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SJC-12920

SAID S. ABUZAHRA1 vs. CITY OF CAMBRIDGE.

Suffolk. November 2, 2020. - February 17, 2021.

Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.

Eminent Domain, Validity of taking, Right to damages. Statute,

Construction. Practice, Civil, Attorney's fees, Costs,
Interest, Frivolous action.

Civil action commenced in the Superior Court Department on

August 17, 2017.

A pretrial motion to compel pro tanto payment was heard by

Bruce R. Henry, J.

An interlocutory proceeding was had in the Appeals Court

before Peter J. Rubin, J.; review by a panel of the Appeals
Court was sought; and the Supreme Judicial Court on its own
initiative transferred the case from the Appeals Court.

John S. Leonard for the defendant.

John E. Bowen for the plaintiff.

KAFKER, J. The issue presented is whether G. L. c. 79, the

so-called "quick take" statute, permits a property owner to both

1 Individually and as trustee of Equity Realty Trust.

 2

accept a pro tanto payment for an eminent domain taking and

simultaneously challenge the lawfulness of that taking.2 Under

c. 79, once a taking authority records an order of taking, the

authority generally must tender a payment pro tanto to the

property owner. G. L. c. 79, § 8A. However, the statutory

framework is silent as to whether the acceptance of the pro

tanto payment by the property owner precludes a challenge to the

validity of the taking.

The plaintiff argues that the defendant city of Cambridge

(city) must immediately tender him the full amount of the pro

tanto payment, along with accrued interest since the time of

taking, because G. L. c. 79 as it is currently written does not

condition his acceptance of the pro tanto payment on waiving his

right to challenge the taking of his real property. The city

disagrees, arguing that the statutory framework and case law

prohibit a property owner from accepting a pro tanto payment so

long as the property owner pursues a claim challenging the

lawfulness of the taking. According to the city, if the

plaintiff challenges the taking, which is his statutory right,

then he will have neither his property, which has been taken

pursuant to the quick take statute, nor the pro tanto amount.

2 Our decision is limited to takings made pursuant to G. L.

c. 79 and does not address takings made under any other
authority, including G. L. c. 80A.
 3

We conclude that G. L. c. 79 permits the plaintiff to both

accept a pro tanto payment and simultaneously challenge the

validity of the underlying taking. We do so because of the

enormous power that the quick take statute provides, which

immediately transfers ownership of the property from the

property owner to the taking authority independent of judicial

processes; the clear requirement of a pro tanto payment; and the

absence of any statutory provision waiving pro tanto payments

when the taking itself is challenged. Therefore, we affirm the

order by a single justice in the Appeals Court, vacating a

decision by a Superior Court judge that denied the plaintiff's

motion to compel payment of the pro tanto amount, and we remand

the matter to the Superior Court for further proceedings

consistent with this opinion.

Background. 1. Statutory framework. The main statutory

framework for eminent domain proceedings in Massachusetts is

G. L. c. 79, which has been described as the "quick take"

statute.3 Upon the recording of an order of taking by a taking

3 Massachusetts also has a statutory framework for so-called

"straight condemnations," in which no taking occurs until the
amount of valuation of the property is determined by a court.
See G. L. c. 80A. However, the vast majority of eminent domain
takings in Massachusetts are made under G. L. c. 79. See
Massachusetts Municipal Law § 30.2, at 30-2 (Mass. Cont. Legal
Educ. 2d ed. 2015) (characterizing G. L. c. 80A as "a rarely
used alternative procedure" for eminent domain takings because
"it is a lengthy, cumbersome procedure with its own pitfalls
 4

authority,4 title to the property passes immediately by operation

of law to the taking authority, and the right to damages for the

taking vests in the property owner, "unless otherwise provided

by law." G. L. c. 79, § 3. The taking authority must pay such

damages "within sixty days after the right thereto becomes

vested . . . and shall, except as provided in [G. L. c. 79,

§ 7D], be made immediately available to the persons entitled

thereto . . . ." G. L. c. 79, § 7B.5

In addition, G. L. c. 79, § 8A, states that, within sixty

days of when the order of taking is recorded, the taking

authority "shall . . . offer in writing to every person entitled

to damages on account of such taking a reasonable amount . . . ,

either in settlement under [G. L. c. 79, § 39,] of all damages

for such taking . . . or as a payment pro tanto." The statute

that may offset any perceived advantages [compared to G. L.

c. 79]").

4 General Laws c. 79 refers throughout to the "board of

officers" who have made a taking and the "body politic or
corporate" on behalf of which a taking was made. For brevity,
in this opinion we simply refer to the "city" or "taking
authority."

5 General Laws c. 79, § 7D, expressly provides two bases on

which a damages payment can be withheld: (1) when the taking
authority cannot ascertain the identity of the property owner;
or (2) when the property owner is "under a legal disability"
from receiving the payment. In either case, the taking
authority is required to place the damages award in a savings
account, where it is to remain until the property owner can
withdraw it. Id. Neither of these exceptions apply here.
 5

also provides: "If such person elects to accept the offer as a

pro tanto payment, such election shall be without prejudice to

or waiver or surrender of any right to claim a larger sum by

proceeding before an appropriate tribunal." Furthermore,

"[a]fter a pro tanto payment has been made or after an offer of

payment has been made in writing as required by this section and

not accepted, no interest shall be recovered except upon such

amount of damages as shall upon final adjudication be in excess

of said payment or in excess of the written offer of payment as

herein described." Id.

Finally, G. L. c. 79, § 18, provides that a property owner

may challenge the lawfulness of a taking within three years from

when the right to damages has vested. See Devine v. Nantucket,

449 Mass. 499, 506 (2007).

2. Facts. We summarize the relevant undisputed facts and

the procedural posture of this case.

In October 2016, the city effected an eminent domain taking

in fee of the plaintiff's real property pursuant to G. L. c. 79.

At the time of the taking, ownership of the property was in

dispute in separate litigation. Consequently, the city withheld

its tender of the pro tanto payment to the plaintiff and instead

paid the full $3,700,000 amount to the city treasurer pursuant

to G. L. c. 79, § 7D. In August 2017, the plaintiff commenced

the underlying action in Superior Court that sought to, among

 6

other things: (1) invalidate the city's October 2016 taking;

and (2) either obtain an assessment of temporary damages, or, if

the taking was found to have been valid, a determination of

permanent damages. In its answer to the plaintiff's complaint,

the city stated that it would tender the full pro tanto payment

amount to the proper owner of the property once the separate

ownership litigation was resolved. In October 2018, two years

after the city's taking, the plaintiff secured a final judgment

establishing his ownership over the property at issue.

In December 2018, the plaintiff filed a motion in this case

to compel the full tender of the pro tanto payment along with

accrued interest. In his motion, the plaintiff asserted that he

was entitled to receive the pro tanto payment for the city's

October 2016 taking of his property and simultaneously maintain

a claim challenging the validity of that taking. In May 2019, a

Superior Court judge issued an interlocutory order denying the

plaintiff's motion to compel, reasoning that it was "somewhat

incongruous" for the plaintiff to demand both payment of the pro

tanto and the return of his property. The judge further ordered

the city "to place the pro tanto funds, plus accumulated

interest, with the Court [to] be held in an interest-bearing

account" until the issue of the validity of the taking is

resolved.
 7

The plaintiff filed a petition pursuant to G. L. c. 231,

§ 118, first par., seeking interlocutory review of the Superior

Court judge's order. A single justice of the Appeals Court

reversed the order. The single justice determined that, "as a

matter of law, the defendant[] must now pay [the plaintiff]"

because "the [pro tanto] payment is required by [G. L. c. 79, §

7B], and the statute admits of no exception for cases in which

the underlying taking is challenged." Subsequently, the city

filed a motion for reconsideration, which the single justice

denied. The city then appealed to the full Appeals Court

pursuant to G. L. c. 231, § 118, second par., and we transferred

the case here on our own motion.

Discussion. 1. Standard of review. The issue whether

G. L. c. 79 permits a property owner to both accept a pro tanto

payment and challenge the validity of the underlying taking is a

pure question of law. Therefore, we review the Superior Court

judge's decision below de novo. See Barr Inc. v. Holliston, 462

Mass. 112, 114 (2012) (no deference accorded to interlocutory

order resolving pure question of law reported for appellate

review by judge of Superior Court).

2. Statutory interpretation. "Ordinarily, where the

language of a statute is plain and unambiguous, it is conclusive

as to legislative intent." Ryan v. Mary Ann Morse Healthcare

Corp., 483 Mass. 612, 620 (2019), quoting Ciani v. MacGrath, 481
 8

Mass. 174, 178 (2019). However, where the statutory language is

ambiguous or unclear, "we consider the cause of its enactment,

the mischief or imperfection to be remedied and the main object

to be accomplished, [such that] the purpose of its framers may

be effectuated" (quotation omitted). Spencer v. Civil Serv.

Comm'n, 479 Mass. 210, 217 (2018), quoting Water Dep't of

Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744

(2010). We have also emphasized that "eminent domain statutes

must be strictly construed because they concern the power to

condemn land in derogation of private property rights."

Providence & Worcester R.R. v. Energy Facilities Siting Bd., 453

Mass 135, 141 (2009), citing Devine, 449 Mass. at 506. Informed

by these principles, we conclude that the statutory text, the

legislative history, and the required strict construction of

takings statutes compel the conclusion that, under G. L. c. 79,

a property owner may both accept a pro tanto payment and

challenge the validity of the underlying taking.

We begin with the recognition that "[t]he taking of land

from a private owner against his will for a public use under

eminent domain is an exercise of one of the highest powers of

government." Devine, 449 Mass. at 506, quoting Lajoie v.

Lowell, 214 Mass. 8, 9 (1913). Takings under c. 79 are

especially significant because the rights of the parties vest

upon the recording of the order of taking. G. L. c. 79, § 3.

 9

Not only does the taking authority have the power to impose its

will on the property owner through eminent domain, but the

taking itself is swift and occurs automatically outside of

judicial processes. Given this dynamic, the statutorily

mandated pro tanto payment ensures that property owners receive

some initial recourse following the deprivation of their

property, and also incentivizes taking authorities to exercise

their significant eminent domain powers with discretion.

Turning to the statutory text, G. L. c. 79, § 8A, requires

that the taking authority offer the property owner a reasonable

amount "either in settlement under [G. L. c. 79, § 39,] of all

damages for such taking . . . or as a payment pro tanto." The

statute also provides that the taking authority must offer the

pro tanto payment to the property owner within sixty days of the

recording of the order of taking. Id. This language tracks

other provisions of c. 79 that provide for a strict time frame

for the payment of damages, as noted by the single justice. See

G. L. c. 79, § 7B ("Any check for the payment of such damages

[awarded in the order of taking] shall be issued either within

sixty days after the right thereto becomes vested, or within

fifteen days after demand therefor by any person entitled

thereto is made . . . and shall, except as provided in section

[G. L. c. 79, § 7D], be made immediately available to the

persons entitled thereto . . .").

 10

Although prompt payment of the pro tanto amount is clearly

required under §§ 8A and 7B, the effect of challenging the

taking itself is not addressed in either provision. General

Laws c. 79, § 18, the statute that permits the property owner to

challenge the validity of the taking, is not cross-referenced by

either § 8A or § 7B. Moreover, the only legal challenge that §

8A describes is that of a property owner who seeks greater

damages before a court, which the statute allows even after the

pro tanto payment has been accepted. That section provides:

"If such person elects to accept the offer as a pro tanto

payment, such election shall be without prejudice to or waiver

or surrender of any right to claim a larger sum by proceeding

before an appropriate tribunal." G. L. c. 79, § 8A. It does

not, however, in any way discuss waiver of the right to

challenge the taking itself. Therefore, while §§ 8A and 7B are

clear that the city must offer the pro tanto payment within a

relatively short time frame, and acceptance of the pro tanto

payment does not constitute a waiver of one's right to challenge

the amount of the taking, c. 79 is silent as to whether

acceptance of that offer affects the plaintiff's statutory right

to challenge the taking itself under § 18. In this sense, § 8A

is somewhat ambiguous.

"'To the extent there is any ambiguity in the statutory

language, we turn to the legislative history' as a guide to

 11

legislative intent." Matter of E.C., 479 Mass. 113, 118 (2018),

quoting Ajemian v. Yahoo!, Inc., 478 Mass. 169, 182 (2017). We

also seek, where possible, to "construe the various provisions

of a statute in harmony with one another, recognizing that the

Legislature did not intend internal contradiction." Lynch v.

Crawford, 483 Mass. 631, 639 (2019), quoting DiFiore v. American

Airlines, Inc., 454 Mass. 486, 491 (2009).

The purpose and importance of the prompt payment of pro

tanto amounts is set out in the legislative history. The idea

of a statutorily mandated pro tanto payment for takings under

G. L. c. 79 was first proposed by the Judicial Council in 1957.6

At the time, the Judicial Council stated that the twin purposes

of a mandatory pro tanto payment were:

"[T]o stop interest on that [pro tanto] amount, thus

protecting taxpayers, and to enable the landowner, whose
life, business[,] and financial condition[] may be
seriously interfered with, to get some payment with
reasonable promptness without waiving his claim for more,

6 As we recently noted:

"The Judicial Council was created in 1924 when a

legislative commission suggested it be implemented to 'make
a continuous study of the courts, report annually to the
Governor on the work of the judicial branch and suggest
rules of practice and procedure to the courts.' Johnedis,
'Creation of the Appeals Court and Its Impact on the
Supreme Judicial Court,' The History of the Law in
Massachusetts: the Supreme Judicial Court 1692-1992, at
451 (1992). It was comprised of judges from various courts
and lawyers, and eventually played a significant role in
the founding of the Appeals Court. Id."

Commonwealth v. Billingslea, 484 Mass. 606, 611 n.8 (2020).

 12

if he wishes to submit his claim to a judge or jury. . . .

In proposing a mandatory requirement of an offer and pro
tanto payment, we realize that in dealing with many land
takings a reasonable time is needed by the taking authority
to examine title, to examine the land in many cases, to
consider the various factors bearing on valuation and other
matters of detail in administration before a considered
offer and payment can be made."

Thirty-third Report of the Judicial Council, Pub. Doc. No. 144,

at 72-73 (1957). Two years later, in the 1959 legislative

session, the Legislature acted on the Judicial Council's

recommendation and enacted G. L. c. 79, § 8A, into law. See St.

1959, c. 626, § 3. Although G. L. c. 79, § 8A, has been amended

at various points over the years, the core of the statute has

not changed. See, e.g., St. 1993, c. 110, § 135 (amending

interest rate). "Since 1959, a pro tanto payment of damages

must be tendered to the person whose land is taken." Fifty-

third Report of the Judicial Council, Pub. Doc. No. 144, at 115

(1977). We have not located, in any version of § 8A, an express

exception to such payment for when the property owner challenges

the taking, nor have we located any discussion of such an

exception in the legislative history.

The statutory text and legislative history do, however,

reflect a recognition that, given that title to the property

passes immediately to the taking authority upon the recording of

the order of taking, eminent domain takings made under c. 79 may

impose sudden and heavy financial burdens on property owners.

 13

Such individuals must necessarily contend with a period of delay

in which they have neither their property nor just compensation

for the taking, as time may be required to conduct further

assessments of all damages reasonably owed to the property

owner. This concern does not abate when the property owner

seeks to challenge the validity of the taking, and the burden on

property owner in these instances is perhaps even greater than

on the property owner who accepts the pro tanto payment. Not

only must the property owner initiate the legal challenge on his

or her own accord, see G. L. c. 79, § 18, but the challenge must

come after the taking has already occurred. As this case

readily demonstrates, the resolution of such litigation may not

come for years.

Furthermore, we must consider not just this particular

property owner, who does not live on the property and appears to

have the means to pursue this litigation without the benefit of

the pro tanto amount. We must also consider the person of

limited means who was living in his or her family home before it

was taken, and who is determined to remain and contest the

taking. Without the pro tanto amount, such a person may be

forced to give up the family home, as without this payment, the

 14

person would have neither a place to live nor, perhaps, money to

litigate.7

Most importantly, if the Legislature intended to condition

acceptance of the pro tanto award on the waiver of one's right

to contest the underlying taking, we conclude it would have

7 We acknowledge that challenges to takings also impose

significant burdens on taking authorities. The city notes that
construction financing of public projects is unavailable to
municipalities so long as there is an outstanding challenge to
the title of the property. Allowing property owners to both
accept pro tanto amounts and contest the lawfulness of the
takings may also increase the number of such challenges. In
addition, the city contends that if the taking is ultimately
found to be unlawful, the detriment it would suffer from the
stalled public project is compounded by the risk that the
property owner may not be able to repay the full pro tanto
amount. Therefore, according to the city, the plaintiff would
be unjustly enriched, insofar as he could contest title to the
property and "have the benefit of spending the [p]ro [t]anto
award while the [c]ity is deprived of any productive use of the
property."

We note, however, that G. L. c. 79, § 8A, provides that,

should final damages be less than the pro tanto award, the
property owner is required to repay the difference back to the
taking authority, along with interest. Thus, the Legislature
has already accounted for the possibility that a property owner
may be required to return some undefined portion of the pro
tanto amount to the taking authority, and the taking authority
assumes the "risk" that the property owner may not be able to do
so. That risk also exists in the event a property owner
successfully challenges the taking, although obviously the
amount of money that must be returned would be greater. In such
cases, as the single justice reasoned, the city's interest in
recouping the pro tanto amount can be protected by the
imposition of a judicial lien on the property. See G. L.
c. 223, § 42. Accordingly, we agree with the single justice
that "[u]nder the statutory scheme, the risk, if any, is to be
borne by the city, not by landowners who have been deprived of
the use and enjoyment of their property."
 15

written G. L. c. 79 to reflect this legislative judgment, as

other States have done. For example, Cal. Civ. Proc. Code

§ 1255.260 (Thomson/West 2007), which governs eminent domain

"quick takes" in that State, provides:

"If any portion of the money deposited [by a taking

authority] pursuant to this chapter is withdrawn, the
receipt of any such money shall constitute a waiver by
operation of law of all claims and defenses in favor of the
persons receiving such payment except a claim for greater
compensation" (emphasis added).

Based on this clear statutory language, California courts have

held that the acceptance of damages under § 1255.260 constitutes

a waiver of one's right to contest the underlying taking, see

Clayton v. Superior Court of San Diego County, 67 Cal. App. 4th

28, 33 (1998), as the statute reflects the California

Legislature's "reasonable" judgment that a condemnee must choose

between either accepting preliminary damages or contesting the

taking, Mt. San Jacinto Community College Dist. v. Superior

Court of Riverside County, 40 Cal. 4th 648, 665-666 (2007).

Other States have enacted similarly clear laws concerning the

acceptance of damages for eminent domain quick takes. See S.C.

Code Ann. § 28-2-490 (condemnee who withdraws damages deposited

with court "waives all objections and defenses . . . to the

taking of his property, except for any claim to greater

compensation").
 16

No such language appears in our statute. In drafting G. L.

c. 79, the Legislature was attentive to the issue of waiver, as

it expressly stated that acceptance of a pro tanto award would

not constitute a waiver to a challenge to the amount of the

award. However, no further discussion of waiver appears in the

chapter. While the Legislature may choose to amend G. L. c. 79

to provide for such an express waiver, the chapter as it is

currently written does not condition acceptance of the pro tanto

award on waiving one's right to contest the taking. Eminent

domain statutes must also, as we have previously explained, be

strictly construed to protect individual property rights. See

Providence & Worcester R.R., 453 Mass at 141; Devine, 449 Mass.

at 506.

In sum, given the enormous power that the quick take

statute provides, which immediately transfers ownership of the

property from the land owner to the taking authority independent

of judicial processes, the clear requirement of a pro tanto

payment, the absence of any statutory provision waiving pro

tanto payments when the taking itself is challenged, and the

requirement to strictly construe G. L. c. 79 to preserve

individual property rights, we conclude that a property owner

may accept the pro tanto amount and simultaneously challenge the

lawfulness of the taking.

 17

3. Distinguishable case law. The city argues that, per

G. L. c. 79, § 3, the plaintiff's right to the pro tanto payment

has not yet vested because venerable case law provides that the

plaintiff cannot accept the pro tanto payment so long as he

contests the validity of the taking. The city relies primarily

on Opinion of the Justices, 360 Mass. 894, 899-900 (1971), in

which we stated that a property owner who files a petition for

damages under G. L. c. 79, § 14, or accepts a settlement of

damages under G. L. c. 79, § 39, cannot simultaneously challenge

the validity of the taking. The city also cites Barnes v.

Springfield, 268 Mass. 497, 502-503 (1929), in which this court

concluded that petitioners who accepted damages awarded by the

Superior Court for the taking of their real property could not

thereafter contest the lawfulness of the taking.

We find the city's argument unpersuasive for several

reasons. First, the very point the city relies upon in Opinion

of the Justices was expressly overruled just three years later.

In Raimondo v. Burlington, 366 Mass. 450, 450 (1974), we

considered "whether a landowner can maintain a suit challenging

the validity of a taking of her property and at the same time

file a petition for the assessment of damages under G. L. c. 79,

§ 14." We held that a property owner may do so in light of the

adoption of Mass. R. Civ. P. 18 (a), 365 Mass. 764 (1974), which

 18

eliminated the distinction between actions at law and suits in

equity. Id. at 451-452.

Second, and more importantly, the Massachusetts cases cited

by the city are inapposite. Opinion of the Justices and Barnes

concerned a property owner's petition for, or acceptance of,

judicially awarded final damages, and not a statutorily mandated

pro tanto award as provided for in G. L. c. 79, § 8A. We have

long recognized that:

"A payment pro tanto is merely what is implied by its name

and is not a final settlement. It is a payment '(f)or so
much; for as much as may be; as far as it goes.' Black's
Law Dictionary [1364 (4th ed. rev. 1968)]. The statute
plainly distinguishes between a payment pro tanto and a
final [damages] settlement."

Horne v. Boston Redev. Auth., 358 Mass. 460, 464 (1970). Cf.

G. L. c. 79, § 39 ("Every settlement under this section shall be

in writing and in full satisfaction of all damages for such

taking with interest thereon and taxable costs, if any"

[emphasis added]). This distinction is also supported by the

fact that pro tanto awards are often far below the final damages

amounts that are ultimately awarded to the property owner. See,

e.g., R. H. White Realty Co. v. Boston Redev. Auth., 371 Mass.

452, 453 (1976) (pro tanto award was $1,171,000 while jury

awarded damages in amount of $2,850,000); M.B. Claff, Inc. v.

Massachusetts Bay Transp. Auth., 59 Mass. App. Ct. 669, 671

(2003), S.C., 441 Mass. 596 (2004) (pro tanto award was $80,000
 19

while jury awarded damages in amount of $700,000). For these

reasons, the Massachusetts cases cited by the city do not

constitute authorities "otherwise provided by law," G. L. c. 79,

§ 3, that would prevent the plaintiff from accepting the pro

tanto award.8 Accordingly, we conclude that the case law as well

as the text of G. L. c. 79, as informed by its legislative

history, do not condition a property owner's acceptance of the

pro tanto payment under G. L. c. 79, § 8A, on waiving his or her

right to contest the validity of the taking under G. L. c. 79,

§ 18.9

8 The city also relies on a number of out-of-State cases.

Because those cases involved statutes that differ from ours, we
decline to adopt their reasoning. We also discern no "universal
principle" concerning the acceptance of pro tanto amounts for
eminent domain "quick takes," as the case law and statutes in
other jurisdictions appear to differ widely.

9 However, our decision does not address or resolve the

issue of "accrued interest" on the pro tanto amount. General
Laws c. 79, § 8A, states:

"After a pro tanto payment has been made or after an offer

of payment has been made in writing as required by this
section and not accepted, no interest shall be recovered
except upon such amount of damages as shall upon final
adjudication be in excess of said payment or in excess of
the written offer of payment as herein described."

Here, interest on the pro tanto amount was frozen when it was
offered by the city at the time of the taking. If the plaintiff
is ultimately successful in challenging the taking, then he
would be required to return the full pro tanto amount to the
city, "plus costs and interest at the rate calculated pursuant
to the provisions of [G. L. c. 79, § 37,] from the date when
such damages were assessed." Id. Conversely, if the plaintiff
is ultimately unsuccessful in challenging the validity of the
 20

4. Appellate attorney's fees and compounded interest.

Finally, the plaintiff seeks an award of double appellate

attorney's fees, costs, and compounded interest on the pro tanto

amount under Mass. R. A. P. 25, as appearing in 481 Mass. 1654

(2019), which permits such an award where an appellate court

determines that an appeal is frivolous. "An appeal is

frivolous, so as to risk potential imposition of a sanction,

where there can be no reasonable expectation of a reversal under

well-settled law." Marabello v. Boston Bark Corp., 463 Mass.

394, 400 (2012), citing Avery v. Steele, 414 Mass. 450, 455

(1993). In addition, the determination "whether an appeal is

frivolous is left to the sound discretion of the appellate

court." Oxford Global Resources, LLC v. Hernandez, 480 Mass.

462, 478 (2018), quoting Marabello, supra. Furthermore, "[w]e

are hesitant to deem an appeal frivolous and grant sanctions

except in egregious cases." Symmons v. O'Keeffe, 419 Mass. 288,

303 (1995). Although we affirm the single justice's order, the

city's appeal here was not frivolous, because it involved a

taking, then G. L. c. 79, § 8A, permits the plaintiff to recover

interest on the final damages amount, provided that the amount
of final damages exceeds the amount of the pro tanto payment.
We also note that the plaintiff's pending action in Superior
Court also contests the adequacy of the pro tanto amount, and
the resolution of this claim could further affect the
calculation of any interest owed to the plaintiff. Given these
pending considerations, we conclude that an award of accrued
interest on the pro tanto amount is premature at this time.
 21

novel question of law that this court previously did not have

occasion to address. Therefore, we decline the plaintiff's

request.10

Conclusion. We hold that G. L. c. 79 permits the plaintiff

to accept the pro tanto payment under G. L. c. 79, § 8A, and

simultaneously challenge the validity of the underlying taking

under G. L. c. 79, § 18. Accordingly, we affirm the order of

the single justice in the Appeals Court, vacating the decision

by the Superior Court judge that denied the plaintiff's motion

to compel payment of the pro tanto amount, and we remand the

matter to the Superior Court for further proceedings consistent

with this opinion.

So ordered.

10We also decline the plaintiff's request that this court

retain jurisdiction over this case until the city has tendered
the pro tanto payment.