UNPUBLISHED

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.
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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.

Appeals 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Dismissed by unpublished per curiam opinion.

Michael 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 Appellees/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Unpublished opinions are not binding precedent in this circuit.
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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 

distribution under the terms of the settlement. However, as 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 

exclusive remedy. See Adams, 34 S.E.2d at 245.
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Defenders of Wildlife, 504 U.S. 555, 560-61 (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