McGuire v. Smith

Lavenia McGUIRE and Roderick McGuire v. Edith
SMITH, Personal Representative of the Estate
of George McGuire

CA 96-340                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions I and II
                 Opinion delivered June 11, 1997


1.   Judgment -- relief from order -- ninety-day limitation -- exceptions --
     fraud alleged. -- Pursuant to Rule 60(b) of the Arkansas Rules of
     Civil Procedure, a court may modify or set aside an order to
     correct any error or mistake or to prevent the miscarriage of
     justice, upon motion of any party or the court, within ninety
     days of the order having been filed with the clerk;
     appellants' motion to set aside the order approving the
     settlement was filed long after the expiration of ninety days;
     however, after the expiration of ninety days, a court may
     vacate or modify a judgment or order upon certain enumerated
     bases set forth at Ark. R. Civ. P. 60(c); appellants moved to
     set aside the order on the basis that appellee had practiced
     fraud on the court in obtaining the judgment pursuant to Ark.
     R. Civ. P. 60(c)(4).

2.   Fraud -- cancellation of judgment for -- necessary showing. -- The fraud
     for which a decree will be canceled must consist in its
     procurement and not merely in the original cause of action; it
     is not sufficient to show that the court reached its
     conclusion upon false or incompetent evidence, or without any
     evidence at all, but it must be shown that some fraud or
     imposition was practiced upon the court in the procurement of
     the decree, and this must be something more than false or
     fraudulent acts or testimony the truth of which was, or might
     have been, an issue in the proceeding before the court which
     resulted in the decree assailed. 

3.   Fraud -- constructive fraud defined. -- Even though the fraud that
     vitiates a judgment may be constructive rather than actual,
     constructive fraud is nonetheless a species of wrongdoing;
     constructive fraud is defined as a breach of a legal or
     equitable duty that, irrespective of the moral guilt of the
     fraud feasor, the law declares fraudulent because of its
     tendency to deceive others; neither actual dishonesty nor
     intent to deceive is an essential element.

4.   Judgment -- fraud as ground for vacating -- burden of proof. -- The
     party seeking to set aside a judgment has the burden of
     showing that the judgment was obtained by fraud, and the
     charge of fraud must be sustained by clear, strong, and
     satisfactory proof.

5.   Fraud -- appellee did not practice fraud to obtain order granting authority
     to settle wrongful-death claim -- In the present case, appellee did
     not practice fraud in order to obtain the order granting
     authority to settle a wrongful-death claim; it was undisputed
     that the petition for authorization to settle the wrongful-
     death claim did not contain a certificate of service
     representing to the trial court that the petition had been
     served upon appellants; this being so, the appellate court
     concluded, failure to serve appellants could not constitute
     fraud; this was simply a situation in which appellee
     petitioned the court for authority to settle the wrongful-
     death claim and did not serve appellants with the petition;
     the court then made its decision; the fact that the court may
     have reached a decision that appellants considered erroneous
     was not grounds to set aside an order after ninety days from
     the date of filing has expired; there was no evidence that the
     order was obtained through fraud, and the trial court properly
     refused to set aside its order approving the compromise of the
     wrongful-death claim pursuant to Rule 60(c)(4). 

6.   Civil procedure -- wrongful-death action -- notice of petition to authorize
     settlement -- ARCP Rules 1 and 5 not controlling -- ARCP Rule 81 exception
     applicable. -- Where appellants relied on ARCP Rules 1 and 5 in
     arguing that they were entitled to be served with appellee's
     petition to authorize settlement in the wrongful-death action,
     the appellate court concluded that Rules 1 and 5  were not
     applicable; instead, the court determined that the exception
     set forth in ARCP Rule 81 was applicable; Rule 81 provides
     that the rules of civil procedure apply to all civil actions
     "except in those instances where a statute which creates a
     right, remedy or proceeding specifically provides a different
     procedure in which event the procedure so specified shall
     apply."

7.   Civil procedure -- wrongful-death action -- appellants not entitled to
     notice of petition to authorize settlement under Ark. Code Ann.  16-62-
     102 and 28-49-104. --  Applying Ark. Code Ann.  16-62-102 (Supp.
     1995), which identifies the parties entitled to bring a
     wrongful-death action and the beneficiaries, and Ark. Code
     Ann.  28-49-104 (1987), which empowers the personal
     representative to effect a settlement of any claim with the
     court's approval, the appellate court held that appellants
     were not entitled to notice of the petition to authorize
     settlement.

8.   Civil procedure -- wrongful-death action -- appellants not entitled to
     notice of petition to authorize settlement under case law. -- Applying
     Arkansas case law, the appellate court held that appellee, as
     the personal representative, was the only person authorized to
     pursue the action for wrongful death, and appellants were not
     entitled to notice of the petition for authority to settle the
     claim.

9.   Death -- wrongful death -- damages recovered from settlement of claim did
     not become assets of estate. -- The damages recovered from the
     settlement of the wrongful-death claim did not become assets
     of the estate.

10.  Death -- wrongful death -- personal representative was only party with duty
     and right to pursue claim or to choose counsel. --  It was appellee's
     right and duty, as personal representative, to choose counsel
     to pursue the wrongful-death claims and to decide how to
     contract with the counsel concerning his fee.  

11.  Death -- wrongful death -- probate court did not err in denying motion to
     set aside order approving settlement and uthorizing payment of percentage
     of recovery to attorney. -- While the appellate court neither
     approved of nor encouraged the practice of not serving the
     beneficiaries with notice of a petition for authority to
     settle a wrongful-death claim, it held that the probate court
     did not err in denying the motion to set aside the order
     approving settlement and authorizing payment of thirty percent
     of the recovery to appellee's attorney.


     Appeal from Pulaski Probate Court; Ellen Brantley, Probate
Judge; affirmed.
     John David Myers, for appellants.
     The Cortinez Law Firm, P.A., by: Robert s Tschiemer, for
appellee.
     Terry Crabtree, Judge.
     Appellants Lavenia and Roderick McGuire, mother and son,
appeal the order of the probate court denying their motion to set
aside the court's order approving settlement of a wrongful death
claim and authorizing attorney's fees in the amount of thirty
percent of the settlement amount.  Finding no error, we affirm.
     George McGuire died intestate on October 21, 1992.  Appellee
Edith Smith filed a petition for appointment as administratrix of
the estate on June 17, 1993.  The probate court appointed appellee
administratrix of the decedent's estate.  Appellants Lavenia
McGuire and Roderick McGuire, as widow and son of the deceased,
contested the appointment, stating that they had not received
notice of the petition and that appellee was not a daughter of the
deceased.  Appellants requested, in part, that appellee be removed
as administratrix.  Appellee responded that she was the daughter of
the deceased and that, even if she were not, she was qualified to
serve as personal representative.  Appellants filed an amended
motion asserting that appellee apparently was contending that she
was an illegitimate daughter of the deceased and that if appellee
was an illegitimate child of the deceased, her claim of inheritance
was barred by Ark. Code Ann.  28-9-209(d) (1987).  Appellants also
requested that no attorneys' fees, costs, or expenses attributable
to establishing appellee's claim be taken from the assets of the
estate.  On January 5, 1994, the probate court entered an order
striking appellee and another illegitimate sister from being
characterized as, or having the status of, heirs at law of the
decedent.    
     On January 7, 1994, appellee filed a petition for
authorization to settle the wrongful death claim of the decedent. 
The petition stated that the decedent had died as a result of a
collision with a car driven by a North Little Rock police officer. 
The petition stated that North Little Rock had minimum liability
coverage of $25,000 and that North Little Rock offered appellee
$25,000 to settle any claim.  The petition further stated that the
decedent had automobile liability insurance with State Farm
Insurance Company that afforded underinsured coverage of $25,000. 
Appellee sought to settle the claims for $50,000, with her
attorney's fee being thirty percent of the recovery.  The probate
court entered an order authorizing the settlement on January 28,
1994.  
     On August 11, 1994, appellants filed a motion to set aside the
order approving the compromise, asserting that they had not been
served with the petition and had only learned of the petition and
order granting it five and one-half months after the fact, while
reviewing the court file.  Appellants asserted that they were
entitled under the Arkansas Rules of Civil Procedure to be served
with a copy of the petition.  They alleged that, had they been
served, they would have opposed the petition, particularly the
distribution of nearly one-third of the recovery to appellee's
attorney.  Appellants asserted that their attorney had been offered
policy limits by the insurance companies and that appellee's
attorney sought and collected $15,000 for telling the insurers
where to send the check.  Appellants asked the probate court to set
aside the order authorizing settlement and require appellee's
attorney to return the $15,000 to the estate.
     Appellee responded that the motion to set aside the order was
untimely and that appellants did not allege or prove any grounds
that would authorize setting the order aside pursuant to Ark. R.
Civ. P. 60.  Appellee further contended that appellants had no
standing to contest the order authorizing settlement, as the
personal representative is the one authorized to compromise a
claim.  Appellee also asserted that appellants were not entitled to
notice.  Appellants amended their motion to set aside the order to
state that by failing to include a certificate of service on the
petition and by not serving the petition on appellants, appellee
had perpetrated fraud on the court.  
     After hearing arguments, the probate court denied the motion
to set aside the order.  The court found that failure to serve
appellants with the petition for authorization did not constitute
fraud that would allow the court to set aside the order after the
expiration of ninety days, because a personal representative is not
required to give notice of such a petition.  The court cited Ark.
Code Ann.   28-49-104 (1987) and 16-62-102 (Supp. 1995) and Dukes
v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961), as authority
supporting her ruling.          
     Appellants argue on appeal that the trial court erred in
failing to set aside its order approving settlement.  Appellants
assert that appellee was required to serve them with the petition
to settle the wrongful death claim of the decedent, George McGuire. 
It is appellants' position that the failure of appellee to serve
them with notice constituted fraud, thus allowing the probate court
to set aside the order approving the settlement more than sixty
days after it was entered.  Appellants argue that without notice to
the beneficiaries, there could be no input as to what the best
interests of the beneficiaries were and that the trial court did
not have sufficient facts upon which to base an opinion that the
settlement was in their best interest.  Appellants rely on Rules 1
and 5 of the Arkansas Rules of Civil Procedure in arguing that they
were entitled to notice.
     Appellee responds that appellants' motion to set aside the
order approving the settlement was untimely filed pursuant to Ark.
R. Civ. P. 60.  Appellee asserts that appellants were not entitled
to be served with the petition to settle the claim and that,
therefore, there could be no fraud based on not serving them with
the petition.  Appellee states that the wrongful death claim is not
an asset of the estate, and therefore, it is understandable that it
would not be necessary to give the heirs notice of any settlement
of the wrongful death claim.
     Pursuant to Rule 60(b) of the Arkansas Rules of Civil
Procedure, a court may modify or set aside an order to correct any
error or mistake or to prevent the miscarriage of justice, upon
motion of any party or the court, within ninety days of the order
having been filed with the clerk.  Appellants' motion to set aside
the order approving the settlement was filed long after the
expiration of ninety days.  However, after the expiration of ninety
days, a court may vacate or modify a judgment or order upon
certain, enumerated bases.  Ark. R. Civ. P. 60(c).  Appellants
moved the court to set aside the order on the basis that appellee
had practiced fraud on the court in obtaining the judgment pursuant
to Ark. R. Civ. P. 60(c)(4).  
     In First National Bank v. Higginbotham, 36 Ark. App. 65, 818 S.W.2d 583 (1991), the supreme court explained Rule 60(c)(4):
     The fraud for which a decree will be canceled must
     consist in its procurement and not merely in the original
     cause of action. Alexander v. Alexander, 217 Ark. 230,
     229 S.W.2d 234 (1950).  It is not sufficient to show that
     the court reached its conclusion upon false or
     incompetent evidence, or without any evidence at all, but
     it must be shown that some fraud or imposition was
     practiced upon the court in the procurement of the
     decree, and this must be something more than false or
     fraudulent acts or testimony the truth of which was, or
     might have been, an issue in the proceeding before the
     court which resulted in the decree assailed. Id. Even
     though the fraud that vitiates a judgment may be
     constructive rather than actual, constructive fraud is
     nonetheless a species of wrongdoing.  Ark. State Hwy.
     Comm'n. v. Clemmons, 244 Ark. 1124, 428 S.W.2d 280
     (1968).  Constructive fraud is defined as a breach of a
     legal or equitable duty which, irrespective of the moral
     guilt of the fraud feasor, the law declares fraudulent
     because of its tendency to deceive others.  Neither
     actual dishonesty nor intent to deceive is an essential
     element. See RLI Ins. Co. v. Coe, 306 Ark. 337, 813 S.W.2d 783 (1991). The party seeking to set aside the
     judgment has the burden of showing that the judgment was
     obtained by fraud, see Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976), and the charge of fraud must be
     sustained by clear, strong, and satisfactory proof.  Ark.
     State Hwy. Comm'n. v. Clemmons, supra.

Id. at 69, 818 S.W.2d  at 585.  
     In the present case, appellee did not practice fraud in order
to obtain the order granting authority to settle the wrongful death
claim.  It is undisputed that the petition for authorization to
settle the wrongful death claim did not contain a certificate of
service representing to the trial court that the petition had been
served upon appellants.  This being so, failure to serve appellants
cannot constitute fraud.  There is no evidence that appellee
represented to appellants that she would serve them with a copy of
the pleadings if she petitioned the court to approve settlement. 
Nor is there evidence that appellee represented to the court that
she had served appellants with the petition.  This is simply a
situation in which appellee petitioned the court for authority to
settle the wrongful death claim and did not serve appellants with
the petition.  The court then made its decision.  The fact that the
court may have reached a decision that appellants consider to be
erroneous is not grounds to set aside an order after ninety days
from the date of filing has expired.  Smart v. Biggs, 26 Ark. App.
141, 760 S.W.2d 882 (1988).  There is no evidence in this case that
the order was obtained through fraud, and the trial court properly
refused to set aside its order approving the compromise of the
wrongful death claim pursuant to Rule 60(c)(4).  
     Furthermore, applying statutory and case law, appellee was not
required to serve appellants with notice of her petition to settle
the lawsuit.  Appellants rely on Rules 1 and 5 of the Arkansas
Rules of Civil Procedure in arguing that they were entitled to be
served with the petition to authorize settlement.  Rule 1 of the
Arkansas Rules of Civil Procedure provides that the rules shall
govern the procedure in circuit, chancery, and probate courts in
all actions of a civil nature with the exceptions stated in Rule
81.  Rule 81 provides that the rules apply to all civil actions,
"except in those instances where a statute which creates a right,
remedy or proceeding specifically provides a different procedure in
which event the procedure so specified shall apply."  Rule 5 of the
Arkansas Rules of Civil Procedure provides in part:
     Except as otherwise provided in these rules, every
     pleading and every other paper, including all written
     communications with the court, filed subsequent to the
     complaint, except one which may be heard ex parte, shall
     be served upon each of the parties, unless the court
     orders otherwise because of numerous parties.

Rules 1 and 5 of the Arkansas Rules of Civil Procedure are not
controlling in this matter.  
     Applying Ark. Code Ann.  16-62-102 (Supp. 1995) and 28-49-
104 (1987) and the case of Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961), appellants were not entitled to notice.  Section 16-62-
102, entitled "Wrongful death actions -- Survival", provides in
pertinent part:
     (b)  Every action shall be brought by and in the name of
     the personal representative of the deceased person.  If
     there is no personal representative, then the action
     shall be brought by heirs at law of the deceased person. 

     . . .
     
     (d)  The beneficiaries of the action created in this
     section are the surviving spouse, children, father and
     mother, brothers and sisters of the deceased person,
     persons standing in loco parentis to the deceased person,
     and persons to whom the deceased stood in loco parentis.
     (e)  No part of any recovery referred to in this section
     shall be subject to the debts of the deceased or become,
     in any way, a part of the assets of the estate of the
     deceased person.

     . . .
     
     (g)  The judge of the court in which the claim or cause
     of action for wrongful death is tried or is submitted for
     approval of a compromise settlement, by judgment or order
     and upon the evidence presented at trial or in connection
     with any submission for approval of a compromise
     settlement, shall fix the share of each beneficiary, and
     distribution shall be made accordingly.  However, in any
     action for distribution shall be made accordingly. ...
     (h)  Nothing in this section shall limit or affect the
     right of probate courts having jurisdiction to approve or
     authorize settlement of claims or causes of action for
     wrongful death, but the probate courts shall consider the
     best interests of all the beneficiaries under this
     section and not merely the best interest of the widow and
     next of kin as now provided by  28-49-104.

Ark. Code Ann.  16-62-102(b), d), (e), (g), and (h) (Supp. 1995). 
Section 28-49-104 of the Arkansas Code Annotated provides in
material part:
     (a) When it appears to be for the best interest of the
     estate or in the case of an action for wrongful death or
     for the best interest of the estate or widow or next of
     kin, the personal representative, upon the authorization
     of or approval by the court, may effect a compromise
     settlement of any claim, debt, or obligation due or owing
     to the estate, whether arising in contract or tort, or he
     may extend, renew, or in any manner modify the terms of
     any obligation owing to the estate.

Ark. Code Ann.  28-49-104(a) (1987).
     In Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961), the
Arkansas Supreme Court addressed the appellant's argument that the
trial court erred in holding that he had received notice of the
settlement of a wrongful death action.  The appellant was the
decedent's son, who appeared through his grandmother.  The appellee
was the decedent's widow, who was the administratrix of the estate,
and who, as the administratrix, had filed an action for wrongful
death and settled it.  The appellant challenged the appellee's use
of part of the settlement proceeds to pay debts of the estate.  The
supreme court rejected the appellant's argument that the trial
court erred in determining that he had been given notice of the
administratrix's actions, simply stating:
     The probate court did find that the "exceptor had notice
     through counsel of steps taken by the administratrix" and
     it appears from the record that the matter of the
     settlement of the death claim was discussed informally
     between counsel.  We do not think the matter of notice
     was important. In Reed, et al v. Blevins, et al, 222 Ark.
     202, 258 S.W.2d 564, this court said:

               "Under the foregoing Statute [Act 53 of
          1883 which is similar to the one in question
          here] we have always held that when a personal
          representative was appointed, such personal
          representative was the only person who could
          maintain a suit for damages for wrongful death
          * * *" and in Southwestern Gas & Electric
          Company v. Godfrey, 178 Ark. 103, 10 S.W.2d 894, it was said that joining of party
          plaintiffs other than the personal
          representatives was error, though not
          prejudicial.

Id. at 851-52, 349 S.W.2d  at 340.  Applying this language from
Dukes to the present case, it is apparent that appellee, as the
personal representative, was the only person who could pursue the
action for wrongful death, and appellants were not entitled to
notice of the petition for authority to settle the claim.
     The court in Dukes went on to address the appellant's argument
that the trial court erred in holding that the amount recovered in
the wrongful death claim should be applied to the debts of the
estate.  The court held that this was error, because:
          "The damages are recovered in the name of the
     personal representative of the deceased, but do not
     become assets of the estate.  * * *  The administrator is
     the formal party to the maintenance of the action, and
     becomes a mere trustee for those entitled under the
     statute to the amount recovered."
          It therefore becomes evident that the administratrix
     has but one relationship to the recovery for a wrongful
     death and that is as a trustee of conduit and beyond that
     status, in these circumstances, she may not go.

Id. at 853, 349 S.W.2d  at 341 (quoting in part Adams v. Shell, 182
Ark. 959, 961, 33 S.W.2d 1107, 1108 (1931)).  Dukes supports
appellee's position that she was not required to serve appellants
with her petition for authority to settle the wrongful death claim. 
Appellee is the personal representative in this case and, thus, the
only one authorized to pursue the wrongful death claim. 
Additionally, the damages recovered from the settlement of the
wrongful death claim did not become assets of the estate.
     In Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985), the
Arkansas Supreme Court explained that the personal representative
of the decedent, not the beneficiaries, has the right to pursue a
wrongful death action and to choose an attorney for that purpose. 
In Cude, the appellant, who was the decedent's widow, sought to
have the administrator of the estate removed for unsuitability. 
The appellant contended that the administrator had made
misrepresentations and had a conflict of interest.  The
administrator had asked two attorneys to pursue a wrongful death
claim and did not notify the appellant concerning the arrangement. 
The appellant hired her own attorneys to pursue a wrongful death
action on behalf of herself and her daughter.  The supreme court
noted that the appellant failed to understand that such an action
can only be pursued by the administrator.  The court explained:
          We are cited to no authority showing that Burrel had
     a duty to consult with Angelia about his pursuit of a
     wrongful death action.  The personal representative of
     the decedent, in this case the administrator, is clearly
     the party to bring the action.  Ark. Stat. Ann. 27-907
     (Supp. 1983).  While the widow and daughter of the
     deceased are beneficiaries of any wrongful death
     recovery, Ark. Stat. Ann. 27-908 (Repl. 1979), we are
     cited to no case or statute giving them standing as
     parties to the action.  Therefore, it was not they, but
     Burrel, whose duty and right it was to pursue the action,
     subject to the probate court's approval, and to choose
     Counsel for that purpose.

Id. at 385-86, 691 S.W.2d  at 867.  In concluding, the court pointed
out that the appellant could have counsel to see that her interests
are protected, but that she would not be a party to the suit. 
Applying Cude to the present case, appellants would not be parties
to any wrongful death action.  Appellee is the only one with the
duty and right to file an action or settle the claim and to choose
counsel for that purpose.  It follows that appellants are not
entitled to notice of the petition for authorization to settle the
claim. 
     The court in Brewer v. Lacefield, 301 Ark. 358, 784 S.W.2d 156
(1990), cited both Dukes and Cude in rejecting the appellant's
argument that counsel retained by her, as a beneficiary, were
entitled to fees on a portion of the wrongful death proceeds
attributable to the beneficiary.  The court stated that, pursuant
to Ark. Code Ann.  16-62-102(b), every wrongful death action shall
be brought by the personal representative of the deceased person,
if there is a personal representative.  The court explained that
the wrongful death provisions do not create an individual right in
a beneficiary to bring suit.  The court further explained:
          It is the duty of the personal representative, not
     the beneficiaries, to choose counsel to pursue a wrongful
     death claim pursuant to our wrongful death code
     provisions. 

Id. at 362, 784 S.W.2d  at 158 (citing Cude, supra).  Thus, in the
present case, it was appellee's right and duty to choose counsel to
pursue the wrongful death claims and to decide how to contract with
the counsel concerning his fee.   
     While this court does not approve of or encourage the practice
of not serving the beneficiaries with notice of a petition for
authority to settle a wrongful death claim, the probate court did
not err in denying the motion to set aside the order approving
settlement and authorizing payment of thirty percent of the
recovery to appellee's attorney.  The probate court correctly found
that appellee did not perpetrate fraud on the court in obtaining
the order.  We affirm.
     Pittman, Stroud, and Meads, JJ., agree.  
     Rogers, J., concurs.  
     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 compensa-
tion 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 exces-
sive 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  28-1-115(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.