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 

$3 27-2-401(1), MCA. 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 " [tl he 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 ( 19 84 ) , 2 0 9 

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: