COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60238 ARLYNE HOFFMAN, Trustee : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION THE FITNESS CIRCUIT, INC., : ET AL. : : Defendants-appellees : : DATE OF ANNOUNCEMENT OF DECISION: APRIL 2, 1992 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. 170963 JUDGMENT: Reversed DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: For Defendants-Appellees: DENNIS A. ROTMAN, ESQ. KENT B. SCHNEIDER, ESQ. 1148 Euclid Ave. #300 1301 E. 9th Street Cleveland, Ohio 44115 Suite 500 Cleveland, Ohio 44114 - 2 - DYKE, J.: Appellant brought suit against the appellees for the breach of a lease agreement and defamation. The case was heard by the trial court, both parties having waived their right to a jury trial. The lower court granted the appellees' motion for a directed verdict at the close of plaintiff/appellant's case. The journal entry indicates that the trial court based its decision on the theory that the lease had been equitably rescinded. The trial court granted an award of $3,300.00 in damages to the appellees on the appellees' counterclaim and, in equity "by reason of recision" the court awarded the appellees an additional $5175.00, which would be the total of their deposit and first month's rent. The appellant made a motion for findings of fact and conclusions of law on May 31, 1990, seven days after the end of the trial and two days after the filing of the journal entry made by the trial court. The trial court denied the appellant's motion for findings of fact and conclusions of law. The appellant and appellees entered into a commercial lease agreement on May 4, 1990. The appellees were interested in using this second floor space for an aerobics studio. Appellant made substantial renovations to the space and moved existing tenants to conform to the appellees' needs. Neither the appellant/landlord nor the appellees had an engineer inspect the structure of the space prior to signing the lease. The appellants had hired an architect on a previous occasion when they had concerns about the structural adequacy of the space for their purposes. The architect had indicated that major renovations would be prohibitive for that particular structure so the appellees continued to look for other space to lease. When - 3 - they found the appellant's space they did not ask the architect to inspect the property's structural adequacy for use as an aerobics studio. After the first class it was readily apparent to both parties that the second floor space would not withstand the stress of the aerobics classes. According to testimony from both appellant and appellees the building was shaking and the windows were vibrating. Luggage was falling off the shelves in the retail shop below. Even after trying to reduce the class size on the second day, the space was clearly not suitable for use as an aerobics studio. Later that afternoon the appellees moved out of the space. Testimony is in dispute as to who offered to work out a solution and who refused to negotiate. After an engineer found that the cost would be prohibitive to reinforce the structure to support an aerobics class, the appellant tried to rent the space. The appellant makes two assignments of error. I THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING THE PLAINTIFF'S TIMELY REQUEST FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW. Rule 52 governs the issue of when the trial court is required to make findings of fact and conclusions of law. The rule states: 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 - 4 - judgment pursuant to Civil Rule 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. Findings of fact are only required of the trial court under Rule 52 and on motions made under Rule 41(B)(2). The trial court in this case erroneously granted the appellees' motion for a directed verdict. This court treats a directed verdict made in nonjury trials as a Rule 41(B)(2) motion to dismiss. Under the Ohio Rules of Civil Procedure, a motion for a `directed verdict' does not lie in a nonjury case, and a motion for a `directed verdict' made in a case tried to the court will be deemed to be a motion to dismiss under Civ. R. 41(B)." National City Bank v. Fleming (1981), 2 Ohio App. 3d 50, paragraph 6 of the syllabus. Under Rule 41(B)(2) the trial court could have dismissed the case after appellant had put on her evidence if it found that she had not "shown a right to relief by the requisite degree of proof." Central Motors Corp. v. Pepper Pike (1979), 63 Ohio App. 2d 34, paragraph 1 of the syllabus. The trial court was not required to construe the evidence most strongly in favor of the plaintiff, but was allowed to weigh the evidence in coming to its decision. Central Motors Corp. at 48. In this instance it is good policy to require findings of fact and conclusions of law - 5 - where they are requested by one of the parties. Without specific findings it is difficult for the reviewing court to determine whether the assignments of error are supported by an adequate basis. This court stated in St. Paul Fire & Marine Ins. Co. v. Battle (1975), 44 Ohio App. 2d 261, 267: [W]hen a judgment is rendered in general terms a reviewing court is not sure whether the case was decided in reliance upon relevant and competent evidence or upon wrongly admitted evidence, or upon the erroneous application of legal principles. The appellees argue that even if the trial court was required to issue findings of fact and conclusions of law, that its failure to do so was harmless error. This court in St. Paul Fire & Marine Ins. Co. at 267, quoting Cleveland Produce Co. v. Dennert (1922), 104 Ohio St. 149, held that: Only when a reviewing court can determine, without weighing the evidence, that the appellant has not been prejudiced can it conclude that failure of the trial court to make findings of fact and conclusions of law was harmless error. This court finds that appellant was prejudiced by the trial court's failure to issue findings of fact and conclusions of law. The oral statements made at the close of trial, essentially repeated in the court's journal entry, are insufficient to meet the requirements of Rule 52. See, Davis v. Wilkerson (1986), 29 Ohio App. 3d 100, paragraph 1 of the syllabus ("findings of fact - 6 - and conclusions of law stated orally and recorded in open court following the close of evidence do not comply with the requirements of Civ.R. 52.") Appellant's first assignment of error is sustained. Although the trial court has not provided findings of fact or conclusions of law to give this court some basis for reviewing the decision, we will address appellant's second assignment of error as if the correct standard under Rule 41(B)(2) had been applied. See, National City Bank v. Fleming (1981), 2 Ohio App. 3d 50 and Altimari v. Campbell (1978), 56 Ohio App. 2d 253. II THE TRIAL COURT'S JUDGMENT AGAINST PLAINTIFF ON ITS COMPLAINT AND IN FAVOR OF DEFENDANTS ON THEIR COUNTERCLAIM WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS CONTRARY TO LAW The appellant argues that the trial court erred in finding in appellees' favor when plaintiff fully performed on the lease and the defendants were in breach. Appellant makes a second argument that recision of the lease is not supported by the facts. Finally, appellant claims that the trial court erred in finding in appellees' favor on their counterclaim for damages. It is difficult for this court to review the trial court's decision without the findings of fact and conclusions of law. However, under App. Rule 12(A) this court does find that the court's decision is against the manifest weight of the evidence. - 7 - Judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court as being against the manifest weight of the evidence. Seasons Coal Co. v. Cleveland (1984), 10 Ohio St. 3d 77, 80. The appellant was in full performance on the lease. According to the language of the lease the appellees were to take the space in its "existing condition" (under section 9, "CONDITION AND IMPROVEMENT OF PREMISES"). There was no testimony to the effect that appellant expressly warranted the suitability of the premises for aerobics prior to the signing of the lease. There was no fraudulent inducement on the part of the appellant to encourage the appellees to sign the lease. Subsequent to the signing of the lease, the appellant admits to telling the appellees that the space should be "fine" but that is irrelevant to the application of the law. The law in Ohio as to implied warranties of suitability in commercial leases is still caveat emptor, placing the responsibility squarely on the shoulders of the appellees to make certain that the space they have chosen will be suitable for their purposes. [T]he relationship between the commercial lessor and lessee is not regulated by any statutory regulations, such as the Landlords and Tenants Act; rather, the common law maxim of caveat emptor applies, and `the tenant takes them [the premises] as he finds them with all - 8 - existing defects of which he knows or can ascertain by reasonable inspection.' Hendrix v. Eighth and Walnut Corp. (1982), 1 Ohio St. 3d 205, 208, quoting Ripple v. Mahoning National Bank (1944), 143 Ohio St. 614, 621. See also, Fireman's Fund Ins. Co. v. BPS Co. (1985), 23 Ohio App. 3d 56, and Cappadora Realty Corp. v. Studio R, Inc. (December 31, 1987), Cuyahoga Co. App. No. 53004, unreported. It does not matter whether or not the appellant knew what aerobics was or whether or not he thought about hiring an engineer to check out the structural adequacy of the space. It was the appellees' responsibility to hire an engineer or the architect they had hired on a previous occasion. The court will not save them from an improvident contract when both parties had equal bargaining power in the absence of fraud or bad faith. Ullmann v. May (1947), 147 Ohio St. 468, paragraph 2 of the syllabus. Neither fraud nor bad faith are evident from the trial testimony. The appellees erroneously rely on a clause from the lease to justify their abrupt departure from the premises. This sentence, read in the context of the entire paragraph, allows a tenant to forego its performance under the lease if the premises is rendered unsuitable due to a zoning violation. The failure of the premises to withstand aerobics classes has nothing to do with - 9 - zoning. Appellees were not justified in breaking the lease based on this clause. The trial court erred in finding in favor of appellees' on the complaint and counterclaim. We do not find competent, credible evidence to support a finding of equitable recision of the lease. The appellant's second assignment of error is sustained. This cause is reversed and remanded to the trial court for findings of fact and conclusions of law consistent with this opinion. - 10 - This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellees her costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATTON, J., CONCURS NAHRA, J., DISSENTS IN PART (SEE ATTACHED DISSENTING OPINION) PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60238 ARLYNE HOFFMAN, TRUSTEE, : : : Plaintiff-Appellant : D I S S E N T I N G : vs. : O P I N I O N : THE FITNESS CIRCUIT, INC., : ET AL., : : : Defendants-Appellees : DATE: APRIL 2, 1992 NAHRA, J., DISSENTING IN PART: I agree the trial court should have provided findings of fact and conclusions of law and I would remand for the court to do so. However, without the findings of fact, we have no way of determining the manifest weight of the evidence. Thus, I would remand for the proper findings and not prejudge the manifest weight of the evidence question. .