[Cite as Hinds v. Muskingum Cty., 2017-Ohio-8212.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CONNIE R. HINDS, DECEASED/ 

MARK HINDS, SPOUSE 

 Plaintiff-Appellee 

-vsMUSKINGUM COUNTY 

 Defendant-Appellee 

and 

ADMINISTRATOR, BUREAU OF 

WORKERS’ COMPENSATION 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Craig R. Baldwin, J. 

Hon. Earle E. Wise, Jr., J. 

Case No. CT2016-0063 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court 

of Common Pleas, Case No. CD2014-0357 

JUDGMENT: Reversed and Remanded 

DATE OF JUDGMENT ENTRY: October 13, 2017 

APPEARANCES: 

For Plaintiff-Appellee – Hinds For Defendant-Appellant – Administrator, BWC 

THOMAS L. REITZ MICHAEL DEWINE 

Larrimer and Larrimer Ohio Attorney General 

165 N. High Street 

Columbus, Ohio 43215 NATALIE J. TACKETT 

 Assistant Attorney General 

 Workers’ Compensation Section 

For Defendant-Appellee – Muskingum County 150 East Gay Street, 22nd Floor 

 Columbus, Ohio 43215 

WILLIAM R. CREEDON 

TIMOTHY E. COWANS 

Scott Scriven, LLP 

250 East State Street, Suite 900 

Columbus, Ohio 43215 
Muskingum County, Case No. CT2016-0063 2

Hoffman, P.J. 

{¶1} Defendant-appellant Administrator, Bureau of Workers’ Compensation 

(hereinafter “BWC”) appeals the judgment entered by the Muskingum County Common 

Pleas Court allowing the claim for the death of Connie R. Hinds for an injury sustained in 

2006, and denying the claim for an injury sustained in 2007, and ordering all death 

benefits paid to Mark Hinds to be retroactively and prospectively processed under the 

2006 claim. Appellees are Connie Hinds, Mark Hinds, and Muskingum County. 

STATEMENT OF THE FACTS AND CASE1

{¶2} During the course of her employment with Muskingum County, Connie 

Hinds sustained two industrial injuries. The first injury occurred January 23, 2006, and 

her workers’ compensation claim was allowed for the condition of “neck sprain.” On July 

17, 2007, Connie Hinds was injured a second time, and her claim was allowed for the 

conditions of “neck sprain and thoracic sprain.” 

{¶3} Connie Hinds died on January 4, 2010. Mark Hinds applied for death 

benefits in both the 2006 and 2007 claims. The Industrial Commission granted the 

application for benefits in both claims. As to the 2006 claim, the Commission determined 

benefits would be paid solely per the order in the 2007 claim. The order of the Industrial 

Commission in the 2007 claim provided for weekly benefits to be paid to Mark Hinds, 

finding the death was directly caused by medication prescribed and taken in the 2007 

claim. 

 

1 Many of the facts contained in the briefs of the parties are outside the record before this 

Court. 
Muskingum County, Case No. CT2016-0063 3

{¶4} Muskingum County appealed to the Common Pleas Court in 2011. Mark 

Hinds then filed a complaint as required by R.C. 4123.512, rendering Mark Hinds the 

plaintiff and Muskingum County and BWC the defendants. However, because this was 

an employer appeal, BWC was aligned with the interests of the plaintiff. Ultimately, the 

2011 action was dismissed. 

{¶5} The case was reopened by the filing of a complaint by Hinds in 2014. The 

matter was set for trial on September 27, 2016. However, on September 9, 2016, the trial 

court entered judgment in pertinent part as follows: 

 Ohio Bureau of Workers’ Compensation Claim No. 06-305223 is 

hereby allowed for the condition of “death” as a result of Plaintiff, Connie R. 

Hinds’ January 23, 2006 injury that was sustained in the course of and 

arising out of her employment with Defendant, Muskingum County. 

Plaintiff’s spouse, Mark Hinds, born on May 28, 1960, was wholly 

dependent upon Plaintiff, Connie R. Hinds, now deceased, at the time of 

her death. The provisions for the payment of all death benefits to Plaintiff’s 

spouse, Mark Hinds, are to be retroactively and prospectively processed 

under Claim No. 06-305223. Ohio Bureau of Workers’ Compensation Claim 

No. 07-359320 is denied for the condition of “death” as there is insufficient 

evidence supporting a finding that Plaintiff, Connie R. Hinds’ death was 

causally related to her July 17, 2007 workplace injury with Defendant, 

Muskingum County. 
Muskingum County, Case No. CT2016-0063 4

{¶6} Although the entry listed the attorneys’ names at the bottom, the entry did 

not include signature lines for the attorneys or parties, nor did it indicate on its face it was 

an agreed entry or reflected a settlement agreement. 

{¶7} By entry filed October 13, 2016, the court set a hearing for October 28, 

2016. At the hearing, the court heard arguments of counsel concerning the September 

9, 2016 entry. Counsel for BWC indicated at the hearing they were not a party to the 

settlement discussions. Counsel for Muskingum County responded an agreement was 

reached between the county and the plaintiff, and counsel for BWC indicated she would 

not object to the entry, although she would not affirmatively agree. Tr. 4. At the hearing, 

counsel for BWC expressed opposition to the language of the entry as filed by the court, 

specifically the language concerning retroactive and prospective application. Counsel for 

the county represented to the court there was a change in the insurance designation for 

the county between 2006 and 2007, and the 2007 claims have a billing period for ten 

years, which is why the county pressed to have the matter resolved before the end of the 

year. Tr. 17. Counsel for BWC noted the effect of the entry as it stood was to shift the 

entire financial burden of the allowance of the claim to BWC, with the county bearing no 

responsibility. Tr. 24. 

{¶8} The trial court enforced the original settlement agreement as agreed to 

between counsel for plaintiff and counsel for Muskingum County: 

 The Court’s going to enforce the original agreement, based upon the 

fact it was led – led by the parties into dismissing the case. It would be 

virtually impossible to get it in within the time period you need to have it 
Muskingum County, Case No. CT2016-0063 5

done in. And being misled as to the fact that there was a settlement, I will 

enforce it. And anything you need to have it enforced, please provide it to 

the Court. 

Tr. 26. 

{¶9} BWC prosecutes this appeal from the September 9, 2016 order of the court, 

assigning the following as error: 

 “I. THE TRIAL COURT ERRED BY FINDING THAT ALL PARTIES 

HAD AGREED TO THE TERMS OF THE PROPOSED ORDER TO 

ENFORCE THE SETTLEMENT ENTRY SIGNED SOLELY BY THE 

COURT ON SEPTEMBER 9, 2016 WHEN NO WRITTEN EVIDENCE 

EXISTS TO SUPPORT THE DECISION. 

 “II. THE COURT LACKED JURISDICTION UNDER R.C. 4123.512 

TO ENTER THE ORDER DATED SEPTEMBER 9, 2016, AS IT 

ADDRESSED EXTENT OF DISABILITY ISSUES AND/OR PROSPECTIVE 

OR RETROSPECTIVE PREMIUM RATING ISSUES WHICH ARE 

BEYOND THE SCOPE OF THE COURT’S AUTHORITY. 

 “III. THE ORDER DATED SEPTEMBER 9, 2016, IS NOT 

ENFORCEABLE AGAINST THE APPELLANT BWC, AS ITS CONTENTS 

ARE OUTSIDE THE SCOPE OF R.C. 4123.512. 
Muskingum County, Case No. CT2016-0063 6

{¶10} As a preliminary matter, Appellees Connie and Mark Hinds have filed a 

motion to dismiss and a motion to strike evidence, which this court took under advisement 

until merit review. 

{¶11} Motion to dismiss: Appellees argue the instant appeal, filed December 1, 

2016, is untimely as to the September 9, 2016 judgment of the trial court. 

{¶12} App. R. 4(A)(1) provides an appeal must be filed within thirty days of the 

entry appealed from. App. R. 4(D) states “entry” or “entered” means when a judgment or 

order is entered under Civ.R. 58(A). Pursuant to Civ. R. 58(A), “A judgment is effective 

only when entered by the clerk upon the journal.” The journal in the instant case reflects 

entry of the September 9, 2016 judgment on November 3, 2016. Accordingly, BWC’s 

notice of appeal filed December 1, 2016 was filed within thirty days of the entry of the 

judgment upon the journal. Appellees’ motion to dismiss the appeal as untimely is 

overruled. 

{¶13} Motion to strike: Appellees Connie and Mark Hinds have also filed a motion 

to strike matters appended to BWC’s brief as outside the record. BWC concedes the 

matters are outside the record, but argues the record contains irregularities. BWC argues 

the affidavits and evidence attached to the brief are appropriate to correct the record 

under App. R. 9(E): 

 If any difference arises as to whether the record truly discloses what 

occurred in the trial court, the difference shall be submitted to and settled 

by the trial court and the record made to conform to the truth. If anything 

material to either party is omitted from the record by error or accident or is 
Muskingum County, Case No. CT2016-0063 7

misstated, the parties by stipulation, or the trial court, either before or after 

the record is transmitted to the court of appeals, or the court of appeals, on 

proper suggestion or of its own initiative, may direct that omission or 

misstatement be corrected, and if necessary that a supplemental record be 

certified, filed, and transmitted. All other questions as to the form and 

content of the record shall be presented to the court of appeals. 

{¶14} Although BWC is correct App. R. 9(E) allows the record to be settled to 

disclose what truly occurred in the trial court, BWC did not comply with the procedure set 

forth in the rule to properly correct the record, and as such the evidence attached to 

Appellant’s brief is not properly before this Court. The motion to strike is granted. 

{¶15} We next turn to Appellant’s assigned errors. 

I. 

{¶16} Appellant argues the court erred in adopting the settlement agreement. We 

agree. 

{¶17} A settlement agreement is a particularized form of a contract. Noroski v. 

Fallet, 2 Ohio St.3d 77, 79, 442 N.E.2d 1302 (1982). It is a “contract designed to terminate 

a claim by preventing or ending litigation, and * * * such agreements are valid and 

enforceable by either party.” Continental W. Condominium Unit Owners Assn. v. Howard 

E. Ferguson, Inc., 74 Ohio St.3d 501, 502, 1996–Ohio–158, 660 N.E.2d 431. If a contract 

encompasses the essential terms of the agreement, it is binding and enforceable. Mr. 

Mark Corp. v. Rush, Inc., 11 Ohio App.3d 167, 169, 464 N.E.2d 586 (8th Dist.1983). The 

Ohio Supreme Court has stated the issue of “whether the parties intended to be bound * 
Muskingum County, Case No. CT2016-0063 8

* * is a question of fact properly resolved by the trier of fact.” Oglebay Norton Co. v. Armco, 

Inc., 52 Ohio St.3d 232, 235, 556 N.E.2d 515 (1990). The parties must have a “distinct 

and common intention that is communicated by each party to the other.” Champion Gym 

& Fitness, Inc. v. Crotty, 178 Ohio App.3d 739, 744, 2008–Ohio–5642, 900 N.E.2d 231, 

¶ 12. 

{¶18} A trial court has the authority to conduct a hearing to determine whether or 

not a verbal settlement agreement has been reached. Klever v. Stow, 13 Ohio App.3d 1, 

468 N.E.2d 81 (9th Dist.1983). “When the parties agree to a settlement offer, this 

agreement cannot be repudiated by either party, and the court has the authority to sign a 

journal entry reflecting the agreement and to enforce the settlement.” Id. at 4. However, 

where the meaning of the terms of a settlement agreement is in dispute, or where there 

is a dispute contesting the existence of a settlement agreement, a trial court must conduct 

an evidentiary hearing prior to entering judgment. Rulli v. Fan Co., 79 Ohio St.3d 374, 

377, 1997–Ohio–380, 683 N.E.2d 337. 

{¶19} The trial court enforced the settlement despite finding no agreement 

existed. The trial court stated it was “misled” into believing there was a settlement, such 

language indicating the trial court did not believe there was in fact an agreement. 

{¶20} Although counsel for the county indicated to the court Appellant stated it 

would not object to the entry, no evidence was taken by the court on the issue of whether 

a settlement in fact was reached.2 

 

2 Our reading of the transcript of the hearing further indicates multiple versions of the 

“settlement agreement” were before the court and the parties during the hearing which 

are not a part of the record on appeal to this Court. 
Muskingum County, Case No. CT2016-0063 9

{¶21} Counsel for BWC represented the order signed by the court included 

language beyond the jurisdiction of the court. When the court asked if she brought this 

up during settlement negotiations, she responded the entry was not given to her during 

settlement negotiations. Tr. 8. She indicated there was a settlement conference wherein 

BWC’s representative at the time could not agree to the terms of the entry, and the parties 

were to continue negotiations after that time. Id. However, the parties, not involving 

BWC, “came up with the entries that are before you and submitted them.” Id.

{¶22} After further discussion between the parties as to which of the entries the 

court ultimately signed and proposed alternate wording that BWC would agree to, the 

following colloquy occurred. The trial court stated to BWC, “Well, I was told at the 

beginning of this the – you guys were not be [sic] going to object to the overall settlement 

of one’s going to be denied and one’s going to be accepted.” Tr. 14. Counsel for BWC 

responded their position was if the claims go forward, both claims should be allowed. 

{¶23} The court then asked counsel for the County if it was “his understanding” 

BWC was not going to object, and counsel responded that was correct. When the court 

noted BWC was now objecting, counsel for the County responded, “Much more so, 

strenuously so, than I anticipated on my ride over here this morning.” Tr. 19. The 

discussion continued between the court and counsel for the County: 

 THE COURT: The issue was, was there a settlement, that people 

believed there was a settlement, and should I enforce it or indicate that there 

wasn’t a settlement. Two of you are saying it was a settlement, and the 
Muskingum County, Case No. CT2016-0063 10

Attorney General’s office – or the Bureau’s office indicated they would not 

object to it. Is that what both of you are saying? 

 MR. LARRIMER: Until such time as they got the language in that 

order it was indicated. So there was an agreement in principle. 

Tr. 20. 

{¶24} When specifically asked by the court who told Appellees’ BWC would not 

object, counsel for the County indicated Ms. Tackett, counsel for BWC. However, counsel 

for Hinds then represented he had an email status report from his associate on September 

23 indicating it was the position of BWC they would not object to the resolution “as 

outlined.” Tr. 22. However, the initial entry by the trial court was signed September 9, 

several weeks prior to the email. 

{¶25} A third entry was then discussed, which counsel for BWC again represented 

she could not agree to. Tr. 26. At this point the court indicated it would enforce the 

original agreement. 

{¶26} Nothing in the transcript of the October 28, 2016 hearing demonstrates all 

parties had a “distinct and common intention” to settle the case pursuant to the terms of 

the September 9, 2016 entry. See Champion, supra. The entry is not signed by any of 

the parties, nor does it demonstrate on its face it was approved by the parties to the 

action. Further, during the hearing the parties and the court discussed alternative entries 

to the one originally signed, and the dialogue between counsel and the court indicates an 

agreement “in principle” or “as outlined,” but not a direct indication BWC “would not object” 

to the language of the specific entry ultimately signed by the court. The court erred in 
Muskingum County, Case No. CT2016-0063 11

approving the settlement which the court acknowledged was not agreed to by all parties 

to the action. 

{¶27} The first assignment of error is sustained. 

II., III. 

{¶28} Appellant’s second and third assignments of error are rendered moot by our 

disposition of the first assignment of error and are accordingly overruled. 

{¶29} The judgment of the Muskingum County Common Pleas Court is reversed. 

This case is remanded to that court for further proceedings according to law. 

By: Hoffman, P.J. 

Baldwin, J. and 

Wise, Earle, J. concur