Skelton v. Roberts , 1984 Ky. App. LEXIS 537 ( 1984 )

COOPER, Judge.

This is an appeal from a judgment for the appellee, defendant below, in an action on an indebtedness. On appeal, the principal issue is whether the trial court erred, as a matter of law, in not issuing findings of fact and conclusions of law as required by CR 52.01. Reviewing the record below, we reverse and remand.

In January of 1982, the appellant, David Skelton, filed an action against the appel-lee, Craig Roberts, for $13,000 owed to him as a result of a promissory note signed by the appellee. At the time the appellee signed the note in November of 1980, he and the appellant had formed a Kentucky corporation, Craton Holding Company, and its wholly owned subsidiary Kalyn Management Company. The appellee filed an answer, denying the substantive allegations contained in the complaint. Nevertheless, the trial court subsequently entered a summary judgment for the appellant in the amount of $11,700. Thereafter, the trial court set such judgment aside.

The action was then tried by the trial court without a jury, pursuant to CR 52.01. A judgment was entered for the appellee, dismissing the appellant’s complaint with prejudice. No separate findings of fact or conclusions of law were entered. Thereafter, the appellee filed a motion to require the trial court to issue findings of fact and conclusions of law pursuant to CR 52.01. Additionally, in a motion to vacate the trial court’s judgment, the appellant moved the trial court to issue findings of fact and conclusions of law. The trial court overruled such motions, indicating that the findings were dictated within the record. It is from such judgment that the appellant now appeals.

Although the trial court indicated that the findings dictated in the record at the conclusion of the testimony were sufficient to enable an appellate court to review its decision, we disagree. The language of CR 52.01 requires a trial court in all actions tried upon the facts without a jury, or with an advisory jury, to “find the facts specifically and state separately its conclusions of law thereon...” The language of CR 52.-01 is mandatory. See Perry v. McLemore, Ky., 414 S.W.2d 141 (1967).

Although the language of the Rule would allow a trial court to dictate, in the record, specific findings of fact and conclusions of law, such was not the situation herein. Here, the trial court failed to comply with the provisions of CR 52.01. A losing party is not to be deprived of a proper review as the result of a trial court’s failure to record specific findings of fact and conclusions of law as required by CR 52.01. See Elkins v. Elkins, Ky., 859 S.W.2d 620 (1962).

The trial court is directed to vacate the judgment below and enter specific findings of fact and conclusions of law as mandated by the language of CR 52.01.

HAYES, C.J., concurs.

DUNN, J., dissents.