Assigned on Briefs May 1, 2018
from the Circuit Court for Washington County No. 7877 James
E. Lauderback, Judge
convicted of multiple criminal offenses sued his former
criminal defense attorney for legal malpractice, and the
trial court granted the defendant's motion for summary
judgment. On appeal, the plaintiff argues that the trial
court erred in dismissing his legal malpractice action.
Because the plaintiff failed to establish a necessary element
of his claim for criminal legal malpractice-namely,
exoneration-we affirm the trial court's decision.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Charles Montague, Mountain City, Tennessee, Pro Se.
Christopher Cahill Field and Darryl Gene Lowe, Knoxville,
Tennessee, for the appellee, Michael D. Kellum.
D. Bennett, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and John W. McClarty, J.,
D. BENNETT, JUDGE
and Procedural Background
1990, Charles Montague was convicted by a jury of possession
of cocaine for resale, possession of marijuana, and
possession of drug paraphernalia. The following year, the
Tennessee Court of Criminal Appeals reversed Mr.
Montague's drug convictions based upon ineffective
counsel and remanded the case for retrial. State v.
Montague, No. 03C01-9105CR134, 1991 WL 236724, at *2-3
(Tenn. Crim. App. Nov. 15, 1991). Prior to his retrial on the
drug offenses, Mr. Montague was convicted of first degree
murder and sentenced to life imprisonment; the Court of
Criminal Appeals affirmed the conviction and sentence.
State v. Montague, No. 03C01-9306-CR-00192, 1994 WL
652186, at *10 (Tenn. Crim. App. Nov. 21, 1994). Then, in
1993, he was retried on the drug offenses and convicted
again. The criminal court sentenced Mr. Montague to six years
for the cocaine offense and to a shorter time for the
misdemeanor offenses; all of the sentences were to be served
consecutively to one another and to the life sentence for
first degree murder. The Court of Criminal Appeals affirmed
the judgment of the criminal court in 1995. State v.
Montague, No. 03C01-9406-CR-00233, 1995WL 509426, at *5
(Tenn. Crim. App. Aug. 29, 1995).
August 6, 1996, Mr. Montague filed a petition for
post-conviction relief in the Washington County criminal
court. After this initial filing, attorney Michael D. Kellum
began to represent him and filed an amended petition for
post-conviction relief. The criminal court dismissed the
post-conviction petition on April 15, 1999, in an order in
which the court cited a number of reasons, including the
1. The Court finds the petition's Writ and Amended Writ
for Post Conviction Relief are improper in form, in that the
petition and amended petition, do not state facts within
these petitions to support the allegations that would require
setting this action for hearing and is therefore dismissed.
2. The Court finds that the issue of revealing the
confidential informant in the underlying case has been
previously determined not to be applicable to this case by
the Court of Appeals. The issue is not subject to Post
Conviction relief. . . .
3. As to the issue of ineffective assistance of counsel, the
court finds that there are no facts in the documents before
the court to show this court that counsel was deficient in
any way, and secondly, that based on the same reasoning,
there was no showing of prejudice. Therefore, this issue is
4. Also, the petitioner claims that there was a selective
discriminatory selection of jurors by the State in the grand
jury and petit jury that heard his case. The Court finds that
there are no facts in the petition or amended petition to
support such allegations and petitioner's claim on this
issue is dismissed.
5. The next issue, whether the underlying conviction and
sentence, is unconstitutional due to perjured testimony by
the State, this issue was raised on appeal. Therefore,
because this issue has previously been heard by the Court of
Appeals, it is found that this issue is ...