Ajudani v. Walker
In Ajudani v. Walker, 232 S.W.3d 219, 221 (Tex. App.--Houston 1st Dist. 2007, no pet), an attorney ad litem was appointed to represent a decedent's minor daughter in an action brought by the decedent's sisters seeking the admission of a will for probate.
Three applications by the attorney ad litem for the payment of his fees and expenses from the funds of the estate were granted for varying amounts before the attorney ad litem filed a motion for summary judgment arguing the will the sisters sought to probate was not a will and requesting that the costs associated with the defense of the case be taxed against the sisters. Id. at 221-22.
The trial court granted the motion and ordered the costs to be assessed against the sisters. Id. at 222.
Four additional applications by the attorney ad litem for payment of his fees and expenses from funds of the estate were granted before the appellate court notified the attorney ad litem that its mandate affirming the trial court's summary judgment had issued. Id. at 222.
The attorney ad litem then filed a motion requesting the probate court to assess a sum certain, which was the total amount of all of his fees and expenses, against the sisters. Id. at 222-23.
The probate court granted the motion. Id. at 223.
On appeal, the sisters argued the probate court did not have plenary power to assess the attorney ad litem's fees against them. Id.
The Houston court noted, "Even if the probate court's plenary power had expired, however, it retained its inherent power to clarify or enforce its prior order." Id.
In holding the probate court had inherent power to grant the motion and assess the sum certain against the sisters, the Houston court reasoned:
"Here, the probate court's October 6, 2005 order assessing costs was an order clarifying a previous order. In its August 7, 2003 order granting Walker's motion for summary judgment, the probate court adjudged costs against the sisters. Thus, the order determined who would pay costs, but not how much they would have to pay; the amount of Walker's fees and expenses up to this point had been determined by the court's three previous orders granting Walker's applications for authority to pay appointee fees and expenses. After this Court affirmed the probate court's order granting summary judgment in favor of Walker, Walker moved and the probate court ordered that the sisters pay $27,607.65 for Walker's fees and expenses. By ordering the sisters to pay a particular amount, the probate court was clarifying its August 7, 2003 order that had assessed costs against the sisters without fixing the amount to be paid and was, therefore, acting within its inherent power." (Id. at 223-24.)