Home DIEU C. TRAN, trustee, [Note 1] & another [Note 2] vs. ZONING BOARD OF APPEALS OF PROVINCETOWN & another. [Note 3]

439 Mass. 1005

April 22, 2003

Dieu C. Tran, trustee of the Tran Family Nominee Trust, appeals from the denial of his petition for relief under G. L. c. 211, § 3, by a single justice of this court. Tran had sought leave to file a notice of appeal, nearly seventeen

Page 1006

months late, from a judgment of the Orleans District Court affirming a decision of the zoning board of appeals of Provincetown denying Tran permission to expand his restaurant to an adjoining outdoor patio.

Tran has filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). That rule only applies, however, when "a single justice denies relief from a challenged interlocutory ruling in the trial court." S.J.C. Rule 2:21 (1), 421 Mass. 1303 (1995). Here, Tran did not challenge an interlocutory ruling of the trial court. He merely requested leave to file a late notice of appeal. Accordingly, rule 2:21 is inapplicable. In any event, we can safely conclude on the record before us that the single justice did not abuse her discretion or otherwise err in denying relief under G. L. c. 211, § 3, because Tran did not satisfy his burden of showing that he was entitled to file a late notice of appeal. [Note 4] See Mass. R. A. P. 14 (b), as amended, 378 Mass. 939 (1979); Lawrence Sav. Bank v. Garabedian, 49 Mass. App. Ct. 157 , 161-164 (2000).

The judgment of the single justice is affirmed.

So ordered.

The case was submitted on the papers filed, accompanied by a memorandum of law.

Dieu C. Tran, pro se.


[Note 1] Of the Tran Family Nominee Trust.

[Note 2] Family Tran, Inc. Because Tran is not an attorney, he may not lawfully represent this corporation. That fact, however, does not affect our decision in this case.

[Note 3] Building commissioner of Provincetown.

[Note 4] Tran has included several materials in his memorandum and appendix that were not before the single justice. Although we need not consider those items, see Milton v. Boston, 427 Mass. 1016 , 1017 (1998), and cases cited, nothing in them changes the result.