author: W.H. “Dub” Arnold, Chief Justice. ANNABELLE CLINTON IMBER, Justice, ROBERT L. Brown, Justice,

text:
    Philip AKA, Special Administrator of the Estate of Evangeline Aka v. JEFFERSON HOSPITAL ASSOCIATION, INC., d/b/a Jefferson Regional Medical Center; Kimberly Garner, M.D.; Betty Orange, M.D.; Randy Hill, M.D.; Shane Higginbotham, M.D.; Herbert Fendley, M.D.; William Freeman, M.D.; Harvie M. Attwood, M.D.; and St. Paul Fire & Marine Insurance Company, Inc.
    99-1366
    42 S.W.3d 508
    Supreme Court of Arkansas
    Opinion delivered May 10, 2001
    [Petition for rehearing (separate appellees Herbert Fendley, M.D., et al.) denied; petition for rehearing (separate appellees Kimberly Garner, M.D., et al.) denied; petition for rehearing (appellee St. Paul Fire & Marine Insurance Company) denied.]

      Eubanks, Welch, Baker & Schulze, by: Morgan E. Welch; and Cross, Kearney & McKissic, by: Gene McKissic, for appellant/crossappellee.

      Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: R.T. Beard, III, and Tim E. Howell, for appellees Kimberley Garner, M.D.; Shane Higginbotham, M.D.; and Randy Hill, M.D.

      Womack, Landis, Phelps, McNeill & McDaniel, by: Paul McNeill and Mark Mayfield, for appellees/cross-appellants Herbert Findley, M.D.; William Freeman, M.D.; and Harve M. Attwood, M.D.

      Anderson, Murphy & Hopkins, L.L.P., by: Overton S. Anderson, for appellee Erma Washington, M.D.

      Friday, Eldredge & Clark, LLP, by: Phil Malcom and John C. Fendley, Jr, for appellees Betty Orange, M.D., and Erma Washington, M.D., & Associates.

      Bridges, Young, Matthews & Drake PLC, by: Stephen A. Matthews, for appellee/cross-appellant St Paul Fire & Marine Insurance Company.

      Charles M. Kester and Christopher R. Heil, for amicus curiae Arkansas Trial Lawyers Association.
    Williams & Anderson LLP, by: Leon Holmes, for amicus curiae Arkansas Right to Life, Inc.

       Brown and Thornton, JJ., would grant as to estate of Baby Boy Aka.

       Brown and Thornton, JJ., would grant as to estate of Baby Boy Aka.

   W.H. “Dub” Arnold, Chief Justice.

The Court of Appeals certified this first-impression case for us to consider appellant’s arguments urging the reversal of precedent. Specifically, appellant asks this court to overrule our holding in Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995), that a viable fetus is not a “person” within the meaning of Arkansas’s wrongful-death statute. See Ark. Code Ann. § 16-62-102 (1987 & Supp. 1999). Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. 1-2(a)(1), 1-2(b)(3) and (4), and 1-2(d) (2000). We find merit in appellant’s arguments, and we reverse and remand for further action consistent with this opinion.

On September 6, 1996, appellant, Philip Aka, as the Special Administrator of the Estate of Evangeline Aka, appellant’s thirty-four-year-old wife and the mother of two children, and as the Special Administrator of the Estate of Baby Boy Aka, their unborn son, filed a medical-negligence complaint against Jefferson Hospital Association, Inc., d/b/a Jefferson Regional Medical Center (“JRMC”); Kimberly Garner, M.D., a licensed physician practicing at the UAMS/AHEC-Pine Bluff Residency Training Program at JRMC (“AHEC”); Erma Washington, M.D., a licensed obstetrician and gynecologist employed by Erma Washington, M.D., and Associates, P.A., with JRMC obstetrical privileges; Betty Orange, M.D., a licensed obstetrician and gynecologist, also possessing JRMC obstetrical privileges; Randy Hill, M.D., a licensed physician practicing at AHEC; and Shane Higginbotham, M.D., a licensed physician practicing at AHEC. On July 28, 1997, appellant filed an amended complaint adding as named defendants St. Paul Fire & Marine Insurance Company, Inc., and three AHEC faculty supervisors, Herbert Fendley, M.D., William Freeman, M.D., and Harvie M. Attwood, M.D. Appellant filed his second amended complaint against appellees on November 20, 1998.

Essentially, appellant’s complaint alleged that the defendant doctors’ and institutions’ medical negligence in unnecessarily inducing his wife’s labor, fading to discontinue the induction, failing to perform a cesarean section, failing to resuscitate her or the unborn baby, and failing to obtain informed consent, proximately caused Mrs. Aka’s and her unborn son’s deaths. Appellant also averred that JRMC’s, AHEC’s, and AHEC’s faculty supervisors’ failure to train and supervise AHEC resident physicians proximately caused both deaths.

Background

On December 11, 1995, at approximately 7:00 p.m., Evangeline Aka was admitted for the induction of labor to the Family Practice Center, a resident-in-training program operated at JRMC by UAMS/AHEC pursuant to an “affiliation agreement.” As of 10:00 p.m. on December 12, twenty-seven hours after her admission, Mrs. Aka had failed to progress in labor. Consequently, Cheryl Jones, a registered nurse in JRMC’s labor and delivery department, telephoned Dr. Erma Washington at home. According to Jones, she notified Dr. Washington that although Dr. Betty Orange was listed on the patient’s chart as the “consult” and the physician authorizing Mrs. Aka’s induction, she believed that Dr. Orange was “on call” for Dr. Washington. She also reported that Dr. Orange had not seen the patient. In fact, Nurse Jones testified that she did not believe any attending obstetrical physician from the Family Practice Clinic had seen Mrs. Aka while Jones was tending her on the night of December 12, 1995.

According to Nurse Jones, Dr. Washington initially instructed her to prepare Mrs. Aka for a cesarean section. However, ten minutes after their first phone call, Dr. Washington called and canceled her orders for the c-section, directed the resident physicians to rupture the patient’s membrane, and ordered medication. Following those instructions, first-year resident Dr. Shane Higginbotham made multiple attempts to rupture Mrs. Aka’s membrane. At trial, Dr. Higginbotham acknowledged that if a patient, like Mrs. Aka, failed to progress in labor and was on Pitocin, a drug given to induce labor, the risk of needing a c-section increased. However, Dr. Higginbotham admitted that he lacked the technical skills to perform a c-section and could not have done so even had it been necessary to save Mrs. Aka and her baby. Dr. Higginbotham also related that between 7:00 and 10:00 p.m., he was the only Family Practice resident in the building working in obstetrics and that no doctor with c-section privileges was there to attend Mrs. Aka between 7:00 and 10:30 when he personally attempted to rupture her membrane.

After failing to rupture Mrs. Aka’s membrane, Dr. Higginbotham called Dr. Washington who told him to call a third-year resident physician, Dr. Randy Hill, for assistance. Dr. Hill also failed in his attempts to rupture Mrs. Aka’s membrane. Moreover, Mrs. Aka complained of mild dyspnea, shortness of breath, while the resident applied fundal pressure to place a fetal-scalp electrode. Apparently, the dyspnea resolved after the fundal pressure was relieved.

Approximately an hour-and-a-half later, Mrs. Aka complained of acute shortness of breath. According to Dr. Higginbotham, Mrs. Aka suffered respiratory distress and was “going into respiratory failure.” He also reported that when the “code” was called on Mrs. Aka, there was not a board-certified obstetrician in the labor-and-delivery suite, and no board-certified physician had been called to assist Mrs. Aka. Dr. Hill, as the senior resident physician, took over. Per Dr. Hill’s suggestion, Dr. Higginbotham “scrubbed” to prepare for a possible c-section. Dr. Washington arrived during the code, but no attempts were made to deliver the baby.

At approximately 1:15 a.m on December 13, 1995, Evangeline Aka, and her unborn son died at appellee-hospital JRMC. The autopsy denoted Mrs. Aka’s cause of death as “amniotic fluid embolism” and her unborn son was described in forensic pathologist Dr. Frank Peretti’s report as a “well-developed, well nourished,” “full term male infant” weighing eight pounds, fifteen' ounces with “[n]o evidence of congenital malformations, natural disease, trauma or infection.” Mrs. Aka’s November 30, 1995 obstetrical ultrasound report indicated that her fetal evaluation was complete and that she carried a full term “viable single intrauterine fetus” with”[n]o complication identified.”

Following the deaths of Mrs. Aka and her unborn son, appellant made a series of phone calls, including two answering-machine messages, to Drs. Washington and Orange. The doctors complained to the Pine Bluff police department and swore out warrants against appellant. Ultimately, appellant was prosecuted for terroristic threatening. However, following a two-day jury trial, he was acquitted of all criminal charges.

In response to appellant’s medical-negligence action, Dr. Washington and Erma Washington, M.D., and Associates, PA. filed a motion for partial summary judgment on the basis of governmental immunity from suit because Washington was a “part-time” twenty-five-percent consultant for the AHEC residency-training program. However, Dr. Washington also engaged in a full-time private obstetrical practice. In part, Washington also contended that summary judgment was appropriate because she had no insurance coverage for her part-time work, and her state insurance coverage had been canceled.

The parties disagreed as to the nature of any legal relationship between Drs. Orange and Washington. At a minimum, Dr. Orange leased office space from Dr. Washington. However, some evidence suggested that Dr. Orange had a contractual agreement with Dr. Washington, and appellant claimed that Dr. Orange was actually an employee of Erma Washington, M.D., and Associates, P.A. For example, appellant insisted that Dr. Washington was actually on-call for Dr. Orange the evening Mrs. Aka died and was only contacted because Dr. Orange was identified on the patient’s chart as having authorized the induction. For her part, Dr. Orange admitted that she occasionally consulted with the AHEC resident physicians but conceded that she was not a state employee.

Consequently, appellant argued that Dr. Washington treated Mrs. Aka under the initial presumption that she was Dr. Orange’s private patient. Given appellant’s theory that Dr. Washington’s cancellation of the c-section procedure proximately caused the deaths of Mrs. Aka and her unborn baby, appellant maintained that the question of what “hat” Dr. Washington was wearing — state or private employee — remained a question for the jury. The trial court disagreed and dismissed both Dr. Washington and Erma Washington, M.D., and Associates, P.A. from the suit.

The remainder of the case was tried before a jury from January 28, 1999, to February 16, 1999. Following two days of deliberations, the jury returned a verdict in favor of all defendants. Appellant filed a motion for a new trial, which was denied on April 22, 1999. Aka then brought the instant appeal challenging: (1) the trial court’s order granting partial summary judgment against the estate of Baby Boy Aka pursuant to Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995); (2) the trial court’s order granting summary judgment and immunity to Dr. Washington and her professional association based upon her part-time state employment; (3) the sufficiency of the evidence supporting the jury’s verdict; and (4) the trial court’s rulings excluding an autopsy photograph and related testimony, evidence of prior complaints about the AHEC residency-training program, and certain testimony regarding Candace Stewart, a second-year resident physician with AHEC. The Arkansas Trial Lawyers Association and Arkansas Right to Life, Inc., also filed amicus briefs in support of appellant’s arguments urging us to overrule Chatelain v. Kelley. On cross-appeal, appellee-doctors Herbert Fendley, William Freeman, and Harvie M. Attwood contend that the trial court erred by improperly admitting testimony of prior complaints about the AHEC family-practice, residency-training program.

Before addressing the merits of the instant appeal, we consider appellant’s pending motion to supplement the addendum. During preparation for oral argument, appellant discovered that copies of certain enumerated items were inadvertently omitted from the addendum, including the trial court’s April 22, 1999 order denying appellant’s motion for new trial and the second page of a transcript excerpt concerning the admissibility of an autopsy photograph. We recognize that appellant is not seeking to amend the addendum but to ensure that this court has complete copies of all items currently indexed. Accordingly, we grant appellant’s motion.

I. Partial summary judgment against Estate of Baby Boy Aka

A. Chatelain v. Kelley

The trial court granted partial summary judgment against the Estate of Baby Boy Aka on the basis of Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995). For his first point on appeal, appellant urges us to reexamine our four-three decision holding that a viable fetus is not a “person” pursuant to Arkansas’s wrongful-death statute. Chatelain, 322 Ark. at 525, 910 S.W.2d at 219. In Chatelain, this court reasoned that judicial expansion of the wrongful-death statute to include a fetus was inappropriate because the issue was a matter of “legislative prerogative” and would be contrary to then-existing probate and criminal laws. However, appellant and amici curiae contend that this decision must be overruled to effectuate the remedial purposes of the wrongful-death statute, to bring Arkansas in line with the majority of states that have considered the issue, and, most importantly, to honor subsequent legislative developments suggesting that a viable fetus is a “person.”

In part, appellees counter Aka’s argument on procedural grounds. Specifically, appellees claim that we are barred from considering the merits of this point on appeal because Aka failed to designate the partial-summary-judgment dismissal in his notice of appeal. We reject appellees’ argument. Appellant’s notice of appeal stated that the appeal was taken from “the jury verdict returned February 17, 1999, in favor of the defendants, the Judgment filed March 8, 1999, pertaining to said verdict, and the Court’s Order filed April 22, 1999, denying Plaintiffs Motion for New Trial.” Significandy, Ark. R. App. P. — Civ. 2(b) (2000) provides that any appeal from “any final order also brings up for review any intermediate order involving the merits and necessarily affecting the judgment.” In light of the foregoing, we find that appellant’s notice of appeal was adequate to preserve appellate review of the trial court’s intermediate order dismissing the claims regarding the Estate of Baby Boy Aka.

We now address the merits of appellant’s argument. Given our strong reliance upon prior judicial decisions and legislative intent in deciding Chatelain, we must first reexamine that opinion’s underpinnings. In Chatelain, we discussed three specific cases presenting this court with the issue of whether a fetus was a legally recognized “person.” First, in Carpenter v. Logan, 281 Ark. 184, 662 S.W.2d 808 (1984), we affirmed a probate court’s finding that it was without authority to order the administration of the estate of an unborn fetus, and we declined to hold that an unborn or stillborn fetus was a deceased person within the meaning of the probate code.

Second, in Carpenter v. Bishop, 290 Ark. 424, 720 S.W.2d 299 (1986), we were precluded from reaching the ultimate issue of whether a viable fetus, born dead, was a “person” because the underlying suit was barred by the parental-immunity doctrine. Third, in Meadows v. State, 291 Ark. 105, 722 S.W.2d 584 (1987), we determined that a fetus was not a “person” as that term was used in the criminal manslaughter law. Notably, our construction in Meadows turned upon the common-law definition of “person,” which did not include a fetus, because the term “person” had not been statutorily defined. Id., 291 Ark. at 107-108, 722 S.W.2d at 585.

Relying on these cases, Carpenter, Bishop, and most heavily upon Meadows, the majority of this court concluded in Chatelain that a decision to include fetus in the definition of person would “create an inconsistency in the laws of this State by holding ‘person’ included viable fetus for the purpose of the wrongful death statute when we have reached the contrary conclusion in the criminal law and the law of probate.” Chatelain, 322 Ark. at 525, 910 S.W.2d at 219.

In response, the dissent criticized the majority for adopting a minority-jurisdiction rule that could lead to the illogical result of barring recovery for a stillborn child but not for one born alive. Id., 322 Ark. at 527, 910 S.W.2d at 220 (Glaze, J., dissenting). The dissent maintained that Arkansas’s wrongful-death statute must be construed liberally to accomplish its remedial objective and to be in accord with the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), which upheld a state’s legitimate interest in protecting potential fife at viability, the time when a fetus has the capability of meaningful life outside the womb. Id., 322 Ark. at 527-28, 910 S.W.2d at 220-21 (Glaze, J., dissenting).

As appellant and the amicus briefs point out, Chatelain invited a legislative response. Id., 322 Ark. at 525, 910 S.W.2d at 219. More importantly, the legislature has responded. For example, during the trial of this matter, the legislature adopted Act 1273 of 1999, amending Ark. Code Ann. section 5-1-102, by adding the following definition to “person” in the context of criminal offenses:

(13)(B)(i)(a) For the purposes of §§ 5-10-101 — 5-10-105 [“Homicide”], “person” also includes an unborn child in utero at any stage of development;
(b) “Unborn child” means a living fetus of twelve (12) weeks or greater gestation.
(ii) Exceptions. Subdivision 13(b) does not apply to:
(a) Acts which cause the death of an unborn child in útero if those acts were committed during a legal abortion to which the woman consented;
(b) Acts which are committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment; and
(c) Acts which are committed in the course of medical research, experimental medicine, or acts deemed necessary to save the life or preserve the health of the mother.

Ark. Code Ann. § 5-1-102(13)(B)(i), (ii) (Supp. 1999).

Given this amended definition of “person,” the legislature plainly affords protection to unborn viable fetuses, assuming injury or death occurred without the mother’s consent to a lawful abortion or outside the “usual and customary standards of medical practice” or beyond “acts deemed necessary to save” the mother’s life. The relevance of the legislature’s response, by statutorily defining person in the criminal context to include a fetus, cannot be understated given our strong reliance in Chatelain upon Meadows. The Meadows decision was predicated upon the lack of legislative guidance in defining the term “person.” As a result, this court was obliged to turn to the common-law definition of person, which did not include a viable fetus. Meadows, 291 Ark. at 107-108, 722 S.W.2d at 585. Act 1273 of 1999 is consistent with Amendment 68 to the Arkansas Constitution, and if there had been any doubt concerning the State’s public policy on this subject, it is now laid to rest. We are no longer constrained by the common-law definition of person.

The people’s passage of Amendment 68 in 1988 reflected the stated public policy of Arkansas. Amendment 68 declares that “[t]he policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution.” Ark. Const, amend. 68, § 2 (emphasis added). We are mindful that the federal courts enjoined the enforcement of Amendment 68 and held it unconstitutional because its provision that no public funds will be used to pay for abortions except to save the life of the mother violated the 1994 Hyde Amendment. See Ark. Const, amend. 68, § 1; Little Rock Family Planning Servs. v. Dalton, 860 F. Supp. 609 (E.D. Ark. 1994), aff’d, Little Rock Family Planning Servs. v. Dalton, 60 F.3d 497 (8th Cir. 1995) (holding that Amendment 68’s prohibition of the use of public funds for abortions except to save the mother’s life violated the federal Medicaid statute, as amended by the 1994 Hyde Amendment, and was invalid under the supremacy clause); but see Little Rock Family Planning Servs., 60 F.3d at 504-505 (BOWMAN, J., concurring in part and dissenting in part).

However, the United States Supreme Court reversed the Eighth Circuit and held that Amendment 68 could be enjoined only to the extent that it imposed obligations inconsistent with Title XIX. See Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 476 (1996). Accordingly, the Supreme Court reversed the decision below insofar as it affirmed a blanket invalidation of Amendment 68. The Court noted that in such a preemption case, state law is displaced only “ ‘to the extent that it actually conflicts with federal law.’ ” Id. (citing Pacific Gas & Elec. Co. v. State Energy Resources Conserv. & Dev. Comm’n, 461 U.S. 190, 204 (1983); Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 109 (1992); and Exxon Corp. v. Hunt, 475 U.S. 355, 376 (1986). “ ‘[T]he rule [is] that a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it.’ ” Id. (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502 (1985).

Accordingly, the import of Amendment 68 remains a compelling expression of Arkansas’s public policy “to the extent” it does not violate federal law. Ark. Const. amend. 68, § 2. By federal constitutional interpretation, the state’s interest in protecting the life of a fetus begins at viability. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) (plurality) (holding that a state may promote its interest in the potentiality of human life subsequent to viability, even by regulating or proscribing abortion); Roe, 410 U.S. 113 (holding that viability is the point when the independent existence of a fetus can be the object of state protection).

Our decision in Chatelain was premised upon avoiding inconsistency. Chatelain, 322 Ark. at 525, 910 S.W.2d at 219. Now, to be consistent with the current expression of legislative intent, we must depart from Chatelain. As a general rule, we are bound to follow prior case law under the doctrine of stare decisis, a policy designed to lend predictability and stability to the law. State Office of Child Support Enforcem’t v. Mitchell, 330 Ark. 338, 343, 954 S.W.2d 907 (1997) (citing Parish v. Pitts, 244 Ark. 1239, 1252, 429 S.W.2d 45, 52 (1968) (superseded by statute on other grounds)). Indeed, it is well-settled that “[precedent governs until it gives a result so patently wrong, so manifestly unjust, that a break becomes unavoidable.” Mitchell, 330 Ark. at 343 (quoting Parish, 244 Ark. at 1252). Our test is whether adherence to the rule would result in “great injury or injustice.” Mitchell, 330 Ark. at 343 (quoting Independence Fed. Bank v. Webber, 302 Ark. 324, 331, 789 S.W.2d 725, 730 (1990)). Here, we must conclude that the expressed public policy of the General Assembly justifies a break from precedent. Accordingly, we overrule Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995).

B. Retroactive or prospective application

The next question that arises is whether our decision to overrule Chatelain should be applied retroactively or prospectively. As we stated recendy in Bean v. Office of Child Support Enfcm’t, 340 Ark. 286, 9 S.W.3d 520 (2000), our rule on this point could not be more clear; retroactivity is a matter of legislative intent. Generally, we observe a strict rule of statutory construction against retroactive operation and presume that the legislature intends for statutes and amendments to be applied prospectively. However, this rule does not ordinarily apply to procedural or remedial legislation. Bean, 340 Ark. at 297, 9 S.W.3d at 526 (citing Gannett Rover States Publ’g Co. v. Arkansas Industrial Dev. Comm’n, 303 Ark. 684, 799 S.W.2d 543 (1990); Forrest City Mach. Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981)). The majority of jurisdictions maintain that wrongful-death statutes are remedial in nature and should, therefore, be interpreted liberally to accomplish the “purposes of compensating injured persons and deterring harmful conduct.” See Chatelain, 322 Ark. at 519, 910 S.W.2d at 216 (citing Volk v. Baldazo, 651 P.2d 11 (Idaho 1982)).

We have observed the cardinal principle for construing remedial legislation by giving appropriate regard to the spirit that promoted a statute’s enactment, the mischief sought to be abolished, and the remedy proposed. Bean, 340 Ark. at 297, 9 S.W.3d at 526 (internal citations omitted). Finally, we have held that retroactive application is appropriate for remedial statutes that “do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation.” Id.; see also Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704 (1962).

When this court overrules a prior decision and states the rule to be followed in the future, we also acknowledge the need to rely upon the validity of actions taken in faith upon the old decision. See Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789 (1986); Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 258 S.W.2d 551 (1953). However, given that the overruling of a decision relates hack to the date of the overruled decision, we have also observed that no matter how a new rule of law is applied, the benefit of the new decision is denied to some injured persons. See Taliafero v. Barnett, 47 Ark. 359, 1 S.W. 702 (1886); Parish, 244 Ark. at 1254, 429 S.W.2d at 53.

Consequently, we adhere to the doctrine announced in Parish and make the new rule applicable only to the case at bar and to causes of action arising after the decision becomes final. See Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970). In other words, the court’s opinion is effectively prospective except as to the instant case. In Parish, we explained that:

[t]his serves, in keeping with our system of the private enforcement of legal rights, to reward the present plaintiff for her industry, expense and effort, and for having given this Court the opportunity to rid the body of our law of this unjust rule.

Id., 244 Ark. at 1254, 429 S.W.2d at 52. Indeed, were the exception not applicable to the litigant urging departure from precedent, there would be no reason for such a party to devote the required time, effort, and money to raise an attack upon existing unsound precedents. Id.

In sum, we conclude that appellant’s efforts to bring about a needed change in the law should not go unrewarded, because without such inducement change might not occur. See Special Sch. Dist. of Ft. Smith v. Sebastian Co., 277 Ark. 326, 331, 641 S.W.2d 702, 705 (1982) (citing Parish, 244 Ark. 1239, 429 S.W.2d 45). In light of the foregoing and to further the remedial intent of the wrongful-death statute, we apply our decision to overrule Chatelain retroactively as to appellant and prospectively as to causes of action arising after this opinion becomes final. Therefore, we reverse the trial court’s grant of partial summary judgment against the Estate of Baby Boy Aka.

II. Summary judgment and immunity

The next major issue before us concerns the trial court’s grant of immunity and summary judgment to Dr. Erma Washington and Erma Washington, M.D., and Associates, P.A., based upon her part-time state employment. In reviewing a summary-judgment case, we need only decide if the trial court’s grant of summary judgment was appropriate based on whether the evidence presented by the moving parties, Dr. Washington and her employer, left a material question of fact unanswered. Notably, the moving party always bears the burden of sustaining a motion for summary judgment. All proof must be viewed in the light most favorable to the resisting party, and any doubts must be resolved against the moving party. However, the moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ark. R. Civ. P. 56 (2000); Robert D. Holloway, Inc. v. Pine Ridge Add’n Resid. Prop. Owners, 332 Ark. 450, 453, 966 S.W.2d 241, 243 (1998) (citing McCutchen v. Huckabee, 328 Ark. 202, 943 S.W.2d 225 (1997)).

Once the moving party makes aprima facie showing that it is entitled to summary judgment, the opponent must meet proof with proof by showing a material issue of fact. Dillard v. Resolution Trust Corp., 308 Ark. 357, 359, 824 S.W.2d 387, 388 (1992). If a moving party fails to offer proof on a controverted issue, summary judgment is not appropriate, regardless of whether the nonmoving party presents the court with any countervailing evidence. Collyard v. American Home Ins. Co., 271 Ark. 228, 230, 607 S. W.2d 666, 668 (1980). Here, Dr. Washington claimed immunity from suit based upon her part-time state employment. Accordingly, our review must focus, first, on an issue of law, namely, whether the trial court properly granted Dr. Washington immunity, and, second, on whether there remains any genuine issue of material fact precluding summary judgment.

Article 5, section 20, of the Arkansas Constitution provides that “[t]he State of Arkansas shall never be made defendant in any of her courts.” Ark. Const. art. 5, § 20, grants sovereign immunity and a general prohibition against awards of money damages in lawsuits against the State of Arkansas and its institutions. Cross v. American Livestock & Poultry Comm’n, 328 Ark. 255, 258, 943 S.W.2d 230, 232 (1997) (citing Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995); Fireman’s Ins. Co. v. Arkansas State Claims Comm’n, 301 Ark. 451, 784 S.W.2d 771, cert. denied, 498 U.S. 824 (1990)). The doctrine of sovereign immunity is rigid, and, as such, the immunity may be waived only in limited circumstances. Id., 328 Ark. at 258-59, 943 S.W.2d at 232 (citing State v. Staton, 325 Ark. 341, 934 S.W.2d 478 (1996)). Thus, where the suit is one against the State and there has been no waiver of immunity, the trial court acquires no jurisdiction. Id.

Here, the trial court found that Dr. Washington was, at all relevant times, acting as a uninsured contract employee by supervising family-practice residents for the State of Arkansas. Accordingly, she was granted immunity from suit. Appellant counters that Dr. Washington wore at least two “hats” on the evening Mrs. Aka died. As a result, he posits that the question of which hat Dr. Washington was wearing is an issue for the jury to resolve. We agree. Genuine issues of material fact remain unresolved regarding whether Dr. Washington acted as a private practitioner or as an uninsured state employee.

First, appellant offered evidence that Dr. Washington had been selected through appellant’s health-insurance carrier as Mrs. Aka’s private obstetrician. Other testimony indicated that Dr. Washington was on call for Dr. Orange pursuant to a contractual arrangement, and Dr. Orange was identified on the patient’s chart as the physician ordering the induction procedure. Moreover, testimony indicated that Dr. Washington was not initially contacted by a resident, per her state obligation, but by a nurse. Appellant argues that Dr. Washington treated Mrs. Aka as an UAMS/AHEC patient only after talking with Dr. Orange and concluding that Mrs. Aka was not a private patient. At that point, Dr. Washington canceled the c-section. Thus, the record lends support to appellant’s theory that for some period of time Dr. Washington may have been unaware of what hat she was wearing. This, of course, creates a fact question for the jury.

In considering the trial court’s decision, we have held that the standard is not whether evidence is sufficient to compel a conclusion on the part of the fact-finder but whether there is evidence sufficient to raise a fact issue. See Wallace v. Broyles, 322 Ark. 189, 961 S.W.2d 712 (1998). Here, appellant presented evidence sufficient to raise a factual issue regarding Dr. Washington’s role as a state employee or private practitioner. Viewing the evidence in the light most favorable to appellant and resolving any doubts against Dr. Washington and Erma Washington, M.D., and Associates, P.A., we cannot say that summary judgment was warranted. Accordingly, we reverse the trial court’s order granting summary judgment.

III. Other evidentiary issues

A. Exclusion of autopsy photograph and related testimony

Appellant next challenges the trial court’s decision to exclude an autopsy photograph and Dr. Frank Peretti’s related testimony. The decision to admit evidence is within the trial court’s discretion. On appeal, we will not reverse a trial court’s ruling on the admission of evidence absent an abuse of that discretion nor will we reverse absent a showing of prejudice. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 117 S. Ct. 246 (1996). Arkansas Rule of Evidence 403 provides for the exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although evidence is relevant, it may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Absent an abuse of discretion, this court will not reverse a trial court for admitting photographs. Jones v. State, 329 Ark. 62, 65, 947 S.W.2d 339, cert. denied, 118 S. Ct. 574 (1997). In Jones, we specifically addressed the guideposts for determining whether a trial court has abused its discretion. We noted that although the relevancy and admission of photographs is a matter within the sound discretion of the trial court and that we are highly deferential to that discretion, we have rejected a carte blanche approach to the admission of photographs. Id. (citing Carmago v. State, 327 Ark. 631, 940 S.W.2d 631 (1997) (internal citations omitted)). In making the admission determination, we require a trial court to consider, first, whether the relevant evidence creates a danger of unfair prejudice, and, second, whether the danger of unfair prejudice substantially outweighs its probative value. Id., 329 Ark. at 66, 947 S.W.2d at 341.

Importantly, after applying the Rule 403 balancing test, we have held that:

. . . even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand the testimony. Other acceptable purposes are to show the condition of the victim’s bodies, the probable type or location of the injuries, and the position in which the bodies were discovered. Of course, if a photograph serves no valid purpose and could only be used to inflame the jury’s passions, it should be excluded.

Id.

Here, appellant offered expert testimony that the resident physicians’ attempts to rupture Mrs. Aka’s membrane were the events causing the onset of amniotic fluid embolism, the cause of her death. During Dr. Peretti’s testimony, appellant sought to admit a photograph taken during Dr. Peretti’s autopsy of Mrs. Aka. Dr. Peretti testified that at the time of his examination, he did not recall seeing any injury, tear, damage, separation, or laceration to the placenta. After being shown the photograph at issue, however, he acknowledged that a laceration was evident in the picture. Appellees objected to Dr. Peretti’s testimony and to the photograph’s admission on the basis of “surprise.”

The trial court granted appellees’ motion to exclude both the photograph and Dr. Peretti’s testimony, reasoning that the evidence would probably cause prejudice and was just “announced and discovered over the weekend or yesterday between [appellant and his counsel].” Significantly, the objectionable photograph was supplied to all parties prior to Dr. Peretti’s testimony at trial. Given that the photograph was capable of authentication and previously supplied to all the parties, we conclude that the trial court abused its discretion by excluding the photograph. We cannot say that the danger of unfair prejudice outweighed the photograph’s probative value. However, we agree that the trial court properly struck Dr. Peretti’s testimony on the basis of surprise.

B. Exclusion of prior complaints

Appellant argues that he was prejudiced by the trial court’s inconsistent rulings regarding the admission of witness testimony of prior complaints about the resident-training program’s lack of faculty supervision. Although the trial court admitted the testimony of Nurse Gail Parker, it excluded the proffered testimony of Dr. Sterling Roff, a local obstetrician, part-time consultant to the residency program, and the chairperson of JRMC’s Credentials Committee.

Nurse Parker testified as to the complaints she knew of and that she had made personally, including complaints to Dr. Roaf. She expressed her concerns that the family-practice residents were not getting the necessary guidance from their supervisors and that nurses were left to call for help when the residents would not do so. Dr. Roafs proffered testimony corroborated Nurse Parker’s account. He offered detailed complaints that he had received, including allegations that residents were “doing things” they were not authorized to do and that they were not adequately supervised.

Appellees objected to the testimony of both witnesses and succeeded in excluding Dr. Roaf s on the basis of Ark. R. Evid. 403. When we review the trial court’s decision to exclude Dr. Roafs testimony, we note that in addition to demonstrating an abuse of discretion, appellant must also prove that he suffered prejudice as a result of the abuse. See Misskelley, 323 Ark. 449, 915 S.W.2d 702. We find no evidence that appellant suffered prejudice and affirm the trial court on this point.

C. Testimony regarding Candace Stewart

Appellant’s final point on appeal objects to the trial court’s refusal to permit him to allow proof that Dr. Garner “handed off’ Mrs. Aka to Candace Stewart, an unlicensed physician, while allowing appellees to refer to her participation as “Dr.” Stewart. Aka argued that he suffered prejudice regarding his lack-off informed-consent claim because he was unable to point out that Candace Stewart was an unlicensed doctor and the only person made available to Mrs. Aka before she signed the consent form. According to appellant, Dr. Garner informed the nurse on duty that she would not see Mrs. Aka to provide any further information regarding the induction procedure but that Candace Stewart should see her instead. At that point, it became Stewart’s obligation to obtain the patient’s informed consent.

In response, appellees admitted that Stewart had not passed her medical-licensing examination, although she did obtain a doctorate in osteopathy and was a second-year resident with AHEC. In any event, appellees argued that the issue of Stewart’s licensure was irrelevant per Ark. R. Evid. 401. The court agreed, reasoning that Stewart’s non-licensure was not “particularly relevant because of the circumstances in which it is offered.” Again, we observe that appellant must demonstrate both an abuse of the trial court’s discretion and ensuing prejudice. We find no evidence of prejudice resulting from the trial court’s decision to permit reference to Stewart as Dr. Stewart, and we affirm the trial court on this issue.

IV Cross-appeal

On cross-appeal, appellees claim that the trial court erred by admitting Nurse Gail Parker’s testimony of prior complaints about the lack of faculty supervision over the family-practice residency-training program. We will not reverse a trial court’s ruling on the admission of evidence absent an abuse of that discretion, nor will we reverse absent a showing of prejudice. Misskelley, 323 Ark. 449, 915 S.W.2d 702. Here, appellees cannot demonstrate that any prejudice occurred in view of the jury’s verdict. Consequently, we affirm the trial court’s decision to admit Nurse Parker’s testimony.

The case is remanded to the trial court for further action consistent with this opinion.

BROWN and Thornton, JJ., dissent in part and concur in part.

IMBER, J., concurs.

ANNABELLE CLINTON IMBER, Justice,

concurring. I concur result reached by the majority in this matter. However, I do not agree with the analysis in Part I of the majority opinion.

The majority correctly suggests that consistency should be the benchmark when this court deals with legislative intent; however, the opinion falls short of its goal in its misplaced rebanee on the amended definition of person in the homicide statutes at Ark. Code Ann. § 5-1-102 (Supp. 1999). This statute provides no basis for a retroactive application of a broadened definition of personhood to the instant case.

Arkansas Code Annotated § 5-1-102 was passed as Act 1273 of 1999, three years after the events preceding the death of Baby Boy Aka. Legislative enactments are typically deemed to be prospective in application barring an express statement of a retroactive effect. Arkansas Rural Medical Practice Student Loan & Scholarship Bd. v. Luter, 292 Ark. 259, 729 S.W.2d 402 (1987). Act 1273 contained no such provision enabling retroactive application. Ark. Code Ann. § 5-1-102 (Supp. 1999).

The majority opinion cites Bean v. Office of Child Support Enfcm’t, 340 Ark. 286, 9 S.W.2d 520 (2000), for the proposition that the strict rule of construction against retroactive operation of a statute does not necessarily control in the case of a remedial statute, providing that the law does not interfere with vested rights or “create new obligations.” Id. at 297.

Without getting into a discussion of whether creating liability for the wrongful death of a fetus, particularly in the medical negligence arena, creates “new obligations”, I must observe that the source of legislative intent primarily relied upon by the majority in reversing our holding in Chatelain v. Kelly, 322 Ark. 517, 910 S.W.2d 215 (1995), derives not from a remedial source, but rather from the criminal code. The majority, in effect, bootstraps the legislative intent in the definition of “person” for the purposes of the homicide statutes to the definition of “person” in the wrongful death statute. Act 1273, as part of the criminal code, is not constitutionally susceptible to retroactive application under Article 2, section 17 of the Arkansas Constitution, or Article 1, section 10 of the United States Constitution. While I agree that this statute has some very limited relevance to our discussion of legislative intent in the wrongful death context, it simply provides no basis for a retroactive application in this case. Act 1273 of 1999 was not remedial legislation.

The majority opinion cites, but does not rely upon, a more compelling source of State policy for reversing our holding in Chatelain, and for applying our holding in this case retroactively. Amendment 68 to the Arkansas Constitution expresses the public policy of the State of Arkansas to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution. Ark. Const. Amend. 68, § 2.

Amendment 68 was approved by the electorate in 1988 and was subsequently declared unconstitutional and unenforceable by the federal courts in Little Rock Family Planning Servs. v. Dalton, 860 F. Supp. 609 (E.D. Ark. 1994), aff’d, Little Rock Family Planning Servs. v. Dalton, 60 F.3d 497 (8th Cir. 1995). Chatelain was decided shortly after the United States Court of Appeals for the Eighth Circuit affirmed the district court’s order enjoining enforcement of Amendment 68. See Little Rock Family Planning Servs. v. Dalton, supra. Ultimately, the Eighth Circuit and U.S. District Court decisions were, in relevant part, reversed by the United States Supreme Court. See Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 116 S. Ct. 1063 (1996) (holding that Amendment 68 § 1 violated the Constitution but that the remainder of the Amendment was valid to the extent it did not violate federal law).

Just as the majority does in this case, the Chatelaincourt made passing reference to Amendment 68 before concluding that “[t]he General Assembly is particularly suited to making this policy decision,” Chatelain, 322 at 525, 910 S.W.2d at 219. The court then expressed its reluctance “to create an inconsistency in the laws of this State by holding person includes viable fetus for the purposes of the wrongful death statute when we have reached the contrary conclusion in the criminal law and the law of probate.” Id.

The decision in Chatelain might very well have been different had Amendment 68 been enforceable and operative as a constitutional expression of State policy at the-time. This court recognized in Unborn Child Amend. Comm. v. Ward, 318 Ark. 165, 883 S.W.2d 817 (1994), that, “until such time as the federal court’s decision is reversed by the appropriate appellate court, the permanent injunction issued by the federal district court will be binding upon the State of Arkansas and its instrumentalities.... ” Id. at 167, 883 S.W.2d at 818. In any event, for the purposes of our decision today, as well as the retroactive application of our holding, it is irrelevant that Amendment 68 had been declared unconstitutional and unenforceable by the federal courts at the time of the Chatelain decision. The United States Supreme Court decision in Dalton, supra, effectively erased the earlier decisions in the lower federal courts.

The view has been taken that if the decision that a statute is unconstitutional is subsequently reversed or overruled, the statute will ordinarily be treated as valid and effective from the date of its enactment, or from its first effective date, and does not require reenactment by the legislature in order to restore its operative force

See 16 C.J.S. Constitutional Law §’ 108. In Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994), the United States Supreme Court said, “ ‘when this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule’ ” (quoting Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993)); see also, Wilkerson v. Rahrer, 140 U.S. 545, 11 S. Ct. 865 (1891); State ex rel. Badgett v. Lee, 156 Fla. 291, 22 So.2d 804 (1935).

Constitutional amendments are to be construed liberally to accomplish their purpose. Porter v. McCuen, 310 Ark. 674, 839 S.W.2d 521 (1992); thus, in this case, the purpose of Amendment 68 to protect fetal life up to the extent permitted by federal law operates to give effect to a definition of person that includes at least a viable fetus. This effect of Amendment 68 has been in operation since its adoption by the voters, Drennen v. Bennet, 230 Ark. 330, 322 S.W.2d 585 (1959), well before the claims implicated by this case, and serves as a valid means of applying the State’s policy in a retroactive manner as to these parties.

ROBERT L. Brown, Justice,

dissenting in part; concurring in part.I agree with the majority that the public policy of this state has changed so that viable fetuses are now considered persons for purposes of the wrongful-death statute. My disagreement with the majority is over when the change in public policy occurred and whether today’s decision should be applied retroactively to cover only one case. I believe the public policy shift occurred in 2001 with the passage of Act 1265, which amends the wrongful-death statute so that it now applies to a person “or viable fetus.” The majority agrees that today’s decision should apply only to future cases, but then it carves out the Aka fetus as a sole exception. I cannot agree with that part of the opinion. I concur, however, in reversing the judgment respecting Mrs. Aka’s death and sending that matter back for a new trial.

In 1995, in the case of Chatelain v. Kelley, 322 Ark. 517, 910 S.W.2d 215 (1995), this court held that a “person” under the wrongful-death statute only included those who had been born. We specifically said in Chatelain that neither our criminal law nor probate code had included viable fetuses as persons. We further said that Amendment 68, which protects “the Hfe of every unborn child from conception until birth, to the extent permitted by the Federal Constitution” did not require us to consider fetuses as persons from the moment of conception for wrongful-death purposes.

Today, the majority overrules Chatelain, which I agree with, but then applies its decision retroactively to one lone case — the Aka case. In all other situations, today’s decision will only apply prospectively, that is, to future cases. That aspect of today’s decision has far reaching consequences. First, it undermines precedent and the stability of our common law. What the majority has done with this decision is to overrule the Chatelain decision after only six days of effectiveness. The Chatelain opinion was handed down on November 20, 1995. With the seventeen-day period for rehearing, that meant Chatelain became final on December 7, 1995, and the mandate issued. The unborn fetus in the Aka case was stillborn on December 13, 1995, which was six days later. The Chatelain case must hold the record in the history of jurisprudence as the case with the shortest life span. Then, there is the inherent unfairness of treating two cases with comparable facts completely differently within a six-day time frame. The result of all this is that legal stability is thrown out the window, and we are relegated to deciding fact situations on a case-by-case basis without any adherence to precedent. That flies in the face of the whole notion of the common law and stare decisis.

The majority’s rationale for carving out the Aka case as the one exception is decidedly murky. In one place, the opinion reads: “Now, to be consistent with the current expression of legislative intent, we must depart from Chatelain.” The opinion footnotes Act 1265 of 2001 in support of this statement. Another part of the opinion cites Amendment 68 and states: “By federal constitutional interpretation, the state’s interest in protecting the life of a fetus begins at viability.” The majority cites Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) and Roe v. Wade, 410 U.S. 113 (1973) for this proposition. In still another part of the decision, the majority states that the General Assembly passed Act 1273 of 1999 in response to Chatelain and that Act expands the definition of a “person” for homicide purposes to include “a living fetus of twelve (12) weeks or greater gestation.”

Again, the burning question is when did the state’s public policy on this issue change? The majority, however, presents us with four different events justifying a change in public policy, with each event occurring in a different year:

1. Amendment 68, which was passed in 1988 and protects fetuses from conception.
2. Amendment 68, as interpreted by Dalton v. Little Rock Family Planning Seros., 516 U.S. 474 (1996), which held that Amendment 68 is displaced only to the extent it conflicts with federal law.
3. Act 1273 of 1999 which included fetuses of twelve weeks or greater gestation as persons for homicide purposes.
4. Act 1265 of 2001, which adds viable fetuses as persons for wrongful-death actions.

The majority’s handling of this critically important social, cultural, and moral issue is muddled. For example, according to the majority, Roe v. Wade has effectively limited the application of Amendment 68 to viable fetuses. But then the majority also relies on Act 1273 of 1999 which extends the protection for homicide cases to fetuses of twelve weeks gestation, which is before viability. Also, if the state’s public policy on viable fetuses changed as early as 1988 or 1996 or 1999, as the majority apparently believes, why does the majority apply today’s decision only to future cases with the sole exception of the Aka case? The majority’s reasoning is inconsistent and extremely hard to justify. A decision of this magnitude requires clarity and direction and not a patchwork quilt woven from disparate statutes, constitutional provisions, and Supreme Court decisions.

In sum, while I agree that it is appropriate to overturn Chatelain, I cannot condone applying today’s decision retroactively to cover only one fetus case. None of the cases cited by the majority permits the overruling of a case earlier than the date that the legislative act that changed the State’s public policy became effective. Here, the wrongful-death statute was not changed until Act 1265 of 2001. The majority points to Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), but that case did not turn on a change in the General Assembly’s statement of public policy. Rather, in Parish, we concluded that the previous caselaw where we granted municipalities immunity from tort liability for the negligence of their employees was patently unjust. We overturned our previous caselaw. Moreover, in Parish, the General Assembly had refrained from changing the law, whereas in the case before us, the General Assembly has acted, and that is the public policy shift that the majority opinion relies on.

In the dramshop cases, this court overturned prior caselaw based on the fact that the General Assembly had altered the public policy of this state. See Jackson v. Cadillac Cowboy, Inc., 337 Ark. 24, 986 S.W.2d 410 (1999) (General Assembly has established high duty of care for holders of alcohol licenses not to sell to intoxicated persons); Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997) (General Assembly has determined it is the public policy of the state to protect minors from adverse consequences of alcohol consumption by making it a felony to sell alcohol to minors for monetary gain). But we did not overturn our caselaw for any case that occurred before the General Assembly altered the public policy of the state.

Nevertheless, the majority seeks to “reward” the plaintiff for causing Chatelain to be overruled. Again, this makes no sense when it is the General Assembly that changed the public policy of this state in response to Chatelain beginning with Act 1273 of 1999 and concluding with Act 1265 of 2001. The Aka lawsuit did not do so.

I would apply today’s decision only from the date the General Assembly amended the wrongful death statute to include viable fetuses. That legislation (Act 1265) was approved on April 4, 2001, without an Emergency Clause and becomes effective ninety days after the General Assembly adjourned. To overturn Chatelain for one case for a period before the public policy of this state changed is a unique decision. There is no case where this court has previously done so. Certainly, the majority opinion cites us to none.

On a separate point, I disagree with the majority’s rationale for affirming the trial court on the appellees’ cross-appeal regarding the lack of faculty supervision for the residency program. The appellees’ cross-appeal is conditional upon this court’s reversing and remanding for a new trial. The fact that the appellees prevailed in the first trial and, thus, suffered no prejudice is not a sufficient reason to affirm. I would affirm the trial court on this point because the trial court gave a sufficient limiting instruction to the jury concerning Nurse Parker’s testimony. For that reason, I conclude that the trial court did not abuse its discretion with respect to the cross-appeal.

Dissenting in part. Concurring in part.

Thornton, J., joins.

       Notably, appellees do not contest that Baby Boy Aka was a viable fetus.

       Thirty-two jurisdictions permit a wrongful-death action on behalf of a viable fetus. (Of those thirty-two jurisdictions, four permit an action for an unviable fetus (Connecticut, Missouri, South Dakota, and West Virginia)). Four jurisdictions permit an action, even for unviable fetuses, but have a live birth or stillbirth requirement (Louisiana, Maryland, Oklahoma, and Pennsylvania). One jurisdiction permits an alternative remedy by allowing an action for damages resulting in stillbirth caused by negligence (Florida). One jurisdiction noted in dicta that a wrongful-death action might be permitted but declined to reach the merits on procedural grounds (Utah). Three jurisdictions prohibit an action for an unborn nonviable fetus but have not reached the issue of whether a viable fetus may maintain an action (Alaska, Oregon, and Rhode Island). Four jurisdictions have no case law on the issue (Colorado, Guam, Puerto Rico, and Wyoming). Only nine jurisdictions, including Arkansas, reject a wrongful-death action for a viable fetus.

       Appellant also points out that Arkansas law enhances responsibility for the crime of battery if the victim is pregnant. See Ark. Code Ann. § 5-13-201(5) (Repl. 1997). Notably, the first-degree-battery statute makes no mention of the fetus’s viability.

       Significantly, following the submission of this appeal, the legislature amended Ark. Code Ann. section 16-62-102(a) to include viable fetus in the definition of person for wrongful-death actions. See Act 1265 of 2001 (approved April 4, 2001). The legislature also designated a deceased viable fetus a decedent for purposes of the probate code. See Act 1775 of 2001 (approved April 18, 2001).

       For the purposes of the homicide statutes, Ark. Code Ann. §§ 5-10-101 - 5-10-105, the definition of “person” includes “an unborn child in utero at any stage of development” and “an ‘unborn child’ means a living fetus of twelve (12) weeks or greater gestation.” Ark. Code Ann. § 5-10-102(13)(B)(i). This definition does little to support the majority’s decision that the legislature intended personhood to begin at viability.

       The district court permanently enjoined the enforcement of Amendment 68 in “its entirety,” and on July 27, 1994, entered an additional order stating, “Amendment 68 to the Arkansas Constitution directly conflicts with federal law (the 1994 Hyde Amendment) and is, therefore, null, void, and of no effect.”

        See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992) (upholding Roe v. Wade, 410 U.S. 113 (1973), in three parts: (1) “recognition of a woman’s right to have an abortion before viability and to obtain it without undue interference from the state”; (2) “a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health”; and (3) “the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child”).


source: Caselaw Access Project

author: W.H. “Dub” Arnold, Chief Justice.

license: Public Domain

text:
    Joseph M. HART, Cheryl Lynn Hart, and Vinewood Communications v. Norman D. McCHRISTIAN
    00-1269
    42 S.W.3d 552
    Supreme Court of Arkansas
    Opinion delivered May 10, 2001
    [Petition for rehearing denied June 14, 2001.]

      Harrington, Miller, Neihouse & Krug, RA., by: Wayne Krug, for appellants.

      John R. Eldridge, III, for appellee.
   W.H. “Dub” Arnold, Chief Justice.

Appellants, Joseph M. Hart and Cheryl Lynn Hart, bring the instant appeal challenging the Washington County Chancery Court’s decisions ordering them to submit to arbitration, confirming the arbitrators’ award, holding them in contempt, and directing them to pay the full costs of arbitration and appellee Norman D. McChristian’s attorney’s fees. Appellants initially appealed the decisions to the Arkansas Court of Appeals. In an opinion dated April 26, 2000, the appellate court declined to vacate the arbitrators’ award but reversed and remanded the case for further development and clarification on the issue of whether appellee had standing to seek arbitration. The Court of Appeals also modified the trial court’s contempt order. See Hart v. McChristian, 71 Ark. App. 178, 36 S.W.3d 357 (2000).

Pursuant to Ark. R. Sup. Ct. 1-2(e) and 2-4 (2000), we granted appellants’ petition for review. When we grant a petition to review a case decided by the appellate court, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)). After considering the parties’ arguments, we affirm the trial court in all respects.

Background

On January 27, 1990, the Harts, McChristian, and D.D.&B., Inc., formed a limited liability partnership called Vinewood Communications for the purpose of licensing, constructing, owning, operating, maintaining, and managing a Class A F.M. radio station. The Harts were designated as the general partners and owned ten percent of the partnership units. McChristian and DD&B became limited partners, owning eighteen percent and seventy-two percent of the partnership units, respectively. The partnership agreement gave the Harts, as the general partners, exclusive discretion in the business’s management and control.

However, the agreement also provided a mechanism for removal of the general partners. Following a removal proposal raised by limited partners holding fifty percent of the units, removal could be accomplished by agreement of limited partners holding seventy-five percent of the partnership units. Then, if the general partners objected to removal, the agreement provided that “the matter shall be submitted within thirty (30) days of such notice of objection by all parties to binding arbitration which shall conform to the rules of the American Arbitration Association, as far as appropriate.” Moreover, the agreement indicated that the decision of the arbitrator shall be “final and binding upon the parties in a court of competent jurisdiction.”

On July 16, 1998, McChristian notified the Harts of a sale and assignment of DD&B’s limited-partnership interest to McChristian, resulting in his being the sole limited partner. The notice also informed the Harts that McChristian consented and agreed to the Harts removal as general partners. A separate notice dated July 13, 1998, explained to the Harts that an August 17, 1998 meeting was scheduled to vote upon the Harts removal as general partners based upon allegations of improper conduct, including breach of fiduciary duty, negligence, fraud, willful misconduct, mismanagement and misappropriation of assets, and violation of FCC rules and regulations. Appellee maintains that the Harts were removed as general partners, per the limited-partnership agreement, at the August 17, 1998 meeting.

Appellee then filed a complaint in the Washington County Chancery Court on August 28, 1998, alleging that the Harts had breached the limited-partnership agreement by mismanaging Vine-wood Communications, misappropriating assets, and operating the company for their personal benefit. McChristian also sought an accounting, the appointment of a receiver, and an order requiring the parties to submit to arbitration should the Harts object to removal. In response, appellants argued that arbitration was unwarranted because McChristian held only eighteen percent of the partnership units at the time of the vote and, thus, lacked the authority to remove them as general partners. Following a February 2, 1999 hearing, the chancellor rejected appellants’ arguments and ordered the parties to submit to arbitration. Additionally, the court determined that appellants should raise to the arbitration panel the issue of McChristian’s standing to remove general partners.

The arbitration hearing commenced on May 10, 1999. At its conclusion, the arbitrators found that the removal of the general partners was appropriate. On June 28, 1999, the chancellor confirmed the arbitration award, appointed a receiver per appellee’s request, and restrained the Harts from interfering with Vinewood Communications or its assets. Pursuant to this order, the receiver was directed to take possession of all partnership assets and to file an application with the Federal Communications Commission to transfer control of Vinewood Communications to a successor general partner.

The Harts subsequendy filed motions to amend or vacate the arbitrators’ award and the trial court’s June 28, 1999 order confirming the award. Appellants also reiterated their argument that McChristian lacked standing to effect their removal. Further, they claimed that the arbitrators violated several procedural rules by (1) denying their request for a continuance, (2) failing to ensure the timely exchange of exhibits, and (3) excluding their representative, Cheryl Hart, from a post-arbitration conference. After considering appellants’ motion, the chancellor declined to modify or vacate the arbitrators’ award but entered a judgment confirming the award pursuant to Ark. Code Ann. section 16-108-214 (1987).

Appellants then filed an objection with the FCC to the transfer of Vinewood Communications to the receiver. As a result, McChristian filed a motion asking the Harts to be held in contempt for violating the court’s June 28, 1999 order prohibiting their interference with the partnership or its assets. The trial court agreed and held the Harts in contempt for interfering with the receiver by filing opposition with the FCC. On September 20, 1999, the chancellor ordered appellants to withdraw their objection with the FCC and to pay, as punishment for contempt, $7,118.90, representing the full cost of the arbitration, plus other costs incurred as a result of their contempt, and appellee’s attorney’s fees “as subsequently determined.” From these orders, the instant appeal ensued.

I. Arbitration

Appellants’ first point on appeal challenges the chancellor’s initial February 2, 1999 order granting McChristian’s motion to compel arbitration pursuant to the terms of the limited-partnership agreement. Essentially, appellants maintain that the chancery court should have determined whether appellee had standing to remove the general partners, as a threshold issue, prior to referring to arbitration the secondary issue of whether removal was appropriate. McChristian responds by pointing out that Arkansas’ public policy strongly favors arbitration and considers it a less expensive and more expeditious means of settling litigation. Moreover, the scope of arbitration is defined by the parties’ contractual agreements. Here, appellee asserts that the trial court correcdy interpreted the parties’ limited-partnership agreement to compel arbitration. We agree.

This court has oft recognized that as a matter of public policy, arbitration is “strongly favored.” Anthony v. Kaplan, 324 Ark. 52, 918 S.W.2d 174 (1996) (citing Lancaster v. West, 319 Ark. 293, 891 S.W.2d 357 (1995); Estate of Sandefur v. Greenway, 898 S.W.2d 667 (Mo. App. W.D. 1995)). Arbitration is looked upon with approval by courts as a less expensive and more expeditious means of settling litigation and relieving docket congestion. Id. Significantly, we have also held that arbitration is a matter of contract between parties. See May Constr. Co. v. Benton Sch. Dist. No. 8, 320 Ark. 147, 895 S.W.2d 521 (1995). In fact, the same rules of construction and interpretation apply to arbitration clauses as apply to agreements generally. The construction and legal effect of a written contract to arbitrate are to be determined by the court as a matter of law. Id., 320 Ark. at 149-50, 895 S.W.2d at 523.

Accordingly, this court will give effect to the parties’ intent as evidenced by the arbitration agreement itself. In light of the policy favoring arbitration, such agreements will not be construed strictly but will be read to include subjects within the spirit of the parties’ agreement. In other words, any doubts and ambiguities of coverage will be resolved in favor of arbitration. See May Constr. Co., 320 Ark. at 149, 895 S.W.2d at 523 (quoting Wessell Bros. Foundation Drilling Co. v. Crossett Publ. School Dist., No. 52, 287 Ark. 415, 701 S.W.2d 99 (1985) (internal citations omitted)).

Here, the parties agreed that should the general partner object to removal, the matter “shall be submitted ... to binding arbitration.” Then, the arbitrators shall render “a decision as to whether or not the removal of the General Partner was appropriate under the circumstances.” Appellants counter that they never articulated an objection to removal but only an objection to appellee’s standing to remove them. As a corollary to this argument, appellants insist that the standing issue was never resolved because the trial court instructed them to raise the matter in arbitration, but the arbitrators declined to reach the issue and failed to make a written finding on this point.

However, the transcript of the arbitration hearing demonstrates that the issue raised by appellants, whether McChristian had sufficient ownership of the partnership to remove them as general partners, was considered by the arbitrators. Appellants’ abstract creates the false impression that the arbitrators repeatedly ignored their requests to consider the issue now raised on appeal. The record, however, reveals not only that the issue was raised but that appellants were given the opportunity to present evidence on the issue. The Harts failed to introduce any evidence disputing McChristian’s claim that he validly held a seventy-two-percent interest in the partnership. Further, they proffered no evidence to contradict McChristian’s claims nor disputed the validity of his exhibits. More importantly, the record reveals that the neutral arbitrator, Peter Bradford, understood that the resolution of this issue was part of the panel’s ultimate determination of whether appellants were properly removed as general partners.

Particularly, the transcript of the arbitration hearing reflects the following discussion between appellant Joe Hart and the three arbitrators, Bradford, appellant Cheryl Hart, and William Bell, concerning the issue of the sufficiency of McChristian’s partnership ownership:

MR. BRADFORD: ... So these questions in this matter, Mr. Hart, Mrs. Hart, relate to — And you’re free to look at these — the provisions of the partnership agreement which trigger or cause us to have this arbitration, because they say that if the proper notice was given and a meeting was held and there [was] a vote by 75 percent of the limited partners and you object to that, then we end up with an arbitration after each side has appointed their party-appointed arbitrator and someone has been selected as a neutral. And that’s the position I hold.
So that is the purpose of the hearing we’re going to have today, as I understand these documents.
Mr. Hart: And what is the proof that Mr. McChristian has 70 — what, 90 percent?
Mr. BRADFORD: He’s going to present evidence about that when we get to that.
....
Mr. BELL: Well, I’m even wondering, I guess, is it within our purview to decide the ownership issue? I mean, what we have here is a limited partnership agreement that provides a basis for arbitration.
Mr. Bradford: Uh-huh.
Mr. Bell: And then we have a court Order that says, “You will arbitrate.” Is the point of ownership pertinent to this arbitration, or should that be held — I mean, should that be an issue that should be directed back to the courts, as you mentioned earlier?
Mr. BRADFORD: Well, it’s a preliminary issue, as I kind of indicated. If Mr. and Mrs. Hart prove to our satisfaction that when this meeting of limited partners was held, that legally the limited partners were no longer limited partners, because they had defaulted or had been — had lost their status as limited partners, then their acts in removing the general partners would not be effective. So it’s kind of a preliminary issue. But that’s really something you need to present evidence on.
I mean, I think the claimants made a preliminary showing here that they had a meeting pursuant to the limited partnership agreement last August, gave notice, had the meeting, made a decision about removing the general partners, notified the general' partners of that decision, to which the general partners objected, and that ultimately triggered this arbitration.
And then the court essentially probably heard the same thing, I guess, and said, “Well, based on what I heard, everybody is here. I’m going to order that this issue be arbitrated, because that’s what the limited partnership agreement says.”
So that’s where we are.
MRS. Hart: Well, what proof do they have that they were limited partners since 1993?
Mr. Bradford: They’re going to present some evidence on that, and then it’s up to you to show that if they took action that appears in these documents that they didn’t have the right to take because they weren’t limited partners anymore, then that will be an issue we’ll have to decide.
MRS. Hart: Do they have proof that they were limited partners, you’re saying?
Mr. BRADFORD: Well, we haven’t heard the evidence yet. What I’m saying is, based on —
Mrs. HART: They’ll have to prove that first, so —
Mr. Bradford: — the notice provisions, the other documents they’ve exhibited here, and their allegations that they have made of— They’ve made a threshold, a preliminary showing, that they have the right to proceed with this arbitration, and apparently the court heard the same thing, because he ordered that this matter be arbitrated.
Mrs. Hart: So —
Mr. BRADFORD: And the only thing we’re arbitrating is what’s in the limited partnership agreement, which is whether or not the general partners were properly removed or not.
If we determine that there was no proper basis for removal of the general partners under the partnership agreement, and the grounds are set forth therein, then their action was inappropriate, and the parties are relegated to whatever relief they seek in court, or whatever.
Mr. HART: So when they were in default in ‘93, they would have filed something in court that says, “No, I’m not [in] default, because I have a five-year thing that says I don’t have to make any”
Mr. BRADFORD: No, that’s not what we’re saying. I mean, I think you have to just understand what I’ve said is that they’ve made a threshold showing that we have the right and are obligated to proceed with arbitration on the issue of whether the general partners were properly removed. And we can decide one way or the other, and we won’t know until we’ve heard the evidence.
And then you folks are free to present what evidence you have that goes to that issue. [Emphasis added.]

The foregoing discussion makes two things clear. First, appellants were given the opportunity to present evidence and otherwise be heard on the issue of the sufficiency of appellee’s ownership interest at the time that he voted to remove them as general partners. Second, the neutral arbitrator, Bradford, clearly understood that this was a preliminary or threshold issue that was included within the scope of the arbitrators’ determination of the propriety of appellants’ removal as general partners. Accordingly, we conclude that this issue was considered in making the ultimate determination that appellants’ removal was proper.

Moreover, the fact that the arbitrators’ decision does not reflect a specific ruling on this preliminary issue is not helpful to appellants. The Uniform Arbitration Act does not require the arbitrators to make specific written findings on each issue raised during arbitration. Rather, Ark. Code Ann. § 16-108~208(a) (1987) only provides that “[t]he award shall be in writing and signed by the arbitrators joining in the award.” Arbitration hearings are not analogous to trial proceedings. In fact, we have held that neither the failure to keep a record of the arbitration proceedings nor the failure to follow the rules of evidence is a ground for vacating an arbitration award. Dean Witter Reynolds, Inc. v. Deislinger, 289 Ark. 248, 711 S.W.2d 771 (1986).

Furthermore, although some courts have recognized a need for remand where an arbitrators’ award is “patently ambiguous,” no such ambiguity exists in the instant case. See Foster v. City of Fairbanks, 929 P.2d 658 (1996). Remand may be necessary for a court to determine exactly what it is being asked to enforce, but courts should avoid remanding on the basis of ambiguity “ ‘because of the interest in prompt and final arbitration.’ ” Id. (quoting Teamsters Local No. 579 v. B & M Transit, Inc., 882 F.2d 274, 278 (7th Cir. 1989). In the interest of avoiding time-consuming and costly litigation, arbitration is not a perfect system. Our scope of review is very narrow, limited to vacating an award only upon statutory grounds or a finding that the award violates a strong public policy. Anthony, 324 Ark. at 58, 918 S.W.2d at 177 (citations omitted).

Construing the parties’ agreement liberally and resolving any doubts in favor of arbitration, we cannot say that the trial court erred by granting appellee’s motion to compel arbitration.- Likewise, given our limited scope of review and the absence of any alleged ambiguity in the arbitrators’ award, finding that removal was “appropriate under the circumstances,” we have no statutory or compelling policy basis to remand the matter for further clarification. In any event, appellants have advanced no authority in support of remanding the case for further clarification or development on the standing issue. Accordingly, we affirm the trial court on this point.

II. Arbitrators’ award

A. Standard of review

Next, we consider the trial court’s June 28, 1999 order confirming the arbitrators’ finding that removal was appropriate under the circumstances. Appellants submit that the chancellor erred by failing to vacate or modify the award because the arbitrators failed to follow certain procedural rules. First, we set forth the applicable standard of review. An arbitration award may be vacated pursuant to Ark. Code Ann. section 16-108-212(a) (1987) if:

(1) The award was procured by corruption, fraud, or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefore or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of § 16-108-205, as to prejudice substantially the right of a party; or
(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under § 16-108-202 and the party did not participate in the arbitration hearing without raising the objection.

Significantly, section 16-108-212(b) provides that the fact that the relief awarded could not or would not have been granted by a court is not grounds for vacating, or refusing to confirm, an award.

Arkansas Code Annotated section 16-108-213(a) (1987) permits a trial court to modify or correct an arbitration award where there was an evident miscalculation of figures or an evident mistake in the description of any person, thing, or property referred to in the award. Subsection (a) also permits modification where the arbitrators have awarded upon a matter not before them and the award may be corrected without affecting the merits of the decision upon issues properly submitted. If the award is imperfect in a matter of form not affecting the merits, the trial court may also correct the award. Should the court modify or correct the award, it must do so as to effect the award’s intent. Ark. Code Ann. § 16-108-213 (a), (b) (1987).

As an initial matter, we note the difficulty in reviewing appellants’ arguments in light of the lack of authority advanced in support of their position. We have long held that we do not consider arguments without convincing argument or citation to authority in support, where it is not apparent without further research that these arguments are well-taken. See Perryman v. Hackler, 323 Ark. 500, 508, 916 S.W.2d 105, 109 (1996) (citing Thomson v. Littlefield, 319 Ark. 648, 893 S.W.2d 788 (1995)). Nevertheless, we find no merit in appellants’ assignments of error.

The party attempting to overturn an award bears the burden of proof. Anthony, 324 Ark. at 58, 918 S.W.2d at 177 (citations omitted). Significantly, the court’s role is not to determine if the arbitrators decided the dispute correctly but only whether the arbitrators acted within their jurisdiction. Id. Indeed, our deference is so great that the failure of the arbitrators to follow the law as a court would have done provides no grounds for relief. Id.; see also Ark. Code Ann. § 16-108-212(b). Mistakes of law or fact are insufficient to set aside an award. Arkansas Dep’t of Parks & Tourism v. Resort Mgrs., Inc., 294 Ark. 255, 743 S.W.2d 389 (1988).

Our review is limited to vacating an award only upon the enumerated statutory grounds, unless the award is violative of a strong public policy. Anthony, 324 Ark. 52, 918 S.W.2d 174. We have held that the arbitrator’s decision “on all questions of law and fact is conclusive,” unless grounds are established to support vacating or modifying the award. Dean Witter, 289 Ark. at 251, 711 S.W.2d at 772 (citing Wessell, 287 Ark. 415, 701 S.W.2d 99)). Where there is no case law or compelling public policy on an issue, we refer to provisions of the Uniform Arbitration Act and with the law of other jurisdictions which have adopted the Act. Anthony, 324 Ark. at 58, 918 S.W.2d at 177 (citations omitted). We now turn to appellants’ specific procedural objections to the arbitrators’ award.

B. Procedural objections

The Harts cited three grounds in favor of vacating or modifying the arbitration award pursuant to Ark. Code Ann. section 16-108-212 and -213. First, appellants contended that the arbitrators violated procedural rules by refusing to grant their motion for a continuance because they had not completed discovery. Second, appellants complained that they did not receive McChristian’s trial exhibits in advance of the arbitration hearing. Third, appellants objected to the exclusion of their appointed arbitrator, Cheryl Hart, from a post-arbitration conference.

The chancellor refused to vacate the award on any of these bases because he found that (1) the Harts were fully aware of McChristian’s grounds for seeking their removal as general partners; (2) they had the opportunity in chancery court to engage in discovery and exchange evidence; (3) appellants waived any arguments by failing to attend a preliminary arbitration hearing, at which time they could have exchanged exhibits; (4) the Harts did not provide appellee with their exhibits prior to the hearing; (5) appellants failed to proffer any contradictory evidence nor to deny the validity of McChristian’s exhibits; and (6) the evidence demonstrated that repeated, albeit unsuccessful, attempts were made to reach Cheryl Hart for the post-arbitration conference.

We recognize that appellants bear the burden of overturning the award. Additionally, we acknowledge that the trial court’s sole role was to determine whether the arbitrators acted within their jurisdiction and not to evaluate whether the dispute was correctly decided. In the instant case, none of the statutory grounds for vacating or modifying the award are present. Indeed, the ground claimed by appellants, that the arbitrators refused to hear material evidence, is not supported by the transcript of the arbitration hearing. Additionally, the arbitrators’ failure to record a ruling does not amount to a statutory violation under Ark. Code Ann. sections 16-108-212 and -213, nor is it an act in excess of the arbitrators’ jurisdiction. In light of the foregoing, we hold that the chancellor’s decision refusing to vacate or modify the arbitrators’ award was well-reasoned and supported by the evidence. We affirm the trial court’s order confirming the arbitrators’ award.

III. Contempt

The Harts also appeal from the chancery court’s September 20, 1999 order holding them in contempt for violating a June 28, 1999 order requiring them to deliver all the limited partnership’s assets to the receiver and prohibiting them from interfering with the receiver. Pursuant to that same order, the receiver was directed to “file an application with the FCC to transfer control of Vinewood Communications.” The chancery court found the Harts in contempt for filing an objection with the FCC to the transfer of control to the receiver. Appellants were then ordered to pay appellee a $7,118.90 judgment, representing the full cost of arbitration. The chancellor also awarded appellee an undetermined amount for attorney’s fees and losses to Vinewood Communications arising from the Harts’ contempt.

Appellants argue that both the finding of contempt and the consequent punishment were erroneous. In part, the Harts suggest that they were entitled to file an objection with the FCC pursuant to 47 U.S.C. § 309 (1995). However appellants provide no authority to support this argument. Therefore, we must agree with the trial court that appellants were clearly ordered not to interfere with the receiver’s transfer of partnership control and, despite that order, purposefully interfered. See, e.g., Warren v. Robinson, 288 Ark. 249, 704 S.W.2d 614 (1986) (holding that court’s order must be clear for one to be held in contempt for its violation). If an act interferes with the order of the court’s business or proceedings, or reflects upon the court’s integrity, that act is deemed contemptuous. A court’s contempt power may be wielded to preserve the court’s power and dignity, to punish disobedience of the court’s orders, and to preserve and enforce the parties’ rights. Hodges v. Gray, 321 Ark. 7, 901 S.W.2d 1 (1995). Accordingly, we affirm the chancellor’s order holding appellants in contempt.

Similarly, we affirm the amount of the contempt award. The purposes of civil contempt are to preserve and enforce the rights of private parties to suits and to compel obedience to orders made for the benefit of those parties. Arkansas Dep’t. Of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 255 (1998). Where a party is punished for civil contempt, we will not reverse unless the trial court’s order is arbitrary or against the weight of the evidence. Dennison v. Mobley, 257 Ark. 216, 515 S.W.2d 215 (1974). Here, the chancellor assessed the full cost of the arbitration against appellants as punishment for their disobedience of the court’s order.

Although the parties’ agreement required each party to pay one-half of any costs, the trial court was free to assess appellants the other half of such costs as punishment for violating the court’s orders. Notably, the contempt award was not a modification of the parties’ hmited-partnership agreement but a valid exercise of the court’s inherent contempt power. Therefore, we affirm the chancellor’s order requiring appellants to pay $7,118.90, the full cost of arbitration.

Appellants also object to the portion of the contempt award requiring them to pay appellee’s attorney’s fees “as subsequently determined under [Ark. R. Civ. P. 54].” Pursuant to that order, appellee was directed to submit an affidavit and claim for attorney’s fees. As no fees have yet been awarded, we decline to reach the merits of this issue.

Affirmed.