The Court of Appeals awarded plaintiff a recovery but denied its claim for attorney's fees "because the contract provides merely for a `reasonable attorney's fee'" and no proof was offered in the lower court as to what would constitute a reasonable attorney's fee, citing Nu-Way v. Pig'N Whistle, supra. Defendant acknowledges that the Middle Section of the Court of Appeals in Trice v. Hewgley, 53 Tenn. App. 259, 381 S.W.2d 589 (1964) disagreed with the result reached by the Western Section of the Court of Appeals in Nu-Way. Trice also involved a reasonable fee provision in a note.

Hausler v. Discounts R Us, Inc., No. M2002-01465-COA-R3-CV, 2003 WL 1092771, at *4 (Tenn. Ct. App. Mar. 13, 2003) perm. app. denied (Tenn. Oct. 6, 2003) (quoting Trice v. Hewgley, 381 S.W.2d 589, 597 (Tenn. Ct. App. 1964)).

Strickland v. City of Lawrenceburg, 611 S.W.2d 832, 838 (Tenn.App. 1980). Limited modification is allowed, Trice v. Hewgley, 53 Tenn. App. 259, 381 S.W.2d 589, 593 (1964), subject to the parties' contractual specification: The lease agreement stipulates that it "is entered into under, and is to be construed in accordance with, the laws of the State of Tennessee," where Union Planters is located.

Such expert opinion testimony is advisory only. Trice v. Hewgley, C.A.Tenn. (1964), 53 Tenn. App. 259, 381 S.W.2d 589, 594. The amount of an attorney's fees "* * is peculiarly within the discretion of the Court because the attorney is an officer of the court. * * *" Noone v. Fisher, supra, 45 F. Supp. at 656[9].

Without seeking any post-judgment relief in the trial court, defendant appealed, and on the attorney's fee issue, asserted that it was error to award an attorney's fee based on a percentage of recovery, when the contractual provision called for a "reasonable" fee and that failure to present proof of what a reasonable fee would be constituted a waiver of any fee. Defendant relied upon Nu-Way Ice Cream Mach. Co. v. Pig 'N Whistle, 16 Tenn. App. 581, 65 S.W.2d 575 (1933), wherein the Court held, under similar circumstances, that the fee was waived. In Trice v. Hewgley, 53 Tenn. App. 259, 381 S.W.2d 589, the Middle Section of the Court of Appeals held to the contrary on the waiver issue and also approved an award based upon a percentage of the recovery, although the note sued upon called for a "reasonable" fee. This Court held that where a "reasonable" fee is called for, the award must be based on the guidelines by which a reasonable fee is determined, and not simply a percentage of recovery. In Wilson, we also held that, (1) a trial judge may fix fees of lawyers in causes pending or which have been determined by the court, with or without expert testimony of lawyers and with or without a prima facie showing by the proponent of what a reasonable fee would be; (2) that if the trial judge fixes a fee based upon the appropriate guidelines, the opponent of the fee should be accorded full opportunity to cross-examine the proponent and to present evidence on the fee issue.

In the cases of sister jurisdictions which hold, like Reed, that testimony as to the extent and value of the services rendered is not absolutely mandatory to support an award of attorney's fees, the rationale is generally based on the fact that the trial judge, in view of his or her experience on the bench and at the bar, may be in a position, without more, to make the determination of reasonableness. See, e.g., Trice v. Hewgley, 53 Tenn. App. 259, 265, 381 S.W.2d 589, 594-95 (1964); Annotation, Necessity of Introducing Evidence to Show Reasonableness of Attorney's Fees Where Promissory Note Provides for such Fees, 18 ALR3d § 4, at 740 (1968). This could perhaps be the situation in certain simple small claims cases.

1988), we said: Again, we agree with Trice [ v. Hewgley, 53 Tenn. App. 259, 381 S.W.2d 589 (1964)] that a trial judge may fix the fees of lawyers in causes pending or which have been determined by the court, with or without expert testimony of lawyers and with or without a prima facie showing by plaintiffs of what a reasonable fee would be. Obviously, the burden of proof on the question of what is a reasonable fee in any case is upon the plaintiff and plaintiff should be in a position to tender such proof. However, if a trial judge is prepared to fix a reasonable fee based upon the appropriate guidelines without first hearing plaintiff's proof, defendant must be accorded full opportunity to cross examine plaintiff's witness and present evidence on that issue.

Charleston, S.C., Mining & Mfg. Co. v. American Agric. Chern. Co., 126 Tenn. 18, 150 S.W. 1143, 1146 (1911); accord Springfield Tobacco Redryers Corp.v.City of Springfield, 41 Tenn.App. 254, 293 S.W.2d 189, 198 (1956); Koontz v. Fleming, 17 Tenn.App. 1, 65 S.W.2d 821, 825 (1933); see also Stovall of Chattanooga, Inc, v. Cunningham, 890 S.W.2d 442, 444 (Tenn.App. 1994); Trice v. Hewgley, 53 Tenn.App. 259, 381 S.W.2d 589, 595 (1964);

1988), the Tennessee Supreme Court stated: [W]e agree with Trice [v. Hewgley, 381 S.W.2d 589 (Tenn. Ct. App. 1964)] that a trial judge may fix the fees of lawyers in causes pending or which have been determined by the court, with or without expert testimony of lawyers and with or without a prima facie showing by plaintiffs of what a reasonable fee would be. Obviously, the burden of proof on the question of what is a reasonable fee in any case is upon the plaintiff and plaintiff should be in a position to tender such proof. However, if a trial judge is prepared to fix a reasonable fee based upon the appropriate guidelines without first hearing plaintiff's proof, defendant must be accorded full opportunity to cross examine plaintiff's witness and present evidence on that issue.

There are exceptions to the parol evidence rule, however, which the court in GRW Enterprises elaborated upon: [T]he rule does not prevent using extraneous evidence to prove the existence of an agreement made after an earlier written agreement, Brunson v. Gladish, 174 Tenn. at 316, 125 S.W.2d at 147; Bryan v. Hunt, 36 Tenn. (4 Sneed) 543, 547-48 (1857); Trice v. Hewgley, 53 Tenn. App. 259, 267-68, 381 S.W.2d 589, 593 (1964), or to prove the existence of an independent or collateral agreementnot in conflict with a written contract.