[Cite as Bursiel v. Bursiel, 2021-Ohio-1548.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

HURON COUNTY 

Stephen T. Bursiel, et al. Court of Appeals Nos. H-19-015 

 H-20-010 

 Appellee 

 Trial Court No. DR-2000-0491 

v. 

Michele A. Bursiel (Straka) DECISION AND JUDGMENT

Appellant Decided: April 30, 2021 

* * * * * 

 Heather L. Carman, for appellee Huron County Child Support 

 Enforcement Agency. 

 Gowri V. Hampole, for appellant. 

* * * * * 

MAYLE, J. 

{¶ 1} In this consolidated appeal, defendant-appellant, Michele A. Bursiel, now 

known as Michele A. Straka, appeals the June 14, 2019 judgment of the Huron County 

Court of Common Pleas (case No. H-19-015) and the April 6, 2020 judgment of the same 

court (case No. H-20-010). The Huron County Child Support Enforcement Agency filed 

an appellee brief with respect to case No. H-19-015. For the following reasons, we 

affirm. 
2.

I. Background 

{¶ 2} Stephen T. Bursiel (“Stephen”) and Michele A. Bursiel (“Michele”) were 

granted a divorce on December 5, 2000. Stephen and Michele had one child together, 

B.B., born in January of 2000. At the final divorce hearing, the court orally ordered 

Stephen to pay child support of $338.98 per month “plus administrative fees.” The 

judgment entry of divorce provided, however, that Stephen would pay child support of 

$338.98 per month “including poundage” to continue “until such time as [the] child is 

emancipated.” 

{¶ 3} On February 28, 2018, the Huron County Child Support Enforcement 

Agency (“CSEA”) filed a “notice of child support investigation findings and 

recommendations to terminate child support order” in the divorce case—Huron County 

Court of Common Pleas case No. DR-2000-0491—recommending that Stephen’s child 

support obligation end effective January 5, 2018, because B.B. had turned 18 and was no 

longer in school. The notice contained calculations reflecting that as of December 31, 

2017, Michele had received excess child support payments of $9,303.49 and CSEA had 

been overpaid $153.20. The notice provided instructions for requesting an administrative 

hearing to object to the findings and recommendations, and specified that any such 

request be made in writing to CSEA within 30 days of receiving the notice. CSEA 

moved for an oral hearing regarding its findings and recommendations, which was set for 

April 18, 2018. 
3.

{¶ 4} On March 26, 2018, Michele filed a “request for administrative termination 

hearing,” objecting to the findings and recommendations on the basis that (1) the 

overpayment calculation was wrong, and (2) medical support was not addressed in the 

findings and recommendation and Stephen owed past-due medical expenses. 

{¶ 5} CSEA, Stephen, and Michele, appeared before the magistrate on April 18, 

2018. The court addressed the issue of the overpayment raised in CSEA’s notice. It 

explained that in June of 2000, in connection with an action for a civil protection order, 

the court had issued a child support order requiring Stephen to pay child support of 

$378.78 per month. When the divorce action was filed, the court consolidated the cases. 

Its final judgment entry of divorce in December of 2000, ultimately reduced Stephen’s 

child support obligation to $338.98, “including poundage,” which amounted to actual 

child support of $332.33 per month. But CSEA continued to collect $378.78 from 

Stephen, resulting in the overpayment calculated in the notice filed with the court. The 

magistrate continued the matter to May 23, 2018, so that Michele could retain counsel. 

{¶ 6} With the renewed attention to the child-support obligation, it came to the 

court’s attention that there was a discrepancy between what was stated orally at the final 

divorce hearing (i.e., that Stephen’s child support obligation would be $338.98 per month 

“plus administrative fees”) and what appeared in the written judgment entry of divorce 

(i.e., that Stephen’s child support obligation would be $338.98 per month “including

poundage”). (Emphasis added.) On May 21, 2018, the court entered a nunc pro tunc 
4.

entry, correcting the judgment to reflect what had been stated orally—$338.98 per month 

plus administrative fees. 

{¶ 7} The parties appeared for hearing on May 23, 2018; Michele appeared with 

counsel. The court identified three issues to be resolved in connection with CSEA’s 

notice: (1) whether child support and medical provisions for B.B. should terminate 

effective January 5, 2018—which would depend on whether she was continuously 

enrolled full-time at an accredited high school; (2) whether there are arrears or 

overpayments with respect to the child support obligation; and (3) if there are arrears or 

overpayments, what to do about them. The court continued the hearing so that Michele 

could obtain a letter from B.B.’s school verifying her school enrollment status. The 

matter was continued to July 11, 2018. 

{¶ 8} On June 19, 2018, CSEA filed an “amended notice of child support 

investigation findings and recommendations to terminate child support order.” The 

amended notice continued Stephen’s child support obligations through B.B.’s nineteenth 

birthday and reflected that as of December 31, 2018, Michele will have received excess 

child support of $3,826.50, and CSEA will have been overpaid by $44.27. Again, the 

amended notice provided instructions for requesting an administrative hearing to object 

to the findings and recommendations, and specified that any such request be made in 

writing to CSEA within 30 days of receipt of the notice. 

{¶ 9} The parties appeared for hearing on July 11, 2018, before the magistrate, at 

which time the magistrate observed that Michele had not requested an administrative 
5.

hearing to object to the findings and recommendations contained in CSEA’s amended 

notice. The magistrate inquired whether the parties disputed the contents of the amended 

notice, and Michele stated that she did not agree with them. Her position was that child 

support and medical provision should continue so long as B.B. continues to attend an 

accredited high school, regardless of the fact that she is 19 years old. The magistrate 

noted that the time for requesting an administrative hearing had not yet expired, and it 

remanded the matter to CSEA so that Michele could exhaust her administrative remedies. 

This information is reflected in a magistrate’s order journalized on July 24, 2018. 

{¶ 10} An administrative termination hearing apparently took place on August 6, 

2018, and a decision was issued August 9, 2018. CSEA concluded that Stephen’s child 

support obligation and medical provision should terminate on B.B.’s nineteenth birthday. 

The hearing decision provided instructions for objecting to the decision: 

The obligee or obligor may object to the Administrative Termination 

Hearing Decision within 30 Days after the issuance of the Administrative 

Termination Hearing Decision by filing an action requesting a 

determination as to whether the child support order and medical support 

provisions should be terminated or whether any other appropriate 

determination regarding the order should be made. The action should be 

filed in the court with Jurisdiction over this order. 

If neither the obligor nor obligor files an action to object to the 

Administrative Termination Hearing Decision within the 30 day period, the 
6.

Administrative Hearing Decision is final and the CSEA will forward that 

decision to the court for incorporation in a Court Order. 

{¶ 11} The next docket entry that appears in case No. DR-2000-0491 is a “brief in 

opposition to motion to dismiss appeal and to continue the child support order until high 

school graduation,” filed by Michele on September 27, 2018. That brief indicates that 

Michele filed a notice of appeal from the administrative termination hearing decision 

dated August 9, 2018. An unsigned copy of the notice of appeal is attached to the brief. 

{¶ 12} On March 29, 2019, the magistrate issued a decision adopting CSEA’s 

August 9, 2018 hearing decision. The magistrate, taking judicial notice, explained that 

on September 10, 2018, Michele filed a notice of appeal from the August 9, 2018 

hearing decision in a new action—Huron County Court of Common Pleas case No. 

CVF-2018-0703. According to the magistrate, that action was dismissed on January 31, 

2019, because the trial court concluded that the August 9, 2018 hearing decision was not 

a final order. No further action was taken on that case, and no motion was filed in the 

divorce proceedings—only the brief in opposition was filed in the divorce proceedings. 

The magistrate found that even construing that opposition brief as a motion, it was filed 

on September 27, 2018 (outside the 30-day period provided by R.C. 3119.91). He 

concluded, therefore, that the August 9, 2018 hearing decision had become final. He 

further noted that even if not untimely, Michele’s objections would fail under R.C. 

3119.86(B) because court-ordered child support cannot continue beyond the child’s 

nineteenth birthday, even if the child is enrolled full-time at an accredited high school. 
7.

{¶ 13} The trial court adopted the magistrate’s decision in a judgment journalized 

on March 29, 2019. Michele filed objections to the magistrate’s decision on April 12, 

2019. The trial court overruled the objections in a judgment journalized on June 14, 

2019, in large part because no transcript from the magistrate’s hearing was provided, 

therefore, the court was required to accept the magistrate’s findings of fact. As to the 

magistrate’s conclusions of law and his application of the facts to that law, the trial court 

agreed with the magistrate that Michele failed to challenge the administrative hearing 

decision in accordance with the procedures set forth in R.C. 3119.91 and 3119.92. 

Again, it adopted the magistrate’s decision and deemed the August 9, 2018 hearing 

decision final. 

{¶ 14} Michele appealed the June 14, 2019 judgment, on July 15, 2019; the appeal 

was docketed as Huron County case No. H-19-015. 

{¶ 15} Despite having filed her appeal, on November 1, 2019, Michele filed a 

Civ.R. 60(B) motion for relief from judgment in the trial court. She stated that counsel 

was experiencing health problems and she was going through personal issues with her 

minor child, resulting in the failure to submit the required transcripts. We remanded the 

case to the trial court for a ruling on that motion. 

{¶ 16} The magistrate issued a decision journalized on February 10, 2020, denying 

the Civ.R. 60(B) motion. Because Michele’s attorney filed detailed objections and had 

not moved to withdraw from the case, and because parties generally arrange for the 

preparation of the transcripts at the time they file their objections, the magistrate was not 
8.

persuaded that counsel’s purported health problems played any role in the failure to 

submit the transcripts. And because counsel’s neglect is imputed to his or her client, the 

magistrate found that Michele failed to establish grounds entitling her to relief from 

judgment. 

{¶ 17} The trial court adopted the decision the same day, and we reinstated the 

appeal to our docket. On February 27, 2020, however, Michele filed objections in the 

trial court to the magistrate’s decision. In a judgment journalized on March 6, 2020, the 

trial court concluded that it lacked jurisdiction to rule on the objections because the 

appeal was pending in this court. We again remanded the case to the trial court for a 

decision on Michele’s objections to the magistrate’s decision. In a judgment journalized 

on April 9, 2020, the trial court overruled the objections as untimely. 

{¶ 18} On April 28, 2020, Michele filed a notice of appeal from the April 6, 2020 

judgment. The appeal was docketed as Huron County case No. H-20-010. 

{¶ 19} In Huron County case No. H-19-015, Michele assigns the following errors: 

Assignment of Error Number One.. [sic] 

THE TRIAL COURT ABUSED ITS DISCRETION AND THE 

DECISION WAS CONTRARY TO THE EVIDENCE PRESENTED 

WHEN IT FOUND THAT THE CHILD SUPPORT OBLIGATIONS 

MUST TERMINATE AT THE AGE OF NINETEEN EVEN THOUGH 

THE CHILD WAS ATTENDING AN ACCREDITING [sic] HIGH 

SCHOOL FULL TIME THE CONTRATUAL [sic] LANGUAGE IN THE 
9.

DIVORCE DECREE SHOULD HAVE BEEN FOLLOWED, AS ALSO 

PROVIDED UNDER ORC 3119.86(C). 

Assignment of Error Number Two 

THE TRIAL COURT ABUSED ITS DISCRETION AND MADE A 

DECISION AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE 

IN GRANTING CREDIT TO APPELLEE/OBLIGOR FOR OVERPAID 

CHILD SUPPORT WHERE APPELLEE DID NOT CONTEST THE 

CHILD SUPPORT PAYMENTS FOR SEVERAL YEARS. THE 

FINDING OF OVERPAYMENTS SHOULD BE BARRED BY THE 

DEFENSES OF LACHES AND ESTOPPEL[.] 

Assignment of Error Number Three 

THE TRIAL COURT ACTED ARBITRARILY AND CONTRARY 

TO LAW WHEN IT CORRECTED NUNC PRO TUNC THE AMOUNT 

OF CHILD SUPPORT PAYMENT, WITHOUT ATTACHING THE 

TRANSCRIPT, THE NUN [sic] PRO TUNC WAS MORE IN THE 

NATURE OF SUBSTANCE THAN A 60(A), CLERICAL MISTAKE TO 

THE PREJUDICE OF APPELLANT[.] 

Assignment of Error Number Four 

THE TRIAL COURT ERRED IN THE CALCULATION OF THE 

AMOUNT OF OVERPAYMENT AND IN GRANTING JUDGMENT 

FOR THE SAME TO APPELLEE, STEPHEN T. BURSIEL WHEN IN 
10. 

FACT, APPELLANT IS ENTITLED TO THE IMPOUNDMENT FUNDS 

AND SUPPORT FOR THE TIME PERIOD JANUARY 2019 TO JUNE 

2019[.] 

{¶ 20} In Huron County case No. H-20-010, Michele assigns the following errors: 

Assignment of Error Number One 

THE TRIAL COURT ERRED, TO THE PREJUDICE OF 

APPELLANTS, BY FAILING TO PREPARE AND FILE A 

MAGSITRATE”S [sic] DECISION THAT COMPLIES WITH OGIO [sic] 

CIVIL RULE 53[.] 

Assignment of Error Number Two 

IN THE ALTERNATIVE, THE TRIAL COURT COMMITTED 

REVERSIBLE ERROR[.] 

II. Law and Analysis 

A. Case No. H-19-015 

{¶ 21} In case No. H-19-015, Michele challenges the trial court’s decision 

(1) terminating Stephen’s child support obligation even though B.B. was still enrolled 

full-time in high school; (2) concluding that Stephen had overpaid on his child support 

obligation where Stephen did not challenge the amount of child support; (3) correcting 

the child support obligation in a nunc pro tunc entry when the error was one of substance 

and not a clerical mistake; and (4) granting judgment to Stephen for the overpayment of 

child support without verifying the calculation of the overpayment. 
11. 

{¶ 22} CSEA responds that Michele failed to object to the administrative 

termination hearing decision under R.C. 3119.91 and 3119.92. Instead, it claims, 

Michele filed a civil appeal with the trial court before the decision became final and 

appealable, then failed to file the transcripts necessary for the trial court to review the 

magistrate’s decision. CSEA insists that the error in the child-support award was a 

clerical error that was properly corrected with a nunc pro tunc entry, and that the court 

did not err in adopting CSEA’s support calculation given Michele’s failure to object. 

And CSEA argues that even if Michele had properly objected to the decision, R.C. 

3119.86(B) states that a child support order shall not remain in effect beyond the child’s 

nineteenth birthday. 

1. R.C. 3119.91 and 3119.92 

{¶ 23} At the time this case was pending in the lower court, R.C. 3119.91 

permitted Michele to object to CSEA’s administrative decision “by filing a motion within 

thirty days after the issuance of the decision in one of the following courts requesting a 

determination as to whether the order should be terminated or whether any other 

appropriate determination regarding the order should be made”: 

(A) With respect to a court child support order, in the court that 

issued the order or that otherwise has jurisdiction over the order; 

(B) With respect to an administrative child support order, the 

juvenile court or other court with jurisdiction under section 2101.022 or 
12. 

2301.03 of the Revised Code of the county in which the agency that issued 

the order is located. 

R.C. 3119.91 and 3119.92 further provide that “if neither the obligor nor the obligee files 

the motion within the thirty-day period, the administrative hearing decision is final and 

will be filed with the court or in the administrative case file.” 

{¶ 24} Instead of filing a motion in the divorce case (case No. DR-2000-0491) 

within 30 days of the administrative decision, Michele filed a notice of appeal in a new 

civil case (case No. CVF-2018-0703). This was problematic for two reasons: 

(1) Michele’s failure to file a motion within 30 days in the court with jurisdiction over the 

order (i.e., in the divorce case) rendered the decision final under R.C. 3119.91 and 

3119.92; and (2) there was no final appealable order at the time she filed a notice of 

appeal in the new case because that case was filed within 30 days of the decision—and 

under R.C. 3119.91 and 3119.92, the administrative decision did not become final until 

30 days after it was rendered. In other words, Michele failed to file a motion in the 

divorce case before the administrative termination decision became final, and she 

purported to appeal the decision in a new action before the decision became final and, 

therefore, appealable. 

{¶ 25} Michele does not address her failure to utilize the procedure set forth under 

R.C. 3119.91 and 3119.92. And unfortunately, her failure to comply with those statutes 

resulted in the August 9, 2018 administrative termination hearing decision becoming final 

30 days after it was decided. Because she did not file a timely motion challenging the 
13. 

administrative termination decision in the divorce action, we are unable to address the 

merits of her first, second, and fourth assignments of error. See A.C. v. V.G., 8th Dist. 

Cuyahoga No. 96759, 2011-Ohio-6285, ¶ 15 (finding no error in trial court’s refusal to 

hold hearing where objections were not filed within the thirty-day period to trigger the 

hearing requirement under R.C. 3119.92). 

2. Nunc Pro Tunc

{¶ 26} As to Michele’s third assignment of error, Civ.R. 60(A) permits a trial 

court, by motion or on its own initiative, to correct clerical mistakes in judgments and 

errors arising from oversight or omission. We have recognized that this mechanism may 

be used to correct errors in judgment entries so that the record “speaks the truth” and 

reflects what the court actually decided. Bracken v. Bracken, 6th Dist. Huron No. 

H-15-008, 2015-Ohio-5307, ¶ 11; Drenning v. Blue Ribbon Homes, 6th Dist. Fulton No. 

F-06-001, 2007-Ohio-1323, ¶ 93. “The issue of whether a trial court’s nunc pro tunc 

judgment improperly modifies its previous judgment raises a question of law, which we 

review de novo.” Bracken at ¶ 10, citing Neel v. Neel, 8th Dist. Cuyahoga No. 66441, 

1994 WL 677434, *2 (Dec. 1, 1994). 

{¶ 27} Here, the trial court’s May 21, 2018 nunc pro tunc judgment merely 

corrects the judgment to reflect what happened at the December 5, 2000 hearing. At that 

hearing, the court ordered Stephen to pay “$338.98 plus administrative fees”—not 

“$338.98 including poundage.” (Emphasis added.) The nunc pro tunc judgment was 

properly used to correct this discrepancy. 
14. 

{¶ 28} Accordingly, we find Michele’s third assignment of error in case No. 

H-19-015 not well-taken. 

B. Case No. H-20-010 

{¶ 29} In her appeal docketed as case No. H-20-010, Michele argues that the trial 

court erred in denying her Civ.R. 60(B) motion. She insists that her objections could not 

be deemed untimely because the magistrate’s decision did not contain a notice informing 

the parties of the deadline for filing objections and the effect of failing to file objections. 

Alternatively, Michele argues that the trial court committed plain error when it failed to 

consider—for purposes of her Civ.R. 60(B) motion—that her attorney had suffered a 

sudden health emergency requiring emergency surgery for an aneurysm,1

 thereby 

excusing her failure to file transcripts. 

1. Civ.R. 53 Notice 

{¶ 30} Under Civ.R. 53(D)(3)(a)(iii), a magistrate’s decision must be in writing, 

captioned as a magistrate’s decision, signed by the magistrate, filed with the clerk, and 

served by the clerk on all parties or their attorneys no later than three days after the 

decision is filed. The decision must indicate “conspicuously” that “a party shall not 

assign as error on appeal the court’s adoption of any factual finding or legal conclusion 

 

1

 Michele’s affidavit in support of her Civ.R. 60(B) motion states only that counsel was 

in ill health and that she was out of town to obtain treatment for a seriously ill minor 

child. No dates or other details are provided. 
15. 

* * * unless the party timely and specifically objects to that factual finding or legal 

conclusion as required by Civ.R. 53(D)(3)(b).” Id. 

{¶ 31} Civ.R. 53(D)(3)(b)(i) requires that objections be in writing and filed within 

14 days of the filing of the magistrate decision. The objections must be “supported by a 

transcript of all the evidence submitted to the magistrate relevant to that finding or an 

affidavit of that evidence if a transcript is not available,” and the transcript must be filed 

within 30 days after filing the objections unless the court grants an extension in writing. 

Civ.R. 53(D)(3)(b)(iii). A party may not assign as error on appeal the court’s adoption of 

the magistrate’s factual findings or legal conclusions—except for plain error—unless the 

party has filed objections to that finding or conclusion. Civ.R. 53(D)(3)(b)(iv). 

{¶ 32} Here, Michele claims in her first assignment of error that the magistrate’s 

decision did not include the required Civ.R. 53 notice. She maintains that because the 

decision does not contain the required notice, she was excused from filing objections 

within 14 days, thus the trial court erred in denying her objections as untimely. She 

argues that the remedy here is to remand the case to the trial court for consideration of 

her objections. 

{¶ 33} While Michele correctly states that the magistrate’s decision does not 

contain the required Civ.R. 53(D)(3)(a)(iii) notice, our review of the record reveals that 

the trial court judgment adopting the magistrate’s decision (decided the same day and 

served together with the magistrate’s decision) does contain the notice. Thus, the 

absence of the notice in the magistrate’s decision is harmless because the trial court 
16. 

judgment alerted Michele to the fact that objections were due within 14 days of the 

magistrate’s decision. See, e.g., Watley v. Ohio Dept. of Rehab. & Corr., 10th Dist. 

Franklin No. 06AP-1128, 2007-Ohio-1841, ¶ 12 (“Because the trial court gave Watley 

adequate notice of the requirements in Civ.R. 53 in its judgment entry, he is not relieved 

from compliance therewith by now claiming that he did not receive the magistrate’s 

decision.”). We, therefore, find Michele’s first assignment of error not well-taken. 

2. Plain Error

{¶ 34} Under Civ.R. 53(D)(3)(b)(iv), “[e]xcept for a claim of plain error, a party 

shall not assign as error on appeal the court’s adoption of any factual finding or legal 

conclusion * * * unless the party has objected to that finding or conclusion as required by 

Civ.R. 53(D)(3)(b).” In her second assignment of error, Michele argues that the failure to 

file the transcripts in support of her objections should have been deemed excusable 

neglect, and the trial court committed plain error in ruling otherwise. 

{¶ 35} The Supreme Court of Ohio has instructed that when applying the doctrine 

of plain error in a civil case, “the doctrine is sharply limited to the extremely rare case 

involving exceptional circumstances where the error, left unobjected to at the trial court, 

rises to the level of challenging the legitimacy of the underlying judicial process itself 

* * *. The plain error doctrine should never be applied to reverse a civil judgment 

simply because a reviewing court disagrees with the result obtained in the trial court 

* * *.” Goldfuss v. Davidson, 79 Ohio St.3d 116, 122, 679 N.E.2d 1099 (1997). 

(Emphasis sic.). 
17. 

{¶ 36} Under Civ.R. 60(B), a party may be relieved from a final judgment for the 

following reasons: 

(1) mistake, inadvertence, surprise or excusable neglect; 

(2) newly discovered evidence which by due diligence could not 

have been discovered in time to move for a new trial under Rule 59(B); 

(3) fraud (whether heretofore denominated intrinsic or extrinsic), 

misrepresentation or other misconduct of an adverse party; 

(4) the judgment has been satisfied, released or discharged, or a prior 

judgment upon which it is based has been reversed or otherwise vacated, or 

it is no longer equitable that the judgment should have prospective 

application; or 

(5) any other reason justifying relief from the judgment. 

{¶ 37} The Supreme Court of Ohio has held that to prevail on a motion for relief 

from judgment under Civ.R. 60(B), the moving party must demonstrate: “(1) the party 

has a meritorious defense or claim to present if relief is granted; (2) the party is entitled to 

relief under one of the grounds stated in Civ. R. 60(B)(1) through (5); and (3) the motion 

is made within a reasonable time.” GTE Automatic Electric, Inc. v. Arc Industries, Inc., 

47 Ohio St.2d 146, 351 N.E.2d 113 (1976), paragraph two of the syllabus. We review a 

trial court judgment denying a motion for relief from judgment under an abuse of 

discretion standard. Kerger & Hartman, LLC v. Ajami, 6th Dist. Lucas No. L-16-1135, 

2017-Ohio-7352, ¶ 13. An abuse of discretion connotes that the trial court’s attitude is 
18. 

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219, 450 N.E.2d 1140 (1983). 

{¶ 38} Michele relies on Civ.R. 60(B)(1) and argues that her attorney’s failure to 

submit the required transcripts constituted excusable neglect. The Supreme Court of 

Ohio generally defines excusable neglect in the negative: “a defendant’s inaction is 

not excusable neglect if it can be deemed a ‘“complete disregard for the judicial 

system.”’” Kay v. Marc Glassman, Inc., 76 Ohio St.3d 18, 20, 665 N.E.2d 1102 (1996), 

quoting GTE Automatic Elec., Inc. v. ARC Industries, Inc., 47 Ohio St.2d 146, 153, 351 

N.E.2d 113 (1976). Where a party is represented, the party bears a greater burden to 

show excusable neglect. State ex rel. Jackson v. Ohio Adult Parole Auth., 140 Ohio St.3d 

23, 2014-Ohio-2353, 14 N.E.3d 1003, ¶ 24. “[A]ttorney conduct falling ‘substantially 

below what is reasonable under the circumstances’ constitutes inexcusable neglect.” Hai 

v. Flower Hosp., 6th Dist. Lucas No. L-07-1423, 2008-Ohio-5295, ¶ 21, quoting GTE at 

152. Thus, an attorney’s conduct will be deemed inexcusable “if it can be labeled a 

complete disregard for the judicial system or if the conduct falls substantially below what 

was reasonable under the circumstances.” State ex rel. Jackson at ¶ 25. 

{¶ 39} In determining whether excusable neglect has occurred, the court must take 

into consideration the surrounding facts and circumstances. Rose Chevrolet, Inc. v. 

Adams, 36 Ohio St.3d 17, 21, 520 N.E.2d 564 (1988). “If the movant fails to apprise the 

court of those surrounding facts and circumstances and the court subsequently overrules 

the motion, that judgment cannot be characterized as an abuse of discretion.” Id. 
19. 

{¶ 40} Here, even if we assume that an attorney’s failure to submit the required 

transcripts may be excused because he or she was experiencing health problems, 

Michele’s affidavit contains insufficient details to show that counsel’s health was, in fact, 

the reason for his failure to submit those transcripts. She provided no dates and no 

description of the nature or length of counsel’s illness. See Terlau v. N & D Restaurants, 

Inc., 2d Dist. Montgomery No. 26791, 2016-Ohio-4725, ¶ 19 (“Based on the record 

before us, we cannot find that the trial court abused its discretion * * * in failing to 

conclude, when it ruled on the motion for relief from judgment based on the information 

before it, that counsel’s unspecified ‘health issue’ constituted ‘excusable neglect.’”). We, 

therefore, find no plain error in the trial court’s decision to adopt the magistrate’s 

decision, which rejected Michele’s claim of excusable neglect. 

{¶ 41} Accordingly, we find Michele’s two assignments of error in case No. 

H-20-010 not well-taken. 

III. Conclusion 

{¶ 42} As to Michele’s first, second, and fourth assignments of error in case No. 

H-19-015, Michele failed to utilize the procedure for objecting to the administrative 

termination decision set forth under R.C. 3119.91 and 3119.92. Her failure to comply 

with those statutes resulted in the August 9, 2018 administrative termination hearing 

decision becoming final 30 days after it was decided, and renders us unable to address the 

merits of those assignments of error. As to her third assignment of error, the trial court’s 

May 21, 2018 nunc pro tunc judgment merely corrects the judgment to accurately reflect 
20. 

what happened at the December 5, 2000 hearing. A nunc pro tunc judgment was the 

proper tool for making the correction. We find Michele’s four assignments of error not 

well-taken and affirm the June 14, 2019 judgment of the Huron County Court of 

Common Pleas (case No. H-19-015). 

{¶ 43} As to Michele’s first assignment of error in case No. H-20-010, the 

magistrate’s decision does not contain the required Civ.R. 53(D)(3)(a)(iii) notice, but the 

trial court’s judgment (decided the same day and served together with the magistrate’s 

decision) does contain the notice. Thus, the absence of the notice in the magistrate’s 

decision was harmless. As to her second assignment of error, even assuming that an 

attorney’s failure to submit required transcripts may be excused because he or she was 

experiencing health problems, Michele’s affidavit provided no dates and no description 

of the nature or length of counsel’s illness, and, therefore, contains insufficient details to 

show that counsel’s health was, in fact, the reason for his failure to submit those 

transcripts. We find Michele’s two assignments of error not well-taken and affirm the 

April 6, 2020 judgment of the Huron County Court of Common Pleas (case No. 

H-20-010). 

{¶ 44} Michele is ordered to pay the costs of this appeal under App.R. 24. 

Judgments affirmed. 

 
21. 

 Bursiel v. Bursiel 

 C.A. Nos. H-19-015 

 H-20-010 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Christine E. Mayle, J. _______________________________ 

 JUDGE 

Gene A. Zmuda, P.J. 

 _______________________________ 

Myron C. Duhart, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.