHT; BRYAN PERRY; DOES 1

- 10,

Defendants

.

Appeal s from the United States District Court for the Eastern District of Virginia , at Richmond

. John A. Gibney, Jr. , District Judge. ( 3:14

- cv
- 00067

- JAG )

Submitted : April 29, 2016 Decided: May 13, 2016

Before KING, FLOYD, and THACKER , Circuit Judges.

Dismissed by un published per curiam opinion

.

Micha el L. Donner, Sr., CARRELL BLANTON FERRIS & ASSOCIATES, PLC, Richmond, Virginia, for Appellant/ Cross

- Appellee. Jeffrey Hamilton Geiger, SANDS ANDERSON PC, Richmond, Virginia; Kevin Peter Roddy, WILENTZ, GOLDMAN & SPITZER, PA, Woodbridge, New Jersey , for A ppellees/Cross

- Appellants. Elizabeth F. Edwards, MCGUIREWOODS, LLP, Richmond, Virginia; Charles William McIntyre, Jr., MCGUIREWOODS, LLP, Washington, D.C., for Appellees

.

Unpublished opinions are not binding precedent in this circuit.3 PER CURIAM: Brian A. Eisen appeals from the district court’s order
approving the settlement of a shareholder derivative action
filed by Jack Battaglia and DCG&T, for the benefit of the IRAs
of Jack and Lori Battaglia (collectively “Plaintiffs”), against

the directors and officers of Apple REIT Nine, Inc. now known as
Apple Hospitality REIT, Inc. The Plaintiffs cross

- appeal, asserting that Eisen lacked standing to challenge the settlement
in the district court and lacks standing to appeal. Pursuant to
section 13.1

- 735.1(A) of the Code of Virginia, once a
stockholder signs and returns an appraisal form seeking fair
value for his shares, he loses all right as a shareholder and
the appraisal becomes his only remedy. * Va. Code Ann. § 13.1

- 735(A); see Adams v. U.S. Distrib. Corp. , 34 S.E.2d 244 ( Va.
1945). Accordingly, once Eisen opted to pursue his appraisal
rights, he no longer had standing to challenge the settlement of
the shareholder derivative action, and he does not have standing
to appeal from the settlement of that action. See Lujan v.

* Eisen is a member of the class that will receive a di stribut ion under the terms of the settlement . However, a s was discussed during the Fairness Hearing in the district court, any recovery Eisen receives from the settlement will likely be applied against the value he receives for his shares in the appraisal action because the appraisal proceeding is Eisen’s exclu sive remedy. See Adams , 34 S.E.2d at 245

.4 Defenders of Wildlife , 504 U.S. 555, 5 6 0

- 6 1 (1992) (discussing
elements of standing). We therefore dismiss appeal No. 15

- 2184. In light of the dismissal of Eisen’s appeal, we dismiss as moot
appeal No. 15

- 2262. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.

DISMISSED