### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs A pril 18, 20 02 CHARLES MONTAGUE v. CHIEF RON STREET , ET AL 

### . Appeal from the Circuit Court for Washington County

No. 7868 Jean A. Stanley, Judge FILED JULY 12, 2002 No. E2001-02805-COA-R3-CV

This is a suit by Charles Montague , an inmat e of the Penal System of this State, who was convicted of first degree murder and

is presently serving a

life sentence. The Defendants ar e Ron Street, Chief of Police of the City of Johnson City and Washington County. Tenn.R.App. P. 3 Appeal as of Right ; Judgment

of the Cir

cuit Cour

t Affir med; Cause Remanded H OUSTON M. G ODDARD , P.J., deliv ered the opinion of

the cour t, in which H ERSCHEL P. F RANKS and C HARLES D. S USANO , J R ., JJ., joined. Charles Montague, Mountain City, Tennessee, Appellant, Pro Se John Rambo, Johnson C ity, Tennessee, for the Appellees, Chief of Police Ron Street, City of Johnson City, Washington County, TN

OPINION

The complaint is styled: “42 U.S.C. § Complaint.” The body of the complaint identifies the U. S. Code Section as 42 U.S.C. 1983. Mr. Montague’s complaint seeks certain material principally as an aid to his post-conviction proceeding, and prays for the following relief:-2- RELIEF: 14). Wherefore, plaintiff requests that this court gra nt the following: a). Issue a Declaratory Jud gement that all defendants are lible [sic] to plaintiff; and that they are not immune from suit in this case; and that they are

to immediate

ly releas e all material that the plaintiff has requested from them in the attached appendixs [sic] #

A through F; and for a declaration that the plaintiff’s Rights have been abridged by the defendant(s). b). For a show cause order. c). For an injunction to require that plaintiff and/or any other citizen be allowed to inspect/copy police files and Service records of Police Officers under similar circumst ances. d). Grant Com

pensator y Damage s of $10,0 00 Dollar s against each de fendant in this case. e). Grant punitive damages of $10,000 dollars against each defendant in this case. f). Grant such other relief that the plaintiff is entitled too[sic]. Mr. Monta

gue appe als, rais ing three issues: ISSUES PRESENT ED 1. Was the Trial Court correct in Dismissing plaintiff’s Complaint with respect to defenda

nts-Stree t, City of Jo hnso n City, and Washington County, TN.? Plaintiff answer: NO. 2. Did the trial court ERROR, with respect to the issue of Discovery? Plaintiff will answe

r: YES. 3. Did the trial Court error, when it did not rule u pon plaint

iff’s Mot ion to Retax the Costs?

Plaintiff will answe

r: Yes. The Trial Judge dismissed Mr. Montague’s complaint upon the Defendants’ Rule 12 motion, asserting that the complaint does not state a cause of action. See Appe ndix. Our reading of

the rec ord and th

e brief s of the pa

rties per suades us

as to the first two issues this is an a

ppropria te case for aff irmance under Rul e 10 of thi s Court.-3-

As to the third issue, it appears there is a motion pending below relative to costs which has not been acted upon. We first observe that the or der appealed does not appear to be a final order. Neverth eless, in the interest of judicial economy, we deem it approp riate to treat this appeal as one under Rul e 9 and wa

ive all un complied -with re quireme nts nece ssary fo

r such an appeal. We first observe that the mo tion is to re duce co sts taxed against Mr. Montague rather than to re-tax them. We also note that the final judgment was rendered on November 1, 2001, a notice of appeal filed on November 7, 2001, and the motion regarding costs was not filed until December 21, 2001. We conclude it was incumbent upon Mr. Montague to bring his motio n to the Court’s attention, and his failure to do so prior to filing a notice of appeal resulted in his waiving the relief sought by his motion. The judgment of the Trial Court is affirmed and the cause remande d for collection of costs below. Costs of appeal are adjudged against Mr. Montague.

_________________________________________ HOUSTON M. GODDARD, PRESIDING JUDGE