The opinion
Judith Rogers, Judge, concurring. I concur in the decision of the court. However, I write separately to point out that the probate judge had the authority to reconsider the award of attorney’s fees, but on a ground not argued by the appellants below or in their brief in this court.
The appellants in this case have sought to set aside that portion of an order previously entered by the probate court authorizing the payment of an attorney’s fee, based on a claim that the amount of the fee was excessive. In the Probate Code, the subject of attorney’s fees is covered by Ark. Code Ann. § 28-48-108 (1987), which provides in pertinent part:
A personal representative, upon election, may fix . . . the fees of the attorneys of the estate . . . without prior approval of the court, but the reasonableness of the compensation of any person so employed . . ., either on petition of any interested person, on petition of the personal representative, or on the court’s own initiative, shall be reviewed by the court. Any person who has received excessive compensation from the estate for services rendered may be ordered to make appropriate refunds.
This statute plainly suggests that the compensation of attorneys retained by the personal representative is subject to scrutiny by the probate court. Indeed, a probate court has the discretion to fix the amount of attorney’s fees in accordance with the value of the services rendered. Nabers v. Estate of Setser, 310 Ark. 194 , 833 S.W.2d 375 (1992). And, an administrator has no right to make a contract for legal services that is binding on the court. Black v. Thompson, 237 Ark. 304 , 372 S.W.2d 593 (1963).
Although the case has been presented to this court as being one controlled by Rule 60 of the Rules of Civil Procedure, the authority of a probate court to set aside a previous order is not limited by that rule. Arkansas Code Annotated § 28-l-115(a) (1987) provides that, for good cause, a probate court may vacate or modify an order, or grant rehearing, at any time before the time for appeal has elapsed after the final termination of the estate. It has been said that this statute is designed to afford a probate court greater flexibility with regard to the finality of its orders. Price v. Price, 258 Ark. 363 , 527 S.W.2d 322 (1975). We have recognized that a probate court has the authority to vacate, modify, or reconsider its orders for “good cause” pursuant to the statute, notwithstanding the provisions of Rule 60. White v. Toney, 37 Ark. App. 36 , 823 S.W.2d 921 (1992).
Based then on Ark. Code Ann. § 28-1-115 , the probate court had the authority to reconsider the fee award under the “good cause” standard enunciated in the statute. A finding of fraud under Rule 60 was simply not necessary to justify reconsideration of the order. Although the specter of Rule 60 was interjected by appellee, appellants never argued to the probate court that it had the power to revisit the issue pursuant to this statute, and the matter was tried as if the order could only be set aside under Rule 60. Moreover, appellants have made no argument in this appeal based on Ark. Code Ann. § 28-1-115 . Under these circumstances, we cannot rest our decision upon the statute. It is a familiar rule of practice that an appellate court does not reverse on a ground not argued by the appellant, even when the record is subject to de novo review on appeal. See Cummings v. Boyles, 242 Ark. 923 , 415 S.W.2d 571 (1967). Consequently, I must agree to affirm.