Sherrie Porter v. First Bankshares, Inc.

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 19, 2023
• Docket: 22-1685
• Status: Unpublished

Opinion

USCA4 Appeal: 22-1685 Doc: 32 Filed: 01/19/2023 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-1685

SHERRIE N. PORTER,

Plaintiff - Appellant,

v.

FIRST BANKSHARES, INC.; PHILLIP VALLANDINGHAM; P. ANDREW VALLANDINGHAM; SAMUEL VALLANDINGHAM; STEPHANIE V. MAYBERRY; ROBERT JACKSON DILLEY; DANIEL T. YON; RONALD W. WOODELL; MICHAEL S. LUNSFORD, as Directors of either or both First Bankshares, Inc., and The First State Bank of Barboursville; ANY AND ALL OTHER UNNAMED AND TO BE DETERMINED DIRECTORS THEREOF; GUYAN HOLDING COMPANY; FIRST BANKSHARES TRUST PREFERRED I,

Defendants - Appellees,

and

THE FIRST STATE BANK OF BARBOURSVILLE; THE FIRST COMPANY; WEST VIRGINIA DEVELOPMENT LOAN FUND, INC.,

Defendants.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, District Judge. (3:21-cv-00464)

Submitted: January 17, 2023 Decided: January 19, 2023 USCA4 Appeal: 22-1685 Doc: 32 Filed: 01/19/2023 Pg: 2 of 3

Before KING, Circuit Judge, and TRAXLER, Senior Circuit Judge. *

Affirmed by unpublished per curiam opinion.

ON BRIEF: Paula L. Harbour, PAULA L. HARBOUR PLLC, Huntington, West Virginia; W. Stephen Flesher, LAW OFFICES OF W. STEPHEN FLESHER, Barboursville, West Virginia, for Appellant. J. Mark Adkins, William M. Lorensen, BOWLES RICE, LLP, Charleston, West Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

* The opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d).

2 USCA4 Appeal: 22-1685 Doc: 32 Filed: 01/19/2023 Pg: 3 of 3

PER CURIAM:

Sherrie N. Porter appeals the district court’s order granting summary judgment in

favor of Defendants on Porter’s remaining claim against her former employer and officers

and directors thereof, alleging that Defendants wrongfully failed to withdraw or transfer

assets in Porter’s stock employee ownership fund upon her request. The court had

previously dismissed Porter’s claim that Defendants mismanaged the company, causing

the value of the stock to drop, thereby diminishing the value of Porter’s retirement assets,

for lack of standing as only the plan trustee could bring such a claim. On appeal, Porter

does not challenge the district court’s rulings. Rather, she asserts a new claim: that the

administrator and trustees of the plan breached fiduciary duties owed to her. Because

Porter raises this claim for the first time on appeal, we decline to consider it. See In re

Under Seal, 749 F.3d 276, 285 (4th Cir. 2014). And because Porter fails to challenge the

district court’s rulings, Porter has waived any claim of error in the district court’s orders.

See Belk, Inc. v. Meyer Corp., U.S., 679 F.3d 146, 153 n.4, 6 (4th Cir. 2012). Accordingly,

we affirm. 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.

AFFIRMED