Haven v. Lodi , 2022 Ohio 3957 ( 2022 )


Menu:
  • [Cite as Haven v. Lodi, 
    2022-Ohio-3957
    .]
    STATE OF OHIO                    )                      IN THE COURT OF APPEALS
    )ss:                   NINTH JUDICIAL DISTRICT
    COUNTY OF MEDINA                 )
    BRET HAVEN                                              C.A. No.    21CA0074-M
    Appellant
    v.                                              APPEAL FROM JUDGMENT
    ENTERED IN THE
    VILLAGE OF LODI                                         COURT OF COMMON PLEAS
    COUNTY OF MEDINA, OHIO
    Appellee                                        CASE No.   21 CIV 0298
    DECISION AND JOURNAL ENTRY
    Dated: November 7, 2022
    CALLAHAN, Judge.
    {¶1}    Appellant, Bret Haven, appeals from the judgment of the Medina County Court of
    Common Pleas dismissing his amended complaint for failure to state a claim. For the reasons set
    forth below, this Court affirms.
    I.
    {¶2}    In August 2015, Mr. Haven was hired by the village of Lodi (“Lodi”) as a part-time
    police officer. Mr. Haven became a full-time police officer in March 2016. On February 10, 2021,
    the Chief of Police of Lodi recommended to the Mayor of Lodi, who is also the Village Council
    President, that Mr. Haven’s employment with the Lodi police department be terminated. Lodi
    terminated Mr. Haven on February 20, 2021. The reason for his termination was that Mr. Haven
    was “‘dishonest, unfair, having no respect for the rights of others, being rude, being insulting,
    [conduct unbecoming]’” when he issued a citation to a motorist who was “doing donuts with his
    car in a snowy parking lot at a trailer park[.]”
    2
    {¶3}    Mr. Haven filed a complaint against Lodi alleging wrongful termination in violation
    of public policy. Lodi moved to dismiss the complaint for failure to state a claim, asserting that
    Mr. Haven’s wrongful termination claim failed to satisfy the requisite clarity and jeopardy
    elements. In response to Lodi’s motion to dismiss, Mr. Haven filed an amended complaint. Lodi
    filed a motion to dismiss the amended complaint for failure to state a claim, reasserting the
    arguments in its prior motion to dismiss and adding a new argument that Mr. Haven could not
    pursue a claim for wrongful termination in violation of public policy because he was not an at-will
    employee. The trial court scheduled a deadline for Mr. Haven to file a response. Prior to that
    deadline Mr. Haven moved for a sixty-day extension of the response deadline so that he could
    issue discovery to Lodi, which he asserted would render moot all the issues in the motion to
    dismiss. Lodi opposed the motion for extension, but the trial court granted Mr. Haven a sixty-day
    extension.
    {¶4}    Ten days before his response to Lodi’s motion to dismiss was due, Mr. Haven
    moved for a second extension of the response deadline. He requested an additional 150 days to
    conduct depositions in follow-up to Lodi’s discovery responses. Lodi opposed Mr. Haven’s
    second extension request and Mr. Haven filed a reply. The deadline for Mr. Haven to oppose
    Lodi’s motion to dismiss passed without him having filed a response brief. Eleven days after the
    briefing period closed, the trial court denied Mr. Haven’s motion for a second extension and
    granted Lodi’s motion to dismiss the amended complaint.
    {¶5}    Mr. Haven timely appealed, raising two assignments of error.
    II.
    ASSIGNMENT OF ERROR NO. 1
    THE COURT OF COMMON PLEAS ERRED TO THE MATERIAL PREJUDICE
    OF [MR. HAVEN] WHEN IT GRANTED [LODI’S] OHIO CIVIL RULE
    3
    12(B)(6) MOTION AFTER ERRONEOUSLY CONSTRUING THE
    ALLEGATIONS IN THE AMENDED COMPLAINT AGAINST [MR. HAVEN]
    TO MAKE UNFOUNDED FACT INFERENCES AND ERRONEOUS
    CONCLUSIONS OF LAW FROM THE ALLEGATIONS THEREIN
    INCLUDING THAT [MR. HAVEN] WAS NOT AN AT-WILL EMPLOYEE
    ENTITLED TO PURSUE A GREELEY WRONGFUL DISCHARGE CLAIM.
    {¶6}    In his first assignment of error, Mr. Haven argues that the trial court erred in
    dismissing his amended complaint for failure to state a claim. We disagree.
    {¶7}    This Court reviews an order granting a Civ.R. 12(B)(6) motion to dismiss de novo.
    Perrysburg Twp. v. Rossford, 
    103 Ohio St.3d 79
    , 
    2004-Ohio-4362
    , ¶ 5. A motion to dismiss under
    Civ.R. 12(B)(6) for failure to state a claim “is a procedural motion that tests the sufficiency of the
    plaintiff’s complaint.” Pugh v. Capital One Bank (USA) NA, 9th Dist. Lorain No. 20CA011643,
    
    2021-Ohio-994
    , ¶ 7, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 
    65 Ohio St.3d 545
    , 548 (1992). A court may dismiss a complaint for failure to state a claim only when, having
    presumed that all factual allegations in the complaint are true and having made all reasonable
    inferences in favor of the plaintiff, it appears beyond a doubt that the plaintiff can prove no set of
    facts that would permit a recovery. Mitchell v. Lawson Milk Co., 
    40 Ohio St.3d 190
    , 192 (1988);
    O’Brien v. Univ. Community Tenants Union, Inc., 
    42 Ohio St.2d 242
     (1975), syllabus. However,
    “unsupported conclusions of a complaint are not considered admitted and are not sufficient to
    withstand a motion to dismiss.” State ex rel. Seikbert v. Wilkinson, 
    69 Ohio St.3d 489
    , 490 (1994).
    Accord State ex rel. Yeager v. McCarty, 9th Dist. Summit No. 29626, 
    2021-Ohio-2492
    , ¶ 5. A
    court’s consideration of a Civ.R. 12(B)(6) motion to dismiss is limited to the complaint’s factual
    allegations and any materials incorporated into the complaint. King v. Semi Valley Sound, LLC,
    9th Dist. Summit No. 25655, 
    2011-Ohio-3567
    , ¶ 8. A “court may not assume as true or even
    4
    consider facts alleged in a party’s brief or attachments thereto.” Phung v. Waste Mgt., Inc., 
    23 Ohio St.3d 100
    , 102 (1986).
    {¶8}    Mr. Haven’s amended complaint set forth a single count for wrongful discharge in
    violation of public policy. As a general rule, Ohio follows the doctrine of employment at-will.
    See Mers v. Dispatch Printing Co., 
    19 Ohio St.3d 100
    , 103 (1985). However, in Greeley v. Miami
    Valley Maintenance Contrs., Inc., 
    49 Ohio St.3d 228
     (1990), the Ohio Supreme Court carved out
    a public policy exception to this rule: “Public policy warrants an exception to the employment-at-
    will doctrine when an employee is discharged or disciplined for a reason which is prohibited by
    statute.” 
    Id.
     at paragraph one of the syllabus.
    {¶9}    A Greeley cause of action may only be brought by an at-will employee. Haynes
    v. Zoological Soc. of Cincinnati, 
    73 Ohio St.3d 254
     (1995), syllabus. Accord Deadwyler v. Akron
    Pub. Schools, 9th Dist. Summit No. 21549, 
    2003-Ohio-7173
    , ¶ 14. “The identifying characteristic
    of an employment-at-will relationship is that either the employer or the employee may terminate
    the employment relationship for any reason which is not contrary to law.” Haynes at 258, citing
    Mers at paragraph one of the syllabus and Boggs v. Avon Prods., Inc., 
    56 Ohio App.3d 67
    , 71 (12th
    Dist.1990).
    {¶10} “‘[T]he [employment] relationship between a governmental employer an[d]
    employee is governed exclusively by statute or legislative enactment.’” Evans v. Shawnee Twp.
    Bd. of Trustees, 3d Dist. Allen No. 1-20-25, 
    2021-Ohio-1003
    , ¶ 9, quoting Cobb v. Oakwood, 
    789 F.Supp. 237
    , 240 (N.D.Ohio 1991). The General Assembly has enacted statutes governing the
    employment of police chiefs and police officers by a village. See R.C. 737.15 to R.C. 737.171,
    R.C. 737.19. R.C. 737.16 provides for the appointment of a police officer for a village and that
    the “officer[] shall continue in office until removed therefrom for the cause and in the manner
    5
    provided by [R.C. 737.19].” R.C. 737.19(B) sets forth the grounds and the procedure for
    suspension of a police officer by the marshal and provides for discipline or removal of a police
    officer by the mayor. A police officer may be suspended on the grounds of “incompetence, gross
    neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given them by the
    proper authority, or for any other reasonable or just cause.” 
    Id.
     The mayor inquires as to the above
    citied cause of the suspension and renders a judgment on the charges. 
    Id.
     Should the charges be
    sustained, the mayor’s judgment “may be for the person’s suspension, reduction in rank, or
    removal from the department.” 
    Id.
     The police officer may appeal the mayor’s judgment to the
    village’s legislative authority. 
    Id.
     Based upon R.C. 737.16 and R.C. 737.19(B), a police officer
    employed by a village “cannot be removed at any time for any reason or no reason, as is the case
    with employment at[-]will.” Compare Howell v. New Lebanon, Ohio, 2d Dist. Montgomery No.
    18323, 
    2000 WL 1726864
    , *2-3 (Nov. 22, 2000) (A village employee who filed a Greeley claim
    was not an employee at-will because the village charter “provide[d] particular bases for removal”
    of the employee and the employee could not be “removed at any time for any reason or no
    reason[.]”). Accordingly, a police officer appointed by the mayor of the village pursuant to R.C.
    737.16 is not an at-will employee.
    {¶11} In contrast to those statutes, R.C. 737.17 sets forth minimal requirements for the
    termination of a probationary village police officer. See Klein v. Woodlawn, Ohio, 1st Dist.
    Hamilton No. C-75308, 
    1976 WL 189728
    , *2 (May 17, 1976). Before a police officer can be
    finally appointed, the police officer must satisfactorily complete a continuous six-month
    probationary period. R.C. 737.17. At the end of the probationary period, the mayor may remove
    or finally appoint the police officer. 
    Id.
     The decision to remove a probationary officer is solely
    that of the mayor; neither council nor the marshal are involved in this decision. See Scarpelli v.
    6
    Put-in-Bay, Ohio, 6th Dist. Ottawa No. OT-94-037, 
    1995 WL 386462
    , *3 (June 30, 1995); R.C.
    737.17. See also Bruns v. Chippewa Lake, 9th Dist. Medina No. 02CA0110-M, 
    2003-Ohio-3144
    ,
    ¶ 9-10. If the mayor chooses to remove the probationary officer, the statute does not afford any
    rights or procedures to a probationary village police officer for a hearing. See Barnes v. Cadiz,
    7th Dist. Harrison No. 01 531 CA, 
    2002-Ohio-1534
    , ¶ 12; Klein at *2. Unlike a finally appointed
    police officer, a probationary police officer lacks the “right[] to be terminated for cause” and a
    probationary police officer has no “property interest in their employment.” Barnes at ¶ 12. Thus,
    a probationary police officer under R.C. 737.17 is an at-will employee. Id. at ¶ 13.
    {¶12} The trial court, after construing the allegations in the amended complaint to be true
    and making all reasonable inferences in favor of Mr. Haven, granted Lodi’s motion to dismiss the
    amended complaint for failure to state a claim because it concluded that Mr. Haven could not be
    an at-will employee. “An essential element of the [Greeley] tort is that the employee was an at-
    will employee.” Potts v. Catholic Diocese of Youngstown, 
    159 Ohio App.3d 315
    , 2004-Ohio-
    6816, ¶ 29 (7th Dist.). Accordingly, a plaintiff pursuing a claim for wrongful discharge in violation
    of public policy must plead and prove that he was an at-will employee. Strausbaugh v. Ohio Dept.
    of Transp., 
    150 Ohio App.3d 438
    , 
    2002-Ohio-6627
    , ¶ 36 (10th Dist.).
    {¶13} Mr. Haven argues that he did plead that he was an at-will employee, but the trial
    court “refused to take the pleadings as truthful.” Mr. Haven’s amended complaint alleged he “was
    an employee at will, which means he could not be fired for an illegal reason including a violation
    of Ohio public policy * * *.” Mr. Haven’s allegation that he “was an employee at will[]” was an
    unsupported conclusion.     “Conclusions in the complaint that are not supported by factual
    allegations in the complaint cannot be deemed admitted and are insufficient to withstand a motion
    to dismiss.” State ex rel. Yeager, 
    2021-Ohio-2492
    , at ¶ 5. As set forth in the following analysis,
    7
    Mr. Haven failed to plead factual allegations in support of his conclusion that he was an employee
    at-will. Rather, his factual allegations regarding his employment refuted his conclusion that he
    was an at-will employee.
    {¶14} Mr. Haven suggests that the employee handbook supports his conclusion that he
    was an at-will employee. The employee handbook, however, was not attached to the amended
    complaint, nor was it referenced in the amended complaint. Instead, excerpts from the employee
    handbook and discovery responses related to the employee handbook were attached to Mr.
    Haven’s motions for extension of time to respond to Lodi’s motion to dismiss the amended
    complaint. However, the “court may not assume as true or even consider facts alleged in a party’s
    brief or attachments thereto.” Phung, 23 Ohio St.3d at 102. Rather, the court is limited to
    considering the factual allegations in the complaint and any attachments thereto. See State ex rel.
    Fuqua v. Alexander, 
    79 Ohio St.3d 206
    , 207 (1997). Because “[a] motion to dismiss must be
    decided only on the basis of the complaint[]” and Mr. Haven did not allege in the amended
    complaint that the employee handbook provided that Mr. Haven’s employment was at-will, nor
    did he attach the employee handbook to his amended complaint, we cannot consider or assume as
    true Mr. Haven’s new allegation that the employee handbook stated he was an at-will employee.
    See Conrad v. Wooster Community Hosp., 9th Dist. Wayne No. 2553, 
    1990 WL 163860
    , *1-2
    (Oct. 24, 1990) (holding that the trial court erred when it granted a motion to dismiss because it
    considered the employee handbook, which was not attached to the complaint, to determine that the
    employee was at-will).
    {¶15} Mr. Haven’s amended complaint alleged that he was employed as a police officer
    for Lodi and Lodi is a statutory village. The amended complaint alleged that Mr. Haven was hired
    as a part-time police officer in August 2015 and was made a full-time police officer in March 2016.
    8
    Mr. Haven also alleged that his employment was terminated on February 20, 2021 through the
    actions of the police chief, mayor, and the council of Lodi. Mr. Haven alleged the grounds for his
    termination were that he was “‘dishonest, unfair, having no respect for the rights of others, being
    rude, being insulting, [conduct unbecoming]’” during a traffic stop.
    {¶16} Based upon Mr. Haven’s allegations, Lodi, as a statutory village, is “bound by the
    provisions of the Ohio Revised Code[,]” see Bruns, 
    2003-Ohio-3144
    , at ¶ 6, and Mr. Haven was a
    governmental employee whose employment was governed by statute, Evans, 
    2021-Ohio-1003
    , at
    ¶ 9, quoting Cobb, 789 F.Supp. at 240. While the amended complaint did not explicitly state
    whether Mr. Haven was a probationary or finally appointed police officer for Lodi, there were
    factual allegations that he was hired by Lodi as a part-time police officer, six months later he was
    made a full-time police officer, and his termination occurred almost five years later. Further, Mr.
    Haven’s allegations that he was terminated by the actions of the police chief, mayor, and council
    and that his termination was based upon him being “‘dishonest, unfair, having no respect for the
    rights of others, being rude, being insulting, [conduct unbecoming]’” during a traffic stop support
    the conclusion that he was removed from office for cause and pursuant to the procedures in R.C.
    737.19 as is required by R.C. 737.16 for a finally appointed police officer, and that he was not
    terminated pursuant to R.C. 737.17 which governs probationary police officers.
    {¶17} Construing the factual allegations as true and making all reasonable inferences in
    favor of Mr. Haven, Mr. Haven was not a probationary police officer under R.C. 737.17 and subject
    to removal for any reason; rather, he was a finally appointed police officer whose employment was
    governed by R.C. 737.16 and R.C. 737.19 and subject to removal only for cause. Therefore, as a
    matter of law, Mr. Haven was not an at-will employee and a cause of action under Greeley was
    unavailable to him. See Barnes, 
    2002-Ohio-1534
    , at ¶ 12-14; Howell, 
    2000 WL 1726864
    , at *3.
    9
    {¶18} Mr. Haven asserts that the trial court erred in considering whether he was a
    probationary police officer at the time of his termination because that fact has no relevance to the
    case. On the contrary, Mr. Haven’s status as a probationary police officer when he was terminated
    is not only relevant, but dispositive of the issue of whether he was an at-will employee and stated
    a claim for wrongful discharge in violation of public policy. See Barnes at ¶ 13-14 (Pursuant to
    R.C. 737.17 a probationary police officer is an at-will employee, and a probationary police officer
    may have a Greeley cause of action.).
    {¶19} Mr. Haven argues that the trial court incorrectly interpreted and relied upon R.C.
    737.16 and R.C. 737.19 to grant Lodi’s motion to dismiss. Namely, Mr. Haven asserts that neither
    R.C. 737.16 or R.C. 737.19 create a property right in a village police officer’s employment because
    these statutes do not provide the police officer with tenure and thus village police officers are at-
    will employees. Mr. Haven suggests that village police officers are members of the unclassified
    civil service because village employees are not considered classified public employees and “R.C.
    737.19 does not promise any employee will only be terminated for good cause,” but only sets forth
    a routine procedure for a police chief to discipline a police officer.
    {¶20} The issue of whether an employee has a property right in his or her continued
    employment is relevant to whether the employee has any due process rights with respect to
    termination of their employment. See Cleveland Bd. of Edn. v. Loudermill, 
    470 U.S. 532
    , 538-539
    (1985). Lodi urges this Court to find Mr. Haven’s tenure argument to be irrelevant in this matter
    because his amended complaint did not allege a cause of action for deprivation of his due process
    rights. We agree Mr. Haven has not pursued a due process claim in his amended complaint.
    Moreover, he is not arguing on appeal that his due process rights were violated. Instead, we
    understand Mr. Haven’s tenure argument to be limited to the position that village police officers
    10
    are at-will employees because R.C. 737.19 does not provide a property interest in continued
    employment. See generally Schmidt v. Newtown, 1st Dist. Hamilton No. C-110470, 2012-Ohio-
    890, ¶ 8 (“At-will employees * * * do not have a property interest in continued employment.”).
    {¶21} Mr. Haven asserts that R.C. 737.19 is not equivalent to the civil service statutes
    governing termination of public employees. We recognize that R.C. 124.34 pertains to civil
    service employees, but does not apply to village employees. State ex rel. Henderson v. New
    Richmond, Ohio, 12th Dist. Clermont No. CA2019-11-089, 
    2020-Ohio-4875
    , ¶ 31. However,
    “[c]ourts have analogized the language in R.C. 737.19 governing the termination of village police
    officers to R.C. 124.34 which governs the tenure, reduction, suspension, removal, and demotion
    of classified civil servants.” Velazquez v. Bratenahl, 8th Dist. Cuyahoga No. 81592, 2003-Ohio-
    878, ¶ 14, citing Shaffer v. W. Farmington, 
    82 Ohio App.3d 579
    , 587 (11th Dist.1992) and Stephen
    v. Barnesville, Ohio, 7th Dist. Belmont No. 97 BA 12, 
    1999 WL 669491
    , *3 (Aug. 20, 1999). R.C.
    737.16 states that the village police officer “shall continue in office until removed therefrom for
    the cause and in the manner provided by [R.C. 737.19].” R.C. 737.19(B) governs the termination
    of village police officers and provides that they “may only be terminated for ‘* * * incompetence,
    gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given them
    by proper authority, or for any other reasonable or just cause.’” (Emphasis added.) Velazquez at
    ¶ 13, quoting R.C. 737.19(B). Accordingly, courts have held that “[o]n its face, R.C. 737.19(B)
    bears a strong resemblance to the police and fire department civil service appeal provisions found
    at R.C. 124.34.” Shaffer at 587. For instance,
    R.C. 124.34 lists grounds for suspension, removal or reduction in rank as including
    “incompetency, inefficiency, dishonesty, drunkenness, immoral conduct,
    insubordination, discourteous treatment of the public, neglect of duty, * * * any
    other failure of good behavior, or any other acts of misfeasance, malfeasance or
    nonfeasance in office.”
    11
    Moreover, the role of the “appointing authority” (which is frequently a city’s
    mayor) is similar to the role the village marshal and village mayor play in an R.C.
    737.19(B) appeal. The analogy continues with the city’s civil service commission
    serving in the quasi-judicial capacity which the village’s legislative authority
    fulfills in an R.C. 737.19(B) appeal.
    Id. at 587, fn. 1.
    {¶22} “In Loudermill, the United States Supreme Court held that R.C. 124.34 creates a
    property interest in continued employment for classified civil servants because such employees
    can only be terminated for cause.” Velazquez at ¶ 14, citing Loudermill at 538-539. Likewise,
    R.C. 737.19 creates a property interest in continued employment for a village police officer
    because village police officers can be terminated “only for just or reasonable cause[]” under R.C.
    737.19(B). Velazquez at ¶ 14. See also R.C. 737.16. Accordingly, Mr. Haven’s position that
    village police officers are employees at-will because R.C. 737.16 and R.C. 737.19 do not provide
    a property interest in continued employment is not well-taken.
    {¶23} Mr. Haven also submits that village police officers are employees at-will because a
    village may terminate the police officers for economic reasons. His argument suggests that village
    police officers are at-will employees because they may be terminated for reasons other than cause
    under R.C. 737.19 The Ohio Supreme Court has “concluded that public employees may be laid-
    off for reasons of economy ‘notwithstanding statutory or charter provisions to the effect that no
    employee in the classified service shall be removed except for cause * * *, the view * * * being
    that such statutory or charter provisions * * * are not intended to restrict the public authorities in
    their efforts to effect necessary or desirable economies.’” (Alterations in the original.) Gannon v.
    Perk, 
    46 Ohio St.2d 301
    , 312-313 (1976), quoting State ex rel. Buckman v. Munson, 
    141 Ohio St. 319
    , 326 (1943). Neither Gannon nor Munson hold that a public employee who, by statute, may
    12
    only be removed for cause is in-fact an employee at-will because the government is permitted to
    lay off a civil service employee for economic reasons.
    {¶24} Lastly, Mr. Haven argues that R.C. 737.19 only creates a scheme for the police
    chief of the village police department to discipline a police officer for cause and there is not a
    judicial remedy nor an adequate or exclusive remedy providing for recovery of damages. This
    argument addresses the jeopardy element in a Greeley cause of action. See House v. Iacovelli, 
    159 Ohio St.3d 466
    , 
    2020-Ohio-435
    , ¶ 16, 19. While Lodi argued in its motion to dismiss that the
    amended complaint failed to satisfy the jeopardy element, the trial court did not grant the motion
    to dismiss on that basis. Accordingly, we will not address this argument in the first instance. See
    Carriage Ins. Agency, Inc. v. Ohio Farmers Ins. Co., 9th Dist. Summit No. 27259, 2015-Ohio-
    2617, ¶ 12.
    {¶25} Upon review of Mr. Haven’s amended complaint, and presuming all factual
    allegations as true and construing the reasonable inferences in Mr. Haven’s favor, Mr. Haven has
    failed to state a claim upon which relief may be granted. Accordingly, we conclude that the trial
    court did not err in dismissing Mr. Haven’s amended complaint pursuant to Civ.R. 12(B)(6).
    {¶26} Mr. Haven’s first assignment of error is overruled.
    ASSIGNMENT OF ERROR NO. 2
    THE TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING [MR.
    HAVEN] A SECOND EXTENSION OF TIME TO FILE A BRIEF IN
    OPPOSITION TO [LODI’S] CIVIL RULE 12(B)(6) MOTION AND TO TAKE
    ADDITIONAL DISCOVERY WHEN THE EXTENSION WAS SOUGHT
    BECAUSE OF EVASIVE DISCOVERY RESPONSES MADE BY THE
    OPPOSING PARTY IN FIRST ROUND DISCOVERY.
    {¶27} In his second assignment of error, Mr. Haven argues that the trial court abused its
    discretion when it denied his motion for a second extension of time to file a response to Lodi’s
    motion to dismiss and to conduct additional discovery. Alternatively, Mr. Haven argues that it
    13
    was an abuse of discretion for the trial court to deny his second motion for extension and to grant
    Lodi’s motion to dismiss in the same order and not allow him two weeks to file a response brief.
    We disagree with both arguments.
    {¶28} We review a trial court’s decision denying a motion for extension of time to respond
    to a motion for an abuse of discretion. GMAC Mtge., L.L.C. v. Jacobs, 
    196 Ohio App.3d 167
    ,
    
    2011-Ohio-1780
    , ¶ 7 (9th Dist.) See Civ.R. 6(B). “[A] trial court has the inherent power to conduct
    discovery as it deems appropriate[.]” Riggs v. Richard, 5th Dist. Stark No. 2006CA00234, 2007-
    Ohio-490, ¶ 15. Thus, a trial court’s decision regarding the regulation of discovery proceedings is
    reviewed for an abuse of discretion. See Wells Fargo Bank, NA v. Russell, 9th Dist. Summit No.
    29005, 
    2019-Ohio-776
    , ¶ 18. An abuse of discretion is present when a trial court’s decision “‘is
    contrary to law, unreasonable, not supported by evidence, or grossly unsound.’” Menke v. Menke,
    9th Dist. Summit No. 27330, 
    2015-Ohio-2507
    , ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No.
    8-14-24, 
    2015-Ohio-1999
    , ¶ 25.
    {¶29} Mr. Haven submits that his second motion for extension of time to respond to
    Lodi’s motion to dismiss was based upon Lodi’s evasive discovery responses. Mr. Haven asked
    the trial court for an additional 150 days to conduct discovery and to take depositions regarding a
    variety of issues, including his status as an at-will employee, which he asserted was a key
    dispositive issue to the motion to dismiss. Mr. Haven indicated to the trial court that Lodi perjured
    itself when it responded to the request for admission with a denial that he was an at-will employee
    and that depositions were needed as to this issue. Mr. Haven did not present any other bases for
    his second request for extension of time to respond to Lodi’s motion to dismiss.
    {¶30} Mr. Haven asserts that the trial court’s denial of the discovery motion and the
    second motion for extension of time to respond to the motion to dismiss prevented him from
    14
    proving his claims. Mr. Haven has misconstrued the law regarding a motion to dismiss. A motion
    to dismiss “is a procedural motion that tests the sufficiency of the plaintiff’s complaint.” Pugh,
    
    2021-Ohio-994
    , at ¶ 7, citing State ex rel. Hanson, 65 Ohio St.3d at 548. The Ohio Supreme Court
    has explained that review of a motion to dismiss for failure to state a claim is consistent with the
    notice pleading requirement. York v. Ohio State Hwy. Patrol, 
    60 Ohio St.3d 143
    , 144-145 (1991).
    A plaintiff need not “prove his or her case at the pleading stage.” Id. at 145. Rather, “as long as
    there is a set of facts, consistent with the plaintiff’s complaint, which would allow the plaintiff to
    recover, the court may not grant a defendant’s motion to dismiss.” Id.
    {¶31} In this matter, the trial court denied the second motion for extension of time
    because “[n]o amount of discovery can cure [Mr. Haven’s] own factual assertions contradicting
    and refuting the requirement that [he] be an at-will employee to be entitled to pursue [a Greeley]
    cause of action.” Mr. Haven asserts that the trial court abused its discretion in reaching that
    conclusion. As addressed in the first assignment of error, Mr. Haven’s factual allegations did not
    support the legal conclusion that he was an at-will employee. Additional discovery cannot remedy
    these pleading deficiencies.
    {¶32} Appellate courts in Ohio have concluded that discovery is unnecessary for a trial
    court to decide a motion to dismiss for failure to state a claim upon which relief can be granted.
    Wiles v. Miller, 10th Dist. Franklin No. 12AP-989, 
    2013-Ohio-3625
    , ¶ 3, 44, quoting Lindow v. N.
    Royalton, 
    104 Ohio App.3d 152
    , 159 (8th Dist.1995). “The completion of discovery is not relevant
    to the granting of a motion to dismiss[,]” because the trial court’s consideration of a motion to
    dismiss under Civ.R. 12(B)(6) is limited to the allegations and evidence contained in the complaint
    and precludes facts outside of the complaint. See Lindow at 159; Crane Serv. & Inspections, LLC
    v. Cincinnati Specialty Underwriters Ins. Co., 12th Dist. Butler No. CA2018-01-003, 2018-Ohio-
    15
    3622, ¶ 33, citing Lindow at 159. See Conrad, 
    1990 WL 163860
    , at *3 (noting that because a
    Civ.R. 12(B)(6) motion is based only on the complaint, discovery is of “no consequence until the
    disposition of the motion to dismiss”). Accordingly, we conclude that the trial court did not abuse
    its discretion in not allowing further discovery and in denying the second motion for extension of
    time to respond to the motion to dismiss.
    {¶33} Alternatively, Mr. Haven asserts that if he could not have five months for further
    discovery and to file his response brief, the trial court should have given him at least two additional
    weeks to file his response brief. In this case, Mr. Haven filed his second motion for extension of
    time ten days prior to the response brief deadline. The trial court denied the second motion for
    extension and granted Lodi’s motion to dismiss eleven days after Mr. Haven’s response brief was
    due. While we recognize that the trial court’s ruling on the second motion for extension after the
    expiration of the filing deadline placed Mr. Haven in a difficult predicament as to how to proceed,
    this Court has followed the rule of law that “a trial court’s failure to rule gives rise to a presumption
    that the trial court has denied the motion.” See Jacobs, 
    196 Ohio App.3d 167
    , 
    2011-Ohio-1780
    ,
    at ¶ 9. A party “cannot rely upon the granting of such a motion and should proceed as if said
    motion had been denied when it is not promptly granted by the trial court.” Breeding v. Herberger,
    
    81 Ohio App.3d 419
    , 421 (10th Dist.1992). Mr. Haven did not proceed in this manner and the trial
    court granted the motion to dismiss after Mr. Haven’s deadline to file his response had expired.
    See Jacobs at ¶ 9. Accordingly, it was not an abuse of discretion for the trial court to proceed to
    rule on Lodi’s motion to dismiss after the briefing period had expired and without the benefit of a
    response brief from Mr. Haven.
    {¶34} Furthermore, Mr. Haven’s second request for an extension of time only requested
    an extension of 150 days for discovery and to file his response. He did not request an alternative
    16
    period of two weeks in the event the trial court denied his request for 150 days. Accordingly, we
    cannot say that the trial court abused its discretion when it did not provide Mr. Haven two
    additional weeks to file a response brief.
    {¶35} Mr. Haven’s second assignment of error is overruled.
    III.
    {¶36} Mr. Haven’s assignments of error are overruled. The judgment of the Medina
    County Court of Common Pleas is affirmed.
    Judgment affirmed.
    There were reasonable grounds for this appeal.
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of
    this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
    for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
    mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
    docket, pursuant to App.R. 30.
    Costs taxed to Appellant.
    LYNNE S. CALLAHAN
    FOR THE COURT
    17
    CARR, P. J.
    SUTTON, J.
    CONCUR.
    APPEARANCES:
    MICHAEL T. CONWAY, Attorney at Law, for Appellant.
    IRVING B. SUGERMAN and J. ALEX QUAY, Attorneys at Law, for Appellee.
    DAVID SPORAR, Attorney at Law, for Appellee.