                 IN THE COURT OF APPEALS OF TENNESSEE



WINDON H. TAYLOR and                   )   C/A NO. 01A01-9609-CV-00411
SARAH A. TAYLOR,                       )
                                       )
     Plaintiffs-Appellees,             )
                                       )
                                       )   APPEAL AS OF RIGHT FROM THE
v.                                     )   SUMNER COUNTY CIRCUIT COURT
                                       )   No. 13574-C
                                       )
T&N OFFICE EQUIPMENT, INC.,            )
JERALD W. NICHOLS and                  )
GAYLE J. NICHOLS,                      )
                                       )   HONORABLE THOMAS GOODALL,
     Defendants-Appellants.            )   JUDGE




For Appellants                             For Appellees

LARRY L. CRAIN                             LOUIS W. OLIVER, III
Brentwood, Tennessee                       Hendersonville, Tennessee




                           FILED
                              May 23, 1997

                           Cecil W. Crowson
                          Appellate Court Clerk




                           OPINION




AFFIRMED IN PART
VACATED IN PART
REMANDED                                                       Susano, J.

                                   1
           Windon H. Taylor and his wife, Sarah A. Taylor

(collectively “the Taylors”), sued T&N Office Equipment, Inc.

(T&N) and Jerald W. Nichols and his wife, Gayle J. Nichols

(collectively “the Nichols”), alleging that the defendants had

defaulted on a promissory note.           The trial court found that a

default had occurred.      It then held that the Nichols1 were

obligated under the note to pay $11,960.13 in attorney’s fees.

The Nichols appealed, raising the following questions for our

review:



           1. Did the trial court err in finding that
           the Nichols had defaulted on the promissory
           note?

           2. Did the trial court err in awarding as
           reasonable attorney’s fees the amount of
           $11,960.13, being one-sixth of the principal
           recovered on the promissory note?



                                 I. Facts



           Between 1978 and 1991, Mr. Taylor and Mr. Nichols each

owned fifty percent of the stock of T&N.           In January, 1991, T&N

purchased Mr. Taylor’s interest in the corporation, leaving Mr.

Nichols as its sole owner.       At that time, T&N, acting through Mr.

Nichols, executed a promissory note obligating T&N to pay the

Nichols $135,000, with interest, in monthly installments of

$2,087.36.    At the bottom of the note, the Nichols

“unconditionally” guaranteed payment of the note.           The Nichols

also signed a hypothecation agreement pledging two $50,000


     1
       While it is not entirely clear in the record, the judgment does not
appear to be against T&N Office Equipment, Inc. This may be explained by Mr.
Nichols’ testimony that “[i]n January, 1995, T&N filed for Chapter 7
bankruptcy.” The complaint in this case was filed on October 28, 1994.

                                      2
certificates of deposit as collateral for the debt.   The parties

also executed a security agreement that granted the Taylors a

security interest in, among other things, T&N’s accounts

receivable.



          The promissory note defines “default” as occurring

under various circumstances, including each of the following:



          [T&N] becoming insolvent or generally failing
          to pay its debts as they become due;

                         *    *       *   *

          Failure of [T&N] to abide by the terms of the
          security agreement which partially secures
          this note or to provide the collateral as
          provided herein;...



(Emphasis added).   The note also provides that



          [a]s the unpaid balance on this note shall
          decline, [T&N] shall not be required to
          maintain cash collateral in excess of the
          unpaid balance due hereon. When the unpaid
          balance due hereunder shall be One Hundred
          Thousand ($100,000.00) Dollars or less, the
          Security Agreement shall be released.

          In the event this note is placed in the hands
          of an attorney for collection or for
          protection of any interest [the Taylors]
          might have in collateral securing payment of
          this note, [T&N] and all sureties,
          guarantors, endorsers and other parties
          hereto agree to pay reasonable attorneys’
          fees and court and other costs incident to
          such efforts.



          In 1993, without the plaintiffs’ knowledge, Mr. Nichols

cashed one of the certificates and left town after falsely

representing to the issuing bank that the certificate had been


                                  3
lost or destroyed.   Upon Mr. Nichols’ return, the Taylors met

with the Nichols, who agreed to deposit approximately $45,000

into a joint account with the Taylors as collateral for the note

in place of the certificate of deposit.   One thousand dollars was

to be transferred from that account each month into Mr. Taylor’s

account, as a part of the monthly payment due under the note.

The parties had a mutual understanding that all four of their

signatures would be required before any funds could be withdrawn

from the joint account; however, the bank’s policy required only

one signature to authorize a withdrawal, and the account was

apparently set up with this proviso.



           In October, 1994, Mr. Taylor learned that one of T&N’s

creditors, Panasonic, was attempting to recover a debt of

$5,295.36 by enforcing a personal guaranty signed by Taylor in

1985.   The Panasonic obligation had been incurred by T&N after

Mr. Taylor sold his interest in the business.



           Mr. Taylor also discovered that Mr. Nichols had again

left the area.   He was told by Mrs. Nichols that she did not know

where her husband was; that the Panasonic debt was not going to

be paid; that she was not obligated for T&N’s debts; that Mr.

Nichols had spent all of their money; and that she was uncertain

as to what she would do with the remaining funds in the joint

account.   On October 27, 1994, Mrs. Nichols withdrew the sum of

$34,737 -- all but about $1,000 -- from the joint account.   The

following day, the Taylors declared the note in default and filed

this action.




                                 4
            The Taylors and their attorney agreed to a fee of one-

third of any amount recovered, but they subsequently reduced the

percentage to one-sixth.



            On November 1, 1994, after having been served with a

copy of the Taylors’ complaint, Mrs. Nichols attempted to pay off

the balance on the note, but payment was refused by the Taylors

and their attorney.    On November 7, 1994, the trial court entered

an order allowing the payment of $71,760 by the Nichols in full

payment of the note.



            The remaining issues, pertaining to default, attorney

fees and the Panasonic obligation, were argued before the trial

court on April 23, 1996.    The trial court found that T&N and the

Nichols had defaulted on the note by failing to pay the

obligation to Panasonic and by removing the cash collateral from

the bank.    The court found that the Taylors were justified in

declaring a default under the terms of the note.    The court also

found that they were justified in fearing that the Nichols were

attempting to evade payment of the note and the Panasonic

obligation.    It based this conclusion on the following

circumstances:    Mrs. Nichols’ statement that T&N was without

funds; Mr. Nichols’ fraudulent procurement of the first

certificate of deposit; Mr. Nichols’ disappearance on two

occasions; and Mrs. Nichols’ withdrawal of the collateral from

the joint bank account without the Taylors’ knowledge or consent.

The court held that the default entitled the Taylors to recover

their reasonable attorney’s fees, which it fixed at $11,960.13,

being one-sixth of the principal recovered on the note.


                                  5
                      II. Standard of Review



         In this non-jury case, our review is de novo upon the

record with a presumption of correctness as to the trial court’s

findings, unless the preponderance of the evidence is otherwise.

Rule 13(d), T.R.A.P.; Hackett v. Smith County, 807 S.W.2d 695,

699 (Tenn.App. 1990); Smith v. Jarnagin, 436 S.W.2d 310, 313

(Tenn.App. 1968).   Conclusions of law come to us free of any such

presumption.   Adams v. Dean Roofing Co., 715 S.W.2d 341, 343

(Tenn.App. 1986).



                      III. Finding of Default



          The trial court found a number of defaults under the

terms of the promissory note.   We agree that there was a default.

As indicated earlier, the note defines default as, among other

things, any failure by T&N “to abide by the terms of the security

agreement... or to provide the collateral as provided herein.”

When Mrs. Nichols withdrew all but $1,000 from the joint account,

she removed the collateral that secured the debt; thus, from that

moment forward, the defendants were in default due to their

failure “to provide the collateral as provided [in the note].”

Mrs. Nichols took this action without the consent or knowledge of

the Taylors.



          The Nichols contend that the trial court mistakenly

assumed that the promissory note required them to maintain cash

collateral at all times in an amount equal to the unpaid balance

of the note.   Pointing to the provision in the note that states


                                 6
that the security agreement was to be released once the balance

fell below $100,000, the Nichols argue that, since the balance at

the time of the alleged default was approximately $71,000, they

were relieved of their obligations under the security agreement.



          While we agree that the security agreement was released

once the unpaid balance fell below $100,000, we do not agree that

this contingency relieved the Nichols of their separate

obligation to provide cash collateral as specified in the note.

The security agreement, which was released, is distinct from the

collateral requirement.   Thus, although T&N and the Nichols were

no longer bound by the security agreement, they were still

subject to the requirements of the promissory note; specifically,

they were obligated to “provide the collateral” that was required

by the note.   As far as the note was concerned, the only

significant effect of the diminution in the debt was that the

Nichols were not required, as the balance declined, to “maintain

cash collateral in excess of the unpaid balance.”   Thus, the note

implicitly still required them to provide cash collateral in an

amount equal to its outstanding balance, which, at the time of

the withdrawal, was in excess of $71,000.   This they failed to

do.



          The Nichols also argue that the withdrawal of funds

from the joint account cannot constitute a default, since those

funds were not subject to the provision in the note requiring the

Nichols to “provide the collateral.”   They maintain that their

agreement with the Taylors to deposit approximately $45,000 in

the joint account was a separate transaction, wholly independent


                                 7
of the promissory note, and that their withdrawal of those funds

therefore could not constitute a default under the note.      We do

not agree.    The funds in the joint account were clearly intended

to be substituted as collateral in place of the original $50,000

certificate of deposit that was referred to in the note.      It is

well-settled that “the interpretation placed upon a contract by

the parties thereto, as shown by their acts, will be adopted” by

a court that is asked to construe that contract.      Hamblen County

v. City of Morristown, 656 S.W.2d 331, 335 (Tenn. 1983); Ogle and

Shelton v. Realty World-Barnes Real Estate Co. and Wood, C/A No.

03A01-9610-CH-00336 (Tenn.App., E.S., filed April 28, 1997,

Franks, J.).     In this instance, the parties treated the funds in

the joint account as a substitute for a portion of the original

collateral required by the note.       Therefore, according to the

note’s terms, Mrs. Nichols’ withdrawal of those funds constituted

a default in the form of a “[f]ailure to... provide the

collateral as provided [in the note].”



             Finally, the Nichols argue that no default occurred,

since, according to their theory, Mrs. Nichols withdrew the

collateral in order to pay the note in full.       It is true that the

note authorizes prepayment in full without penalty; however, Mrs.

Nichols’ attempted payment came only after she had been served

with process in this lawsuit.     Whether her intent was as stated

by her at trial -- and the timing of her payment certainly brings

this into question -- is not the real issue.       What she did was a

default, as defined by the Nichols when they signed the note.         If

she had wanted to avoid the consequences of a default, she could

have easily secured the Taylors’ consent.       That consent could not


                                   8
have been reasonably withheld under the circumstances of this

case.



            In view of the foregoing, we cannot say that the

evidence preponderates against the trial court’s finding that a

default occurred.    The parties were free to define default in any

way they chose, and the withdrawal of funds from the joint bank

account falls squarely within the note’s sixth category of

default: “failure... to provide the collateral as provided

herein.”    Given our conclusion that the trial court correctly

found that this act constituted a default, it is not necessary

for us to consider the court’s other basis for finding a default

-- T&N’s failure “to pay its debts as they become due.”



                     IV. Award of Attorney’s Fees



            The burden of proof as to what constitutes a reasonable

attorney’s fee rests on the party seeking fees.     Wilson

Management v. Star Distributors, 745 S.W.2d 870, 873 (Tenn.

1988).     As stated by the Supreme Court,



             where an attorney’s fee is based upon a
             contractual agreement expressly providing for
             a reasonable fee, the award must be based
             upon the guidelines by which a reasonable fee
             is determined. [citations omitted] The
             parties are entitled to have their contract
             enforced according to its express terms.
             Where they specify a reasonable fee rather
             than a percentage of recovery, it is clear
             that they expect a court to adjudicate the
             issue of a reasonable fee...



Id.


                                   9
          In the instant case, the promissory note clearly

provides for the payment of the Taylors’ “reasonable attorneys’

fees” in the event they retained an attorney for the purpose of

collecting the unpaid balance on the note or protecting their

interest in the collateral.   Thus, by demonstrating that a

default occurred, the Taylors carried their burden of proving

their entitlement to attorney fees under the note.     It then

became the duty of the trial court to adjudicate the issue of a

reasonable attorney’s fee, and the duty of the Taylors to present

sufficient proof to enable the court to make that determination.

Id.



          The Taylors had the additional responsibility of

presenting evidence relative to the various “guidelines by which

a reasonable fee is determined.”     Id.   The factors relevant to

the calculation of a reasonable attorney’s fee are essentially

those found in Disciplinary Rule 2-106(B):



          (1) The time and labor required, the novelty
          and difficulty of the questions involved, and
          the skill requisite to perform the legal
          service properly.

          (2) The likelihood, if apparent to the
          client, that the acceptance of the particular
          employment will preclude other employment by
          the lawyer.

          (3) The fee customarily charged in the
          locality for similar legal services.

          (4) The amount involved and the results
          obtained.

          (5) The time limitations imposed by the
          client or by the circumstances.

          (6) The nature and length of the professional
          relationship with the client.


                                10
           (7) The experience, reputation, and ability
           of the lawyer or lawyers performing the
           services.

           (8) Whether the fee is fixed or contingent.



Alexander v. Inman, 903 S.W.2d 686, 695 (Tenn.App. 1995).    The

reasonableness of a fee depends on the facts of each case; thus,

the trial court must consider all of the surrounding

circumstances as they pertain to the eight criteria listed above.

Id.



           The Taylors cite Wilson Management for the proposition

that the trial court may set attorney’s fees even in the absence

of both expert testimony and a prima facie showing of what

constitutes a reasonable fee.     Wilson Management, 745 S.W.2d at

873.   Again relying on that case, they contend that the Nichols

failed to meet their obligation to insist upon a hearing on the

issue of reasonable fees.   Id.   We find this reliance to be

misplaced.   The relied-upon language in Wilson Management

addresses those situations where a trial court awards attorney’s

fees without conducting any hearing on the issue.    In the instant

case, there was a hearing at which the question of attorney’s

fees was addressed.   In fact, the trial court’s order of December

5, 1994, specifically reserved the issue for a subsequent

hearing, which hearing ultimately took place on April 23, 1996.

On that occasion, the court heard some, albeit minimal, testimony

regarding the issue of reasonable attorney’s fees for the

Taylors.




                                  11
            In setting attorney’s fees in this case, the trial

court should have evaluated all of the surrounding circumstances

against the background of the eight factors set forth in DR 2-

106(B).   From all appearances, it did not do so.   On the

contrary, the court apparently awarded the Taylors a flat

percentage of their recovery simply because that was the

stipulation in the agreement with their attorney.    The Taylors’

fee agreement with their attorney is only one factor in the

analysis.    That agreement in and of itself does not automatically

render that fee reasonable.



            We conclude that in the interest of justice, this case

should be remanded to the trial court for a proper determination

of the reasonable attorney’s fees to which the plaintiffs are

entitled.    T.C.A. § 27-3-128 provides:



            The [appellate] court shall also, in all
            cases, where, in its opinion, complete
            justice cannot be had by reason of some
            defect in the record, want of proper parties,
            or oversight without culpable negligence,
            remand the cause to the court below for
            further proceedings, with proper directions
            to effectuate the objects of the order, and
            upon such terms as may be deemed right.



By this decision, we do not mean to imply that a remand will be

appropriate in all cases where there has been insufficient proof

regarding the reasonableness of attorney’s fees.    We merely hold

that, under the facts of this case, a remand for a more thorough

determination is warranted.




                                 12
          The judgment of the trial court is affirmed, except for

that portion awarding attorney’s fees of $11,960.13 to the

plaintiffs, which is hereby vacated.   This case is remanded to

the trial court for such further proceedings as are appropriate,

consistent with this opinion.   Exercising our discretion, we tax




                                13
the costs on appeal half to the appellants and half to the appellees.




                                   __________________________
                                   Charles D. Susano, Jr., J.




CONCUR:



_________________________
Houston M. Goddard, P.J.



_________________________
Herschel P. Franks, J.




                                  14
