Brady, Sr. v. Hirata ( 2015 )

 that he could pay Lyle the $250,000. Respondent Gary Mikuni was
appointed trustee of Jean's trust and wrote a letter to Brady demanding
an accounting of the rents and expenses of the property and thanking him
for serving as a property manager. In response, Brady filed the
underlying litigation against Lyle and the trust, and Lyle and the trust
asserted counterclaims. After Brady missed two mortgage payments, the
bank foreclosed on the property. Shortly before the bench trial, Mikuni
resigned as trustee, but the district court allowed the trust, through
counsel, to proceed and defend at trial. After the bench trial, the district
court found for the defense on Brady's claims, found for Brady on the
counterclaims, and ordered all parties to bear their own attorney fees and
costs. Brady appealed.
Brady first argues that default should have been taken
against the trust because Mikuni resigned as trustee shortly before the
bench trial. Regardless of the validity of Mikuni's resignation, the trustee
had previously authorized counsel to appear for the trust in the
underlying litigation, and this counsel and the trust beneficiary, Lyle
Hirata, did appear at trial. The trust was therefore adequately
represented at trial, and default was not appropriate. See Cowen v. Knott,
252 So. 2d 400, 402 (Fla. Dist. Ct. App. 1971) (noting that "ample
authority" permits a trust beneficiary "to appear and defend" at trial if
"the trustee fails to do so"). To the extent that Mikuni was unavailable for
trial, the parties agreed to submit his deposition testimony in lieu of his
direct testimony. Accordingly, we do not perceive any error requiring
reversal regarding Mikuni's resignation as trustee.
Next, Brady argues that the district court failed to make
findings of fact concerning his fraud claims. In the case of missing
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findings of fact, "if the record is clear and will support the judgment,
findings may be implied." Pease v. Taylor, 86 Nev. 195, 197, 467 P.2d 109,
110 (1970). Here, the district court listed the elements of the causes of
action for intentional and negligent misrepresentation, the fraud claims,
but did not make any specific findings concerning them. Nevertheless, the
district court did find that, while Brady failed to make two mortgage
payments, leading to foreclosure, he could have made those mortgage
payments from the property revenue, and that "it was not clear from the
evidence" whether the failure of the property sale and the ultimate
foreclosure was caused by Brady's financial situation or Mikuni's
involvement in the pending sale. In other words, Brady did not prove that
the respondents' actions or omissions caused Brady's damages. After
reviewing the record, we conclude that it supports the judgment and that
reversal is not warranted. Accordingly, we
ORDER the judgment of the district court AFFIRMED.'
el
L. illOr J.
) J.
Gibbons Pickering
cc: Hon. Valerie Adair, District Judge
Nathaniel J. Reed, Settlement Judge
Ron N. Brady, Sr.
Meier & Fine, LLC
Eighth District Court Clerk
'Brady's April 21, 2014, motion to expand the record is denied.
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