7 Mass. App. Ct. 932 | Mass. App. Ct. | 1979
The plaintiff brought suit to review the grant of a variance by the zoning board of appeal of North Attleborough, and his action was dismissed for failure to comply with the procedural requirements of G. L. c. 40A, § 21 (reference is to the "old” zoning enabling act, as amended through St. 1974, c. 78, § 1, prior to amendment by St. 1975, c. 808, § 3), specifically, failing to file on time with the town clerk a written notice of the commencement of his action in the Superior Court, together with a copy of his complaint. See Pierce v. Board of Appeals of Carver, 369 Mass. 804, 808 (1976); Costello v. Board of Appeals of Lexington, 3 Mass. App. Ct. 441, 442-443 (1975).
From the judgment of dismissal, the plaintiff noticed a timely appeal. Mass.R.A.P. 4, 365 Mass. 846 (1974). Thereafter, plaintiffs counsel notified the Superior Court clerk that the plaintiff proposed to prepare a "statement of the evidence or proceedings” pursuant to
Under these circumstances, the trial judge acted appropriately in accordance with the discretion reposed in trial judges on motions to dismiss for failure to comply with rule 9(c). Vyskocil v. Vyskocil, 376 Mass. 137, 139 (1978). This is not a case where the appellant has taken every action expected of him under the rules and the record is not assembled for reasons having to do with misfiring in other parts of the appellate machinery. Compare Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 273-274 (1978). In this case, the failure of the plaintiff to take steps to enable the clerk to assemble the record was entirely due to his own inaction. A failure to comply with rule 9(c) is a "serious misstep,” not a "relatively innocuous one,” for which dismissal of the appeal is an appropriate remedy. Vyskocil v. Vyskocil, 376 Mass. at 139-140. Reiter Oldsmobile, Inc. v. General Motors Corp., 6 Mass. App. Ct. 637, 640 (1978).
Judgment affirmed.