IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs April 4, 2000

CHARLES MONTAGUE v. TENNESSEE 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 determined a previous appeal by Charles Montague to be frivolous and remanded the case

to the trial court to set attorney’s fees. The state submitted evidence of attorney’s fees incurred, 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

WILLIAM B.CAIN, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S. and

PATRICIA J. COTTRELL, J., joined.

Charles Montague, Nashville, Tennessee, Pro Se.

John Knox Walkup, Attorney General and Reporter; Michael E. Moore, Solicitor 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 inmate in the Department of Corrections, filed suit seeking declaratory

judgment that he was entitled to a refund of $64.00 charged against his custodial account for a key

that he had lost. The trial court dismissed the action for failure 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 conformity

with this opinion.”
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On remand, the state submitted evidence reflecting 18.4 hours of work in the case at an

hourly rate of $110.00 totalling $2,024.00. Appellant filed an affidavit in opposition to the

attorney’s fees and the trial court awarded $2,024.00 as attorney’s fees.

On January 15, 1999, Montague filed his second notice of appeal and the case is before this

Court for review.

The record indicates that Appellant filed 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 Court of May 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 evidence of work done by

state’s counsel in the trial court, prior to the previous appeal, which was perfected on November 12,

1997. Of the total 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 November 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 Court of Appeals on the previous appeal. Of the 18.4 hours forming 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 Annotated Section 27-1-122 provides:

When it appears to any reviewing court that 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 motion, award just damages against the appellant, which may

include, but need not be limited to, costs, interest on the judgment, and expenses

incurred by the appellee as a result of the appeal.

The order of remand of May 29, 1998, conformed to the provisions of the statute in

providing:
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The judgment of the trial court is modified to render judgment against

plaintiff for all costs accrued in that Court. As modified, said judgment is affirmed.

Costs of this appeal are taxed against the plaintiff. The cause is remanded to the

Trial Court for ascertainment of fees for frivolous 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, approving

attorney’s fees in the amount of $2,024.00 and assessing same against Montague. We modify this

final order of the trial court by reducing the attorney’s fees awarded to the sum of $968.00. The

judgment in all other respects is affirmed and costs of the present appeal are assessed against the

Tennessee Department of Corrections. The case is remanded for collection of fees and costs.

___________________________________ 

WILLIAM B. CAIN, JUDGE