                           FILED
                          November 30, 1999

                           Cecil Crowson, Jr.
                          Appellate Court Clerk
                IN THE COURT OF APPEALS OF TENNESSEE

                            AT NASHVILLE



RICHARD L. NORTHCOTT,               ) C/A NO. M1999-01223-COA-R3-CV
                                    )
           Plaintiff-Appellant,     )
                                    )
                                    )
                                    )
v.                                  )
                                    )
                                    )
                                    ) APPEAL AS OF RIGHT FROM THE
TENNESSEE DEPARTMENT OF             ) DAVIDSON COUNTY CHANCERY
COURT
CORRECTION; DONAL CAMPBELL,       )
Commissioner; BILL KEELING,       )
Sentence Management Services,          )
Department of Correction; FAYE    )
CLAUD, Sentence Management        )
Services, Department of Correction;)
SHIRLEY PLUNKETT, Records Clerk, )
Turney Center,                    )
                                  ) HONORABLE ELLEN HOBBS LYLE,
          Defendants-Appellees.   ) CHANCELLOR



For Appellant                          For Appellees

RICHARD L. NORTHCOTT                   PAUL G. SUMMERS
Pro Se                                 Attorney General and
Reporter
Only, Tennessee                        Nashville, Tennessee

                                       JOHN R. MILES
                                       Counsel
                                       Civil Rights and Claims
Division
                                       Office of Attorney General
and
                                           Reporter



                                                                      Page 1
                                      Nashville, Tennessee




                           OPINION




AFFIRMED AND REMANDED                                Susano, J.
          The plaintiff, Richard L. Northcott (“Northcott”),

is a prisoner in state custody.    He sued the Tennessee

Department of Correction (“the Department”) and others,

claiming that he is entitled to “good conduct”1and “prisoner

performance”2sentence credits allegedly earned by him prior to

March 1, 1986. 3   The trial court granted the Department

summary judgment, and Northcott appealed.    He raises issues

that present the following questions.



          1.   Did the trial court err in determining

          that Northcott is not entitled to any

          sentence reduction credits for periods of

          time prior to March 1, 1986?

          2.   Did the trial court err in failing to

          address Northcott’s eligibility for “good

          conduct” and “prisoner performance”

          sentence credits?

          3. Did the trial court err in failing to
          address the constitutionality of Rule



                                                                  Page 2
          55.01, Tenn.R.Civ.P.?


                                  I.



          This is the second time that the plaintiff’s claim

has been before us. 4   In our first opinion, we recited the

pertinent facts:



          On July 16, 1981, Richard L. Northcott was
          convicted of criminal sexual conduct in
          the first degree, and was given a
          determinate life sentence. The act for
          which he was convicted occurred in the
          summer of 1978. He claims that after he
          began his sentence, he was informed that
          he was not entitled to any sentence
          reduction credits.

          In 1985, the Legislature changed the law
          pertaining to sentence reduction credits.
          Inmates sentenced under the old law,
          including the petitioner, were told that
          they could begin to earn sentence credits
          under the new provisions if they signed a
          waiver of their right to serve their
          sentences under the law in effect at the
          time they were sentenced. 5 Mr. Northcott,
          who felt he had nothing to lose, signed
          the waiver on March 1, 1986, and began
          receiving sentence reduction credits at
          the rate prescribed by law.

          Mr. Northcott subsequently came to believe
          that he had been misinformed as to his
          right to accumulate sentence credits
          before he signed the waiver, and that he
          was therefore entitled to have his
          sentence reduced by a greater number of
          days than the Department was willing to
          grant. He attempted to correct the
          purported error through a long course of
          administrative appeals, which concluded on
          July 31, 1996 with a final denial of his
          contentions by the legal assistant for the
          Department of Correction. Having thus
          exhausted his administrative remedies, Mr.



                                                               Page 3
         Northcott filed a Petition for Declaratory
         Judgment under the Uniform Administrative
         Procedures Act (UAPA) in the Chancery
         Court of Davidson County on September 27,
         1996.



Northcott v. Tennessee Department of Correction, C/A No.

01A01-9707-CH-00355, 1998 WL 205224 at *1-2 (Tenn.Ct.App.

M.S., filed April 29, 1998).



                               II.



         We measure the propriety of the trial court’s grant

of summary judgment against the standard of Rule 56.04,

Tenn.R.Civ.P., which provides that summary judgment is

appropriate where



         the pleadings, depositions, answers to

         interrogatories, and admissions on file,

         together with the affidavits, if any, show

         that there is no genuine issue as to any

         material fact and that the moving party is

         entitled to a judgment as a matter of law.



When reviewing a grant of summary judgment, an appellate court

must decide anew if judgment in summary fashion is

appropriate.   Cowden v. Sovran Bank/Central South, 816 S.W.2d

741, 744 (Tenn. 1991); Gonzalez v. Alman Constr. Co., 857

S.W.2d 42, 44-45 (Tenn.Ct.App. 1993).   Since this



                                                                 Page 4
determination involves a question of law, there is no

presumption of correctness as to the trial court’s judgment.

Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997); Hembree v.

State, 925 S.W.2d 513, 515 (Tenn. 1996).      In making our

determination, we must view the evidence in a light most

favorable to the nonmoving party, and we must draw all

reasonable inferences in favor of that party.      Byrd v. Hall,

847 S.W.2d 208, 210 (Tenn. 1993).      Summary judgment is

appropriate only if no genuine issues of material fact exist

and if the undisputed material facts entitle the moving party

to a judgment as a matter of law.      Rule 56.04, Tenn.R.Civ.P.;

Byrd, 847 S.W.2d at 211.    A “material fact” has been defined

as a fact “that must be decided in order to resolve the

substantive claim or defense at which the motion is directed.”

 Byrd, 847 S.W.2d at 211.



         Northcott claims that there are factual disputes

that make summary judgment inappropriate.      We disagree.     While

the parties differ as to certain facts, these disputes are not

material to our determination in this case.      The question

before us -- whether Northcott is entitled to sentence

reduction credits allegedly earned by him prior to March 1,

1986 -- is a question of law.    See Byrd v. Bradley, 913 S.W.2d

181, 183 (Tenn.Ct.App. 1995).    We do not have to resolve any

factual disputes in order to reach this question of law.



                                III.



                                                                        Page 5
           In 1985, the General Assembly enacted a new sentence

reduction program for state prisoners. 6    The new legislation

broadly defined its ambit with respect to then-serving

prisoners.   The following were eligible:



           Any person who committed a felony,
           including any Class X felony, prior to
           December 11, 1985,...



T.C.A. § 41-21-236(c)(3)(1997) (Emphasis added).     The parties

to this litigation agree that Northcott was and is eligible to

participate in this new “prisoner sentence reduction credits”

program.   T.C.A. § 41-21-236(b) (1997).    They also agree that

he exercised his right to opt into this new program when he

signed a waiver on March 1, 1986, pursuant to the following

statutory provision:



           Any person who committed a felony, including
           any Class X felony, prior to December 11, 1985,
           may become eligible for the sentence reduction
           credits authorized by this section by signing a
           written waiver waiving the right to serve the
           sentence under the law in effect at the time
           the crime was committed....



T.C.A. § 41-21-236(c)(3)(1997).   Northcott does not claim that

he has been deprived of any prisoner sentence reduction

credits to which he is entitled for his behavior and

performance from and after the effective date of his March 1,

1986, waiver; but it is clear that the new program operates



                                                                   Page 6
prospectively only:



          However, sentence reduction credits
          authorized by this section may be awarded
          only for conduct and/or performance from
          and after the date a person becomes
          eligible under this subsection.



T.C.A. § 41-21-236(c)(3) (1997).      Since this statute does not

operate retroactively, it is of no help in addressing the main

issue before us.    Thus, the issue remains: Is Northcott

entitled to any sentence reduction credits for periods prior

to March 1, 1986?



                                IV.



          The primary issue now before us was also before us

in the case of Byrd v. Bradley, 913 S.W.2d 181 (Tenn.Ct.App.

1995).   There are remarkable similarities between the two

cases.   In Byrd, the defendant, on April 1, 1976, “was given a

life sentence on [a] murder conviction.”      Id. At 183.     In the

instant case, Northcott was convicted on July 16, 1981, of

criminal sexual conduct in the first degree and was sentenced

to life imprisonment.    In both cases, the prisoner signed a

waiver pursuant to T.C.A. § 41-21-236(c)(3) (1997).         Each

signed the waiver on March 1, 1986.     Both Byrd and Northcott

claim that they are entitled to sentence reduction credits for

periods of time prior to March 1, 1986.




                                                                       Page 7
         In Byrd, we held that a defendant who received a

life sentence at a time when T.C.A. § 40-3613 (later

designated as T.C.A. § 40-28-116) was in effect was not

eligible to receive sentence reduction credits for periods of

time prior to the time they opted into the new system of

sentence reduction credits authorized under the 1985

legislation.   As pertinent here, T.C.A. § 40-3613 (later

designated § 40-28-116) provided as follows:



         ...any person who shall have been
         convicted and sentenced to a term of
         imprisonment in the state penitentiary for
         a period or term of sixty-five (65) years
         or more, or life, may become eligible for
         parole provided such person shall have
         been confined or served a term in the
         state penitentiary of not less than thirty
         (30) full calendar years after receiving
         credit for probationary parole as
         authorized in § 40-3612. 7



In Byrd, we concluded that the statutes in Title 41 of the

Code dealing with sentence reduction credits did not apply “

where the question presented is one of parole eligibility”

under T.C.A. § 40-3613.   Id. At 184.



         It must be remembered that T.C.A. § 40-3613 made an

absolute statement with respect to prisoners such as Byrd and

Northcott who were sentenced to determinate life sentences:

such persons “may become eligible for parole provided such

person[s] shall have been confined or served a term in the

state penitentiary of not less than thirty (30) full calendar



                                                                Page 8
years.”    Id.   (Emphasis added).     Interpreting this statute,

the Supreme Court has pointed out that



           [p]arole eligibility on a life sentence
           can only occur in 30 years. Good and
           honor time do not reduce it. It is
           extinguished solely by the death of the
           prisoner or pardon.



Howell v. State, 569 S.W.2d 428, 434 n.10 (Tenn. 1978).

(Emphasis added).     See also McFadden v. State, 532 S.W.2d 944,

945-46 (Tenn.Crim.App. 1975).        It is clear that service of “

thirty (30) full calendar years,” see T.C.A. § 40-3613

(emphasis added), means exactly that, “full calendar years,”

and not years made up of calendar years actually served and

time “served” by the earning of behavior and/or performance

credits.



           We recognize that Northcott seeks credits under

T.C.A. § 41-21-229 and T.C.A. § 41-21-230, two statutes that

were not specifically mentioned in the Byrd opinion.        We do

not find this to be material.        T.C.A. § 41-21-229 and -230

are successor statutes to the statutes mentioned in Byrd, i.e.,

T.C.A. §§ 41-332, -334, and -358.        Just as the Title 41

statutes mentioned in Byrd did not override T.C.A. § 40-3613,

there is nothing in the language of T.C.A. §§ 41-21-229 and

-230 to indicate that they were intended to modify the import

of T.C.A. § 40-3613.




                                                                     Page 9
         The 1985 legislation pertaining to sentence

reduction credits was the first legislation enacted after

Northcott’s conviction that was clearly applicable, if

accepted by execution of a waiver, to pre-December 11, 1985,

imposed life sentences.    Northcott is receiving the benefit of

that 1985 legislation.    As a prisoner serving a life sentence,

he is not entitled to any sentence reduction credits for any

periods of time prior to the effective date of his execution

of the opt-in waiver on March 1, 1986.



         Northcott relies heavily on an unreported case

authored by Judge Koch of the Middle Section of this Court.

See Jones v. Reynolds, 01A01-9510-CH-00484, 1997 WL 36 7661

(Tenn.App. M.S., filed July 2, 1997).    He puts particular

emphasis on the following excerpt from the opinion in that

case:



         In 1980 the General Assembly enacted new
         sentence credit statutes that were
         intended to completely replace Tenn.Code
         Ann. §§ 41-332 and 41-334 beginning on
         July 1, 1981. TENN.CODE ANN. § 41-359
         (later designated as Tenn.Code Ann. §
         41-21-229) established a system of “good
         conduct sentence credits” that prisoners
         could earn by proper behavior, and
         Tenn.Code Ann. § 41-361 (later designated
         as Tenn.Code Ann. § 41-21-231) provided a
         mechanism for converting Tenn.Code Ann. §§
         41-332 and 41-334 credits earned prior to
         July 1, 1981 to “good conduct sentence
         credits.” The General Assembly envisioned
         that the new good conduct sentence credit
         program would apply across-the-board to



                                                                   Page 10
          all prisoners and thus did not provide a
          waiver or opt-in system to prisoners who
          committed crimes prior to July 1, 1981.



Id.   1997 WL 367661 at * 3.   (Emphasis added).



          We believe Northcott is reading the above-quoted

italicized statement out of context.    In saying that the new

good conduct sentence credit program embodied in T.C.A. §

41-21-229 and -231 was “envisioned” by the General Assembly to

“apply across-the board to all prisoners,” the Court was

merely explaining why there was no need to have a specific

opt-in provision to make these statutory provisions applicable

to prisoners who were sentenced prior to the effective date of

the new good conduct credit program.    Jones does not

explicitly state that the credits described in T.C.A. §

41-21-229 and T.C.A. § 41-21-230 could be earned by prisoners,

such as Northcott, who were serving life sentences.      We

believe it is also significant that the Court in Jones did not

explicitly disagree with or distinguish the holding in Byrd.

In fact, the Byrd decision is not even mentioned in Jones.

Northcott’s reliance on Jones is misplaced.



                                V.



          Northcott argues that the trial court failed to

specifically address whether he was entitled to “good conduct”

or “prisoner performance” credits other than to say that he



                                                                 Page 11
was not entitled to any sentence reduction credits prior to

his signing of the waiver.      Northcott claims that he is

entitled to 5,291 days of good conduct credits and to 1,776

days for performance credits.     Nothing more needs to be said;

if Northcott is not entitled to credits for any periods,

pre-waiver, it is not necessary to specifically discuss the

terms of T.C.A. §§ 41-21-229 and -230 beyond that which we

have already said.



                                 VI.



          Northcott also argues that the trial court did not

address the issue of the constitutionality of Rule 55.01,

Tenn.R.Civ.P. 8   Northcott raises this issue in order to attack

the trial court’s setting aside of the default judgment

granted to him in the initial proceeding.     In the first

appeal, this Court reviewed and affirmed the trial court’s

setting aside of the default judgment in Northcott’s favor.        “

Under the law of the case doctrine, an appellate court’s

decision on an issue of law becomes binding precedent to be

followed in later trials and appeals of the same case

involving the same issues and facts.”     Ladd v. Honda Motor Co.,

939 S.W.2d 83, 90 (Tenn.Ct.App. 1996).     Thus, we decline to

address this issue further.



                                VII.




                                                                       Page 12
          For all of the foregoing reasons, the judgment of

the trial court is affirmed.   Costs on appeal are taxed to the

appellant.   This case is remanded to the trial court for

collection of costs assessed below, all pursuant to applicable

law.



                                  __________________________
                                  Charles D. Susano, Jr., J.



CONCUR:



________________________
Houston M. Goddard, P.J.



________________________
D. Michael Swiney, J.




                                                                  Page 13
