                                UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




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