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


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

CONNIE R. HINDS, DECEASED/                              JUDGES:
MARK HINDS, SPOUSE                                      Hon. William B. Hoffman, P.J.
                                                        Hon. Craig R. Baldwin, J.
        Plaintiff-Appellee                              Hon. Earle E. Wise, Jr., J.

-vs-                                                    Case No. CT2016-0063

MUSKINGUM COUNTY
                                                        OPINION
        Defendant-Appellee

and

ADMINISTRATOR, BUREAU OF
WORKERS’ COMPENSATION

        Defendant-Appellant



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
