Posts tagged "Wallace"

Kushner v. Wallace, et al. (Lawyers Weekly No. 09-005-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV02473-BLS2 ____________________ EVAN M. KUSHNER v. ROBERT V. WALLACE, JR.; WALLACE CAPITAL, LLC; and WALLACE LENDING CORPORATION f/k/a Wallace Property Company, Inc. ____________________ MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS THE AMENDED COMPLAINT IN PART, PLAINTIFF’S MOTION TO FILE A SECOND AMENDED COMPLAINT, and PLAINTIFF’S MOTION TO COMPEL DISCOVERY This decision resolves three pending motions. First, Defendants have moved to dismiss most of the claims asserted by plaintiff Evan M. Kushner in his first amended complaint. The Court will allow this motion in part. It will dismiss so much of Count IV that asserts claims against Robert Wallace and Wallace Lending Corporation to enforce a promissory note entered into by Wallace Capital, LLC. Mr. Kushner may assert that claim against Wallace Capital, but not against the other two defendants. The Court will also dismiss any claim that Wallace Lending Corporation acted in concert with Robert Wallace to divert income from Wallace Capital LLC, because any such claim must be brought as a derivative action on behalf of Wallace Capital and not as a personal claim by Mr. Kushner. And the Court will also allow the motion to the extent that it seeks a more definite statement of the claims for breach of fiduciary duty, and will order that Kushner is bound by the more definite statement that his counsel provided during the hearing and clarified in a subsequent written submission. The rest of the motion to dismiss Kushner’s remaining claims is denied. Second, the Court will deny Kushner’s motion for leave to file a second amended complaint because the proposed second amended complaint would not provide a “short and plain statement” of Kushner’s claims as required by Mass. R. Civ. P. 8(a), and because Kushner has not shown that there is any good reason to allow this further amendment.1 Third, the Court will also deny Kushner’s motion to compel discovery. 1 Plaintiff ignored his obligation under Rule 8(a) to file “a short and plain statement” of his claims in his first amended complaint as well. He instead filed an amended complaint that is 38-pages long, has 202 numbered paragraphs, and is very – 2 – 1. Defendant’s Motion to Dismiss the First Amended Complaint. 1.1. Note Claim. Count IV of the amended complaint is a claim to enforce and collect under a $ 1.25 million promissory note. Kushner asserts this claim against all three defendants—Wallace Capital, Robert Wallace, and Wallace Lending. The latter two argue to dismiss this claim as against them, arguing that they cannot be held liable on a note that by its terms is payable only by Wallace Capital. The Court agrees that the amended complaint does not allege […]

Read more...

Posted by Massachusetts Legal Resources - February 4, 2018 at 3:09 pm

Categories: News   Tags: , , , ,

Wallace v. PNC Bank, N.A. (Lawyers Weekly No. 10-010-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-12261   DAVID C. WALLACE  vs.  PNC BANK, N.A.     January 16, 2018.     Supreme Judicial Court, Superintendence of inferior courts.     David C. Wallace (petitioner) filed a petition in the county court pursuant to G. L. c. 211, § 3 (general superintendence); G. L. c. 249, § 4 (relief in the nature of certiorari); and G. L. c. 249, § 5 (relief in the nature of mandamus), seeking relief from a judgment of the District Court in a summary process proceeding.[1]  He also challenged a decision of the Appellate Division of the District Court affirming the appeal bond ordered by the trial judge in the same summary process proceeding.  The single justice denied the petition without a hearing.  We affirm.   Regardless of whether relief is requested in the nature of certiorari or mandamus, or by means of the court’s extraordinary power of general superintendence, relief is available only where the petitioner demonstrates the absence of an adequate and effective alternative remedy.  See Picciotto v. Appeals Court (No. 2), 457 Mass. 1002, 1002 (2010), cert. denied, 562 U.S. 1044 (2010) (certiorari review unavailable where other paths for review available); Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 82-83 (1968) (purpose of certiorari is to provide a remedy in absence of reasonably adequate alternative).  See also Murray v. Commonwealth, 447 Mass. 1010, 1010 (2006) (relief in nature of mandamus is extraordinary, and granted in court’s discretion only where other relief unavailable); Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019 (1996) (relief properly denied under G. L. c. 211, § 3, “where there are [other] adequate and effective routes . . . by which the petitioning party may seek relief”).   The petitioner failed to carry his burden of showing that adequate alternative remedies were not available here.  To the extent he challenged the Appellate Division’s decision affirming the District Court judge’s order declining to waive an appeal bond, “[t]he proper course for [him] to have followed, if [h]e wished further to challenge the bond, was to refuse to pay the bond, suffer the dismissal of [his] summary process appeal, and then appeal to the Appeals Court (on the limited bond issue) from the order of dismissal.”[2]  Matter of an Appeal Bond (No. 1), 428 Mass. 1013, 1013 (1998) (collecting cases).  See Erickson v. Somers, 446 Mass. 1015, 1015 (2006).  To […]

Read more...

Posted by Massachusetts Legal Resources - January 16, 2018 at 4:47 pm

Categories: News   Tags: , , , , ,

Commonwealth v. Wallace (Lawyers Weekly No. 11-098-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   15-P-1262                                       Appeals Court   COMMONWEALTH  vs.  LARON WALLACE.     No. 15-P-1262.   Hampden.     April 13, 2017. – July 28, 2017.   Present:  Kafker, C.J., Grainger, & Massing, JJ.[1]     Controlled Substances.  Constitutional Law, Plea, Conduct of government agents, Sentence.  Due Process of Law, Plea, Sentence.  Practice, Criminal, Plea, New trial, Conduct of government agents, Sentence, Affidavit.       Indictments found and returned in the Superior Court Department on April 20, 2011.   A motion to withdraw a plea of guilty was heard by Tina S. Page, J.     Sara A. Laroche for the defendant. Benjamin Shorey, Assistant District Attorney, for the Commonwealth.     KAFKER, C.J.  The defendant, Laron Wallace, appeals from the denial of his motion to withdraw his guilty plea to possession with intent to distribute a Class B substance, G. L. c. 94C, § 32A(c).  He argues that the motion judge abused her discretion in denying the motion because of the Commonwealth’s misconduct in a prior case of his involving the chemist Sonja Farak, which came to light after the guilty plea was entered in this case.  Although Farak was not the chemist in this case, the defendant contends that her misconduct in the prior case casts doubt upon the justice of this plea because he considered the concurrent sentences he received in the two cases to be interrelated.  Essentially he contends that because his motion for a new trial was allowed and his sentence reduced in the other case involving Farak, the same should occur in this case. For the reasons that follow, we affirm the denial of the motion to withdraw the guilty plea. Background.  The following facts are undisputed.  On March 2, 2011, the defendant was arrested by Springfield police executing a search warrant at an apartment located within 100 feet of a public park.  The defendant was observed with a bag containing thirty-seven rocks of a substance later determined to be crack cocaine, packaged in smaller individual bags, at his feet.  A search of the defendant’s person revealed $ 378 in cash and two cellular telephones.  Police also found two digital scales in the apartment.  The defendant was indicted in Superior Court, docket no. 2011-00300 (the 2011 case) on two counts:  (1) possession with intent to distribute a Class B substance, subsequent offense, G. L. c. 94C, § 34A(d); and (2) a drug violation in a […]

Read more...

Posted by Massachusetts Legal Resources - July 28, 2017 at 4:01 pm

Categories: News   Tags: , , , ,

Commonwealth v. Wallace (and a companion case) (Lawyers Weekly No. 10-105-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11705 SJC-11707   COMMONWEALTH  vs.  NICKOYAN WALLACE (and a companion case[1]). Suffolk.     February 4, 2015. – June 30, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Homicide.  Constitutional Law, Speedy trial, Delay in commencement of prosecution.  Due Process of Law, Delay in commencement of prosecution.  Practice, Criminal, Speedy trial, Delay in commencement of prosecution, Capital case.       Indictments found and returned in the Superior Court Department on May 22, 2002.   Motions to dismiss, filed on June 18 and 28, 2010, were heard by Charles J. Hely, J.   An application for leave to prosecute an interlocutory appeal in the companion case was allowed by Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals were consolidated and reported by him to the Appeals Court.  After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Norman S. Zalkind (Ruth O’Meara-Costello with him) for Timi Wallace. Matthew A. Kamholtz for Nickoyan Wallace. Sarah Montgomery Lewis, Assistant District Attorney, for the Commonwealth. J. Anthony Downs, Samuel Sherry, Catherine Curley, Matthew R. Segal, Jessie Rossman, & Chauncey B. Wood for American Civil Liberties Union Foundation of Massachusetts & another, amici curiae, submitted a brief.     SPINA, J.  In this consolidated interlocutory appeal, we consider whether the Commonwealth’s delay in obtaining custody of the defendants Nickoyan Wallace (Nickoyan) and Timi Wallace (Timi),[2] brothers, from Federal prison authorities impermissibly affected their right to a speedy trial.  In considering this question in motions to dismiss due to delays totaling more than nine years,[3] a judge of the Superior Court found that Timi’s right to a speedy trial had not been violated but that of Nickoyan had.  A single justice of this court allowed the interlocutory appeals of Timi and the Commonwealth, consolidated the cases, and reported them to the Appeals Court.  The Appeals Court held that the Commonwealth had not violated the speedy trial right of either brother, affirming the denial of Timi’s motion and reversing the allowance of Nickoyan’s.  Commonwealth v. Wallace, 85 Mass. App. Ct. 123 (2014).  This court granted the brothers’ applications for further appellate review.  We affirm the decision of the trial court to deny Timi’s motion and to allow Nickoyan’s motion.[4] 1.  Background.  The essential facts are not in dispute, and […]

Read more...

Posted by Massachusetts Legal Resources - June 30, 2015 at 5:33 pm

Categories: News   Tags: , , , , , ,

Commonwealth v. Wallace (Lawyers Weekly No. 11-031-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     12‑P‑1798                                       Appeals Court 12‑P‑1557   COMMONWEALTH  vs.  NICKOYAN WALLACE (and a companion case[1]). Nos. 12‑P‑1798 & 12‑P‑1557. Suffolk.     November 13, 2013.  ‑  March 21, 2014. Present:  Kantrowitz, Graham, & Meade, JJ.   Constitutional Law, Speedy trial, Delay in commencement of prosecution.  Practice, Criminal, Speedy trial, Delay in commencement of prosecution, Capital case.  Due Process of Law, Delay in commencement of prosecution.  Homicide.       Indictments found and returned in the Superior Court Department on May 22, 2002.   Motions to dismiss, filed on June 18 and 28, 2010, were heard by Charles J. Hely, J.   An application for leave to prosecute an interlocutory appeal in the companion case was allowed by Ralph D. Gants, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals were consolidated and reported by him to the Appeals Court.     Norman S. Zalkind for Timi Wallace. Sarah H. Montgomery, Assistant District Attorney (Ursula Knight, Assistant District Attorney, with her) for the Commonwealth. Matthew A. Kamholtz for Nickoyan Wallace.     GRAHAM, J.  In June, 2010, the defendants, Nickoyan Wallace and Timi Wallace, indicted in May, 2002, for murder in the first degree, filed motions to dismiss the indictments based on violations of their speedy trial rights under the Sixth Amendment to the United States Constitution, art. 11 of the Massachusetts Declaration of Rights, and Mass.R.Crim.P. 36(d)(3), 378 Mass. 913 (1979). A judge in the Superior Court conducted a three-day evidentiary hearing on the motions during which he heard testimony from two law enforcement officers and five assistant district attorneys.  In addition, by agreement, the judge received in evidence several documentary exhibits. Following the hearing, the judge issued a lengthy and comprehensive memorandum of decision and order dated December 6, 2011.  After weighing the relevant speedy trial factors, the judge concluded that the Commonwealth’s seven-year delay in filing a detainer against Nickoyan was egregious, giving rise to presumptive prejudice that required dismissal of the indictment against him.  In contrast, the judge denied Timi’s motion to dismiss on the basis that Timi was more responsible for the delay and could not benefit from any prejudice resulting therefrom. The Commonwealth filed a timely appeal from the dismissal of the indictment against Nickoyan.  A single justice of the Supreme Judicial Court for Suffolk County allowed Timi’s motion for interlocutory review of the […]

Read more...

Posted by Massachusetts Legal Resources - March 22, 2014 at 7:45 am

Categories: News   Tags: , , , ,