NO. 96-311
IN THE SUPREME COURT OF THE STATE OF MONTANA
LaSCHELL K. DAY,
Plaintiff and Respondent,
v.
ROBERT R. PAYNE,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Michael C. Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William A. Douglas, Douglas Law Firm,
Libby, Montana
Tom K. Hopgood; Luxan & Murfitt;
Helena, Montana
For Respondent:
Mark L. Sterrnip and Heidi Fanslow;
Warden, Christjansen, Johnson & Berg;
Kalispell, MonCana
.
,
Submitted on Briefs: October 31. 1996
Decided: December 17, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
On May 20, 1994, LaSchell Day filed a complaint in the
District Court for the Nineteenth Judicial District in Lincoln
County against her adoptive father, Robert R. Payne, in which she
alleged that she had been sexually abused by Payne and in which she
sought special, general, and punitive damages from Payne for that
abuse. Following a four-day jury trial in January 1996, the jury
returned a verdict in favor of Day and awarded her $80,000 in
compensatory damages. The jury further indicated by special
verdict that Day was entitled to an award of punitive damages, and
following a separate proceeding pursuant to § ,
27-1-221(7)(a) MCA,
the jury returned an award of punitive damages against Payne in the
amount of $100,000. On March 7, 1996, the District Court entered
its findings of fact, conclusions of law, and order in which it
found and concluded that the jury's award of punitive damages was
reasonable and appropriate, pursuant to § 27-1-221(7)(c), MCA.
Payne appeals the jury's verdict which awarded punitive damages,
and the District Court's order which approved them. We affirm the
jury's verdict and the order of the District Court.
On appeal, Payne alleges that the recovery of punitive damages
in a legislatively-revived action violates the exposlfacto and Due
Process Clauses of the United States and Montana Constitutions.
FACTUAL BACKGROUND
On May 20, 1994, LaSchell Day filed a complaint in the
Nineteenth Judicial District Court against her adoptive father,
Robert Payne. In her complaint, Day alleged that Payne had
sexually abused her from 1969 to 1976, when Day was between the
ages of nine and sixteen.
At the time the sexual abuse occurred, and until 1989, the
applicable statute of limitations for a childhood sexual abuse
,
claim was three years, pursuant to 5 27-2-204(1) MCA. Because Day
was a minor when the abuse occurred, however, the statute of
limitations was tolled until she reached the age of majority. See
$ 27-2-401(1),MCA.
3 Day reached the age of majority on April 23,
1978; the period of limitation expired on April 23, 1981.
In 1989, the Montana Legislature enacted 5 27-2-216, MCA,
which creates a specific period of limitation for the recovery of
"damages for injury suffered as a result of childhood sexual
abuse." Subsection (1)(b) of that statute provides that an action
for the recovery of damages for childhood sexual abuse must be
commenced not later than "3 years after the plaintiff discovers or
reasonably should have discovered that the injury was caused by the
act of childhood sexual abuse." Section 27-2-216, MCA, was
expressly made retroactive and applicable to "all causes of action
commenced on or after October 1, 1989, regardless of when the cause
of action arose." Mont. Sess. Laws, Ch. 158, 5 5 (1989).
Day commenced her action in the District Court on May 20,
1994. On January 22, 1996, the jury returned a verdict in which it
concluded that Day was sexually abused by Payne; that Day suffered
injuries as a result of the abuse; and that, prior to May 20, 1991,
Day did not discover, nor should she reasonably have discovered,
that her injuries were caused by acts of childhood sexual abuse.
DISCUSSION
On appeal, Payne contends that the recovery of punitive
damages in a legislatively-revived action violates the expostfacto and
Due Process Clauses of the United States and Montana Constitutions.
Payne admits that he did not raise this constitutional issue at the
district court level., but maintains that his failure to raise the
objection does not preclude consideration of the issue by this
Court.
Payne first maintains that he attempted to raise the issue at
the district court level, but was denied the opportunity when the
court disallowed his post-trial motions. A review of the District
Court record reveals, however, that Payne failed to file those
motions within "10 days after the service of the notice of the
entry of the judgment," as required by Rules 59 (b) and 59 (g);
M.R.Civ.P. Furthermore, the record reveals that Payne not only
failed to object to the propriety of punitive damages in a timely
post-trial motion, but he failed to raise the issue in an
appropriate pre-trial motion, in a motion or objection during
trial, or in an objection to Day's four proposed--and given--jury
instructions which related to the issue of punitive damages.
Nevertheless, Payne maintains that this Court may consider the
constitutional issue because it relates to the District Court's
subject matter jurisdiction, and may therefore be raised at any
time. See,e.g.,InreMarriageofMiller (1993), 259 Mont. 424, 426, 856 P.2d
1378, 1380; O'Donnell v. Rynns, Inc. (1987), 227 Mont. 48, 49, 736 p.2d
965, 966. Specifically, Payne asserts that in this case the
District Court did not have authority to entertain a claim for
punitive damages, and therefore did not have jurisdiction to
consider the issue. In support of his contention that a court's
ability to grant relief of a particular type or amount is
jurisdictional, Payne notes that justice courts in Montana are
limited in their jurisdiction to claims that do not exceed $5,000
and that federal courts are limited in their diversity jurisdiction
to a specified amount in controversy. Such limits are, however,
statutory. Indeed, it is well established that " [tlhe jurisdiction
of courts . . . can be limited by constitutional or statutory
provisions on the basis of the amount in controversy, or the amount
in dispute, between parties." 20 Am. Jur. 2d Courts § 116, p. 415
(1995). District courts in Montana are not constrained by such
limits. See Mont. Const. art. VII, § 4; § 3-5-302, MCA. Therefore,
the amount and type of a damage claim in a district court may not
be raised to challenge a district court's subject matter
jurisdiction. In this case, then, the availability of punitive
damages does not relate to a district court's subject matter
jurisdiction. Therefore, Payne may not now claim that the District
Court did not have subject matter jurisdiction to award punitive
damages.
AS a final matter, Payne maintains that this Court may
consider the constitutionality of punitive damages because this
Court has the authority to review constitutional issues raised for
the first time on appeal. In particular, Payne notes that this
Court has reserved to itself the power to examine constitutional
issues not raised at the district court level when the issue
"affects the substantial right of a litigant." Eastmnn v. Atlantic Richfield
Co. (1989), 237 Mont. 332, 337, 777 P.2d 862, 865. In this case,
Payne maintains that his substantial rights were "affected by the
retroactive punishment inflicted as the result of the punitive
damage award."
In Montana, the general rule is that "[aln issue which is
presented for the first time to the Supreme Court is untimely and
cannot be considered on appeal." Akhrar v. Van de Wetering (1982), 197
Mont. 205, 209, 642 P.2d 149, 152. The rule
applies to both substantive and procedural matters, as
well as to a change in a party's theory of the case. It
is based on the principle that it is fundamentally unfair
to fault the trial court for failing to rule correctly on
an issue it was never given the opportunity to consider.
Furthermore, it is unfair to allow a party to choose to
remain silent in the trial court in the face of error,
taking a chance on a favorable outcome, and subsequently
assert error on appeal if the outcome in the trial court
is unfavorable.
5 Am. Jur. 2d AppellateReview 5 690, pp. 360-61 (1995). This Court has
recognized an exception to the general rule where "an alleged . .
error affects the substantial rights of a litigant." In re N.B.
(1980), 190 Mont. 319, 323, 620 P.2d 1228, 1231. In those cases,
however, the Court's decision to review the alleged error is
discretionary and "[the] Court is not sympathetic to a broad
definition of 'substantial rights.'" Reno v. Erickstein ( 198 4 ) , 209
Mont. 36, 42, 679 P.2d 1204, 1207.
In this case, we have carefully reviewed the record and
decline to extend the "substantial rights" exception to the facts
before us. We therefore decline to review the issue raised on
appeal, and affirm the judgment of the District Court.
We concur: