author: JUSTICE HARRISON

text:
    VIRGINIA WARD, d/b/a Your Good Looks, Petitioner and Respondent, v. JANELLE JOHNSON and the Board of Labor Appeals, Respondents and Appellants.
    No. 89-539.
    Submitted on Briefs March 15, 1990.
    Decided April 10, 1990.
    790 P.2d 483.

      Eula Compton, Bozeman, for Johnson.
    William E. O’Leary, Helena, for Board of Labor Appeals.
    William F. Frazier, Swandal & Douglas, Livingston, for petitioner and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This case presents an appeal from a decision of the Sixth Judicial District, Park County, Montana, wherein the District Court reversed a Board of Labor Appeals’ decision that affirmed appellant’s award of unemployment benefits. We reverse the District Court and affirm the Board of Labor Appeals’ decision.

The sole issue on appeal is whether the District Court erred in finding that the Board of Labor Appeals’ decision was not based on substantial evidence.

On September 2, 1987, Virginia Ward, owner of Your Good Looks clothing store, fired Janelle Johnson, who had worked as a store clerk for nearly five years. On her application for unemployment benefits, Johnson alleged that Ward fired her when Ward learned that Johnson had sold her car to someone who had offered her more money than Ward or Ward’s brother. Ward responded by alleging that she had fired Johnson because of employee misconduct and listed seven reasons justifying Johnson’s termination. Briefly, the reasons given were:

1. Tardiness.

2. Untidiness.

3. Working crossword puzzles at work (this reason was apparently dropped at the hearing).

4. Taking cash out of the till.

5. Leaving the store unattended.

6. Personal phone calls made on the business phone.

7. Charging clothing after being told not to charge.

Initially, Johnson was denied unemployment benefits.

Johnson filed for a redetermination on October 23, 1987. In her redetermination statement she responded to Ward’s stated reasons for terminating her. As to each of Ward’s allegations, Johnson explained how her actions were justified, either through express permission by Ward or by circumstances requiring Johnson to leave the store unattended at times. Ward also filed a statement. On November 3, 1987, the Department of Labor reversed the denial of benefits and found that Johnson’s alleged, misconduct did not amount to an intentional breach of her obligation to her employer, Ward.

Ward appealed the redetermination and a hearings referee conducted a telephone hearing on November 30, 1987. After receiving testimony from Ward, Johnson and several witnesses, the hearings referee determined that Ward fired Johnson for reasons other than misconduct, as misconduct is defined in unemployment law. The referee found that Johnson’s alleged misconduct was explained by agreements she had with Ward. Also since Johnson generally operated the store alone, she necessarily had to leave the store unattended for short periods of time to get proper change, or to get lunch. Further, the referee found that “[t]he timing of the discharge may have been influenced by the automobile transaction.”

Ward appealed the referee’s decision to the Board of Labor Appeals. After the Board reviewed the record and heard sworn testimony from Ward, it ruled that it found no substantial evidence to warrant modification or reversal of the referee’s decision. Further, the Board adopted the Findings of Fact and Decision of the appeals referee. Thereafter, Ward appealed the Board of Labor Appeals decision to the District Court which reversed and vacated the Board’s decision. Essentially Ward had challenged the appeals referee’s findings and decision. This appeal followed.

In its opinion the District Court acknowledged that the findings of the Board (or appeals referee) are conclusive if supported by substantial evidence. However, the District Court found the referee’s findings to be unsupported by substantial evidence and entered its own findings which were contrary to or inconsistent with the referee’s findings. Appellant argues that substantial evidence supported the Board and referee’s decision and that the District Court erred in concluding otherwise. We agree.

Montana law limits the scope of judicial review of a Board of Labor Appeals’ decision. Section 39-51-2410(5), MCA, provides in pertinent part:

“In any judicial proceeding under secs. 39-51-2406 through 39-51-2410, the findings of the board as to facts, if supported by evidence and in absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.”

Further, in reference to § 39-51-2410(5), MCA, this Court has held that

“ ‘[sjupported by the evidence’ means supported by substantial evidence, which is ‘something more than a scintilla of evidence, but may be less than a preponderance of evidence.’ ” (Citations omitted.)

Johnson v. Montana Dept. of Labor & Industry (Mont. 1989), [240 Mont. 288,] 783 P.2d 1355, 1357, 46 St.Rep. 2131, 2133.

As well, this Court has stated the following regarding application of § 39-51-2410(5), MCA:

“The court is not permitted to balance conflicting evidence in support of and in opposition to the Commission’s findings of fact, nor to determine which is the more substantial evidence, nor to consider where the preponderance of evidence lies; for to do so would be to substitute the Court’s view of the evidence for that of the Commission, and effectively nullify the conclusive character of the Commission’s findings of fact as provided by statute.”

Connolly v. Montana Bd. of Labor Appeals (1987), 226 Mont. 201, 205, 734 P.2d 1211, 1214, quoting Noone v. Reeder (1968), 151 Mont. 248, 252, 411 P.2d 309, 312. Thus, the reviewing court must decide whether substantial evidence supports the Board’s decision and not whether on the same evidence it would have arrived at the same conclusion.

We have reviewed the record and find that while the conflicting evidence is susceptible of more than one interpretation, substantial evidence exists to support the referee’s findings and decision. The record contains Johnson’s explanations of her alleged misconduct. Further, Ward testified that although she had warned Johnson, she had never informed Johnson that she would be terminated if the alleged misconduct continued. Ward also testified that Johnson’s poor performance had been occurring for a year and one half prior to her termination. Additionally, the record establishes that Ward and her brother had been negotiating with Johnson to purchase Johnson’s car and that Ward fired Johnson the same day she learned Johnson had sold the car to another.

Much of the Johnson’s testimony conflicted with Ward’s testimony. But, nothing in the record suggests that Johnson’s testimony was inherently incredible. In short, Johnson’s version of the termination is supported in the record and the District Court erred in holding otherwise.

Respondent also argues that the appeals referee allowed into the record inadmissible evidence, mostly hearsay. Section 39-51-2407, MCA, provides in pertinent part:

“[t]he conduct of hearings and appeals shall be in accordance with regulations prescribed by the department or the board for determining the rights of the parties, whether or not such regulations conform to common law or statutory rules of evidence and other technical rules or procedure.”

Respondent cites us no department regulations in support of her contention which we therefore reject.

We reverse the District Court and reinstate the Board of Labor Appeals’ decision.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, BARZ, HUNT, McDONOUGH and WEBER concur.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    In re the MARRIAGE OF ROSS W. CANNON, Petitioner and Appellant, and SHARON CANNON, Respondent and Respondent.
    No. 89-553.
    Submitted on Briefs Feb. 22, 1990.
    Decided April 10, 1990.
    790 P.2d 479.

      David H. Hull, Helena, for petitioner and appellant.
    Charles Graveley, Helena, for respondent and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

After a hearing, the District Court for the First Judicial District, Lewis and Clark County, divided the marital property between the parties and awarded maintenance to Mrs. Cannon. The husband appeals. We remand to the District Court for a redetermination on the distribution of the Honda Prelude. With that exception we affirm the District Court.

The issues for our consideration are:

1. Did the District Court erroneously fail to address the separation agreement entered into and signed by the parties?

2. Did the District Court err in the distribution of specific marital assets?

3. Did the District Court err in awarding maintenance, considering the facts of the case and the duration of the marriage?

Mr. and Mrs. Cannon were married on June 12, 1985. Two years later, in June 1987, the parties separated. There were no children born of the marriage. The District Court declared the marriage dissolved on December 17, 1987, due to irreconcilable differences arising from the costs of alcoholic treatment for Mrs. Cannon. The Court reserved judgment on the disposition of the property.

Mr. Cannon testified that he was living in a condominium prior to his marriage to Mrs. Cannon. He further stated that the 1986 Honda Prelude and the home located at 1075 Woodbridge (“Woodbridge home”) were acquired during the marriage from savings he had acquired before the marriage. He testified that Mrs. Cannon brought “household goods, furniture and jewelry and china and dishware and flatware and things from previous homes that she’d lived in”.

Mrs. Cannon testified that she brought $4000 into the marriage and sold her complete bedroom set, a washer and dryer, and everything that they would not need in their home together. She testified that they did not have a joint bank account, nor did she have an account of her own. The $4000 went into Mr. Cannon’s own account and was to be used for household expenses. When the couple first lived together, Mrs. Cannon did not work. However, after they were married, she worked as a real estate salesperson. She testified that Mr. Cannon told her to give her paychecks to him and it probably was used for household expenses. She testified that Mr. Cannon eventually encouraged her to quit working so that they could more easily spend time traveling together. She testified that they traveled several times to London, California, Washington D.C., and Las Vegas, among others. They also made trips to Spokane twice a month for shopping. According to Mrs. Cannon’s testimony, Mr. Cannon gave her a desk for her work and gave her the Honda Prelude for a Valentine’s Day gift. The car was in her name. Mrs. Cannon was attending paralegal school in Great Falls at the time of the divorce.

On February 1, 1989, the District Court filed its findings of facts and conclusions of law with respect to the property distribution. It ordered that Mrs. Cannon receive the washer, dryer and refrigerator from the Duplex; all her personal property at his residence; the 1986 Honda Prelude; the bedspread, mattress pad, sham pillows and blankets from the master bedroom of the Duplex; and the desk. It further ordered that Mr. Cannon pay her maintenance in the amount of $350 per month for the period of four years so that she may complete her college education. The maintenance stops if Mrs. Cannon quits college or remarries. Mr. Cannon was awarded the Duplex, the Woodbridge home, and all items of personal property not specifically awarded to Mrs. Cannon. He was further ordered to pay the debts secured by the duplex, the Woodbridge home and the Honda Prelude. The parties were ordered to share the costs of her alcohol treatment. Mr. Cannon appeals. We affirm in part and remand in part.

I

Did the District Court erroneously fail to address the separation agreement entered into and signed by the parties?

Mr. Cannon contends that the District Court erroneously failed to address an agreement which the parties had signed. He testified that he took the agreement to Mrs. Cannon and offered her an ultimatum — sign the agreement or the marriage would not continue. He also testified he was uncertain whether she had consulted with her attorney before signing.

Mrs. Cannon maintains that the agreement was unenforceable because it was entered into under undue influence. She contends she was undergoing treatment for alcoholism when Mr. Cannon induced her to sign the agreement by telling her she would not have a home to return to and that the marriage would be over unless she signed.

The only item of property which would be covered by this agreement, if it is to be classed as a separation agreement, is the Honda Prelude. This issue is limited to the distribution of the Honda Prelude.

The agreement signed by both parties in pertinent part provided:

“In the event the parties dissolve their marriage:

“It is further agreed that wife has no interest in the 1986 Honda since the source of funds for the purchase of the same has come solely from husband’s business, which is his sole and separate property . . .

“In the event the parties dissolve their marriage:

“Wife hereby waives, releases, foregoes, and disclaims all her rights in any and all property, real, personal, or mixed, wheresoever situated, of which husband is or may become seized or possessed . . .”

The effect of the foregoing provisions is that Mrs. Cannon agreed she had no interest in the Honda Prelude, and further agreed that if the marriage were dissolved, she released and disclaimed any right in such automobile. The District Court failed to refer to the agreement in its findings and conclusions.

Section 40-4-201, MCA, provides in pertinent part:

“(2) In a proceeding for dissolution of marriage . . . the terms of the separation agreement . . . are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties . . . that the separation agreement is unconscionable.

“(3) If the court finds the separation agreement unconscionable, it may request the parties to submit a revised separation agreement or may make orders for the disposition of property . . .”

The record contains substantial evidence which the District Court may consider on the issue of unconscionability. Unfortunately the District Court has not addressed that issue. We therefore remand to the District Court to determine if the so called separation agreement is unconscionable with regard to the distribution of the Honda Prelude. Following that determination, the District Court shall make such distribution of the Honda Prelude as it finds to be appropriate.

II

Did the District Court err in the distribution of specific marital assets?

This issue shall apply to all distributed property with the exception of the Honda Prelude which is controlled by the preceding issue.

The standard of review on the part of this Court is set forth in Marriage of Stewart (1988), 232 Mont. 40, 42, 757 P.2d 765, 767:

“A District Court has far-reaching discretion in dividing the marital property. Our standard of review is that the District Court’s judgment, when based upon substantial credible evidence, will not be altered unless a clear abuse of discretion is shown.”

We have reviewed the record and conclude that the District Court did not so abuse its discretion. The District Court made clear and complete findings of fact, after considering all the relevant factors as set out in § 40-4-202, MCA, for the division of property. It found that both parties made “unreasonable” requests for the property division in light of the short duration of the marriage and the few assets acquired, and divided the property in an equitable manner. We hold that the District Court did not err in the distribution of specific marital assets. This holding does not cover the Honda Prelude referred to under Issue I.

Ill

Did the District Court err in awarding maintenance, considering the facts of the case and the duration of the marriage?

Mr. Cannon maintains that maintenance should be awarded only in very limited circumstances and that it was improper to award maintenance in this case. He contends that Mrs. Cannon failed to show her lack of ability to support herself; that she does not need, at age 50, to go back to college to earn a degree; and he emphasizes the short duration of the marriage. Last, he urges that he is unable to pay the maintenance requested.

Mrs. Cannon asserts that she was working as a real estate agent when the couple was first married, but quit at his insistence so she would be free to travel with him. She also contends that any paychecks she received were given to him and deposited in his account. Consequently, she had acquired no savings with which to even attempt to support herself.

The District Court found that Mrs. Cannon was a recovering alcoholic, was 50 years old, had no assets nor retirement, was attending college, and was in need of maintenance so that she could complete her education and then support herself for the rest of her life. The court further noted that:

“[u]nder the circumstances . . . with the ability of [Mr. Cannon] to earn money as an attorney and (sic) has the ownership of assets such as the duplex that can return money and increase equity, has a Keogh plan, some Public Employees Retirement earnings, and Air Force Retirement [Mr. Cannon] is capable of earning sufficient monies to pay maintenance to [Mrs. Cannon] for a period of four (4) years so that she can obtain an education so as to support herself for the rest of her life.”

Section 40-4-203, MCA, allows the court to award maintenance: “only if it finds that the spouse seeking maintenance:

“(a) lacks sufficient property to provide for his reasonable needs; and

“(b) is unable to support himself through appropriate employment

It further requires the court to consider the financial resources of the party seeking maintenance; the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; the standard of living established during the marriage; the duration of the marriage; the age and health of the party seeking maintenance; and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. Again, the record is clear that the District Court carefully considered all of these factors. We hold that the District Court did not err in awarding maintenance.

We remand to the District Court for its determination in connection with the Honda Prelude as described under Issue I. With that exception we affirm the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON. HUNT and BARZ concur.


text:
    LON CUMMINGS, Plaintiff and Appellant, v. TOWN OF PLAINS, Rod Stamm, Jack Harwood, Forrest Kaufman, W.L. Vacura, Jean Morrison and Helga Martin, Defendants and Respondents.
    No. 89-071.
    Submitted Feb. 8, 1990.
    Decided April 12, 1990.
    790 P.2d 486.

      Matthew H. O’Neill argued, French, Mercer & Grainey, Poison, for plaintiff and appellant.
    Randy J. Cox argued, Boone, Karlberg & Haddon, Missoula, for Town of Plains.
    M. Richard Gebhardt argued, Missoula, for Stamm, Harwood, Kaufman, Vacura, Morrison and Martin.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from summary judgment by the Twentieth Judicial District, Sanders County, Montana, on claims against the Town of Plains and the Plains town council members arising out of appellant’s discharge as a relief police officer. We reverse and remand for proceedings consistent with this opinion.

Appellant presents the following issues for review:

1. Does § 2-9-111, MCA, grant governmental entities immunity from a lawsuit for damages for breach of contract?

2. Does § 2-9-111, MCA, grant members of legislative bodies immunity from their intentional torts?

3. Did the District Court err in granting summary judgment as to Count VIII, a § 1983 claim, of Appellant’s Second Amended Complaint?

4. Did the District Court improperly switch the burden of proof to the non-moving party in granting Defendants’ Motion for Summary Judgment as to all counts?

Apparently, the District Court based its ruling entirely on questions of law. Since no discovery has occurred, the following facts are primarily stated by appellant.

Plains employed appellant as a part-time police officer in October of 1984. In 1985 the town council budgeted appellant’s position at 100 hours per month through June 30, 1986. On January 6, 1986, the town council eliminated the part-time police officer position, allegedly because of budget considerations, terminating appellant. Subsequently, the Plains mayor reinstated appellant as a relief police officer.

During this period of time, appellant, together with other Plains’ citizens, circulated a recall petition for four town council members. On or about October 15, 1986, four of the individually named defendant town council members met and drafted a letter to the mayor stating that the town council would not- honor any claims of employment for appellant. The reasons given for the council’s position were that appellant had previously filed a lawsuit against the individual council members, appellant had participated in the recall petition effort, and they felt appellant did not possess the minimum standards required of officers of the law. Allegedly the council members drafted this letter outside of a regular council meeting and presented it to the mayor at a public luncheon and to various members of the Sanders County press. On October 16, 1986, the mayor discharged appellant effective immediately.

The mayor again reinstated appellant in November of 1986 and appellant continued to work as a relief police officer until January of 1987. On January 22, 1987, the town council held a special meeting that was closed to the public. After the closed meeting, the town council voted,, in effect, to terminate appellant.

Respondents allege that all actions taken by the individual defendants were taken in their, official capacities. Respondents also claim that the first two alleged wrongful discharges are irrelevant because appellant went back to work after each discharge.

Appellant filed the original complaint on June 4, 1986. Two amendments followed, the first in July of 1986 and the second in October of 1987. The second amended complaint names as defendants the Town of Plains (Plains) and individual members of the Plains town council. Appellant pled ten counts in his second amended complaint as follows: Count I — Breach of the Employment Contract; Count II — Illegal Meeting leading to Wrongful Discharge; Count III — Wrongful Discharge; Count IV — Wrongful Discharge; Count V — Breach of the Implied Covenant of Good Faith and Fair Dealing; Count VI — Negligent Infliction of Emotional Distress; Count VII — Intentional Infliction of Emotional Distress; Count VIII — a § 1983 action; Count IX — Negligence; Count X — Defamation.

On December 29, 1987, Plains filed a motion to strike appellant’s request for punitive damages which was granted on July 5, 1988.

Plains and the individual defendants moved separately for summary judgment in July and September of 1988 and appellant opposed. Defendants based their summary judgment motions solely on § 2-9-111, MCA, and this Court’s decision in Bieber v. Broadwater County (1988), 232 Mont. 487, 759 P.2d 145. Relying on Bieber the District Court granted summary judgment for all respondents on November 29, 1988. Appellant had discovery pending at the time the District Court decided the summary judgment motions.

Appellant moved the District Court to alter or amend the judgment, specifically addressing only four counts of the ten-count complaint, the breach of the employment contract, the two intentional tort claims and the § 1983 action. Appellant contended that, as a matter of law, § 2-9-111, MCA, did not apply to those causes of action. The District Court denied the motion apparently ruling that Bieber controlled the intentional torts and breach of contract claims. Further the District Court held that appellant did not show the existence of any material facts sufficient to sustain a § 1983 claim. This appeal followed.

We have examined all of the issues raised by appellant and we find the issue regarding the § 1983 claim to be controlling. We, therefore, decline to discuss the other issues.

As part of his motion to alter or amend judgment, appellant argued that State legislative immunity did not pre-empt a 42 U.S.C. § 1983 Civil Rights claim. In its opinion, the District Court acknowledged the supremacy of the § 1983 claim, but held that because appellant asserted only conclusions in the § 1983 claim that appellant had not raised genuine issues of material fact.

Appellant contends that the District Court erred in its conclusion that appellant asserted only conclusions in his § 1983 claim which is set forth in Count VIII of the second amended complaint. Count VIII, appellant argues, realleges by incorporation many factual allegations previously recited in the complaint as allowed by Rule 10(c), M.R.Civ.P. Also incorporated pursuant to Rule 10(c) as part of these allegations is the letter written by the town council stating their reasons for their decision not to honor any of appellant’s employment claims.

We hold that the District Court erred in not considering as part of Count VIII the factual allegations incorporated by reference. Rule 10(c), M.R.Civ.P. states:

“Rule 10(c) Adoption by reference — exhibits. Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”

Plainly under Rule 10(c), any factual allegations or exhibits incorporated by reference into a separate count of a pleading become a part of that separate count. In the instant case, the many factual allegations previously recited, as well as the written letter attached as an exhibit to the complaint, became an integral component of Count VIII, the § 1983 claim. The fact that the District Court had dismissed other legal theories set forth earlier in the complaint which relied on the same factual allegations does not negate the effect of Rule 10(c), M.R.Civ.P.

Even considering the incorporated factual material, respondents assert that appellant did not adequately plead a § 1983 Civil Rights violation. Among other things, they contend that appellant did not allege that the individuals involved were acting under color of State law, or that the individuals were acting pursuant to an official policy so as to expose the Town of Plains to liability. Further, respondents allege that the individuals were at all times acting as statutorily authorized.

Title 42 U.S.C. § 1983 provides a remedy for violations of rights guaranteed by the Constitution and laws of the United States. To adequately plead a § 1983 claim, a plaintiff must allege “(1) that the conduct complained of was committed . . . under color of state law; and (2) that this conduct deprived them of rights, privileges, or immunities secured by the Constitution or laws of the United States. (Emphasis in original.)” Evans v. McKay (9th Cir. 1989), 869 F.2d 1341, 1347, citing Parratt v. Taylor (1981), 451 U.S. 527, 535, 101 S.Ct. 1908, 1912-13, 68 L.Ed.2d 420, 428. Further, the United States Supreme Court “has established that the state action requirement in a section 1983 claim is satisfied when the party charged with an alleged constitutional deprivation ‘may fairly be said to be a state actor.’ ” Evans, 869 F.2d at 1347, citing Lugar v. Edmondson Oil Co., Inc (1982), 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482, 495.

Respondents’ argument that appellant did not allege that respondents were acting under the color of state law appears to rest on the fact that appellant’s complaint does not contain those specific words. The United States Supreme Court’s above-mentioned guideline mandates that complaints be liberally construed. Thus, the specific words “under color of state law” are unnecessary. In the instant case, the complaint does allege that the individual defendants were duly elected or appointed officials acting in their official capacities. From these allegations the respondents “may fairly be said to be state actors” as their authority is derived from and governed by state law. We hold that appellant has adequately pled a civil rights claim pursuant to 42 U.S.C. § 1983.

The other alleged deficiencies in appellant’s complaint relate to substantive issues such as the existence of a right, immunity defenses of the individual respondents, and the existence of a custom or policy. Some of these issues involve questions of fact and some involve questions of law. None of these issues have been directly addressed by either party and the District Court made no findings on any substantive issues that arise under a § 1983 claim. Thus, consideration by us of any other aspect of appellant’s § 1983 cause of action would be premature.

We reverse the District Court and remand for further proceedings consistent with this opinion.

JUSTICES SHEEHY, BARZ, WEBER, HUNT and McDON-OUGH, and HON. DOUGLAS G. HARKIN, District Judge, sitting for CHIEF JUSTICE TURNAGE concur.


author: CHIEF JUSTICE TURNAGE JUSTICE HARRISON,

text:
    STATE ex rel. H.R. ROBERTS and Elizabeth Roberts, d/b/a H.R. Roberts and Sons, Inc., Relators and Appellants, v. PUBLIC SERVICE COMMISSION of the State of Montana, Respondent and Respondent, and Watkins and Shepard Trucking, Inc., Intervenor and Respondent.
    No. 89-492.
    Submitted March 13, 1990.
    Decided April 13, 1990.
    790 P.2d 489.

      W. William Leaphart argued, Helena, for relators and appellants.

      Robin McHugh argued, Stanley T. Kaleczyc argued, Helena, for respondent and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

H.R. Roberts and Sons appeals from an order of the First Judicial District Court, Lewis and Clark County, denying the appellant’s petition for declaratory judgment and writ of mandamus. We affirm.

ISSUES

I. Did the District Court err in holding that § 69-12-324(2), MCA, does not provide an exemption for all Class C carriers operating under government contracts?

2. Did the District Court err in not holding that the Montana Procurement Act preempts the Public Service Commission public convenience and necessity hearing requirement for the winner of a competitive bid, state contract?

3. Did the District Court err in holding that § 69-12-324, MCA, does not deny equal protection when it allows state contracted solid waste carriers to obtain certificates without a public convenience and necessity hearing while requiring state contracted commodities carriers to go through the hearing process?

FACTS AND PROCEDURE

Appellant H. R. Roberts and Sons [hereinafter Roberts] underbid intervenor Watkins & Shepard Trucking, Inc. [hereinafter Watkins], by $150,000 on a statewide, three-year contract to haul United States Department of Agriculture surplus commodities for the Montana Office of Public Instruction [hereinafter OPI] school lunch program. Watkins held the contract for the previous nine years and was the only carrier in Montana with the requisite USDA Commodities Class C certificate. Roberts held a Class C certificate, but under Public Service Commission [hereinafter PSC] procedure, could not obtain a USDA commodities endorsement until it had a commodities contract.

The OPI awarded Roberts the contract on June 16,1989, on condition that Roberts obtain the USDA commodities endorsement by August 1. Roberts immediately applied to the PSC arguing that § 69-12-324, MCA, exempted all government contracted Class C carriers from the requirement of a public convenience and necessity hearing. The PSC refused to exempt Roberts. The agency interpreted § 69-12-324, MCA, as exempting only federally contracted passenger carriers and state contracted solid waste carriers. The PSC set a hearing for August 23 — the earliest practical date under its notice and hearing regulations.

On July 14, Roberts filed the action now on appeal and Watkins intervened. Roberts asked the District Court to issue a writ of mandamus ordering the PSC to either issue the commodities endorsement without a hearing or to hold the hearing before the August 1 deadline. Roberts also requested a declaratory judgment that the exemption statute violated equal protection guarantees by giving preferential treatment to waste carriers over commodities carriers.

The District Court denied the writ of mandamus and entered declaratory judgment against Roberts. Following the August 1 deadline, the OPI rejected both Roberts’ and Watkins’ bids and, under the noncompetitive provisions of § 18-4-306, MCA, awarded the contract to Watkins as the sole source of contract services. Roberts now appeals the District Court’s decisions.

HEARING EXEMPTION

Montana law requires the PSC to provide public notice and to hold a hearing on public convenience and necessity whenever a motor carrier applies for any class of certificate. Section 69-12-321, MCA. Section 69-12-324, MCA, grants exemptions from the hearing requirement. Roberts argues that the plain language of the exemption statute covers all Class C carriers operating under state or federal contracts. The PSC argues that the plain language of the statute exempts only federally contracted passenger carriers and state contracted solid waste carriers.

Subsections (1) and (2) of the statute read as follows:

“(1) The presentation of the written contract to the commission shall be deemed sufficient proof of public convenience and necessity in accordance with the terms and conditions contained within the United States government or state government contracts. Subject to the provisions of this section, a transportation movement is considered to be:

“(a) the transportation for hire of persons between two points within the state by a motor carrier pursuant to the terms of a written contract between the carrier and the United States government or an agency or department thereof; or

“(b) the transportation for hire of solid waste between two points within the state by a motor carrier pursuant to the terms of a written contract between the carrier and the state government or an agency or department thereof.

“(2) The Class C certificate of public convenience and necessity issued pursuant to the terms and conditions of the United States government or state government contract may be issued by the commission upon receipt of an executed copy of the United States government or state government contract. The certificate of public convenience and necessity may be issued thereafter without requiring the commission to fix a time and place for public hearing.”

Section 69-12-324, MCA.

The procedure for interpreting the statute is clear.

“The judicial function in construing and applying statutes is to effect the intention of the legislature. In determining legislative intent, the Court looks first to the plain meaning of the words used in the statute. If intent cannot be determined from the content of the statute, we examine the legislative history.”

Thiel v. Taurus Drilling Ltd. (1985), 218 Mont. 201, 205, 710 P.2d 33, 35.

The PSC asserts that the statute is plainly unambiguous. “[I]t is not necessary to resort to legislative history to interpret 69-12-324. The PSC has frankly been astounded by the statutory exegesis that the Roberts and the District Court have undertaken in an effort to grasp the meaning of a law that the PSC considers plain on its face.” We disagree with the PSC. Section 69-12-324, MCA, is so poorly written that its plain language appears to have no effect whatsoever. Subsections (1) and (2) speak of presenting “the” written contract without identifying the contract to which they refer. Subsections (l)(a) and (l)(b) define “transportation movement” — a term which cannot be found anywhere else in the Motor Carrier Act. Subsection (2) speaks of issuing a Class C certificate even though one of the two categories purportedly covered — solid waste carriers — is statutorily defined as a Class D carrier. Section 69-12-301(5), MCA. Like the District Court, we find it necessary to engage in some “statutory exegesis” to determine what the legislature intended.

The current confused nature of the exemption statute, and the present issue, appear to be the direct result of numerous amendments and procedural recodification of the exemption statute and related provisions of the Montana Motor Carrier Act. The Act originally defined Class C carriers as including all carriers operating under contract. Section 3847.2, RCM (1935). Section 3847.10, RCM (1935), required Class C carriers to apply for a certificate of convenience and necessity which could be issued only after a public hearing. The 1971 Legislature added a subsection to the statute, then codified at § 8-110, RCM (1947), exempting from the hearing requirement Class C carriers operating under United States government contracts to transport persons or commodities. Act approved February 27, 1971, ch. 69, § 1, 1971 Mont. Laws 506, 508-09. The 1975 Legislature amended the new subsection extending the exemption to carriers operating under state contracts to haul solid waste. Act approved March 27, 1975, ch. 179, § 1, 1975 Mont. Laws, 315, 316. The 1977 Legislature amended the Act’s classification system creating the D classification for waste carriers. Act approved March 25, 1977, ch. 138, § 1, 1977 Mont. Laws 466, 467. During the 1979 change from the Revised Codes of Montana to the Montana Code Annotated, the hearing exemptions were recodified in § 69-12-324, MCA. In 1983, the Legislative Audit Committee rewrote § 69-12-324, MCA, and other statutes as part of a Sunset Audit of the PSC statutes. Act approved April 19, 1983, ch. 588, § 15, 1983 Mont. Laws 1394, 1402.

All of this legislative tinkering has produced three underlying problems which obscure the meaning of the exemption statute. First, the enumeration of the current exemption statute gives the false impression of an exemption for all government contracted Class C carriers. The original exemption in § 8-110(2), RCM (1947), contained three unnumbered paragraphs. The first paragraph provided that the transportation of passengers or commodities under United States government contract was subject to all provisions of the Montana Motor Carriers Act except that presentation of such a contract was sufficient proof of convenience and necessity. The second paragraph provided that a certificate could be issued without convening a hearing. The third paragraph provided the duration of the certificate and is not presently at issue. In the original exemption statute, the second and third paragraphs merely filled out the procedural details of the exemptions provided in the first paragraph.

During the 1979 general recodification, the three paragraphs were enumerated (1), (2), and (3). Roberts now contends that subsection (2) creates an exemption in addition to those set out in subsection (1). However, as Watkins argues, the supplementary function of subsection (2) is still apparent in the current version of the paragraph. Subsection (2) refers twice to “the . . . government contract.” “The” refers to the contract originally described in subsection (1).

Second, subsection (2)’s reference to Class C carriers gives the impression that it creates an exemption in addition to those granted in the first paragraph. Roberts argues that because subsection (2) refers to Class C carriers, it creates an exemption separate from that extended to solid waste carriers who are statutorily defined as Class D carriers. The PSC argues that, when they transport under state contract, solid waste carriers change from Class D to Class C. Regardless of how the PSC categorizes them, under the plain language of the statutes, contracted solid waste carriers fall within both classes; Class C covers all contract carriers, § 69-12-301(4), MCA, and Class D covers all solid waste carriers, § 69-12-301(5), MCA.

The exemption statute confuses the classifications. It has always referred only to Class C carriers. When the 1975 Legislature extended the exemption to state contracted solid waste carriers, they fell only under Class C. Section 8-102(a), RCM (1947). However, when the 1977 Legislature created the new D classification, it failed to provide a corresponding amendment to the exemption statute. Furthermore, when the 1977 Legislature created Class D, it passed a companion statute prohibiting Class A, B, and C carriers from hauling waste. Act approved March 25, 1977, ch. 138, § 2, 1977 Mont. Laws 466, 467. The result was an exemption statute which purported to exempt solid waste carriers but referred to them as Class C carriers — a classification that was statutorily prohibited from carrying solid waste.

The 1983 Sunset Audit of the PSC statutes produced an oblique reference to the exemptions statute which partially corrected the inconsistencies. It amended the prohibition against waste hauling by Classes A, B, and C to read:

“Except as provided in [the exemption statute], no Class A, B, or C carrier will be authorized or permitted to transport . . . waste

Act approved April 19, 1983, ch. 588, § 16, 1983 Mont. Laws 1394, 1403 (emphasis indicates amendment). In spite of the plain language of the classification statutes, the Audit Committee apparently assumed that Class D carriers become Class C carriers when operating under government contract.

Third, the Audit Committee also exacerbated the confusion by defining the term “transportation movement,” in subsection (1) of the exemption statute. Prior to 1983, the statute provided that, with the exception of the hearing requirement, the transportation of passengers and commodities under United States government contract, and the transportation of solid waste under state government contract, “shall be deemed a transportation movement subject to the provisions of this chapter.” Section 69-12-324(1), MCA (1981). The obvious purpose of the phrase was to ensure that, even though the carriers were exempted from the hearing requirement, they were still subject to all other provisions of the Montana Motor Carrier Act. In an apparent attempt to simplify the statute, the Audit Committee turned this phrase on its head. Act approved April 19, 1983, ch. 588, § 15, 1983 Mont. Laws 1394, 1402. It now reads, “Subject to the provisions of this section, a transportation movement is considered to be . . . .” Instead of making the designated contract carriers subject to the provisions of the Motor Carrier Act, it now defines “transportation movement” as including the designated contract carriers. The definition has no apparent purpose since “transportation movement” appears nowhere else in the current or previous versions of the exemption statute, the Motor Carrier Act, or the administrative regulations.

The end product of these piece-meal amendments is a set of statutes which is, in various parts, inconsistent, contradictory, and superfluous. The meaning of the exemption statute is so obscure that Roberts can now make a plausible argument that it exempts from the hearing requirement all Class C contract carriers. The bottom line, however, is that the District Court was correct; there is no evidence that the legislature ever intended to create such an exemption. To the contrary, during the 1983 Sunset Audit, the PSC presented the legislature its uncontested interpretation of § 69-12-324, MCA, as exempting only federally contracted passenger carriers and state contracted solid waste carriers. Mont. Public Service Comm’n. Summary of the Legislative Audit Comm. Bill: S.B. 436, at 4, House Admin. Comm., March 14, 1983; Mont. Public Service Comm’n. Statement in Support of S.B. 436, exhibit No. 4, Senate Business and Industry Comm., February 19, 1983.

We hold that whatever § 69-12-324, MCA, does, it does not create a blanket exemption from the public convenience and necessity hearing for all government contracted Class C carriers.

We invite, with some trepidation, the legislature to again consider the Motor Carrier Act. Carriers such as Roberts should be able to determine their rights and responsibilities by reading the plain language of the statutes. Presently that is not the case.

PREEMPTION

The Montana Procurement Act [hereinafter MPA] and the PSC’s public convenience and necessity hearing serve distinct purposes. The MPA requires state agencies to purchase most supplies and services through a competitive bid procedure. Section 18-4-302(1), MCA. The MPA is intended, among other things, to promote free enterprise competition. Section 18-4-122(7), MCA. In the PSC’s public convenience and necessity hearing, on the other hand, competition is not a factor. Section 69-12-323(2)(a), MCA, requires the PSC to address three issues before granting additional operating authority.

“a) First, the Commission must determine that ‘Public convenience and necessity require the authorization of the service proposed.’ This necessarily will include consideration of the existing service.

“b) Second, the Commission must consider the ability and dependability of the applicant to meet any perceived additional public need.

“c) Third, the Commission must consider the impact that the proposed service would have upon existing transportation services.”

In re Application of Sullivan (Dep’t. of Public Service Regulation, July 2, 1985), Docket No. T-8752, Order No. 5388, at 5. Roberts argues that because the MPA promotes competition whereas the PSC protects the existing carrier, the MPA preempts the PSC’s hearing requirement.

We disagree with Roberts. Having a contract to operate is not equivalent to having a license to operate. The competitive policy of the MPA and public convenience and necessity hearing are complementary. The MPA ensures that the carrier will provide the services at the lowest reasonable price while the PSC hearing ensures that the carrier is capable of performing the contract and that a new carrier is in the public’s best interests. To be awarded an MPA contract, the bidder must be a “responsible bidder,” with “the capability in all respects to perform fully the contract requirements and the integrity and reliability which will assure good faith performance.” Sections 18-4-301(7) and -303(6), MCA. By awarding the contract to Roberts subject to issuance of a Class C commodities endorsement, the OPI implicitly recognized that Roberts had not yet demonstrated its ability to perform and its desirability as a replacement carrier. Furthermore, as the more specific statutes, the Motor Carrier Act governs over the MPA in the regulation of motor carriers. See § 1-2-102, MCA.

We hold that award of a contract under the Montana Procurement Act does not in itself excuse the winning carrier from a public convenience and necessity hearing under the Motor Carrier Act.

EQUAL PROTECTION

Roberts argues that by exempting state contracted solid waste carriers but not state contracted commodities carriers from the PSC hearing requirement, § 69-12-324, MCA, violates its right to equal protection. In State v. Jack, this Court identified three issues that must be considered in determining whether a statute violates the right to equal protection:

“(1) whether the statute is a legitimate and proper exercise of governmental authority; (2) the basis of the classification and an identification of the persons covered thereunder; and (3) the proper standard of review or scope of judicial inquiry regarding the relationship between the classification and the objectives of the law.”

Jack (1975), 167 Mont. 456, 459, 539 P.2d 726, 728. Roberts does not contend that the regulation of motor carriers is not a legitimate exercise of state authority.

The parties do disagree on the basis of the classification. The PSC argues persuasively, and the District Court agreed, that the legislature has very good reasons for regulating contract carriers in a distinct manner from common carriers. We agree with Roberts, however, that that classification is not at issue in the present case. Here, § 69-12-324, MCA, distinguishes between different contract carriers. Specifically, the statute grants an exemption to state contracted solid waste carriers while denying an exemption to state contracted commodities carriers.

The third issue is whether this classification has a rational basis. See Jack, 167 Mont. at 461, 539 P.2d at 729. We hold that it does. Unlike commodities carriers, solid waste carriers are subject to oversight by the Department of Health and Environmental Sciences. The legislature gave that Department broad authority to establish and administer waste disposal systems, § 75-10-104, MCA, including regulation of solid waste transportation, § 75-10-204(3), MCA. The Department has established minimal standards for solid waste transportation, see § 16.14.523, ARM, and has the authority to inspect carriers, § 16.14.525, ARM, and to enforce compliance, § 16.14.526, ARM. When a contract to haul solid waste is issued, the public’s need for a new carrier and the carrier’s ability to perform in compliance with the Department’s regulations should already have been determined.

The OPI has the authority to enter contracts for the distribution of commodities and, theoretically, to regulate and oversee their performance. Sections 20-10-201(3)(a), and -203, MCA. Issuing transportation contracts, however, is a small adjunct to the OPI’s primary function of providing educational services. The OPI is not an agency expected to oversee motor carriers.

We hold that the difference between the agencies’ abilities to evaluate and regulate transportation companies provides a reasonable basis for granting an exemption to state contracted solid waste carriers and not to state contracted commodities carriers. The disparate treatment does not violate Roberts’s right to equal protection.

CONCLUSION

Roberts has been caught in a classic Catch-22 created by conflicting PSC and OPI requirements. PSC procedures prevented Roberts from obtaining a commodities endorsement until it had a contract. OPI requirements made the contract conditional on Roberts securing the endorsement by August 1 — a deadline PSC procedures made impossible. In this situation, Roberts could never replace the existing carrier regardless of how capable or cost effective a carrier it might be.

The solution, however, is not for this Court to rewrite the regulatory legislation as Roberts suggests. The solution is for the agencies to consider their overlapping requirements and to tailor their procedures accordingly. The OPI could have taken bids on their commodities contract at an earlier date. The PSC could have initiated its notice and hearing procedure when Roberts entered a bona fide bid. The agencies’ lack of foresight and flexibility may have harmed the appellant and cost taxpayers an extra $150,000 by effectively nullifying Roberts’s low bid.

Affirmed.

JUSTICES HUNT, BARZ, McDONOUGH and WEBER concur.

JUSTICE L.C. GULBRANDSON, Retired Justice, sitting in place of JUSTICE SHEEHY.

JUSTICE HARRISON,

specially concurring.

While I concur with the majority opinion in this case, I find the result appalling to appellant Roberts. He found himself in a “Catch-22” situátion, caught between two departments of State government whose internal regulations prevented him from getting the bid to which he was entitled. Had the Office of Public Instruction possessed the foresight to check with the Public Service Commission, Roberts would have been able to meet the time specifications.

As noted in the opinion, this is caused by the piecemeal amendments of our statutes which are, in various parts, inconsistent, contradictory and superfluous. In this opinion we ask that the legislature again try to correct such a holding as this by amending the Motor Carrier Act so that carriers such as Roberts can determine their rights and responsibilities, and at the same time bring some relief to the taxpayers who face the additional costs resulting from the holding in this case.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LUCY MARIE REDCROW, Defendant and Appellant.
    No. 89-073.
    Submitted on Briefs Jan. 18, 1990.
    Decided March 29, 1990.
    790 P.2d 449.

      Margaret L. Borg, Public Defender, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, and Robert L. Deschamps, County Atty., Missoula, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Lucy Marie Redcrow was convicted of deliberate homicide by a jury in the Fourth Judicial District, Missoula County, Montana. Ms. Redcrow was sentenced to a term of fifty years, with an additional ten years for the use of a weapon, the sentences to run consecutively. She was designated a dangerous offender for purposes of parole. Ms. Redcrow appeals her conviction. We affirm.

The issues presented for our review are:

1. Did the District Court err in denying a new trial to Lucy Marie Redcrow?

2. Did the District Court err in denying separate trials to Lucy Marie Redcrow and her co-defendant, Paul Regudon?

In the early evening hours of August 26, 1987, the body of Marie Richie was discovered by Missoula City Police Officers along the bank of the Clark Fork River in Missoula, Montana. Paul Regudon was apprehended nearby. Lucy Marie Redcrow was also discovered in the brush along the Clark Fork River not far from the location of the victim’s body.

Law enforcement officers determined that the homicide had been committed at the nearby Sweetrest Motel, in Room 23. In this room, which was registered to Paul Regudon, law enforcement officers found large amounts of blood, and a knife later determined to be the one used in the stabbing of Ms. Richie.

In the months prior to August 26, 1987, Lucy Marie Redcrow, Paul Regudon, Marie Richie, Kathy Glover, and Frank Fry shared the residence of Ronald Fry in Missoula, Montana. Kathy Glover moved out, leaving a jacket at the Fry residence. Ms. Glover heard that Marie Richie had disposed of the jacket. Ms. Glover and Ms. Red-crow made several demands upon Marie Richie to return the jacket. On August 26, 1987, Ms. Glover and Ms. Redcrow met at a Missoula bar called Flippers, and agreed to “beat up” Marie Richie. Ms. Red-crow left the bar and returned later with Ms. Richie accompanying her. At the bar, both women made threats to Ms. Richie. Ms. Red-crow took a closed knife from her pocket and threatened Ms. Richie with it.

The three women left the bar and began walking along the south bank of the Clark Fork River. Ms. Glover testified at trial that she hit Ms. Richie in the back several times during this walk. She also testified that she hit Ms. Richie in the face, possibly breaking Ms. Richie’s nose, while Ms. Redcrow restrained Ms. Richie. Ms. Glover also testified that Ms. Redcrow repeatedly hit Ms. Richie in the back of the head with a closed knife. Ms. Glover testified that Ms. Redcrow ripped Ms. Richie’s shirt off, and stabbed her with the knife in the neck.

Several witnesses observed the women during this time. The incident was reported and Missoula City Police Officer Bill Olsen was dispatched to the area. He found Ms. Richie and Ms. Redcrow at McCormick Park. Ms. Glover had returned to the bar by that time. Officer Olsen observed that Ms. Richie was bleeding from the back of the head and offered her assistance. However, Ms. Richie refused assistance and Officer Olsen left the area.

Bill Shorten testified at trial. He stated that he observed two women crossing to the north side of the Clark Fork River via a railroad bridge between 6 and 7 p.m. He stated that the shirt of one of the women was ripped down the front and had bloodstains on it.

Ken Thormuhlen also observed two women walking by his barber shop at about the same time, one of whom had a ripped shirt, and blood on the back of her shirt and neck. He noticed that they were walking in the direction of the Sweetrest Motel.

Another Missoula resident, Chester Field, gave one of his employees, Charles Hoshaw, a ride home. Mr. Hoshaw resided in Room 24 at the Sweetrest Motel. Mr. Field testified that as he started to drive away, a tall Indian girl approached his truck and opened the door to the passenger side. Mr. Field stated that she requested a ride to either Flipper’s or to the town of Ravalli; however, he denied her request.

Mr. Hoshaw testified that shortly after Mr. Field dropped him off Ms. Redcrow came to his room and asked for two cigarettes. He observed that her hands and feet were covered with blood.

Another resident of the Sweetrest Motel observed two people carrying a body past his window. He called the police.

On August 27, 1987 an autopsy was performed on Ms. Richie. Dr. Kenneth Mueller found multiple injuries, including five potentially fatal wounds. Four stab wounds had penetrated Ms. Richie’s chest cavity and lungs. A fifth wound had severed the left carotid artery.

Although neither Ms. Redcrow nor Mr. Regudon testified at trial, both gave separate video-taped statements to law enforcement officers soon after the incident. On August 27, 1987, Ms. Redcrow gave a statement to law enforcement in which she stated she had stabbed Ms. Richie three or four or maybe more times in the motel room occupied by Paul Regudon at the Sweetrest Motel. On August 27, 1987, Mr. Regudon told law enforcement officers that both Ms. Red-crow and Ms. Richie came to his room at the Sweetrest Motel. He stated that Ms. Redcrow stabbed Ms. Richie to death while Ms. Richie cried out, “Let me live. Let me live.” Mr. Regudon stated that he attempted to clean the knife and the shoes worn by Ms. Redcrow, and that he helped Ms. Redcrow carry the body of the victim down to the river. These video-taped statements were introduced into evidence at trial, and heard by the jury.

Lucy Marie Redcrow was charged with deliberate homicide. Paul Regudon was charged with deliberate homicide by accountability. The defendants were tried jointly by jury. Ms. Redcrow was found guilty of deliberate homicide. Mr. Regudon was acquitted.

I

Did the District Court err in denying a new trial to Lucy Marie Redcrow?

Ms. Redcrow was convicted by jury of deliberate homicide on February 19, 1988. The original sentencing date of March 21, 1988, was postponed until April 4, 1988. On April 3, 1988, Ms. Redcrow requested an interview with Dr. Shea, a psychiatrist who had examined her prior to trial. During this conversation, Dr. Shea began to suspect that Ms. Redcrow suffered from “battered women’s syndrome”. He also concluded that it was possible Ms. Redcrow had not actually committed the homicide, but had confessed to the homicide as a result of her battered woman syndrome. At the request of defense counsel, the sentencing date was again postponed, and on April 22, 1988, defendant moved the court for a new trial.

In the motion for a new trial, defendant urged that new evidence had been discovered, as contained in an affidavit by Dr. Robert Shea. Dr. Shea’s affidavit in support of the motion stated that he had administered tests to Ms. Redcrow prior to trial and determined that she was not suffering from a mental disease or defect which would constitute a defense to the crime; that he was informed on April 1, 1988 that Ms. Redcrow desired to see him; that he had interviewed Ms. Redcrow on at least six occasions commencing with April 3, 1988; that since April 3, 1988, Ms. Redcrow had taken the position that she did not cause the death of Marie Ritchie (sic), but was previously covering for the person who did; that Ms. Redcrow’s prior willingness to assume responsibility for another’s actions is consistent with the battered women’s syndrome from which she suffers, and other aspects of her psychological makeup; and that it had taken a unique set of circumstances to allow Lucy Redcrow to reach this point of disclosure, some of which were not in place prior to the trial.

On May 23, 1988 the District Court heard testimony and oral argument on the motion for a new trial. Dr. Shea testified at this hearing. In substance his testimony indicated that prior to trial he had found Ms. Redcrow did not suffer from mental disease or defect and could assist in her own defense. He stated that after trial, on the evening of Good Friday he was called by personnel from the county jail who stated that Ms. Redcrow was terribly upset. Since Dr. Shea was leaving town he did not see Ms. Redcrow until Sunday morning. At that time she was very angry with him because she had read copies of his presentence investigation reports and the tribal reports. After talking for a while, Ms. Redcrow related to Dr. Shea that she had been having nightmares. Dr. Shea testified that basically the message of her dream was that Ms. Redcrow was to be sentenced for something she did not do.

Dr. Shea testified that he began therapeutic sessions with Ms. Red-crow, during which he recognized the battered women’s syndrome. He explained that this syndrome produces feelings of guilt even though one may be a victim. He then stated his belief that Ms. Red-crow was being honest in her present contention that she did not commit the homicide. He stated that he would support her in this position.

Both parties briefed the motion. In a memorandum and order, dated September 21, 1988, the District Court denied the motion for a new trial. Ms. Redcrow contends the District Court abused its discretion in denying her a new trial.

A new trial may be granted pursuant to § 46-16-702, MCA, which provides:

“Motion for a new trial. (1) Following a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice.

“(2) The motion for a new trial must be in writing and must specify the grounds therefor. It must be filed by the defendant within 30 days following a verdict or finding of guilty. Reasonable notice of the motion must be served on the state.

“(3) On hearing the motion for a new trial, if justified by law and the weight of the evidence, the court may:

“(a) deny the motion;

“(b) grant a new trial; or

“(c) modify or change the verdict or finding by finding the defendant guilty of a lesser included offense or finding the defendant not guilty.”

Initially, we address the fact that Ms. Redcrow’s motion for a new trial was not filed within thirty days following- the verdict, as required by the statute. Defendant was found guilty on February 19, 1988, and this motion was not filed until April 22, 1988. The District Court noted this untimeliness in its order, yet addressed the motion on its merits since the motion was filed within a “reasonable period of time” after the verdict, and because of the serious nature of the offense. We point out that these factors did not require the District Court to entertain this motion. State v. Best (1972), 161 Mont. 20, 26, 503 P.2d 997, 1000. However, in view of the extensive consideration of the motion by the District Court, we consider it appropriate to review this issue.

In reviewing the denial of a motion for a new trial, this Court’s standard of review is to determine whether the District Court abused its discretion. State v. Perry (1988), 232 Mont. 455, 465-67, 758 P.2d 268, 275.

Both parties agree that the factors to consider on a motion for new trial were enumerated in State v. Greeno (1959), 135 Mont. 580, 586, 342 P.2d 1052, 1055, as follows:

“(1) That the evidence must have come to the knowledge of the applicant since the trial; (2) that it was not through want of diligence that it was not discovered earlier; (3) that it is so material that it would probably produce a different result upon another trial; (4) that it is not cumulative merely — that is, does not speak as to facts in relation to which there was evidence at the trial; (5) that the application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; and (6) that the evidence must not be such as will only tend to impeach the character or credit of a witness.”

In the present case, the arguments of the parties focus on the first three of the above-mentioned factors.

Defendant contends the requisite factors are met in this case. The new evidence Ms. Redcrow presents is her assertion that she did not commit the homicide. This assertion contradicts her previous statement that she stabbed Ms. Richie several times in the motel room. Ms. Redcrow contends that this constitutes new evidence because she did not understand that she was not responsible for the homicide until after the trial, through her interviews with Dr. Shea. Further, she contends she could not, with due diligence, have discovered this prior to trial since the battered women’s syndrome had distorted her mental state, and because only time, including certain triggering events, could change her understanding. Ms. Redcrow contends the syndrome is unique in that it produces “learned helplessness” which prevents the victim from asserting her own rights, and that overcoming this syndrome takes time. Ms. Redcrow asserts that because of this syndrome she was unable to disclose to her counsel the information necessary to present a proper defense. Defendant alleges that she has been a victim of battering since the age of five; that this type of abuse placed her under the control of her co-defendant Paul Regudon; and that her distorted mental state led her to accept her own guilt for the offense charged. Defendant contends the evidence is so material that upon a new trial a different result is likely, since in a new trial she would be able to assert her innocence.

The District Court found that defendant’s arguments failed on each of the first three factors of the Greeno test, and we agree. Defendant has produced no new facts which were unknown to her prior to trial. Rather, she is attempting to use the syndrome to explain why she did not provide this alleged new evidence prior to trial. Further, Dr. Shea had conducted extensive testing of Ms. Redcrow prior to trial and was aware of Ms. Redcrow’s history and abusive relationships. Thus, as to the first two factors, we conclude that Ms. Redcrow’s current assertion of innocence is not new evidence unknown prior to trial, and that the battered women’s syndrome could have been discovered with due diligence. We agree with the District Court’s conclusion that this syndrome is not a proper basis to justify silence or a false version of the homicide.

The District Court also found that the alleged new evidence was not so material that it would produce a different result at trial. Ms. Redcrow’s conviction was based in substantial part on testimony of eyewitnesses who saw her and the victim just prior to the stabbing, as well as corroborating physical evidence. A summary of this evidence follows.

Ms. Glover testified that Ms. Redcrow threatened Ms. Richie with her knife while the blade was opened when they initially met at Flippers. She testified that Ms. Redcrow assaulted Ms. Richie numerous times during the walk along the river, hitting her with the closed knife on the back of the head, stabbing her in the neck with the open knife, and ripping Ms. Richie’s shirt off.

Officer Olsen testified that Ms. Richie had blood on the back of her head when .he spoke to her at McCormick Park. Numerous witnesses, including William Shorten, and Ken Thormuhlen observed Ms. Redcrow and Ms. Richie walking across the railroad bridge and along Broadway toward the Sweetrest Motel. Both Mr. Shorten and Mr. Thormuhlen noticed that Ms. Richie appeared to have difficulty walking.

Mr. Hoshaw, the resident of Room 24 of the Sweetrest Motel, testified that when Ms. Redcrow came to his room requesting cigarettes he noticed blood on her hands and feet. At trial an inmate, Brenda Shoulders, testified that Ms. Redcrow admitted killing Ms. Richie. Substantial trial evidence, independent of Ms. Redcrow’s pretrial confession, supports the verdict of deliberate homicide.

At a new trial Ms. Redcrow’s assertion of innocence would only present conflicting or inconsistent evidence to be weighed by the jury and as such is not so material as to require a new trial. State v. Miller (1988), 231 Mont. 497, 519-520, 757 P.2d 1275, 1289-90. (post trial letters from accomplice exculpating defendant were not new evidence necessitating a new trial but were merely an additional inconsistency for consideration by the jury).

Defendant analogizes to Nagell v. United States (5th Cir. 1966), 354 F.2d 441, where the denial of a motion for a new trial based on newly discovered evidence was reversed on appeal. In Nagell defendant had sustained brain damage in an airplane accident in 1954. This occurred ten years prior to the offense for which he was tried. Numerous doctors examined Nagell for mental competency prior to trial and all concluded he was competent to stand trial. At trial, several doctors testified that Nagell knew the difference between right and wrong at the time of the offense. However, these doctors were unaware of the brain injury and this evidence was not presented at trial. Nagell was convicted. After trial, Nagell began to talk freely with his counsel and disclosed facts previously known only to defendant. In a subsequent hearing, several doctors testified that based on newly discovered evidence which defendant concealed because of a brain injury, he was not able to distinguish between right and wrong at the time the crime was committed. In the present case, defendant analogizes to Nagell, claiming that her syndrome caused her to conceal information prior to trial.

The present case is distinguishable from Nagell. The capacity of Ms. Redcrow to form the requisite intent, or to know right from wrong, is not at issue. At the hearing on the motion for a new trial, Dr. Shea testified that Ms. Redcrow’s syndrome would not have affected her ability to assist in preparing her defense. This Court considered a post trial claim of mental disease or defect in State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043, and specifically held that this type of claim may, not serve as a basis for a new trial. Higley, 621 P.2d at 1056. We conclude that Nagell is not authority for a new trial in the present case.

The State also contends that the present case merely involves a “recantation,” which should be viewed with distrust, citing Perry, 758 P.2d at 275. Ms. Redcrow urges that her present denial of guilt is not a “recantation” of previous testimony. She explains that her original acceptance of guilt merely demonstrates her disturbed perceptions resulting from the syndrome. It is not necessary to discuss whether Ms. Redcrow’s present assertion constitutes a recantation. If evidence of Ms. Redcrow’s battered women’s syndrome and assertions of innocence were presented at a new trial, this would merely constitute additional evidence for the jury to weigh in its deliberations. As noted previously, conflicting or inconsistent evidence is not so material as to require a new trial. Miller, 757 P.2d at 1289-90. Further, we again emphasize the very extensive evidence pointing to Ms. Redcrow’s guilt, independent of any testimony on her part.

We affirm the conclusion of the District Court that the asserted new evidence does not satisfy the level of materiality demanded by the Greeno test. Because our conclusions in regard to the first three factors of the Greeno test are dispositive, we need not address the final three factors. We conclude that the District Court properly denied Ms. Redcrow’s motion for a new trial based on new evidence. We affirm the order of the District Court.

II

Did the District Court err in denying separate trials to Lucy Marie Redcrow, and her co-defendant, Paul Regudon?

On January 11, 1988, counsel for Mr. Regudon moved to sever Mr. Regudon’s trial from that of co-defendant, Ms. Redcrow. Ms. Red-crow did not make a similar motion. However, she supported Mr. Regudon’s motion to sever with an affidavit stating she had no objection to the severance and that trying the cases together would be prejudicial, especially to defendant Regudon. Ms. Redcrow now contends that based on the asserted new evidence, she was prejudiced by having the cases tried together. She claims prejudice in that she was forced to sit near Mr. Regudon during trial. She claims that the presence of Mr. Regudon, her batterer, exercised control over her even during trial. She claims this was prejudicial in that had he not been present she might have felt free to assert her innocence.

Ms. Redcrow neither moved for a severance nor joined in Mr. Regudon’s motion for a severance. “[I]t is the general rule that failure to object to an alleged error at trial results in a waiver of the right to challenge the error on appeal.” State v. Howie (1987), 228 Mont. 497, 500, 744 P.2d 156, 158; State v. Long (1986), 223 Mont. 502, 505, 726 P.2d 1364, 1366. Further, Ms. Redcrow’s attempt to base the asserted prejudice upon post-trial discovery of new evidence is unavailing. The disposition of a severance motion is determined by the evidence presented at the time of the motion and not upon subsequent developments. People v. Gonzales (1970), 4 Cal. App. 3d 593. 84 Cal.Rptr. 863, 869-70. The issue of the propriety of the joint trial was not preserved for review by this Court and we will not address this issue.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, SHEEHY and BARZ concur.