author: EASTAUGH, Justice.

text:
    William ZAVERL, Personal Representative of the Estate of Margaret M. Zaverl, Appellant, v. Owen Q. HANLEY, M.D., and James B. Borden, M.D., Appellees.
    No. S-9312.
    Supreme Court of Alaska.
    Feb. 14, 2003.
    Rehearing Denied March 14, 2003.

      Kenneth P. Ringstad, Paskvan & Ringstad, P.C., Fairbanks, for Appellant.

      Sanford M. Gibbs, Brown, Waller & Gibbs, Anchorage, for Appellee Owen Q. Hanley, M.D.
    John J. Tiemessen and Jason Weiner, Clapp, Peterson & Stowers, LLC, Fairbanks, for Appellee James B. Borden, M.D.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

Margaret Zaverl’s estate sued her surgeon and her pulmonologist, alleging that they negligently diagnosed and failed to treat her aortobronchial condition in 1994, causing her death. The jury returned a verdict for both physicians. At trial the surgeon testified over the estate’s objection about matters his lawyer had instructed him not to address at his pre-trial deposition. Because it was error to permit this testimony at trial, we remand for a determination whether this error prejudiced the estate’s claims against either physician. We vacate the award of costs and attorney’s fees assessed against the individual beneficiaries of the estate, Margaret Zaverl’s husband and children, because they were not parties. We affirm as to all other issues the estate raises on appeal.

II. FACTS AND PROCEEDINGS

Margaret Zaverl coughed up a significant quantity of blood on October 2, 1994. She was taken to Fairbanks Memorial Hospital where Dr. Eric Stirling, an emergency medicine specialist, examined her. She reported that she had coughed up and vomited bright red blood and that she experienced shortness of breath and wheezing. Her medical history included regular cigarette smoking, a left thoracotomy for coarctation of the aorta at age seventeen, and removal of an anaerobic tumor of the abdomen in early 1970. Margaret was forty-five years old in 1994.

Dr. Stirling consulted with Dr. James Borden, a surgeon. Dr. Borden performed a bronchoscopy which “showed an apparent tumor in the bronchus to the right middle lobe and right lower lobe.” Dr. Borden could not remove the tumor during the bronchoscopy. The fiberoptic bronchoscope showed marked inflammation of the tracheal wall and blood clots. The right side of the bronchial tree appeared to be more inflamed than the left— a condition which Dr. Borden found to be consistent with the presence of the suspected tumor.

Dr. Borden consulted with a Fairbanks internist, Dr. Kenneth Starks. Chest X-rays revealed that infiltrates obscured the lower bases of Margaret’s lungs. Dr. Borden admitted Margaret to the hospital’s intensive care unit, made arrangements for a follow-up bronchoscopy, and arranged for her to see Dr. Owen Hanley, a pulmonologist, when Dr. Hanley returned to Fairbanks. Margaret underwent a variety of tests to determine the cause of her illness. Dr. Hanley saw Margaret on October 6. Dr. Hanley was unable to ascertain immediately the cause of her massive hemoptysis, and he recommended another bronchoscopy. Margaret was discharged on October 8. Dr. Hanley made arrangements for a follow-up visit in ten days to perform a computerized axial tomography (CAT or CT) scan once the infiltrates had cleared from Margaret’s lungs.

When the doctors told Margaret that they were uncertain what was causing her bleeding, she asked if the bleeding could be related to her aorta repair. There was evidence that the doctors assured Margaret that the bleeding was not related to her aorta repair.

Margaret began to cough up blood again on the evening of October 9. Her family took her to Fairbanks Memorial Hospital. Margaret lost consciousness en route and died at the hospital soon after. Autopsy revealed that sections of the graft on her aorta had adhered to the pulmonary parenchyma; some of the tissue had died, leaving marked accumulation of blood in the pulmonary par-enchyma directly adjacent to the aortal graft. The autopsy summary concluded that this accumulation “most likely represents the origin of the patient’s severe hemoptysis.”

Margaret’s husband, William Zaverl, as personal representative of her estate, filed a superior court complaint against Drs. Borden and Hanley in October 1996. The superior court appointed an expert advisory panel at the defendants’ request. The case proceeded to trial beginning mid-May 1999. The estate offered evidence that Drs. Hanley and Borden failed to consider Margaret’s prior aorta repair in diagnosing her condition, but the jury returned a verdict for both physicians.

Drs. Hanley and Borden moved for awards of costs and attorney’s fees against William Zaverl as personal representative of Margaret’s estate and against the individual statutory beneficiaries jointly and severally. The court granted the motion and awarded Dr. Hanley costs and fees of $57,824.52 and Dr. Borden costs and fees of $67,149.40. These joint and several awards were against the estate, Margaret’s spouse, and her children. The caption on the final judgment names “WILLIAM ZAVERL, Personal Representa-five of the Estate of Margaret M. Zaverl.” But the final judgment states that it is against the estate and the individually named statutory beneficiaries.

This appeal followed. William Zaverl is the named appellant, acting as personal representative of the estate.

III. DISCUSSION

A. It Was an Abuse of Discretion To Permit Dr. Borden To Testify at Trial on Topics He Refused To Discuss at His Deposition.

The estate argues that it was an abuse of discretion to allow Dr. Borden’s trial lawyer to question him at trial about topics his attorney instructed him not to discuss at his deposition. We agree, and remand to the superior court to determine the effect of this error.

1. Dr. Borden testified at trial about matters he refused to address at his deposition.

At Dr. Borden’s pre-trial deposition, the estate’s lawyer asked Dr. Borden, “Did Margaret Zaverl die because the connection between the massive hemoptysis and her history of prior aortic repair was not diagnosed?” Dr. Borden’s attorney objected and instructed Dr. Borden not to answer:

I object to the form of the question. He’s not an expert in that area.... He’s not going to testify as an expert in that area, and I won’t allow him to testify on this' — on the speculation of something nobody wiE ever know and he’s not a cardiovascular surgeon, cardiac thoracic surgeon, so he’s not going to answer that question.

When the estate’s attorney asked Dr. Borden what treatment he would have provided if the aortobronchial fístula had been diagnosed, Dr. Borden’s attorney stated:

I’m going to instruct him not to answer. He’s not going to speculate on something which he did not do_ He’s not an expert. I’m not going to offer him as an expert in the area of cardiovascular treatment and handling of aortic breakdown, I mean breakdowns of Coarctation repairs of the aorta.

Dr. Borden did not answer these questions at his deposition.

At trial, near the end of Dr. Borden’s direct testimony, his trial attorney asked Dr. Borden if he had “a fairly good understanding of what’s necessary to repair ... an aortobronchial fistula such as Margaret Za-verl had.” The estate’s attorney objected. He argued that when he asked Dr. Borden the same question at the deposition, Dr. Borden’s deposition attorney instructed Dr. Borden not to answer and not to speculate about something he did not do and something that did not occur. When the trial court stated that a motion to compel would have been the way to deal with the attorney’s instruction, the estate’s attorney indicated that he had understood counsel’s statement at the deposition to mean that Dr. Borden would not be offered as an expert on these topics.

The trial court overruled the estate’s objections. The court reasoned that Dr. Borden was a general surgeon, not a cardiovascular surgeon who does such repairs or who is an expert in repairing such conditions: The' court stated that Dr. Borden’s knowledge in 1994 “is an important issue” and “to the extent he’s a defendant in this ease, as to the standard of care he gave, it appears to the court relevant and admissible for those issues to be discussed with him, by both sides.” The court also noted that the estate would have an opportunity to cross-examine.

Dr. Borden then testified that he did have “a reasonably good understanding” of aorto-bronchial fistulae. He proceeded to testify at some length about particular nuances of diagnosing and treating this condition. Dr. Borden testified that he wished he had thought of “this particular kind of fistula,” even though “these other smart guys wouldn’t have thought about it.” Nonetheless, he concluded that his treatment of Margaret, including his failure to detect the fistula which may have caused her hemoptysis, did not fall below the applicable standard of care.

2. Dr. Borden should not have been permitted to testify to matters he refused to discuss at his deposition.

The estate argues on appeal that it was error to permit Dr. Borden to testify at trial about matters he was instructed not to discuss at his deposition. The estate.asserts that discovery was thwarted when Dr. Borden’s attorney instructed him at his deposition not to respond to questions concerning detection and repair of aortobronchial fistu-lae, stated that he would not offer him as an expert on the detection and repair of aorto-bronchial fistulae, and then questioned him on precisely those areas at trial without giving advance notice of his changed intentions. The estate relies on Yukon Equipment, Inc. v. Gordon, which upheld a trial court’s exclusion of testimony not described in interrogatory answers.

Dr. Borden responds that he was not qualified to give testimony on aortobronchial fistu-lae when the estate took his deposition in August 1997, but was qualified to do so when he testified at trial in May 1999. Dr. Borden distinguishes Yukon Equipment on the theory that he did not fail to disclose information, as the witness did in Yukon Equipment. Dr. Borden asserts that he simply did not have the information to answer at his deposition but did at trial.

We conclude that the estate was affirmatively led to believe that Dr. Borden would not express opinions at trial on matters beyond the expertise of a general surgeon, and more specifically, that Dr. Borden would not testify about the treatment of aortobronchial fistulae. Dr. Borden never disclosed his intention to testify at trial about what he had learned since his deposition, about surgery a general surgeon would not perform, or in reliance on expertise he acquired after his lawyer disclaimed that expertise at Dr. Borden’s deposition. Assuming that Dr. Borden’s inconsistent positions were the result of an innocent misstep not meant to unfairly disadvantage the estate, we nonetheless agree with the estate that the purpose of discovery was thwarted. The opportunity to cross-examine at trial was no substitute for pretrial discovery in this case.

Dr. Borden asserts that the estate should have raised any objection to the deposition by filing a motion to compel. But no pretrial motion to compel was necessary to preserve the estate’s trial objection that Dr. Borden could not testify about things he refused to discuss at his deposition. The estate was not obliged to anticipate that Dr. Borden might claim at trial that he now knew more than he did when he treated Margaret Zaverl or when he was deposed. Only if the estate had been given reason to think Dr. Borden intended to address the foreclosed topics at trial would it have been required to file a motion to compel. So far as we can determine, Dr. Borden apparently did not reveal that intention until his trial lawyer began asking him the disputed questions at trial. Having followed his lawyer’s deposition instruction not to testify about certain topics, Dr. Borden had to live with that decision absent fair notice to the estate.

The issue is not whether Dr. Borden was eligible to express any opinions, but whether he could do so on topics he refused to discuss at his deposition. In Miller v. Phillips, a medical malpractice case, we thought it significant that the Millers had received Dr. Newton’s affidavit setting-out the substance of his opinions “well before trial.” Here, the estate had no advance notice that Dr. Borden would offer the disputed testimony or rely on expertise he had disclaimed at his deposition. There is no reason in this situation to permit such undisclosed opinions.

Under the circumstances, it was error to permit Dr. Borden to testify at trial about relevant topics he declined to discuss at his deposition.

3. We remand to the trial court to determine whether the error was harmless.

The circumstances that convinced the trial court that the disputed evidence was relevant and not redundant or speculative preclude us from saying as a matter of law that the error of allowing the testimony was harmless. Dr. Borden’s testimony was important evidence bearing on liability. It was offered by a treating physician who was also a defendant and whose credibility and candor may have been critical to the jury trying to decide whether he breached the applicable standard of care. He described the quality of his care favorably, apparently applying the knowledge he acquired after his deposition. This permitted him to address the medical issues in a light most favorable to himself and to increase his stature as a witness.

The effect of this error is not clear. We consequently asked the parties for supplemental briefing on how the testimony affected the case against each defendant physician.

The estate argues that the error was not harmless because the jury could have relied on Dr. Borden’s testimony to decide that Dr. Borden’s treatment was not negligent. The estate also contends that because Dr. Borden testified that Margaret Zaverl’s overall treatment was not substandard, the jury could have relied on Dr. Borden’s testimony to absolve Dr. Hanley of liability.

Dr. Borden’s supplemental response is two-fold: the jury was not misled, because he admitted that he did not have knowledge of these fistulae when he treated Margaret Za-verl; and his testimony about the standard of care only “echoed” the testimony of his expert witness, Dr. Joseph Stapleton Coselli. Dr. Borden implies that because the estate’s attorney was prepared to cross-examine Dr. Coselli, the estate’s attorney also must have been prepared to cross-examine Dr. Borden. Further, Dr. Borden asserts that the jury could have found and was encouraged to find an absence of negligence in reliance on Dr. Coselli’s testimony, without considering Dr. Borden’s testimony on the standard of care. Dr. Borden also contends that his own testimony was relevant because he was the only witness who could discuss what he knew when he treated Margaret Zaverl and that his testimony was not speculative because he spoke from his own knowledge.

He also argues that the estate was not prejudiced by the testimony because the estate’s lawyer was given wide latitude to examine Dr. Borden on exactly when he acquired his knowledge and could easily emphasize to the jury that Dr. Borden did not have this knowledge when he treated Margaret Zaverl.

Finally, Dr. Borden concludes that the testimony only affected himself, not Dr. Hanley, and that even if the testimony had been excluded, there was more than enough evidence regarding the relevant standard of care to support the jury’s verdict.

Dr. Hanley simply argues that he was not affected by Dr. Borden’s testimony because the jury was instructed that Dr. Hanley was to be held to a distinct standard of care and because he had his own experts to establish that standard. He consequently asserts that he did not rely on Dr. Borden’s testimony at all.

We cannot say, even after the supplemental briefing, that the error was harmless. We therefore remand to the.trial court to determine the effect of admitting the disputed testimony. Having heard the evidence admitted at trial, the trial court is in the best position to consider the effect of Dr. Borden’s disputed trial opinions in the context of the other evidence, those deposition passages submitted to the jury, the opinions of other experts, and other trial events, including the parties’ arguments to the jury. Remand will give the parties the best opportunity to explore whether the error prejudiced the estate’s claims against either defendant or was harmless. This may be a fact-intensive inquiry that requires more flexibility than the appellate forum permits. It may depend on the tactics the parties employed at trial.

B. The Court Did Not Err in Refusing To Admit Evidence and Instructing on the Standard of Care for Medical Specialists.

The estate argues that errors prevented the jury from holding Dr. Borden to the standard of care of a specialist in thoracic and vascular surgery, rather than the lower standard of care of a general surgeon. Thus, it asserts that it was error not to admit into evidence medical directories and Yellow Pages advertisements listing Dr. Borden as a vascular and thoracic surgeon. It further asserts that the jury should have been instructed that Dr. Borden held himself out as a specialist in thoracic and vascular surgery and that a specialist’s failure to use the care and skill practiced in that specialty is negligence.

Dr. Borden responds that he is only a general surgeon and that he testified that he was board certified only in general surgery. He argues that he has only had some experience in thoracic and vascular surgery and that he should not be held to the standard of care of a specialist because he never represented to Margaret Zaverl that he was a specialist in those areas. He argues that his training, knowledge, and skill did not rise to the level of a specialist and that it would have been error to give the estate’s proposed jury instruction or to admit the advertisements. He argues that his testimony on his experiences in those areas was sufficient to inform the jury of the standard by which he should be judged. Because the estate was allowed to cross-examine Dr. Borden at trial about his experiences and his listings and advertisements, Dr. Borden argues that the trial court did not err in determining that admitting the listings and advertisements into evidence would be irrelevant and cumulative.

Physicians who hold themselves out to the public as having specialized knowledge or skill must be held to the standard of care of specialists with those enhanced. qualifications. It does not matter whether the physician led any specific patient to have an actual expectation that the physician would exercise a greater level of skill, so long as the physician has taken “affirmative steps” to present himself or herself to the public as a specialist.

But we discern no reversible error with respect to the evidence or the instructions. Dr. Borden defended on the theory that regardless of specialty, skill, training, or place of practice, no physician — even a specialist in cardiovascular surgery — would have correctly diagnosed and treated Margaret Zaverl’s condition. Thus he relied on the opinions of Dr. Coselli, a prominent cardiovascular surgeon who practiced at a teaching hospital in Houston, Texas. Dr. Borden likewise relied on his own testimony, discussed above in Part III.A, expressing the same opinion based on- his post-treatment research. Dr. Borden’s closing argument did not attempt to defend on a theory that a general surgeon was not required to do what specialists could do.

■ We therefore conclude that it was not an abuse of discretion to exclude the listings and advertisements. We also conclude that, given the nature of Dr. Borden’s defense, it was not error to reject the proposed instruction. The proposed instruction correctly stated the law. But it was unnecessary because, as seen above, Dr. Borden’s defense did not rest on the proposition that, as a general surgeon, he should be held to a lower standard of care than thoracic, vascular, or cardiovascular surgeons.

Of course, should the trial court’s resolution on remand of the Borden testimony issue require retrial, the case may be in a different posture, requiring the trial court to revisit these evidentiary and instructional issues.

C. The Court Did Not Err in Refusing To Strike the Expert Advisory Panel.

The estate argues that the members of the court-appointed three-member expert advisory panel were biased because they had social relationships with the defendants or had prior knowledge of the case or opinions about it. It consequently argues that rule, statute, or due process required the trial court to disqualify each member. It also argues that the panel violated the procedural requirements of AS 09.55.536 in producing its report.

The estate sued Drs. Hanley and Borden in 1996. The defendants asked the court to appoint an expert advisory panel. Drs. Steven Kilkenny, Tim Coalwell, and Beth Baker were ultimately nominated. Dr. Borden notified the court and plaintiff in June 1997 that the law firm representing him was also representing Dr. Kilkenny in an unrelated matter. Dr. Baker disclosed in June 1997 that she may have previously discussed the ease because she thought it had been “presented” at a 1994 meeting she attended. The estate did not object to these possible conflicts of interest, and in August 1997 the trial court entered an order appointing these three physicians to the panel. In June 1998 Dr. Borden notified the court and plaintiff that the law firm representing him was also representing Dr. Coalwell in an unrelated matter.

The panel never met in person, but the panelists each issued a report on November 20, 1997. Dr. Baker summarized the three reports. In February 1999 the estate moved to strike the entire panel and its report, alleging that all three panelists were biased and had failed to confer in person or submit a single report, in alleged violation of the requirements of AS 09.65.536. The trial court denied these motions in March 1999.

The estate argues on appeal that it was error not to order the panel and its reports struck. Drs. Borden and Hanley respond by contending, among other things, that the estate waived any challenge by waiting over a year to object to the panel.

We agree with Drs. Borden and Hanley that the objections to the panel and its opinions were raised too late and were therefore waived. The estate knew no later than June 1997 of possible conflicts as to two members and no later than June 1998 of a possible conflict as to the third member. Nonetheless, the estate did not take the depositions of panelists until early February 1999, about three months before trial was to begin. The estate filed its objections to the panel and its findings about eighteen months after the panel was appointed, about fourteen months after it issued its report, and about three months before trial. By then it was impossible to appoint a new panel and the delay potentially would have prejudiced the defendants. This likely would have meant submitting the ease to the jury without any advisory report.

Nothing about the grounds for objections under Alaska Civil Rule 72.1 or AS 09.55.536 precludes their rejection as untimely. And due process is not inconsistent with requiring litigants to raise timely procedural and substantive objections.

Given the patent untimeliness of the estate’s motions to strike the panel and its reports, the court did not err by denying them. We consequently do not need to decide whether the estate’s motions were meritorious.

D. The Court Did Not Err by Allowing Dr. Halvorsen To Testify About the Standard of Care.

The trial court accepted Dr. Robert Halvorsen as an expert in diagnostic radiology. According to the estate, Dr. Halvorsen stated in his deposition that he was not capable of testifying to the standard of care of thoracic surgeons, general surgeons, or pul-monologists. The estate argues that it was error to permit Dr. Halvorsen to testify at trial that the care provided by Drs. Hanley and Borden “was well within acceptable medical standards.”

Dr. Hanley argues that Dr. Halvorsen did not testify to the general standard of care provided by the defendants, as the estate contends. Dr. Hanley asserts that Dr. Hal-vorsen instead testified to the standard of care from the perspective of a radiologist.

Dr. Halvorsen testified:

I believe the care provided of Mrs. Zaverl by Drs. Hanley, Borden and Starks as well as the care provided by Fairbanks Memorial Hospital, was well within acceptable medical standards. The physicians used the appropriate radiographic modalities as well as bronchoscopy to exclude the diagnosable cause of hemoptysis. Unfortunately, she died of a rare condition that could not be diagnosed with the facilities available to those physicians. Think that there is information on these. The chest x-ray and on the CT that would have guided these physicians at the time they were involved in the care of this patient in 1994 away from a diagnosis that actually turned out to be a correct diagnosis that was proved on autopsy.

According to Dr. Hanley, the context of Dr. Halvorsen’s remarks demonstrates that Dr. Halvorsen was only testifying about the standard of care for diagnosis based on radiological techniques. The estate’s reply brief does not respond to these arguments.

The estate has not shown that the trial court abused its discretion by allowing Dr. Halvorsen to discuss the standard of care applicable when a physician uses radiological tools to diagnose a patient. Dr. Halvorsen had the expertise to discuss this subject and was properly admitted as an expert to express such an opinion. The estate had a fair opportunity on cross-examination to clarify the scope of Dr. Halvorsen’s expertise and testimony. We conclude that the trial court did not abuse its discretion by permitting Dr. Halvorsen to express this opinion.

E. The Court Did Not Err by Refusing To Impose a Presumption of Negligence Based on the Failure To Prepare a Timely Discharge Summary.

Margaret Zaverl’s discharge summary was prepared forty-eight days after her discharge; the estate alleges that this delay violated 7 Alaska Administrative Code (AAC) 12.770(e), which requires that a discharge summary be prepared within fifteen days of discharge and be signed by the attending physician. The estate asserts that the delay hindered its ability to present its case, and that the trial court erred by failing to impose a presumption of negligence and causation. It also argues that a violation of this regulation and an equivalent hospital policy is relevant, and that the trial court erred in preventing the estate from examining Dr. Borden about discharge summary procedures. It does not explain how that ruling prejudiced the trial of its claims.

Under the circumstances of this case, the court did not err by declining to impose a presumption of fault or causation. In Sweet v. Sisters of Providence in Washington, we held that a regulatory breach regarding hospital records could give rise to a presumption of negligence. A presumption of negligence is appropriate when the court is convinced that “the absence of the records hinders [the plaintiffs] ability to establish a prima facie case” and that “the essential medical records are missing through the negligence or fault of the adverse party.” But there the records were entirely absent, not merely late-prepared. Here, by contrast, the discharge summary was ultimately prepared, and no information was missing or withheld. And given that the diagnosis memorialized in the discharge summary was incorrect, it is apparent that Dr. Borden did not use the extra time to improve his position in event of litigation. More importantly, Sweet made out a specific showing of prejudice. In this case, however, the estate advances no plausible theory demonstrating that the delay prejudiced its case. It has not explained what information it expected to find in the discharge summary that is not there, nor has it directed us to evidence that the delay impaired the plaintiffs experts’ analyses.

Accordingly, we hold the trial court did not err in failing to assign a presumption of negligence for failure to prepare a timely discharge summary.

The estate’s companion argument — that it should have been permitted to inquire about the delay and whether the delay violated state law and hospital procedures — is equally unpersuasive. The estate has not shown what evidence might have been elicited or how it might have altered the verdict.

F. Costs and Fees Awards Are Not Allowable Against Non-Party Statutory Beneficiaries in a Wrongful Death Action.

The trial court awarded Drs. Borden and Hanley attorney’s fees and costs totaling $124,973.92. Reasoning that the statutory beneficiaries in wrongful death actions are the actual “parties represented” within the meaning of AS 09.60.040, the court ruled that William Zaverl, individually and as a statutory beneficiary, and the three Zaverl children, individually and as statutory beneficiaries, would be personally liable for these costs and fees. It concluded that the beneficiaries should be liable for costs and fees because the representative of the estate is only a nominal party and the estate is not a party at all. The court entered judgment totaling $124,973.92 in favor of Drs. Borden and Han-ley.

Because the children were not named parties to the lawsuit and did not personally appear in the lawsuit and William Zaverl appeared only in his representative capacity, Zaverl argues that it was error to interpret AS 09.60.040 to allow recovery of costs and attorney’s fees against him and the three children.

Drs. Borden and Hanley argue that the surviving spouse and children in a wrongful death action are liable for attorney’s fees and costs under AS 09.55.580 and AS 09.60.040. They rely on In re Soldotna Air Crash Litigation, in which we reiterated that although estate representatives are nominal parties in wrongful death actions, a wrongful death action is “the [beneficiaries’] cause of action.”

Alaska Statute 09.60.040 cannot reasonably be read to permit recovery of attorney’s fees and costs against the statutory beneficiaries in this case because they did not appear and did not make claims in their personal capacities. Soldotna is distinguishable. We were concerned there with whether a prevailing defendant could recover costs and attorney’s fees under AS 09.60.040 against the non-prevailing plaintiff in a wrongful death action. We held that the prevailing defendant could recover its award from the fund created by the plaintiffs’ recovery from the other defendants. We left for another day the question whether a prevailing defendant could recover such an award from the statutory beneficiaries in the absence of a fund. We now address that question and answer it in the negative.

The only party plaintiff in this case was William Zaverl, and he appeared only in his representative capacity and not in any personal capacity. We hold that, although the statutory beneficiaries not named in a wrongful death lawsuit are the beneficiaries of any recovery, statutory beneficiaries who are not parties to the wrongful death lawsuit in their personal capacities are not parties for the purpose of responding to awards of costs and attorney’s fees. Accordingly, we vacate the trial court’s award of costs and attorney’s fees against the estate’s statutory beneficiaries.

IV. CONCLUSION

We REMAND to the trial court to determine whether the error of allowing Dr. Borden to testify at trial about topics he refused to discuss at his deposition prejudiced the estate’s claims against either defendant. We also VACATE the joint and several award of costs and attorney’s fees against the estate’s statutory beneficiaries. We AFFIRM as to all other issues.

      . There may still be genuine, unresolved disputes about some of the fact propositions we discuss here and elsewhere in this opinion. Our fact recitation is intended to give factual context to the legal issues on appeal. It is not intended to foreclose the parties from litigating genuine factual disputes that are material to the issues on remand.

      . A "coarctation” is a "constriction, stricture, or stenosis.” Stedman’s Medical Dictionary 321 (25th ed.1990). A "thoracotomy” is an "incision into the chest wall.” Id. at 1594. Margaret had a left thoracotomy, an opening of the left chest cavity, for a graft repair of the coarctation of the aorta.

      .Dr. Rolf Hollé, one of the estate’s experts, testified that a "massive hemoptysis” occurs "when someone coughs up between two hundred and six hundred cc of blood within a period of around twenty-four hours.... [I]t's not only the volume of blood but how quickly it comes out and also the ability of the person who is doing it to clear it out of their airway tract."

      . "Parenchyma” designates "[t]he distinguishing or specific cells of a gland or organ, contained in and supported by the connective tissue framework, or stroma.” Stedman’s Medical Dictionary 1139 (25th ed.1990). "Pulmonary parenchyma” refers to the parenchyma of the lungs.

      . The autopsy summary noted that "[m]assive hemoptysis occurring several years after report of aortic coarctation has been previously reported,” and cited to a medical journal article published in 1994.

      .We review evidentiary rulings and rulings on the adequacy of discovery for abuse of discretion. Nautilus Marine Enters, v. Valdez Fisheries Dev. Ass’n, 943 P.2d 1201, 1204 n. 3 (Alaska 1997); Cockerham v. State, 933 P.2d 537, 539 n. 9 (Alaska 1997). "We will reverse a trial court’s evidentiary ruling only when we are left with a definite and firm conviction that the trial court erred in its decision.” Walden v. Dep't of Transp., 27 P.3d 297, 301 (Alaska 2001).

      . A fistula is "[a]n abnormal passage from a hollow organ to the surface, or from one organ to another." Stedman’s Medical Dictionary 589 (25th ed.1990). An aortobronchial fistula is an abnormal passage between the aorta and the lungs.

      . We asked the parties to submit supplemental briefs identifying the testimony offered over the estate’s objection. The estate asserts that the objection, if sustained, would have excluded Dr. Borden’s testimony which the estate describes as follows:
      (1) that he has a “reasonably good understanding” of aortobronchial fistulas (Tr. 1742);
      (2) of what the “innuendos” of the aortobron-chial fistulas were, including the aortobronchial fistula in this particular case (Tr. 1742-44);
      (3) of what "you would be faced with” “if you went in there [where Margaret Zaverl’s fistula was located] surgically” (Tr. 1743-44); (4) of what a surgeon who was operating in a case like Margaret Zaverl’s would do "once you got inside the chest” "to attempt to identify whether or not there is a fistula” and that "in this particular case” "when you separated the lung off the aorta at that point you’d have, you could have a pretty good bleed” (Tr. 1743-44); (5) that if Margaret Zaverl had survived the second bleed and had a second CAT scan, the second bleed "almost certainly would have showed up” (Tr.1945-6); (6) of how fistulas like Margaret Zaverl’s fistula are ordinarily diagnosed and "the way you make the diagnosis ordinarily of this fistula” is with a CT scan:
      ... that’s the way [CT scan] you make the diagnosis ordinarily of this fistula ... not only the pseudoaneuiysm at the anastomosis but also congestion or blood collection in the fistula of the lining adjacent to the aorta.
      (Tr. 1746); (7) that fistulas "virtually always” have an abnormal CT scan and are shown on a CT scan (Tr. 1747); (8) that "virtually all” hemoptysis from these fistulas have abnormal CT scans that will direct you to the diagnosis, [that] 90 percent of the people with massive hemoptysis from this type of fistula die before they get to surgery and not only that his care did not fall below the standard of care, but also that the way Margaret Zaverl was managed was not below the standard of care:
      Q .... do you believe that your care fell below the standard of care?
      A. No, I wouldn't say it falls below the standard of care.... [M]ost of these people ... 90% of the people with massive ... hemoptysis from tírese fistuli, die before they ever get to surgery.... [0]ver 50% of the diagnoses are made at autopsy ... [Virtually all of them that have CAT scans ... have an abnormal CT that’ll direct you to the diagnosis.... I can’t see where ... the way she was managed would be below the standard of care.
      (Tr. 1754-55) (the way Margaret Zaverl was managed includes the treatment and care provided by defendant Hanley); (9) that a history of [coarct] repair didn’t send up a red flag (Tr. 1747); and (10) during examination by Han-ley's counsel, Borden testified:
      Q .... when you were talking about Exhibit HQ, you talked about distal with a subcla-vian. What do we mean by ...
      A. Downstream. Often we’ll take proximal and distal when we're talking about a graft because, you know, most of the time when you have a graft fistula, it'll be from the proximal anastomosis, so if there was a tube graft going on here, towards the heart or towards the center of the body would be proximal and then the distal into the graft would be down stream, so again, distal, to the subclavian artery would be down stream.
      (Tr. 1755)
      Dr. Borden and Dr. Hanley have not claimed that the estate has misdescribed the Borden testimony that would have been excluded had the court upheld the estate's objection.

      . 660 P.2d 428, 432 (Alaska 1983) (also holding that trial court properly excluded expert witness not included in pretrial witness list), overruled on other grounds by Williford v. L.J. Carr Invs., Inc., 783 P.2d 235, 237 n. 5 (Alaska 1989). The estate also relies on McCubbins v. State, Department of Natural Resources, 984 P.2d 501, 507-08 (Alaska 1999) (holding that trial court did not abuse its discretion by excluding evidence that should have been disclosed in interrogatory responses); City of Valdez v. Salomon, 637 P.2d 298, 299 (Alaska 1981) (holding that trial court abused its discretion by refusing to set aside default judgment issued for plaintiff where plaintiff’s attorney did not respond to defendant's pre-judgment request for information); and Aysseh v. Lawn, 186 NJ.Super. 218, 452 A.2d 213, 221-22 (1982) (barring witness from testifying to matters he refused to speak to at deposition on ground of attorney-client privilege).

      . Dr. Borden's April 1999 responses to requests for admissions concerning the aorta repair again indicated, about five weeks before trial was to begin, that he was only a "fact witness.” His pretrial memorandum submitted ten days before trial stated: "Dr. Borden does perform some vascular and thoracic surgery.... Dr. Borden has never performed aortic surgery, nor is he familiar with the procedures involved." (Emphasis added.) These assertions would have given the estate no reason to anticipate that at trial Dr. Borden would be asked the disputed questions or would talk about topics foreclosed at his deposition.

      . The estate asserts that Dr. Borden engaged in “impermissible gamesmanship.” Dr. Borden argues that he did not engage in “gamesmanship,” and we note that different lawyers represented Dr. Borden at his deposition and at trial. We also observe, however, that the facts may not exactly match Dr. Borden's appellate explanation for his change in position. He argues that he knew very little about such matters at his deposition, but that he “later became an expert on the subject,” and that the trial court "correctly ruled” that Dr. Borden knew more at the time of trial in 1999 than when he was deposed in 1997. But the estate contends that the Borden trial testimony Dr. Borden cites to support those propositions simply established that he knew more in 1999 than he knew in 1994 when he treated Margaret Zaverl. At his deposition, Dr. Borden testified that he had reviewed "quite a pile” of medical literature articles. This testimony implies that Dr. Borden might have learned enough even before his 1997 deposition to answer the questions his lawyer told him not to answer. If so, the facts would not support the trial court's assumption that Dr. Borden’s new-found expertise post-dated his deposition. And if so, counsel’s deposition instruction was unwarranted and Dr. Borden’s refusal to answer potentially would have justified entry of an order under Civil Rule 37 sufficient to remedy any prejudice the refusal caused.

      . See W.R. Grace & Co.-Conn. v. Zatos Int’l, Inc., No. 98-CV-838S(F), 2000 WL 1843258, at *5 (W.D.N.Y. Nov.2, 2000); Rossman v. Rossman, 47 Ohio App.2d 103, 352 N.E.2d 149, 153 (1975).

      . As a treating physician Dr. Borden was eligible to express expert opinions even though he was not listed as an expert witness on defendants’ pretrial disclosure lists. Miller v. Phillips, 959 P.2d 1247, 1250 (Alaska 1998).

      . 959 P.2d 1247, 1251 (Alaska 1998).

      . Given this conclusion, we do not need to consider whether, as the estate alternatively asserts, the failure to give notice that Dr. Borden would be asked about these topics at trial violated the duty to supplement expert deposition testimony under Alaska Civil Rule 26(e), or whether such a violation required the trial court to limit Dr. Borden's trial testimony.
      The estate’s reply brief discusses the issue in terms usually applied to the doctrine of estoppel, although its briefs do not explicitly invoke that doctrine by name. The doctrine of quasi-estop-pel “precludes a party from taking a position inconsistent with one ... previously taken where circumstances render assertion of the second position unconscionable.” Jamison v. Consol. Util., 576 P.2d 97, 102 (Alaska 1978); see also John's Heating Serv. v. Lamb, 46 P.3d 1024, 1040-41 (Alaska 2002) (holding quasi-estoppel not applicable when party taking inconsistent position did not gain anything from original position, third party did not sufficiently rely on either position, and first position was not based on full knowledge of facts). We do not consider whether Dr. Borden’s disputed trial testimony should have been estopped, because the estate raised the es-toppel issue for the first time in its reply brief.
        See Danco Exploration, Inc. v. State, Dep’t of Natural Res., 924 P.2d 432, 434-35 n. 1 (Alaska 1996) ("[N]ew arguments presented for the first time in reply briefs are considered waived.”).

      . We review evidentiary rulings for abuse of discretion. Nautilus Marine Enters, v. Valdez Fisheries Dev. Ass'n, 943 P.2d 1201, 1204 n. 3 (Alaska 1997). "A challenge to jury instructions presents a question of law which is reviewed independently. A legally erroneous instruction will lead to reversal only if it prejudices a party; prejudice exists unless one can 'say with fair assurance that the result was not affected by [the] error.'" Lynden Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001) (quoting Barrett v. Era Aviation, Inc., 996 P.2d 101, 105 (Alaska 2000) (footnote omitted)).

      . Given the result we reach on this issue, it is not necessary here to discuss Dr. Borden’s assertion based on Priest v. Lindig, 583 P.2d 173 (Alaska 1978), that he should not be held to a higher standard because he was not actually trained in thoracic or vascular surgery and had no actual knowledge of or skill in those areas. But in the event the error discussed in Part III.A. requires retrial, we believe that the advertisements and other evidence, including Dr. Borden's own testimony, would permit an inference, as Zaverl argues, that Dr. Borden "possessed ... a greater degree of skill, knowledge or intelligence than other physicians practicing in the same specialty in similar communities.” Priest, 583 P.2d at 177 (quoting Poulin v. Zartman, 542 P.2d 251, 269 n. 42 (Alaska 1975)).

      . Ayers v. Parry, 192 F.2d 181, 184 (3d Cir. 1951); cf. Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480, 482 (1945) (holding that specialists will be held to higher standard of care); see 61 Am Jur.2d Physicians, Surgeons, and Other Healers § 209 (2002) (collecting cases and stating general rule that physicians who hold themselves out as specialists will be held to standard of care commensurate with their enhanced qualifications).

      . 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 209 (2002); see Rule v. Cheeseman, 181 Kan. 957, 317 P.2d 472, 478 (1957); Reikes v. Martin, 471 So.2d 385, 389 (Miss.1985) (holding jury instruction erroneous because it referred to standard of care particular patient might reasonably expect as opposed to objective standard physician owed to patient); but cf. McBride v. United States, 462 F.2d 72, 74 (9th Cir. 1972) (holding that standard of care does not vary according to doctor's knowledge or education unless doctor represents to patient that physician possesses special skill).

      . Dr. Coselli testified that a thoracic surgeon might go through a whole career without seeing an aortobronchial fistula. He asserted that only . fifty percent of aortobronchial fistulae are properly diagnosed and about half of the people who need surgery as a result of an aortobronchial fistula die before the operation. He testified that the result would have been the same even had Margaret been cared for at his hospital in Houston. He said, "I don't think with the information ... that they had at, hand, if I was in the same situation ... I don’t think I'd make the diagnosis.... We’d let her go home, would not have changed the course of her care at all.”

      . We also note that Dr. Borden'described for the jury the substance of the advertisements and his listing of his speciality as "Vascular Surgery, Thoracic Surgery” in the State Medical Association Directory.

      . Proposed Instruction No. 31 stated in part:
      It is the duty of a physician who holds himself or herself out as a specialist in a particular field of medical, surgical, or other healing science, to have the knowledge and skill ordinarily possessed, and to use the care and skill ordinarily used, by reputable specialists practicing in the same field or speciality.
      A failure to fulfill such duty is negligénce.
      In this case, defendant Borden holds himself out as a specialist in the fields of general, vascular, and thoracic surgery.
      Defendant Hanley holds himself out as a specialist in the field of pulmonary disease and internal medicine.
      The court’s Instruction No. 16 provided:
      In a malpractice action based on the negligence or willful misconduct of a health care provider, the plaintiff has the burden of proving by a preponderance of the evidence:
      1. the degree of knowledge or skill possessed or the degree of care ordinarily exercised under the circumstances, at the time of the act complained of, by health care providers in the field or specialty in which the defendant is practicing;
      2. that the defendants either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
      3. that as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
      The court's Instruction No. 20 provided in part:
      [A] pulmonologist and/or surgeon is negligent if the physician:
      1. lacked the degree of knowledge or skill ordinarily possessed by a reputable physician specializing in his field;
      2. failed to exercise the degree of care ordinarily exercised under the circumstances by a reputable physician in his specialty. Failure to exercise that care may be the result of an act or failure to act.
      However, the mere fact that the plaintiff was harmed does not mean the defendant or defendants were negligent.

      . We review the denial of the motion to strike the panel and its report for abuse of discretion. We apply our independent judgment to issues of statutory interpretation, such as whether the trial court properly construed and fulfilled its statutory duty to appoint an expert advisory panel under AS 09.55.536. Taylor v. Johnston, 985 P.2d 460, 463 (Alaska 1999).

      . AS 09.55.536(a) requires the superior court to appoint a three-member expert advisory panel in medical malpractice cases unless the court deems an expert advisory opinion unnecessary. The panel may hear testimony and may meet in camera. AS 09.55.536(b). The panel shall make a written report signed by each panel member unless a member chooses to submit a concurring or dissenting report. AS 09.55.536(c)-(d).

      . The superior court denied the motion to strike, apparently on the merits, rather than on grounds of untimeliness. We can affirm on alternative grounds apparent from the record. Moore v. State, 553 P.2d 8, 20-21 (Alaska 1976) (holding that supreme court may affirm judgment on alternative grounds).

      . Per a January 1998 pretrial order, expert witnesses were to be listed by March 1, 1999, discovery was to close April 9, 1999, and trial was to begin May 10, 1999. An April 15, 1999 amended pretrial order extended discovery to April 21 and set May 17 as the first day of trial.

      . We apply the abuse of discretion standard in reviewing rulings permitting retained experts to express particular opinions. Lynden Inc. v. Walker, 30 P.3d 609, 612 (Alaska 2001).

      . 7 AAC 12.770(e) provides in pertinent part: "A record must be completed within 15 days of discharge and authenticated or signed by the attending physician or dentist.”

      . Whether a violation of law gives rise to a legal presumption is a question of law which we review de novo. Himschoot v. Shanley, 908 P.2d 1035, 1041 n. 4 (Alaska 1996) (stating that whether statutory presumption of compensability applies is question of law); Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987) (stating that questions of law are reviewed de novo).

      .Evidentiary rulings are reviewed for an abuse of discretion. Nautilus Marine Enters. v. Valdez Fisheries Dev. Ass’n, 943 P.2d 1201, 1204 n. 3 (Alaska 1997).

      . Sweet v. Sisters of Providence in Washington, 895 P.2d 484, 490-92 (Alaska 1995).

      . Id. at 491.

      . Id.

      . Id. at 487-88, 490.

      . Id. at 491.

      . Dr. Hanley argues that 7 AAC 12.770(e) imposes a duty on hospitals, not individual physicians. Because there was no error in refusing to impose a presumption here, we do not have to decide whether Dr. Hanley’s reading of the regulation is correct.

      . We further agree with Dr. Hanley that any possible error was harmless. Presumptions of fault are rebuttable, and the defendants offered sufficient evidence — particularly the testimony of Dr. Coselli — to rebut any presumption arising out of the delay in preparing the discharge summary. To determine whether an error merits reversal, this court asks whether it probably affected the outcome of the trial. See Wilson v. State, 669 P.2d 1292, 1298 (Alaska 1983). Given the defense evidence, it is not likely the outcome of the trial would have changed had a rebuttable presumption of negligence been imposed.

      . AS 09.60.040 provides:
      In actions in which an executor, administrator, trustee of an express trust, or a person authorized to represent a party is a party, costs may be allowed as in other cases. However, when costs are allowed against that party, they are chargeable solely upon the estate, fund, or party represented unless the court orders the costs to be paid by that party personally for mismanagement or bad faith in the conduct of the action.

      . This argument raises a question of law: the meaning of the controlling statute. We review interpretations of statutes de novo, and adopt the rule of law most persuasive in light of precedent, reason, and policy. Boone v. Gipson, 920 P.2d 746, 748 (Alaska 1996).

      . AS 09.55.580 provides in pertinent part:
      (a) Except as provided under (f) of this section, when the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had the person lived, against latter for an injury done by the same act or omission.... The amount recovered, if any, shall be exclusively for the benefit of the decedent’s spouse and children when the decedent is survived by a spouse or children, or other dependents.

      . 835 P.2d 1215, 1220 (Alaska 1992) (quoting Haakanson v. Wakefield Seafoods, Inc., 600 P.2d 1087, 1090 n. 4 (Alaska 1979)).

      . Id. at 1221-23.

      . Id. at 1222-23.

      . Id. at 1223 n. 11.

      . The relationship of statutory beneficiaries to the personal representative is analogous to that of the beneficiaries of an estate or trust to an executor or trustee. Estate and trust beneficiaries are ordinarily not considered parties to an action brought by an executor or trustee, nor are they personally responsible for costs and fees if the action proves to be unsuccessful. See 97 C.J.S. Wills § 1972 (2001) (devisee liable only as to distributed assets); 90A C.J.S. Trusts § 586 (2001); see also Restatement (Second) of Trusts § 274 (1959). These rules are subject to an exception if the beneficiary has received property from the estate or trust that should have been available for the payment of costs and fees. See Restatement (Second) of Trusts § 274 (1959); AS 13.16.635 (estate distributee not liable for amounts in excess of value of distribution); 97 C.J.S. Wills § 1972 (2001). We applied a similar exception in the case of wrongful death action statutory beneficiaries in Soldotna, 835 P.2d at 1221-22.


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    UNIVERSITY OF ALASKA, Appellant, v. ALASKA COMMUNITY COLLEGES’ FEDERATION OF TEACHERS, LOCAL 2404, Appellee.
    No. S-9732.
    Supreme Court of Alaska.
    Feb. 21, 2003.
    Thomas M. Daniel, Perkins Coie, LLP, Anchorage, for Appellant.
    William K. Jermain, Jermain, Dunnagan & Owens, P.C., Anchorage, for Appellee.
    Before: MATTHEWS, EASTAUGH, BRYNER and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

The University of Alaska Anchorage granted pay increases to non-represented faculty members, but not to union members, to remedy perceived salary inequities. The union filed a grievance that progressed through arbitration. The arbitrator found that the university discriminated against union members by failing to include the members in the equity distributions. The university appealed to the superior court, which confirmed the arbitrator’s award. Because the arbitrator erred in his analysis of the nondiscrimination clause of the collective bargaining agreement, we reverse.

II. FACTS AND PROCEEDINGS

A. Facts

In 1992 the University of Alaska entered into a collective bargaining agreement (CBA) with the Alaska Community Colleges’ Federation of Teachers, Local 2404. The agreement covered faculty members teaching vocational-technical or lower division courses. Under section 7.1 of the CBA, salaries were set by the Board of Regents’ policy in effect as of May 8,1992. Under this policy, represented and non-represented employees were entitled to 3% salary increases subject to legislative approval.

Soon after entering into the CBA, the university faced funding shortfalls. On August 30, 1993, “perceiv[ing a] financial crisis,” the regents indefinitely suspended the annual 3% salary increase for all employees, union and non-union. The union filed a grievance, arguing that the suspension of the 3% salary increase was in violation of the CBA. This grievance resulted in arbitration before William Corbett. Based on the provisions of the CBA, Corbett ruled that union employees were insulated from a decision of the regents to suspend the annual raises. Accordingly, the non-represented employees did not receive the annual salary increase, while the union employees did receive the raise.

In August 1995 the regents revised the compensation policy and authorized the administration to develop new regulations to implement the policy. Under the new policy, chancellors were directed to set aside an amount equal to 2.6% of the cumulative value of regular faculty salaries with 1% of that amount earmarked for promotion, retention offers, equity salary adjustments, and extraordinary performance. The remaining 1.6% of the set-aside funds was to be used to fund annual performance-based increases.

As a part of the changes in the compensation guidelines, Chancellor Lee Gorsuch of the Anchorage campus commissioned a study (the Lampman study) in 1996 to identify employees who were underpaid relative to their peers. The study was limited to nonunion employees. In response to the study’s findings, underpaid non-union employees received a pay adjustment of up to 2.6%. Union employees, who were already receiving a 3% annual increase pursuant to the Corbett decision, did not receive any part of this 2.6% increase.

B. Proceedings

In 1996 the union and six female faculty members, on their own behalf and on behalf of similarly situated faculty members, filed a grievance (grievance 96-40) under step one of the grievance procedure in the CBA. The grievance alleged that the university had discriminated against the women by paying them salaries lower than those for comparable male faculty members and that the university had violated the non-discrimination clause of the CBA by failing to include union members in the study to identify and compensate underpaid employees.

In 1997 the union filed a second grievance (grievance 97-43) alleging various violations of the CBA. These allegations included claims that the union members were entitled to the same salary increase as non-represented employees and that the university failed to request funds from the legislature for salary increases for union members. A new collective bargaining agreement was entered into in 1997 in which the parties agreed to settle grievance 97-43 “on a non-precedent setting basis by payment of the salary increases to the 26 Faculty Members to the grievance.”

A hearing was held on grievance 96-40 before Chancellor Gorsuch, as provided in step two of the CBA’s grievance procedures. Chancellor Gorsuch denied the union’s grievance in January 1997. Chancellor Gorsuch decided that the grievance was untimely because the CBA required that a grievance be filed within thirty days after the employee became aware of the alleged conduct and the union failed to do so. Chancellor Gorsuch went on to state that, even if the grievance had been timely, the evidence was insufficient to support claims of gender and union discrimination. However, Chancellor Gor-such did instruct the university administrative staff to conduct a review of the salaries of represented employees that used a methodology similar to that used in the Lampman study.

The union appealed the chancellor’s opinion to Arbitrator George Lehleitner, as provided in step three of the CBA’s grievance procedures. Lehleitner issued his opinion and award on September 17, 1998. Lehleit-ner decided that the union failed to establish an actionable claim of gender discrimination, but that the university did violate the terms of the CBA by excluding the union from the Lampman study and the distributions arising from the study. On the issue of timeliness of the grievance, Lehleitner decided that the union failed to file the grievance within thirty days of discovering the gender discrimination, but that the union did file the grievance within a reasonable time after discovering that the Lampman study did not include represented employees.

Lehleitner also decided that, in settling grievance 97-43, the issue of whether the university violated the CBA by failing to request funding from the legislature for 1996 increases for represented faculty pursuant to the Lampman study was settled and that the settling of grievance 97-43 did not settle grievance 96-40. Lehleitner ordered the university to undertake “a separate Lamp-man type study of the [union] faculty and then apply the 2.6% equity adjustment monies to correct whatever inequalities are identified retroactive to January 1, 1996.”

The university filed a motion to vacate or modify the arbitrator’s award in superior court, as arguably permitted by part four of grievance step three in the CBA, which states that the arbitrator’s decision could be appealed “as provided by law.” Before the superior court, the university argued that the arbitrator had disregarded the law and exceeded his authority, had impermissibly rewritten the CBA, and had addressed questions that were not before him. For its part, the union asked the superior court to confirm the arbitrator’s award with interest from the date of the award. Superior Court Judge John E. Reese rejected the university’s arguments, confirmed the arbitrator’s award, and directed the university to pay the award with interest accrued.

The university appeals the superior court’s decision confirming the arbitrator’s award.

III. STANDARD OF REVIEW

We review the superior court’s review of the arbitrator’s decision de novo as it deals with questions of law and contract interpretation. On questions of law, we “adopt the rule of law that is most persuasive in light of precedent, reason, and policy.”

The appropriate standard of review of the arbitrator’s decision is a contested issue. The union argues that the CBA — which provides that “[t]he decision of the arbitrator shall be ... appealable as provided by law” — should be interpreted as incorporating the Uniform Arbitration Act’s provisions for review. The Uniform Arbitration Act (the Act) provides the most highly deferential standard. Under it, the arbitrator’s findings of fact and law are not reviewable; judicial review may only be had for fraud, corruption, and the like. The university reads the CBA’s provision that the arbitrator’s award is “ap-pealable as provided by law” differently than the union. According to the university, this provision rejects incorporation of the Act and instead requires application of the common law to appeals of arbitrators’ decisions. Accordingly, the university argues for a less deferential standard of review than that provided under the Act. Because arbitration is compulsory in this case, the university claims that the abuse of discretion standard should apply.

We agree with the university that the CBA does not incorporate the Act and its fraud/eorruption standard. In specifying the law applicable to step three grievance procedures, the CBA provides that such procedures “will be resolved by arbitration under AS 09.43.010-180[] and as provided by the Agreement.” But on the issue of appeal of the arbitrator’s award, the CBA states simply that “[t]he decision of the arbitrator shall be ... appealable as provided by law.” Had the drafters of the CBA wished to limit appellate review to that allowed under the Act, they would have used the kind of language that they used in setting out the law applicable to step 3 grievance procedures; they would have stated that appellate review is available “under the Uniform Act” or “under AS 09.43.010-180” rather than “as provided by law.”

Our decision that the fraud/corruption standard does not apply leaves the question of what standard to apply. While we have held that, in general, grievance arbitration is reviewed under the gross error standard of review, we have not decided whether there should be a different standard for compulsory grievance arbitration, the present case, as opposed to non-compulsory grievance arbitration. However, we need not decide in this case whether the more deferential “gross error” standard or the less deferential “arbitrary and capricious” standard of review applies, for both tests here lead to the same result. As set out in part IV, we must reverse even under the more deferential “gross error” standard. In these circumstances, as we have done before, we leave the question open because the facts of the case require a reversal under either standard:

In State v. Public Safety Employees Association, 798 P.2d 1281 (Alaska 1990), we were not required to address the question whether compulsory grievance arbitration proceedings might be subject to a standard of review other than gross error. PSEA [v. State, 895 P.2d 980 (Alaska 1995) ] does not resolve that question, but does note that this court has applied the gross error standard to grievance arbitration proceedings. See PSEA at 984. We choose not to address in this case whether compulsory grievance arbitration proceedings might be subject to a standard of review other than gross error, as we again are not required to do so.[]

IV. DISCUSSION

The Arbitrator Misapplied Section 3.2 of the CBA.

The university argues that, in order to rule against it, Lehleitner was obligated to find that it illegally discriminated against union employees when it offered salary increases to non-union employees without making similar payments to union employees. In the context of this case, Lehleitner was required to find that the university’s acts constituted discrimination prohibited by law.

But Lehleitner’s decision includes no such finding. He acknowledges that his “analysis begins and pretty much ends with the ‘Non Discrimination’ article contained in the [CBA].” The non-discrimination article provides:

Neither the University nor the Union shall discriminate on any basis prohibited by law, including union-related activity.

In order to constitute a violation of this clause, activity must consist of discrimination already prohibited by law.

The only discrimination that the arbitrator found was that, in the course of administering the university, its officials drew distinctions between union and non-union employees. Indeed, the arbitrator specifically found no evidence of bad faith on the university’s part: He stated that the university in attempting to redress past salary inequities acted in a “fair and equitable” manner. As Lehleitner did not find any evidence of discrimination prohibited by law or of any anti-union animus, it was gross error to find a violation of the nondiscrimination clause of the CBA.

The arbitrator grossly erred in his analysis of section 3.2. Therefore, we need not reach the other issues raised by the university.

V. CONCLUSION

Because the arbitrator misapplied section 3.2 of the CBA, we REVERSE the award and REMAND with instructions that the grievance be dismissed. The university was entitled to take steps in good faith to address issues of pay inequity without risking an arbitrator’s decision that it had violated the non-discrimination clause of the CBA.

FABE, Chief Justice, not participating.

      . Marathon Oil Co. v. ARCO Alaska, Inc., 972 P.2d 595, 600 (Alaska 1999); Ahtna, Inc. v. Ebasco Constructors, Inc., 894 P.2d 657, 660 (Alaska 1995).

      . Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979).

      . AS 09.43.010-180.

      . Ahtna, Inc., 894 P.2d at 660-61.

      .AS 09.43.120 provides that a court may vacate an award only if it was "procured by fraud or other undue means,” if there was "evident partiality” or "corruption in any of the arbitrators or misconduct prejudicing the rights of a party,” if the arbitrators "exceeded their powers,” or if there were other substantial irregularities.

      . AS 09.43.010-180 is the entirety of the Uniform Arbitration Act.

      . State v. Pub. Safety Employees Ass’n, Local 92, 798 P.2d 1281, 1284 (Alaska 1990). " 'Gross error’ is defined as ‘only those mistakes which are both obvious and significant.’ ” Pub. Safety Employees Ass’n, Local 92 v. State, 895 P.2d 980, 984 (Alaska 1995), quoting City of Fairbanks v. Rice, 628 P.2d 565, 567 (Alaska 1981).

      . Pub. Safety Employees Ass’n, Local 92 v. State, 902 P.2d 1334, 1336 n. 2 (Alaska 1995).

      .Differing treatment based on union membership is not per se impermissible, but is prohibited by law under certain circumstances. For example, under AS 23.40.110(a)(3), it is a violation of the Public Employment Relations Act to discriminate against public employees in order to encourage or discourage union membership. In Alaska Community Colleges' Federation of Teachers, Local No. 2404 v. University of Alaska, 669 P.2d 1299 (Alaska 1983), we held that, to establish a violation of AS 23.40.110(a), the employer's action generally must have been based on an anti-union motive. Id. at 1307. We stated that "[o]nly where the employer's conduct is 'inherently destructive’ of important employee interests is proof of an antiunion motive unnecessary under that section.” Id.


author: Justice KOURLIS

text:
    In re Jill BEAVERS, Plaintiff, v. ARCHSTONE COMMUNITIES LIMITED PARTNERSHIP II, a Delaware corporation, Defendant.
    No. 02SA320.
    Supreme Court of Colorado, En Banc.
    Feb. 24, 2003.
    Anderson, Hemmat & Levine, LLC, Chad P. Hemmat, Denver, Colorado, Attorneys for Plaintiff.
    Holland & Hart, LLP, Marcy G. Glenn, Christopher H. Toll, Alan D. Schuchman, Denver, Colorado, Attorneys for Defendant.
   Justice KOURLIS

delivered the Opinion of the Court.

I. Introduction

This is a case in which we accepted original jurisdiction under C.A.R. 21 to review a trial court’s order vacating a jury verdict on its own motion. We now conclude that the trial court exceeded its jurisdiction in entering such order outside the time specified in C.R.C.P. 59(a). Accordingly, we make our rule to show cause absolute.

II. Facts of the Case

Jill Beavers, the plaintiff, asserted a premises liability claim against Archstone Communities Limited Partnership II, the operators of an apartment complex known as Sunwood Apartments. Plaintiff alleged that on July 17, 2000, while descending a stairway that was defective and extremely slippery, she fell and sustained physical injury.

The case proceeded to trial before a jury on January 22, 23, and 24, 2002. The court instructed the jury on the law of the case prior to closing arguments. Counsel for Beavers and Arehstone had tendered to the court a packet of mutually acceptable proposed jury instructions, including CJI-Civ.4th 9:12, which became Instruction No. 11. The court did reject one of Archstone’s additional proposed instructions, to which counsel for Beavers objected. However, neither Beavers nor the court itself identified any concerns with the jointly tendered instructions. Instruction No. 11 informed the jury that: “The occurrence of an accident does not raise any presumption of negligence on the part of either the plaintiff or the defendant.” The jury returned a defense verdict on January 24, 2002. That verdict was entered on the register of actions on the same day.’

On February 21, 2002, by written order, the court on its own motion ordered a new trial, holding that the giving of Instruction No. 11 was an error. Specifically, the court concluded,

The use of the word ‘accident’ was inappropriate under these circumstances. The instruction should have said, if anything, that the occurrence of a slip and fall did not create a presumption of negligence. It is highly likely the incident, characterized as an accident, led the jury to believe that no one was liable. In essence, the Court inadvertently concluded for the jury that the incident was an accident.
... [Thus] the Court ... gave the defense what amounted to a directed verdict. The Court’s error circumvented justice requiring a new trial in this matter.

Archstone sought review of that order under C.A.R. 21, arguing that the trial court had erred in ordering a new trial and that forcing Archstone to undergo a second trial before having access to any appellate process was not an adequate remedy. This court accepted the case and issued a rule requiring Beavers to show cause why we should not issue a mandamus requiring the trial court to vacate its order for new trial and enter judgment for the defendant on the jury’s verdict. Having now reviewed the briefing and exhibits of both parties, the court now makes the rule to show cause absolute, and remands this case to the trial court for entry of judgment on the jury verdict for the defendant.

III. Rule 21 Relief

This court has original jurisdiction to review pending cases as identified in C.A.R. 21. However, because normal appellate processes are in place and preferred, the court seldom exercises its authority under Rule 21.

Only when the petitioner satisfies this court that the district court is proceeding without or in excess of its jurisdiction or has abused its discretion will this court consider issuing extraordinary relief under Rule 21. See, e.g., People v. Miller, 25 P.3d 1230, 1232-33 (Colo.2001) (finding that when clerical error caused DOC to unconditionally release defendant, trial court was wrong to conclude that it lacked jurisdiction to revoke juvenile sentence and revive suspended adult sentence); Hawkinson v. Biddle, 880 P.2d 748, 748 (Colo.1994) (finding standing to review trial court’s denial of petitioner’s request to proceed in forma pauperis). The petitioner must further persuade us that normal appellate remedies would for some reason be insufficient to remedy the error. Curtis, Inc. v. Dist. Ct., 186 Colo. 226, 230, 526 P.2d 1335, 1337 (1974) (making rule absolute in trade secrets case to insure full observance of the rules of civil procedure, when damage to petitioner would be incurable on appeal because trial court denied motion for protective orders).

Here, we now conclude that indeed the trial court was proceeding in excess of its jurisdiction in issuing an order vacating the jury verdict and ordering a new trial. Because the petitioner would have to undergo another trial in order to be able to raise the propriety of the trial court’s order on appeal, we also conclude that appellate remedies would be inadequate.

IV. Orders for New Trial

A trial court may, within 15 days after entry of judgment, on its own initiative order a new trial of all or part of the issues. See C.R.C.P. 59(e); Singer v. Chitwood, 126 Colo. 173, 178-79, 247 P.2d 905, 908 (1952) (quoting Pruitt v. Hardware Dealers Mut. Fire Ins. Co., 112 F.2d 140, 143 (5th Cir.1940)). The order is required to specify the grounds for such action. Our courts have opined in the past that “[t]he trial court has an immemorial right to grant a new trial” whenever, in its opinion, manifest justice so requires. Brncic v. Metz, 28 Colo.App. 204, 208, 471 P.2d 618, 620 (1970) (citation omitted). In Bmcic, the jury held the defendant liable for the plaintiffs injuries and assessed a damage award. The trial court found the award manifestly inadequate in light of the plaintiffs injuries, and ordered a new trial on damages alone. Id. at 206, 471 P.2d at 619. The court of appeals upheld that decision, concluding that liability was clear and the damage award was not supported by the evidence in the case. Id. at 209, 471 P.2d at 620. Hence, we recognize the trial court’s right to correct errors independently. However, we have required strict compliance with time lines set forth in the rules and we have also required trial courts to state adequate grounds for entry of an order for new trial.

In Koch v. District Court, 948 P.2d 4 (Colo.1997), we addressed a case in which the trial court had, sua sponte, vacated a decree of dissolution and ordered a new trial on all issues. Initially, we concluded that the trial court was acting in excess of its jurisdiction because the time lines of Rule 59 had expired. Id. at 8. Specifically, Rule 59(a) creates a fifteen-day time frame within which either party may file a motion for new trial. The Rule also provides that the court may extend the fifteen-day deadline; however, the last date for the filing of such motions becomes the last date on which the district court may enter any sua sponte order for post-trial relief. In Koch, we reversed the order for new trial because the trial court exceeded its jurisdiction by entering such order after expiration of the time for the parties to file motions for post-trial relief. Id. We further held that the trial court failed to identify adequate and legally supportable grounds justifying entry of the sua sponte order for new trial. Id.

Hence, we review sua sponte orders for new trial, first to determine if they have been issued within the required time period within which the trial court retained jurisdiction to order a new trial.

Here, the jury returned a verdict for Arch-stone on January 24, 2002. The court issued its order for new trial on February 21, 2002. Rule 59 provides a period of fifteen days “or such greater time as the court may allow” for the filing of motions for new trial. By operation of the Koch case, that fifteen-day period framed the window of time within which an order for new trial could have issued, unless the court extended the time. The trial court here did not extend the time within which motions for new trial could be filed. Therefore, they were due on or about Friday, February 8, 2002. No such motions were filed, which would themselves have extended the time. The trial court had jurisdiction to order a new trial within that same time frame only. The February 21st order postdated February 8 by thirteen days, and therefore issued at a time when the trial court had lost jurisdiction for purposes of granting a new trial. For that reason alone, the trial court was operating in excess of its jurisdiction over the case.

V. Conclusion

Because the trial court vacated the jury verdict and ordered a new trial outside of the time limits of C.R.C.P. 59(a), it was proceeding in excess of its jurisdiction. Accordingly, we make the order to show cause absolute, and remand this case to the district court for entry of judgment on the jury’s verdict.

      . Of course, if a party had filed a motion for new trial, the time for issuance of an order on that motion would have been increased an additional 60 days. C.R.C.P. 59®.

      . The Petitioner also argued that the order for new trial failed to set forth adequate legal or factual support for the conclusion that the jury instruction was somehow in error. We do not reach that issue, since as a threshold matter we determine that the trial court was proceeding outside of its jurisdiction and abused its discretion in entering any order for new trial.


author: Judge METZGER.

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Zachariah GARCIA, Defendant-Appellant.
    No. 99CA2360.
    Colorado Court of Appeals, Div. I.
    Jan. 17, 2002.

      Certiorari Denied March 10, 2003.

      Ken Salazar, Attorney General, Michelle L. Prince, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.
    Brenda M. Sauro, LLC, Brenda M. Sauro, Littleton, CO, for Defendant-Appellant.

       Justice COATS does not participate.

   Opinion by

Judge METZGER.

Defendant, Zachariah Garcia, appeals the judgment of conviction entered on a jury verdict finding him guilty of escape. He also appeals the sentence imposed. We affirm.

Defendant was discharged from the Department of Corrections (DOC) in August 1998, after serving the full two and one-half years of his sentence to imprisonment. Pursuant to § 18-1-105, C.R.S.2001, defendant was then placed on mandatory parole for two years. As a condition of his parole, the parole board ordered defendant to complete 120 days in an Intensive Supervision Program (ISP).

Before beginning his period of parole, defendant signed a Parole Agreement/Order, which stated in relevant part:

Parolee will abide by all conditions of parole set forth in this agreement and any additional conditions and directives set forth by Parole Officer, consistent with the laws of the State of Colorado. Any violation of this agreement and/or any conditions thereof, can lead to the revocation of parole.

Defendant also signed two documents listing the “additional conditions and directives” of his parole. One document, entitled “Directive Intensive Supervision Program En-glewood Parole,” provided:

I. You are restricted to the Denver Metropolitan Area and may not leave this area without the knowledge and consent of your Parole Officer.
II. You are directed to report in person to your Parole Officer each Wednesday. ...

The other document, entitled “Intensive Supervision Program,” contained the ac-knowledgement:

I therefore, clearly understand that should I leave my designated residence of record [in Englewood] for my ISP confinement, for an excess of 24 hours, I am therefore, liable for prosecution, conviction, and punishment for Felony Escape, C.R.S.: 17-27.5-104 and C.R.S.: 18-8-208.

Defendant failed to report to his parole officer after November 1, 1998. He was apprehended on December 5, 1998, in another city, later convicted of felony escape, and sentenced to five years in DOC consecutive to the sentence he was already serving, plus five years of mandatory parole.

I.

Defendant argues the trial court erred in determining that the ISP statute, § 17-27.5-104, C.R.S.2001, and the escape statute, § 18-8-208(2), C.R.S.2001, apply to mandatory parolees. We find no error.

A.

First, we reject defendant’s argument the parole board does not have the authority to place mandatory parolees in an ISP program.

Interpretation of a statute is a question of law, which we review de novo. See Hendricks v. People, 10 P.3d 1231 (Colo.2000).

When' construing a statute, we must ascertain and give effect to the intent of the General Assembly. Thus, we must read the statute as a whole and interpret it so as to give a consistent, harmonious, and sensible effect to all its parts. See Charnes v. Boom, 766 P.2d 665 (Colo.1988). Further, in construing a statute, we must avoid an interpretation that leads to an absurd result. See State v. Nieto, 993 P.2d 493 (Colo.2000).

In interpreting a comprehensive statutory scheme such as the parole statutes, see Charnes v. Boom, supra, we must construe each provision to effectuate the overall legislative intent. A.B. Hirschfeld Press, Inc. v. City & County of Denver, 806 P.2d 917 (Colo.1991).

As explained in the Hearing on H.B. 93-1302 before the House Judiciary Committee, 59th General Assembly, 1st Regular Session (Feb. 16, 1993), a significant element of the legislative intent underlying the mandatory parole statutes is to ensure postincarceration supervision of offenders who are released after completion of their entire sentence to incarceration.

Section 17-27.5-106, C.R.S.2001, authorizes the parole board to supervise parolees through the use of ISPs: “An offender who is granted parole or whose parole is modified may be required by the state board of parole, as a condition of such parole, to participate in an intensive supervision program as defined by this article.... ”

Defendant contends the phrase “granted parole” in § 17-27.5-106 is synonymous with “granted early release.” Therefore, he argues, § 17-27.5-106 applies only to discretionary parolees released before completion of their sentence to imprisonment, and not to mandatory parolees, like himself, who have discharged their sentence to imprisonment. We do not agree.

In 1993, the General Assembly adopted mandatory parole for convicted felons. See Colo. Sess. Laws 1993, ch. 322, § 18 — 1— 105(l)(a)(V) at 1981-83. The supreme court has described the effect of this legislation as follows:

Under the new scheme of mandatory-parole, the legislature adopted section 18-l-105(l)(a)(V), which detailed the length of mandatory periods of parole for felons, basing the length of the parole periods on the class of felony for which the individual was convicted. Accordingly, the length of prison terms and parole terms became separate components of the penalty imposed by the court. Each penalty included not only a determinate sentence of imprisonment, but also a pre-determined period of parole.
This new scheme of pre-determined, or mandatory, parole eliminated the authority of the state board of parole to determine the length of parole terms for most offenders.

Martin v. People, 27 P.3d 846, 860 (Colo.2001) (citation omitted).

The mandatory parole statute, § 18 — 1— 105(l)(a)(V)(D), C.R.S.2001, provides, in relevant part:

When an offender is released by the state board of parole or released because the offender’s sentence was discharged pursuant to law, the mandatory period of parole shall be served by such offender.

The only practical way to interpret the phrase “granted parole” in § 17-27.5-106 and to give all parts of the statutory scheme dealing with parole a sensible and harmonious effect, is to construe the term to mean “placed on parole” or “paroled.”

Section 17-2-201, C.R.S.2001, establishes the state parole board. Section 17-2-201(9)(b), C.R.S.2001, mandates certain procedures for revoking parole. Section 17-22.5-403(8)(a), C.R.S.2001, requires the parole board to provide parole supervision and assistance and authorizes the parole board to continue, modify, or revoke parole when an offender violates a condition of parole. Section 17-2-201(5)©, C.R.S.2001, sets forth the conditions of parole each parolee must agree to and sign.

Unless the term “grant parole” is construed to apply to all parolees, these provisions would become meaningless, and the state parole board would have no authority to supervise or penalize mandatory parolees. This would lead to the absurd result that mandatory parolees would not be subject to supervision while discretionary parolees would. That result would directly contravene the legislative intent underlying the mandatory parole scheme. Therefore, we construe the term “granted parole” in § 17-27.5-106 to include both mandatory and discretionary parole.

B.

We reject defendant’s argument that mandatory parolees are not in the custody or confinement of the DOC for purposes of application of the escape statute.

The escape statute, § 18-8-208(2), provides that “[a] person commits a class 3 felony if, while being in custody or confinement following conviction of a felony other than a class 1 or class 2 felony, he knowingly escapes from said custody or confinement.”

With some exceptions not relevant here, every DOC sentence consists of a period of imprisonment and a period of mandatory parole. See § 18-l-105(l)(a)(V)(D); see also Martin v. People, supra; Craig v. People, 986 P.2d 951 (Colo.1999). Parole is merely a grant of permission to serve the remainder of a sentence outside the prison walls, but the offender remains under the supervision of the Department of Corrections. See People v. Barth, 981 P.2d 1102 (Colo.App.1999). “Offenders on parole shall remain under legal custody and shall be subject at any time to be returned to a correctional facility.” Section 17-2-207(3), C.R.S.2001.

These authorities persuade us that mandatory parolees, like defendant, are in custody for purposes of the escape statute, § 18-8-208(2).

Moreover, we note that defendant signed an “additional condition and directive” of his parole in which he acknowledged that he “clearly” understood that, if he left his designated residence of record for twenty-four hours, he was “liable for prosecution, conviction, and punishment for Felony Escape ... [pursuant to § ] 18-8-208.” This agreement by defendant forecloses any further challenge. See People v. Williams, 33 P.3d 1187 (Colo.App.2001)(cert. granted Nov. 13, 2001); see also People v. Lanzieri, 25 P.3d 1170 (Colo.2001).

II.

Defendant raises several constitutional challenges to § 17-27.5-106, which authorizes the parole board to use ISPs in its supervision of parolees, and to § 17-27.5-104, which treats a parolee’s failure to remain in the extended limits of his confinement as an escape. We consider defendant’s arguments seriatim.

A.

Defendant contends § 17-27.5-106 violates his right to equal protection by allowing some parolees to be placed in an ISP and others not to be so placed. We disagree.

Section 17-27.5-106 authorizes the parole board to use ISPs. Section 17-27.5-102(3), C.R.S.2001, outlines the criteria for selecting offenders for transfer to an ISP.

In People v. Williams, supra, a division of this court held the ISP statute did not violate the defendant’s right to equal protection. The division reasoned the General Assembly intended that the authorization in § 17-27.5-106 to use ISPs would incorporate the standards and criteria in § 17-27.5-102(3) for selecting parolees for placement in an ISP. It concluded that, because the statutory scheme is reasonably related to the legitimate government objective of supervising at-risk mandatory parolees, no equal protection violation exists. People v. Williams, supra, 33 P.3d at 1189-90.

We adopt this analysis and hold that § 17-27.5-106 does not violate defendant’s right to equal protection.

B.

We decline to address defendant’s constitutional challenges to § 17-27.5-104. Defendant argues the statute does not define with sufficient clarity the critical element of “extended limits of confinement” and thus violates his right to procedural due process under the Fifth and Fourteenth Amendments and Colo. Const, art II, §§ 16, 25. He also asserts the statute violates the prohibitions in the Fifth and Fourteenth Amendments against double jeopardy, the notice requirement of procedural due process, and the separation of powers and nondelegation doctrines in Colo. Const, art. III.

Defendant concedes he failed to raise his clear definition and double jeopardy arguments in the trial court, but contends these arguments involve jurisdictional questions that he may properly raise for the first time on appeal. He also argues that principles of judicial economy require us to address and decide all of his issues at this time. However, these same arguments were rejected in People v. Williams, supra, and we do likewise.

Defendant also failed to raise in the trial court the issue whether the ISP statute violated his procedural due process right to notice of the prohibited conduct. Defendant’s written motion for dismissal states only: “The Defendant has been subject to the above noted ... Constitutional Deprivations of his rights secured under the Due Process Clause of the 14th Amendment....” The only “above noted” deprivation of rights was an allegation that the parole board did not have authority to place him in an ISP. This allegation is different from the notice argument defendant now makes. Accordingly, we decline to address his new argument here. See People v. Williams, supra.

Finally, defendant failed to raise in the trial court the issue whether the ISP statute violates the separation of powers and non-delegation doctrines. Defendant’s written motion argued that, by placing him in an ISP, the parole board “has exercised an improper Quasi Judicial Function, which has in effect increased the Quantum of Punishment mandated by the Sentencing Court.” Even if we assume this statement was sufficient to raise a separation of powers question, it did so only in a cursory manner; therefore, we will not address it here. See People v. Williams, supra.

III.

Defendant next contends he was denied effective assistance of counsel because the trial court forced him to proceed pro se, even though good cause existed for substitution of counsel. We disagree.

We review a trial court’s decision to deny an indigent defendant’s request for substitution of counsel under an abuse of discretion standard. See People v. Apodaca, 998 P.2d 25 (Colo.App.1999).

When a defendant voices objections to court-appointed counsel, the trial court must inquire into the reasons for the dissatisfaction. If the defendant establishes good cause, such as a conflict of interest or a complete breakdown in communication, the court must appoint substitute counsel. However, before change of counsel is warranted, the court must verify the defendant has “some well founded reason for believing that the appointed attorney cannot or will not completely represent him.” See People v. Arguello, 772 P.2d 87, 94 (Colo.1989)(quoting 2 W. LaFave & J. Israel, Criminal Procedure 37 (1984)).

If the court has a reasonable basis for concluding the attorney-client relationship has not deteriorated to the point where counsel is unable to give effective assistance, the court is justified in refusing to appoint new counsel. People v. Schultheis, 638 P.2d 8 (Colo.1981). If the court determines substitution is not warranted, it may insist the defendant choose between continued representation by existing counsel and appearing pro se. Before a defendant chooses to proceed pro se, the court must provide sufficient information about the dangers and disadvantages of self-representation so the record will establish the defendant knows what he or she is doing and makes a choice with his or her eyes open. People v. Arguello, supra.

While a pro se defendant has no constitutional right to advisory counsel, the court may appoint such counsel. However, a defendant has no claim against advisory counsel for ineffective assistance unless counsel acts beyond his or her advisory role. See Downey v. People, 25 P.3d 1200 (Colo.2001).

Here, defendant filed a pro se motion asking the court to dismiss the public defender’s office as counsel and to appoint private counsel. He alleged his current counsel had “refused and failed to spend a reasonable, adequate, and necessary amount of time ... to go over potential defenses.” He also alleged counsel had failed to conduct an investigation into “the potential facts and or legal defenses” and had “created conflict” by “refusing to file motions the Defendant ask[ed] of him” and “by repeatedly telling the Defendant ‘there is nothing you can do.’ ” The court conducted a hearing on defendant’s motion on April 26,1999.

On questioning defendant, the court discovered that his dissatisfaction with counsel stemmed primarily from the attorney’s refusal to prepare a defense on the issue whether the escape statute applied to a mandatory parolee. The court had previously rejected defendant’s pro se motion to dismiss the ease on that ground. The court explained to defendant that his theory was not a good one. Defendant replied, “I’d rather represent myself pro se than have the public defender’s office.” The court cautioned defendant, “Well, that’s up to you. It’s your right if you want to do that. But Mr. Garcia, it’s not a good idea.” Ultimately, defendant agreed to meet with another attorney from the public defender’s office, “to see if me and her come to an agreement.”

Defendant renewed his motion to dismiss counsel on May 18, 1999, and said he wished to proceed pro se. Counsel told the court the conflict stemmed from their continuing disagreement about whether defendant could pursue a defense based on the theory the escape statute did not apply to him. The court explained the dangers of proceeding pro se:

You have a right to do that if you want to. It’s not a very intelligent thing to do, because someone compares it to like a surgeon or a layperson operating and doing surgery on themselves, it’s something beyond their skill. There are all sorts of rules of evidence and all sorts of procedures that you just simply couldn’t have the means to deal with at this point. So you are likely to become very frustrated in trying to represent yourself.

The court also told defendant, “[C]ertain matters that you think might constitute a defense may not constitute defenses and the Court will not let you pursue them.” Nevertheless, defendant persisted in his request, and ultimately the court allowed him to proceed pro se and appointed advisory counsel to assist him.

The trial court did not abuse its discretion in denying defendant’s motion to appoint private counsel. The conflict between defendant and the public defender’s office was a disagreement over strategy, and therefore was not a “well-founded reason for believing that the appointed attorney cannot or will not completely represent him” as described in People v. Arguello, supra, 772 P.2d at 94. Further, the trial court took the necessary precautions to provide defendant with sufficient information about the dangers and disadvantages of self-representation. The court explained to defendant that his theory of the case was not sound and it would not allow him to develop that argument. The court also strongly cautioned him about the dangers of presenting his case pro se. Nevertheless, in two separate hearings, defendant repeatedly stated his desire to defend himself. Having elected to do so, defendant cannot now claim ineffective assistance of counsel for his own efforts or for the efforts of advisory counsel.

IV.

Finally, defendant contends the trial court committed reversible error when it concluded it was required to impose a consecutive sentence. We disagree.

“Any sentence imposed following conviction of an offense under sections 18-8-201 to 18-8-208 or section 18-8-211 shall run consecutively and not concurrently with any sentence which the offender was serving at the time of the conduct prohibited by those sections.” Section 18-8-209, C.R.S.2001.

Here, at the time of his escape, defendant was serving his sentence to mandatory parole. The trial court concluded it was required to impose a consecutive sentence because defendant had been convicted under § 18-8-208(2).

Because we determined in Part I.B above that a period of mandatory parole is a part of a defendant’s sentence, we agree with the trial court that it was required to impose a consecutive sentence for defendant’s escape conviction. See People v. Luther, 43 P.3d 660 (Colo.App.2001).

The judgment and sentence are affirmed.

Judge NEY and Judge TAUBMAN concur.