Holton v. State ( 2013 )

 discovery rule, the statutory period of limitations is tolled until the injured
party discovers or reasonably should have discovered facts supporting a
cause of action." (quotation omitted)).
Thereafter, appellant filed a motion for NRCP 60(b) relief. In
his motion, appellant maintained that he had neglected to include two
factual allegations in his complaint that would have been sufficient to
warrant a further tolling of the statute of limitations. Cf. NRCP 60(b)(1)
(indicating that relief from a judgment may be granted in instances of
excusable neglect). While noting that appellant's motion contained other
arguments, the district court expressly considered one of these omitted
allegations, found that appellant's failure to include it in his complaint
was inexcusable, and further found that the allegation would not have
changed the September 17, 2003, accrual date of appellant's cause of
action even if it were true. Consequently, it denied appellant's motion.
Appellant now appeals the denial of his NRCP 60(b) motion,
which we review for an abuse of discretion. Kahn v. Orme, 108 Nev. 510,
513, 835 P.2d 790, 792 (1992). On appeal, appellant contends that the
district court abused its discretion by failing to address his "primary
argument"—i.e., the other omitted factual allegation. This other
allegation was that, from 2000 through 2005, one of the respondents
intentionally misinformed appellant that the shotgun pellets were not
causing his health problems.
Without expressly stating as much, the district court's order
rejected appellant's "primary argument" for the same reason it rejected his
other argument: appellant failed to demonstrate excusable neglect so as to
warrant relief from the judgment. Because nothing prevented appellant
from including both omitted factual allegations in his complaint, the
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district court was within its discretion when it found that appellant had
inexcusably neglected to do so. NRCP 60(b)(1); Kahn, 108 Nev. at 513, 835
P.2d at 792. Moreover, even if the unaddressed allegation were true, its
inclusion in appellant's complaint would not have changed the district
court's determination that appellant's cause of action accrued no later
than September 17, 2003. 1 Accordingly, the district court was within its
discretion to deny appellant's request for NRCP 60(b) relief, and we
ORDER the judgment of the district court AFFIRMED. 2
desty
b64.31
Parraguirre
, J.
Cherry
'Specifically, "[u]nder the discovery rule, the statutory period of
limitations is tolled until the injured party discovers or reasonably should
have discovered facts supporting a cause of action." Bemis, 114 Nev. at
1024, 967 P.2d at 440 (emphasis added) (quotation omitted). Appellant's
own complaint stated that two doctors diagnosed him as having an allergic
reaction to the shotgun pellets in "late 1999, early 2000," and it further
stated that the adverse witness in appellant's 2003 trial attributed his
health problems to the pellets. Thus, even if one of the respondents did
intentionally misinform appellant between 2000 and 2005 as to the cause
of his health problems, appellant had ample facts before him during this
same time period to support his cause of action. Id.
2 To the extent that appellant raises other allegations of error, we
conclude that these allegations do not warrant reversal of the district
court's order.
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cc: Seventh Judicial District Court, Department 2
Eric Holton
Attorney General/Carson City
White Pine County Clerk
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