                                          No. 05-404

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2006 MT 158N


MARYLYNN MAYER,

              Plaintiff and Appellant,

         v.

BILLINGS NISSAN, LLC,

              Defendant and Respondent.




APPEAL FROM:         The District Court of the Thirteenth Judicial District,
                     In and For the County of Yellowstone, Cause No. DV 2004-0321,
                     Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Jeffrey A. Simkovic, Simkovic Law Firm, Billings, Montana
                     Mary Ann Sutton, Attorney at Law, Missoula, Montana


              For Respondent:

                     James R. Halverson, Jesse D. Cook, Halverson & Gilbert, P.C.,
                     Billings, Montana




                                                        Submitted on Briefs: March 29, 2006

                                                                    Decided: July 12, 2006

Filed:

                     __________________________________________
                                        Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal

Operating Rules, the following decision shall not be cited as precedent. It shall be filed as a

public document with the Clerk of the Supreme Court and its case title, Supreme Court cause

number and disposition shall be included in this Court’s quarterly list of noncitable cases

published in the Pacific Reporter and Montana Reports.

¶2     Marylynn Mayer (Mayer) appeals a defense jury verdict in the Thirteenth Judicial

District, Yellowstone County, that she was not wrongfully discharged by Billings Nissan,

LLC (Billings Nissan). We affirm.

¶3     Mayer raises three issues on appeal:

¶4     1. Did the District Court err in not allowing Mayer to impeach Dean Benjamin

(Benjamin) with his prior inconsistent statements?

¶5     2. Did the District Court err in not allowing Mayer to impeach Benjamin with an

undisclosed demonstrative exhibit?

¶6     3. Did the District Court err in not instructing the jury on punitive damages?

¶7     Concluding that the first two issues are dispositive, we will not address the third issue.

                               FACTUAL BACKGROUND

¶8     On October 14, 2003, Benjamin, general manager of Billings Nissan, fired Mayer

from her position as finance manager. On her dismissal form, Benjamin listed Mayer’s

rudeness to customers, insubordination, and poor work quality as reasons for her termination.

Mayer, however, asserted that she never had disciplinary problems before her termination,

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and that Billings Nissan management never counseled her, formally or informally, about her

rudeness to customers or her substandard work quality.

¶9      Mayer alleges that Billings Nissan engaged in the illegal practice of “padding” used

vehicles, and that Billings Nissan wrongfully fired her after she confronted management, on a

number of occasions, about the practice of padding, and after she ultimately refused to

finance a vehicle until she viewed all the documents associated with that vehicle to be sure

padding had not occurred. According to Mayer, padding a used vehicle involves a dealership

fraudulently listing items or features on an automobile that do not exist in order to obtain a

larger loan amount for a customer or to qualify a customer’s otherwise substandard credit

risk.

¶10     In order to pad a used vehicle, one must use a computer program such as Karpower,

the program used by Billings Nissan in this case. When one enters a vehicle’s VIN number

into Karpower, a generic list of options on that vehicle are displayed. However, the list of

options generated by Karpower does not necessarily reflect all of the options actually present

on the vehicle. Additional options not listed by Karpower can be entered into Karpower

manually. The printed list of options, or the “book-out” sheet, is then used internally within

the dealership for pricing purposes and also sent to financial institutions for financing

purposes. Thus, whoever operates the program has the opportunity to fraudulently add

options to the list which are not actually present on the vehicle in order to price the vehicle

higher and obtain a larger loan amount from the financial institution.

¶11     At trial, Benjamin conceded that Billings Nissan made mistakes using the Karpower

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program, but despite Mayer’s assertions to the contrary, he testified that Mayer never

discussed padding of vehicles with him. Benjamin stated that he never heard a customer,

other than those who testified at trial, voice a complaint over options listed on cars that did

not exist, and he also testified that a book-out sheet with additional options not present on a

vehicle would rarely affect the approval of a customer loan because the primary factors in the

approval of a loan are the customer’s credit history, time on the job, and time spent in the

area.

¶12     Regarding Mayer’s termination, Benjamin testified that, on October 14, 2003, Mayer

became excessively belligerent under the mistaken belief that a sales meeting had been held,

without her presence, concerning her performance. Mayer’s declining customer satisfaction

scores were brought up during the sales meeting, but the meeting was not called on account

of her. Throughout the day, on October 14, Mayer used obscene language, demanded

Benjamin make the sales crew respect her, threw documents on the floor, and repeatedly

urged that she be fired since no one in the office respected her or wanted her there. After

advising Mayer to take a few days off to cool down, which she refused, Benjamin acceded to

her demands and fired her.




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¶13    During his examination of Benjamin, Jeffrey A. Simkovic (Simkovic), Mayer’s

counsel, made numerous attempts to impeach Benjamin with alleged prior inconsistent

statements purportedly made by Benjamin in a pretrial affidavit Benjamin filed supporting

his motion for a protective discovery order. These attempts at impeachment included

Simkovic trying to have Benjamin read his affidavit to the jury and an attempt by Simkovic

to read the affidavit to Benjamin himself. Upon each attempt, Defense counsel objected on

the grounds of “form,” and the trial judge sustained each objection. The court informed

Simkovic that his line of questioning was not appropriate.

       THE COURT: Mr. Simkovic . . . . This line of questioning is not going to fly.
       You can rephrase anything you want with your attempts to get this affidavit in
       the way you’re going, and it’s not going to happen. So you’ve tried three
       times. If you ask another question like you’ve asked about this, I urge you to
       also read the rule on contempt. I’m not here to make a law school exam out of
       this, but the Rules of Evidence are there. There are ways of getting the answer
       that you want, but you’re not doing it, and you’re not going to do it by
       repeatedly asking this question. . . .

¶14    Simkovic then asked the court to be heard and told the trial judge he was attempting to

impeach Benjamin. The court replied:

       THE COURT: Well, then impeach him. Do it the right way. You’re not
       doing it the right way, and I’m not going to instruct you how to do it.

¶15    Reverting to his previous tactics, Simkovic made two more attempts to impeach

Benjamin with his affidavit, first, by asking Benjamin to read his affidavit and then by asking

Benjamin whether he would make any changes to his affidavit. Defense counsel objected on

each attempt as to “form,” and the court sustained the objections. Later, Simkovic again

attempted to impeach Benjamin with the Karpower program. Because Simkovic had not

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listed the Karpower program in the exhibit list attached to the Final Pre-Trial Order, the trial

judge did not allow Simkovic to introduce it into evidence.

¶16    A unanimous jury found in favor of Billings Nissan, and Mayer timely appealed.

                                STANDARD OF REVIEW

¶17    A district court has broad discretion in determining the admissibility of evidence.

State v. Hicks, 2006 MT 71, ¶ 19, 331 Mont. 471, ¶ 19, 133 P.3d 206, ¶ 19. Consequently,

we will not overturn a district court's evidentiary ruling absent a showing of abuse of

discretion. Hicks, ¶ 19.

                                       DISCUSSION

¶18 1. Did the District Court err in not allowing Mayer to impeach Benjamin with
his prior inconsistent statements?

¶19    Mayer argues on appeal that the trial judge did not allow her to impeach Benjamin.

She argues that the case turned on whether the jury believed her or Benjamin, and absent

impeachment evidence, the jury viewed her cause of action for wrongful discharge in a

vacuum. We take Mayer’s argument to mean that Mayer was unable to conclusively prove

that illegal padding occurred under Benjamin’s management at Billings Nissan. She could

not, therefore, prove that Billings Nissan had a wrongful motive to fire her. Under Mayer’s

theory, the case simply turned on whether the jury found her more credible than Benjamin. If

the jury had been able to find her testimony more credible, the fact-finder could have inferred

that Billings Nissan did, in fact, have a wrongful motive for firing her. Mayer maintains that

this critical battle over credibility depended on her ability to impeach Benjamin with prior


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inconsistent statements made by him, under oath, in his pretrial affidavit.

¶20    Mayer stretches the record to make her claim. Our examination of the record reveals

that Benjamin testified consistently with his pretrial affidavit. In addition, the record

discloses that Mayer did have opportunity to question Benjamin on his affidavit.

¶21    At trial, Benjamin testified regarding a book-out sheet for a customer named Leray

McEntyre:

       Q. (By Mr. Simkovic) – how would these options that he previously testified
       are not on his vehicle come up?
       A. (By Dean Benjamin) When you plug in the VIN number, it already knows
       that it’s four-wheel drive, half-ton, V-8, short box. Some of the options you
       have to manually add but not all of them. [Emphasis added.]
       ....
       Q. He said he didn’t have an auxiliary fuel tank. How did that come up?
       A. Someone had to manually add it. [Emphasis added.]

¶22    From this testimony, Mayer argues that Benjamin testified that the Karpower program

could be manually altered, while in his affidavit, he had claimed that the Karpower program

could not be manually altered. The claimed inconsistency is more imaginary than real. The

relevant portion of Benjamin’s affidavit is as follows:

       6. To obtain an options list for the Horn vehicle, I simply got the VIN number
       from the vehicle and entered it into Nissan’s Karpower program. The
       Karpower program then generated a list of options that were to be included on
       the vehicle. No extra options were added to this list generated by Karpower.
       [Emphasis added.]

¶23    First, Benjamin’s affidavit clearly references a particular client, Horn. The testimony

at issue concerned an entirely different client, Leray McEntyre. Second, in his discussion

regarding client Horn, Benjamin makes no generalized statement as to how the Karpower


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program functions. Rather, Benjamin states that, for the Horn deal, he did not manually enter

additional options to those generated by the Karpower program. Benjamin’s statement that

he did not add additional options to the list generated by Karpower for the Horn deal cannot

be reasonably construed to mean that one cannot manually enter additional options into the

program. Additionally, Benjamin’s statement that “[n]o extra options were added to this list

generated by Karpower” leads to the inference that one can add options to the list generated

by Karpower.

¶24    In order to impeach Benjamin with the claimed prior inconsistent statement from

Benjamin’s pretrial affidavit, Simkovic had to first demonstrate that Benjamin made an

inconsistent statement while on the stand. State v. Baker, 2000 MT 307, ¶ 18, 302 Mont.

408, ¶ 18, 15 P.3d 379, ¶ 18; State v. Pinkerton, 270 Mont. 287, 291-92, 891 P.2d 532, 535.

As noted above, Benjamin made no inconsistent statement while on the stand; thus, had

Simkovic further examined Benjamin, he would have verified that Benjamin’s affidavit and

his trial testimony were in accordance with one another rather than contradictory. Instead of

detracting from Benjamin’s credibility, as he intended, Simkovic would have bolstered it.

¶25    Furthermore, Simkovic did have the opportunity to impeach Benjamin with his

affidavit. After a first round of attempts by Simkovic to impeach Benjamin with his

affidavit, Simkovic refocused his inquiry and questioned Benjamin about the Karpower

program. Simkovic then returned to the affidavit and questioned Benjamin extensively

regarding the Horn deal.

       Q. I thought you said in your affidavit you created the Horn deal.

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        A. I don’t believe I did. I worked up the numbers on the deal from the day
        before, but I don’t believe I produced the book-out sheet.
        Q. I’ll read you what you say, Mr. Benjamin.
        A. Is this in the affidavit?

¶26     Simkovic then attempted to read Benjamin’s affidavit to him. Defense counsel

objected on the grounds of form and the court sustained.

        MR. SIMKOVIC: He just said he didn’t do it, Your Honor.
        THE COURT: Well, that’s true. So you’ve been able to now talk to him
        about the affidavit, but this objection is sustained. You still need to ask
        questions.
        Q. (By Mr. Simkovic) Is it your testimony here today that you did not do the
        book-out sheet on the Horn deal?
        A. No, sir, I did not do the book-out sheet on the deal. In the deposition it
        should have said –
        Q. Deposition?
        A. The deposition, whatever you quoted. Affidavit, I’m sorry.
        Q. Created by you.
        A. I signed it, yes.
        Q. Created by your attorney?
        A. I’m not sure who created it. I did read it and I did sign it. But it says “we”,
        meaning the company, Billings Nissan. That’s how we got the VIN number of
        the car.
        Q. Show me where it says we on there.
        A. I don’t know where it is. Which one are you reading from?
        Q. I’m reading from your affidavit that was signed by you on October 5th of
        2004.
        A. Okay.
        Q. Okay. So did you or didn’t you do this book-out sheet for Kermit Horn?
        A. I did not do this book-out sheet, no.
        Q. Why did you say that you did?
        A. It should say “we”.
        Q. Who would be “we”?
        A. Whoever did the book-out sheet. “We” being the company.

¶27     Simkovic diverged from the affidavit and then once again returned to it and the Horn

deal:


                                                9
       Q. And no one at Billings Nissan ever saw that car?
       A. Other than the lot personnel that washed the car and the driver we hired to
       deliver it, no.
       Q. So you—if your affidavit is true, someone else at Billings Nissan made up
       that window sticker?
       A. We’re not talking about a window sticker, sir.
       Q. Book-out sheet.
       A. Yes. We need a book-out sheet to get sent in with the loan.
       Q. So you or someone who works for you made it up?
       A. Correct, based on the VIN number that we were provided that we bought
       the van from.
       Q. Karpower didn’t generate that?
       A. Yes, Karpower did generate that.
       Q. All those—all those extras?
       A. All the equipment, I have no idea.
       ....
       Q. Do you see a VIN number on here?
       A. No.
       Q. So these must have been manually done then?
       A. Possibly.
       Q. By you, or someone who works for you?
       A. Possibly, I don’t know.
       Q. By you in your affidavit.

¶28    To the extent that this colloquy shows anything but confusion, the District Court did

allow Simkovic to impeach Benjamin. The District Court did not allow Simkovic to impeach

Benjamin in the manner in which Simkovic desired. The court never told Simkovic he could

not question Benjamin about the affidavit. Clearly, the District Court afforded Simkovic the

opportunity to make his point effectively by asking questions in the proper form. That

Simkovic was unable to do so is hardly the fault of the trial judge.

¶29    Nevertheless, Simkovic brought to light what he believed to be inconsistencies in

Benjamin’s affidavit by posing a question to Benjamin and giving Benjamin a chance to

explain the claimed inconsistency. This was clearly the line of questioning the court desired,

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and Simkovic, instead of refocusing his inquiry on the alleged prior inconsistent statements,

continued his inquiry regarding the Horn deal and eventually moved on from the affidavit

altogether.

¶30    We conclude that the court allowed Simkovic to impeach Benjamin with his prior

inconsistent statements, to the extent that they were inconsistent, but that Simkovic neglected

to fully take advantage of the opportunity afforded to him. Thus, the District Court did not

abuse its discretion in its handling of Simkovic’s attempts to impeach Benjamin.

¶31 2. Did the District Court err in not allowing Mayer to impeach Benjamin with an
undisclosed demonstrative exhibit?

¶32    In another attempt to impeach Benjamin, Simkovic obtained a copy of the Karpower

program used by Billings Nissan with the purpose of having Benjamin demonstrate to the

jury how it worked. In doing this, Simkovic again sought to establish the purported

inconsistency in Benjamin’s testimony.

¶33    Unfortunately, Simkovic failed to disclose the Karpower exhibit in Mayer’s exhibit

list attached to the Final Pre-Trial Order. In Watkins v. Williams, 265 Mont. 306, 315-16,

877 P.2d 19, 24-25, we held that evidence not produced during discovery and not listed in the

parties’ exhibit list or in the court’s pretrial order was properly excluded from trial. Thus, it

was not an abuse of discretion for the trial judge to exclude the exhibit since Simkovic failed

to list the demonstrative exhibit, the Karpower program, in Mayer’s pretrial exhibit list

attached to the Final Pre-Trial Order.

                                       CONCLUSION


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¶34   We hold that the District Court did not abuse its discretion in its handling of

Simkovic’s attempts to impeach Benjamin, and that the District Court did not abuse its

discretion in excluding the undisclosed demonstrative exhibit.

¶35   Affirmed.

                                                       /S/ JAMES C. NELSON


We Concur:

/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
/S/ PATRICIA COTTER




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