Brady, Sr. v. Hirata

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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