Brian Eisen v. DCG&T

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:14-cv-00067-JAG. Copies to all parties and the district court/agency. [999822236]. [15-2184, 15-2262]

Appeal: 15-2184

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UNPUBLISHED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;
PERRY; DOES 1-10,

JUSTIN

KNIGHT;

DAVID

MCKENNEY;

BRYAN

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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
approving

A.
the

Eisen

appeals

settlement

from

of

a

the

district

shareholder

court’s

derivative

order
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.
section

13.1-735.1(A)

of

the

Code

of

Pursuant to

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.
facts

and

materials

legal
before

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
DISMISSED

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