Oral Argument Preview: Can a General Informational Brochure, an Application to Take a Test, and Payment of a Fee Constitute a Written Contract? Rayess v. Educational Commission for Foreign Medical Graduates.

Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument in this case here.

On August 21, the Supreme Court of Ohio will hear oral argument in the case of Rayess v. Educational Commission for Foreign Medical Graduates, 2011-1933. The issue in this case is whether a written contract can exist when it is based on an application to take an examination, payment of a fee to do so, and the receipt of general informational brochures about the exam.

This case is unusual in that the briefs of the parties and the opinion of the Second District Court of Appeals have been filed under seal. From what can be gleaned from the Ohio Supreme Court docket information, the lower courts granted a confidentiality order in the case, which Rayess, who is representing himself, has asked the Supreme Court to continue. The Supreme Court has agreed, granting Rayess’ motion to “extend [the] validity of [the] confidentiality order issued by [the] trial court and court of appeals to cover all filings in [the] Supreme Court.”

In its notice of filing its reply brief under seal pursuant to the Court’s orders, ECFMG noted its disagreement with the decision to seal the case filings.

The justices on this court are big on openness, so there must be a good reason for all of this. Despite the confidentiality orders, a motion for sanctions filed by Rayess was not filed under seal, and contains a substantial amount of background to this case. (The motion for sanctions was denied). Those interested should follow the link to the docket statement.

Based on the jurisdictionals, which are not sealed, here’s what the case is about.

In 1993, Mohamed Rayess applied to take the United States Medical Licensing Exam, which is administered by the defendants. After he submitted his application and paid a fee, he received a copy of the USMLE’s bulletin and informational brochures. Rayess took the exam in September 1993. He failed Part I of the exam.

In September 2008, Rayess sued ECFMG. The case was voluntarily dismissed. Rayess re-filed in 2009, alleging breach of contract, “tortious damages” and negligent and intentional infliction of emotional distress. He claimed that ECFMG failed to provide him with sufficient time to complete the first part of the test, which deprived him of the ability to practice as an orthopedic surgeon. Rayess based this claim on a statement in the informational brochure he received regarding the time periods allotted for each portion of the test.

The trial court granted ECFMG’s motion for judgment on the pleadings, finding that there was no enforceable written contract, that the emotional distress claims were not actionable, and that the remaining causes of action were barred by the statute of limitations.

On appeal, the Second District Court of Appeals reversed the trial court’s grant of judgment on the pleadings on the issue of the written contract. It found that the brochure, application and fee payment created a written contract that survived ECFMG’s statute of limitations argument, but affirmed the trial court’s ruling on all other issues.

ECFMG has appealed to the Supreme Court of Ohio. It sets forth this proposition of law: “A written contract cannot exist when it is based on a general informational brochure coupled with supplemental evidence to establish the obligations of the parties.”

ECFMG argues that under Civ. R. 10(D), Rayess was required to attach a copy of the written document constituting the contract to his complaint. The instrument was required to define the parties’ obligations without referencing supplemental evidence. Because the contract that Rayess claims existed consists of multiple separate documents, there is no enforceable written contract. It argues that if a contract could be supported by various documents such as the brochures and other information provided to Rayess and other testers, the ECFMG could be subjected to endless litigation by disgruntled examinees.

In response, Rayess argued that his circumstances are unique, and thus the case does not present a matter of great public or general interest. As to the merits, Rayess argues that the documents clearly show all the elements of contract formation and define the obligations of both parties. In addition, he claims that ECFMG waived its right to claim a violation of Civ. R. 10 as a basis for dismissing the complaint.

On July 27, 2012, Rayess filed a motion (also under seal) to hold the oral argument behind closed doors.  The Court denied that motion.

Student Contributor: Greg Kendall

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2 Responses to Oral Argument Preview: Can a General Informational Brochure, an Application to Take a Test, and Payment of a Fee Constitute a Written Contract? Rayess v. Educational Commission for Foreign Medical Graduates.

  1. Bart Rosenberg says:

    Fifteen years later? He has clear and concise documentation and perfect, corrabable memory after fifteen years? He needs to man up and take his lumps.

  2. Andy Engel says:

    Yeah, his delay is not really justifiable, but that is not what the Court will consider.

    We know a contract need not address every term in order to be enforceable. The UCC supplies omitted terms, and provisions of law are deemed incorporated into a contract even though they were not referenced by the parties.

    Keep in mind that RC 2305.06 does not apply only to written contracts, it also applies to agreements and promises in writing. This language suggests a slightly looser standard than that argued by the testing agency.

    We must look at the purpose behind the longer SOL for written contracts. My vague recollection is that the availability of evidence as to the terms of a contract is one of the greatest concerns. And it seems that if Rayess is seeking to enforce a written promise (the language contained in the application and brochure), the evidentiary concern is eliminated.

    Let’s think of it more simply: Rayess either accepted the offer of the agency (as contained in the brochure) by applying to take the test, or the agency accepted his offer to take the test by cashing his check and allowing him to sit for the exam. Either way, we have writings that prove a contractual relationship. The Court may well have to rule whether all of the documents form the agreement. If it hold that the brochure is not part of the agreement, he probably loses.

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