         [Cite as Cochran v. Cincinnati, 2013-Ohio-5138.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



KEVIN COCHRAN,                                    :         APPEAL NO. C-130031
                                                            TRIAL NO. A-1108535
        Plaintiff-Appellant,                      :

  vs.                                             :            O P I N I O N.

CITY OF CINCINNATI,                               :

    Defendant-Appellee,                           :

  and                                             :

STEPHEN BUEHRER,                                  :
ADMINISTRATOR, OHIO BUREAU
OF WORKERS’ COMPENSATION,                         :

    Defendant.                                    :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: November 22, 2013

Fox & Fox Co. L.P.A., Bernard C. Fox, Jr., and M. Christopher Kneflin, for Plaintiff-
Appellant,

John P. Curp, City Solicitor, and Julie F. Bissinger, Assistant City Solicitor, for
Defendant-Appellee.



Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS



F ISCHER , Judge.

       {¶1}     Plaintiff-appellant Kevin Cochran appeals the trial court’s judgment,

following a bench trial, determining that he is not entitled to participate in the workers’

compensation fund for the additional condition of substantial aggravation of pre-

existing left knee chondromalacia.

       {¶2}     Cochran suffered an injury on December 21, 2010, while he was

employed by the defendant-appellee city of Cincinnati.             He filed a workers’

compensation claim that was allowed for a left knee contusion and a left knee medial

meniscus tear. Cochran then sought to participate for the additional condition of

substantial aggravation of pre-existing left knee chondromalacia. When his request was

administratively denied, he filed an appeal in the common pleas court.

       {¶3}     His case proceeded to a bench trial. On December 12, 2012, at the

conclusion of the trial, the court announced from the bench that it was ruling in favor of

the city of Cincinnati and orally stated its findings of fact and conclusions of law.

Cochran’s counsel informed the court that he would be filing a written request for

findings of fact and conclusions of law. The trial court stated that it would provide

its notes to the court reporter, who could type them up, as the trial court’s findings of

fact and conclusions of law. On December 18, 2012, Cochran filed a request for

findings of fact and conclusions of law pursuant to Civ.R. 52. On December 19, 2012, the

trial court filed its judgment entry denying Cochran the right to participate in the

workers’ compensation fund.

       {¶4}     In three assignments of error, Cochran argues the trial court: (1)

incorrectly applied the substantial aggravation standard set forth in this court’s opinion

in Pflanz v. Pilkington Lof, 1st Dist. Hamilton No. C-100574, 2011-Ohio-2670, (2) failed

to issue written findings of fact and conclusions of law; and (3) rendered a judgment that



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                       OHIO FIRST DISTRICT COURT OF APPEALS



is against the manifest weight of the evidence. Because Cochran’s second assignment of

error is dispositive of his appeal, we address it first.

        {¶5}     In his second assignment of error, Cochran argues that the trial court

erred by failing to issue written findings of fact and conclusions of law when he timely

requested them pursuant to Civ.R. 52.

        {¶6}     Civ.R. 52 provides as follows:

        When questions of fact are tried by the court without a jury, judgment

        may be general for the prevailing party unless one of the parties in

        writing requests otherwise before the entry of judgment pursuant to

        Civ.R. 58, or not later than seven days after the party filing the request

        has been given notice of the court's announcement of its decision,

        whichever is later, in which case, the court shall state in writing the

        conclusions of fact found separately from the conclusions of law.

                                             ***

        An opinion or memorandum of decision filed in the action prior to

        judgment entry and containing findings of fact and conclusions of law

        stated separately shall be sufficient to satisfy the requirements of this

        rule and Rule 41(B)(2).

        {¶7}     The Ohio Supreme Court has held that when questions of fact are

tried to a court without the intervention of a jury, the trial court has a mandatory

duty under Civ.R. 52 to issue findings of fact and conclusions of law when a party

timely requests them. In re Adoption of Gibson, 23 Ohio St.3d 170, 173, 492 N.E.2d

146 (1986). While the Ohio Supreme Court held in Stone v. Davis, 66 Ohio St.2d 74,

84, 419 N.E.2d 1094 (1981), that “factual findings and legal conclusions [set forth] in

a well-written, carefully considered opinion” may satisfy the requirements of Civ.R.



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52, it has explicitly rejected the notion that a “detailed decision from the bench which

is included in the transcript of proceedings” can satisfy the requirements of the rule.

Gibson at fn.3.

       {¶8}       Thus, the Supreme Court has specifically held that “a commentary

from the bench, leading up to the pronouncement of a decision, is neither adequate

to fulfill the requirements of Civ.R. 52, nor is it adequate to provide a disappointed

party a solid basis on which to appeal.” Id. at 173. This court has likewise held that

Civ.R. 52 “requires a court to state in writing its findings of fact separately from its

conclusions of law, and that [this] duty cannot be served by oral statements, even

when they [are well organized, thoughtful and logical, and have] been accurately

recorded as part of the transcript of the proceedings.” Gaddis v. Hayes, 1st Dist.

Hamilton Nos. C-840747 and C-840798, 1985 Ohio App. LEXIS 8650 (Sept. 4,

1985); see also Davis v. Wilkerson, 29 Ohio App.3d 100, 101, 503 N.E.2d 210 (9th

Dist.1986); compare Hanson v. Reiser, 10th Dist. Franklin No. 98AP-1390, 1999

Ohio App. LEXIS 5256 (Nov. 8, 1999) (holding that Civ.R. 52 was satisfied where the

trial court had appended a copy of the transcript of its decision from the bench to its

written judgment entry).

       {¶9}       On December 12, 2012, the trial court, in denying Cochran’s claim,

orally stated its findings of fact and conclusions of law. Cochran’s counsel informed

the court that he would be filing a written request for findings of fact and conclusions

of law. The trial court, acknowledging that its oral findings were insufficient to

satisfy Civ.R. 52, stated that it would provide its notes to the court reporter, who

could type them up as the trial court’s findings of fact and conclusions of law.

       {¶10}      On December 18, 2012, Cochran filed a written request for findings of

fact and conclusions of law. One day later, the trial court journalized its entry



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                     OHIO FIRST DISTRICT COURT OF APPEALS



determining that Cochran was not entitled to participate in the workers’

compensation fund for the additional condition of substantial aggravation of pre-

existing left knee chondromalacia. The trial court’s entry, however, did not contain

any legal analysis, let alone any written findings of fact or conclusions of law.

Compare State ex rel. Gilbert v. Cincinnati, 125 Ohio St.3d 385, 2010-Ohio-1473,

928 N.E.2d 706,¶ 39 (holding that the contents of the court of appeals’ judgment and

opinion granting a writ of mandamus were sufficient to satisfy the requirements of

Civ.R. 52). Thus, the only portion of the record, which would lend any guidance to this

court, is the transcription of the comments given by the trial court from the bench.

Given that the Ohio Supreme Court, however, has expressly held that these comments

cannot satisfy Civ.R. 52, we must sustain Cochran’s second assignment of error.

       {¶11}   In light of our disposition of Cochran’s second assignment of error,

we need not address his first and third assignments of error. We, therefore, reverse

the judgment and remand this case to the trial court with instructions to make

written findings of fact and conclusions of law, and to enter judgment consistent with

those findings of fact and conclusions of law.
                                             Judgment reversed and cause remanded.

HENDON, P.J, and CUNNINGHAM, J., concur.


Please note:
       The court has recorded its own entry this date.




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