### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs A

pril 4, 2000 CHARLES MONTAGUE v. TENNES SEE DEPARTMENT

OF CORRECTION, ET AL 

### . Appeal from the Chancery Court for Davidson County No. 96-3872-III Ellen Hobbs Lyle, Chancellor

No. M1999-00513-COA-R3-CV - Filed January 22, 2001

This Court determine d

a previous appea

l by Charles Montag

ue to be frivolous a

nd remanded the c

ase to the trial court to set attorney’s fees. The state submitted evi

dence of attorne

y’s fees incurr

ed, both in the trial court

and in this Court. Montague appeals and we modify the judgment of the trial court so as to only allow attorney’s fees on the initial appeal. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed as Modified and Remanded
W ILLIAM B. C AIN , J., delivered the opinion of the cour

t, in which B EN H. C ANTRELL , P.J., M.S. and P ATRICIA J. C OTTRELL , J., joined. Charles Montague, Nashville, Tennessee, Pro Se. John Knox Walkup, Attorney General and Reporter; Michael E. Moor e, S olicitor General, and Sohnia W. Hong, Assistant Attorney General, Nashville, Tennessee, for the appellees, Tennessee Department of Correction and Warden Howard Carlton.
OPINION Charles Montague, an inma te in the Departme

nt of Corrections,

filed suit seeking declaratory judgment that he was entitled to a refund of $64.00 charged agains t his custodial account for a key that he had lost. The trial

court dismissed the

action for failur

e to state a claim

for which relief

could be granted. This Court affirmed the trial court action by judgment of May 29, 1998. A majority of this Court determined that the appeal was frivolous and remanded the case to the trial court “for ascertainment

of fees for frivolous appeal and the entry and enforcement of judgment in confor

mity with this opinion.”-2-

On remand, the state submitted evidence reflecting 18.4 hours of wor k in the case at an hourly r ate of $110.00 tota

lling $2,024.00. App

ellant filed an af

fidavit in opposition

to th e attorney’s fee

s and the trial cou

rt awarded $2,02

4.00 as attorney’ s fees.
On January 15, 1999,

Montague filed his

second notice of appeal and the case is before t

his Court for review. The record indicate

s that Appellant fi

led his suit

for declaratory

judgment on December 10, 1996, and was cast

by judgment of the trial court on November 5, 1997. He filed his initial notice of appeal to this Court on November 12, 1997. The judgment of this Cour t of Ma y 29, 1998, wherein the appeal by Montague was determined

to be frivolous, is the law of the case and binding on all parties and on the trial court on remand. Memphis Publishing Co. v. Tennessee Petroleum Underground Storage Tank Board, et al. , 975 S.W.2d 303, 306 (Tenn. 1998). Thus, the finding that the previous appeal was frivolous is not subject to further attack after remand. The difficulty arises when the state, on remand, introduces ev idenc e of work done by state’s counsel in the trial court, prior to the previous appeal, which was perfected on November 12, 19 97. Of the t otal of 18.4 hours offered as proof by the state after the remand, 6.7 hours was for work done in the trial court between February 25, 1997, and Novembe r 10, 1997, all

of which work was done prior to the November 12, 1997, notice of appeal. Likewise, the proof shows that work in the Court of Appeals on the previous appeal ended on July 2, 1998, with a review of this Court’s order denying the Appellant’s second petition for rehearing. The 2.9 hours expended by counsel for the state between October 25, 1998, and November 27, 1998, involved work done on remand and not work done in the Cou rt of Appeals on th

e previous appea

l. Of the 18.4 hours for

ming the basis of the award of attorney’s fees on remand, only 8.8 hours thereof were actually attributable to the previous appeal

. We modify the judgment for attorney’s fees on the previous appeal and reduce same from $2,024.00 to $968.00. Tennessee Code A

nnotated Section 2

7-1-122 provides : When it appears to any reviewing court t hat the appeal from any court of record was frivolous or taken

solely for delay, the court may, either upon motion of a party or of its own m

otion, award just

damages against t

he appellant,

which may include, but need not be limited to, cos ts, i nterest on the judgment, and expenses incurred by the a

ppellee as a res

ult of the appeal. The order of reman d of May 29, 1 998, conformed to the provisions of th

e statute in providing:-3- The judgment of the tria l co urt is modified to re nder judgment aga

inst plaintiff for all costs acc

rued in that Court. As modified, said judgmentis affirmed. Costs of this appeal are taxed against the plaintiff. The cause is remanded to the Trial Court for ascert

ainment of fees f

or friv o lous appeal and the entry and enforcement of judgment in conformity with this opinion. Following remand, the trial court entered its judgment of January 7, 1999, approvi ng attorney’s fees in the amount of $2,024.00 and assessing same against Montague. We modify this fin al order of the trial court by reducing the attorney’s fees awarded to the sum of $968. 00. Th e judgme nt in all other respects is affirmed and costs of the present appeal are assessed a gainst th e Tennessee Depa

rtment of Correc

tions. The case is r

emanded for coll

ection of fees a

nd costs.

___________________________________ WILLIAM B. CAIN, JUDGE