Johnston v. Med. Pharma Servs., Inc.

[Cite as Johnston v. Med. Pharma Servs., Inc., 2021-Ohio-3419.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ROBERT JOHNSTON : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellant : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
MEDICAL PHARMA SERVICES, INC. : Case No. 2021 CA 00054
D/B/A MEDICAL PHARMA SERVICES :
S.R.O. :
:
Defendant-Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2020 CV 01722
JUDGMENT: Affirmed
DATE OF JUDGMENT: September 28, 2021
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JAMES J. COLLUM GREGORY C. DJORDJEVIC
4740 Belpar Street, NW Skylight Office Tower
Suite C 1660 West 2nd Street
Canton, OH 44718 Suite 1100
Stark County, Case No. 2021 CA 00054 2
Cleveland, OH 44113-1448
Wise, Earle, J.
{¶ 1} Plaintiff-Appellant, Robert Johnston, appeals the April 28, 2021 judgment
entry of the Court of Common Pleas of Stark County, Ohio, granting the motion to dismiss
filed by defendant-appellee, Medical Pharma Services, Inc. dba Medical Pharma Services
S.R.O.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On December 30, 2019, the parties entered into an employment agreement.
Appellant began working for appellee on the designated start date of December 1, 2019.
The agreement called for a year-to-year renewal of employment unless otherwise
terminated or notified of non-extension according to the applicable provisions in the
agreement. On October 16, 2020, appellee notified appellant his employment contract
was not being extended and his employment would end on December 1, 2020, the final
day of the one-year employment term.
{¶ 3} Appellant sought severance pay under the agreement. His request was
denied.
{¶ 4} On December 28, 2020, appellant filed a complaint alleging breach of
contract for failing to pay severance pay. Appellant claimed ambiguity in the employment
agreement, namely, the definition of the term "terminated" for purposes of severance pay.
Attached to the complaint were the Executive Employment Agreement and the Notice of
Non-Extension of Employment.
{¶ 5} On April 5, 2021, appellee filed a motion to dismiss pursuant to Civ.R.
12(B)(6), arguing failure to state a claim because appellant was not terminated from his
Stark County, Case No. 2021 CA 00054 3
employment and therefore was not entitled to severance pay. By judgment entry filed
April 28, 2021, the trial court granted the motion and dismissed the complaint.
{¶ 6} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶ 7} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT GRANTED
DEFENDANT-APPELLEE MEDICAL PHARMA SERVICES INC. D/B/A MEDICAL
PHARMA SERVICES S.R.O.'S ('MEDICAL PHARMA SERVICES') MOTION TO
DISMISS PURSUANT TO CIV. R. 12(B)(6)."
I
{¶ 8} In his sole assignment of error, appellant claims the trial court abused its
discretion in granting appellee's motion to dismiss the complaint. We disagree.
{¶ 9} The trial court dismissed the complaint pursuant to Civ.R. 12(B)(6). Said
rule permits dismissal for "failure to state a claim upon which relief can be granted." Under
this standard, a trial court is limited to a review of the four corners of the complaint;
however, "[d]ocuments attached to or incorporated in the complaint may be considered
on a motion to dismiss pursuant to Civ.R. 12(B)(6)." NCS Healthcare, Inc. v. Candlewood
Partners, L.L.C., 160 Ohio App.3d 421, 2005-Ohio-1669, 827 N.E.2d 797, ¶ 20 (8th Dist.).
In considering the motion, a trial court "must accept as true all factual allegations in the
complaint and construe any reasonable inferences in favor of the non-moving party."
Valentine v. Cedar Fair, L.P., 6th Dist. Erie No. E-20-018, 2021-Ohio-2144, ¶ 22, citing
Alford v. Collins-McGregor Operating Co., 152 Ohio St.3d 303, 2018-Ohio-8, 95 N.E.3d
382. In order for a trial court to dismiss a complaint under Civ.R. 12(B)(6), "it must appear
Stark County, Case No. 2021 CA 00054 4
beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him
to recovery." O'Brien v. University Community Tenants Union, Inc., 42 Ohio St.2d 242,
327 N.E.2d 753 (1975), syllabus.
{¶ 10} Our standard of review is de novo, and therefore this court "must review the
issues independently of the trial court's decision." Perrysburg Township v. Rossford, 103
Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44; Mellion v. Akron City School District
Board of Education, Summit App. No. 23227, 2007-Ohio-242, ¶ 6. "We review the grant
of the motion to dismiss afresh, again taking the factual allegations of the complaint as
true and drawing all reasonable inferences in favor of [appellant]." Habibi v. University of
Toledo, 10th Dist. Franklin No. 19AP-583, 2020-Ohio-766, ¶ 10.
{¶ 11} In his appellate brief at 6, appellant argues when he was separated from
employment on October 16, 2020, "it was a termination without cause and thus triggered
severance payments under Section 4" of the employment agreement. Appellant argues
Sections 2 and 4 of the agreement are ambiguous. The sections state the following in
pertinent part:
2. Start Date; Term. The Executive's first date of employment shall
be December 1, 2019 (the "Start Date"). The Company hereby agrees to
employ the Executive and the Executive hereby accepts employment with
the Company upon the terms set forth in this Agreement for the period
commencing on the Start Date and ending on the first (1st) anniversary of
the Start Date (such period, the "Initial Term"), with the term of employment
hereunder automatically extended for successive one (1) year periods
Stark County, Case No. 2021 CA 00054 5
thereafter (each such period, a "Subsequent Term") unless: (a) sooner
terminated pursuant to Section 4 below; or (B) at least thirty (30) days prior
to the conclusion of the Initial Term or a Subsequent Term, either the
Company or the Executive provides written notice to the other party of its
election not to extend the Initial Term or a Subsequent Term, as applicable.
4. Termination; Payments.
(b) Termination by the Company without Cause; Severance
Payment. In the event that the executive's employment is terminated by the
Company other than for Cause six (6) or more months following the Start
Date, then, in addition to the Accrued Obligations, the Executive shall
receive the following severance payment, subject to the terms and
conditions of Section 4(c): * * *. For the avoidance of doubt, if the Company
terminates Executive's employment with or without Cause, within six (6)
months of the Start Date, Executive shall receive no severance payment.
(Emphasis added.)
{¶ 12} In his appellate brief at 5, appellant argues if he "was employed for more
than six (6) months and was involuntarily separated without cause by MPS under the
Employment Agreement, such a termination triggers both Section 2 (in which no
severance is due to Johnston) and Section 4 (namely 4b, in which severance is due to
Johnston)."
{¶ 13} The October 16, 2020 Notice of Non-Extension of Employment sent to
appellant stated the following:
Stark County, Case No. 2021 CA 00054 6
Pursuant to Section 2 of the employment agreement you executed
with the Company on December 30, 2019 (the "Agreement"), Medical
Pharma Services, S.R.O. (the "Company") is providing you with at least
thirty (30) days prior written notice of its decision not to extend the Initial
Term (as defined in the Agreement) of your employment. Accordingly, your
employment with the Company will end on December 1, 2020.
From now until December 1, you will continue to perform your
responsibilities in a manner that ensures the orderly transition of your
responsibilities. You will continue to receive your salary in accordance with
the Company's regularly scheduled payroll. Your final paycheck will be paid
to you consistent with applicable law upon your separation from the
Company. * * *
{¶ 14} In its April 28, 2021 judgment entry granting the motion to dismiss, the trial
court examined the complaint with the attached documents and determined the following:
The Court does not find Section 2 and Section 4 of the Agreement
are ambiguous or that the sections overlap, as argued by Plaintiff. The
Court finds that the Plaintiff's employment in this matter was not terminated
pursuant to Section 4 of the Agreement thereby entitling Plaintiff to
severance pay. Rather, the Court finds that Plaintiff's employment was not
renewed pursuant to Section 2.
Stark County, Case No. 2021 CA 00054 7
The clear and unambiguous language of Section 2 of the Agreement,
provided that Plaintiff's employment was for one year, commencing on
December 1, 2019. The employment automatically extended for
successive one year periods thereafter unless either party elected not to
extend the employment by providing 30 days prior written notice.
On October 16, 2020, Defendant provided written notice to Plaintiff
that it was not extending his employment beyond the Initial Term.
Defendant continued his employment through December 1, 2020, and
continued to receive his salary in accordance with the Company's regularly
scheduled payroll.
Plaintiff was not terminated pursuant to Section 4 of the Agreement
thereby triggering entitlement to severance pay. The Court finds that
Plaintiff's employment was not extended pursuant to Section 2 of the
Agreement.
{¶ 15} We concur with the trial court's analysis. In examining the complaint and
the attached exhibits, taking the factual allegations of the complaint as true and drawing
all reasonable inferences in favor of appellant, we find there is no doubt appellant can
prove no set of facts entitling him to recovery. Appellant was not terminated from
employment, his employment term was simply not extended. Because Section 4 of the
agreement pertains to termination of employment, said section is inapplicable in this case.
The agreement is not ambiguous.
Stark County, Case No. 2021 CA 00054 8
{¶ 16} Upon review, we find the trial court did not err in granting appellee's Civ.R.
12(B)(6) motion to dismiss the complaint.
{¶ 17} The sole assignment of error is denied.
{¶ 18} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Wise, J., J. concur.
EEW/db