                  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.”
       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




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