Merit Decision. An Application and a Brochure Do Not a Contract Make. Rayess v. Educational Comm. for Foreign Med. Graduates.

On December 6, 2012, the Supreme Court handed down a merit decision in Rayess v. Educational Comm. for Foreign Med. Graduates, 2012-Ohio-5676. In a unanimous opinion for the Court, Justice O’Donnell wrote that neither an informational pamphlet describing an exam nor the application to take the exam is a contract.

Case Background

Mohammed Rayess graduated from medical school in Syria in 1986, then completed a residency in orthopedic surgery in France.  In 1991 he came to the United States to obtain a medical residency. Graduates of foreign medical schools must be certified by the Educational Commission for Foreign Medical Graduates (the Commission) before applying for medical residency in Ohio.

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

Nearly fifteen years later Rayess sued the Commission on a number of grounds.  The only one pertinent to this appeal is breach of an express written contract. (the statute of limitations for a written contract is fifteen years.)  Attached to Rayess’ complaint were (1) a redacted copy of his application to take the USMLE and an acknowledgement of its receipt by the commission, (2) a copy of a letter he sent to the commission enclosing payment for the examination and a copy of a canceled check, (3) a copy of a letter he sent to the commission requesting a transfer to a different testing site and a copy of a cancelled check evidencing payment of the transfer fee, (4) a copy of part of an informational pamphlet published by the commission describing the testing procedures of the USMLE and a confirmation from the commission regarding his testing site, and (5) a statement of his account with the commission, reflecting his payments.

The trial court held that the documents that Rayess had attached to his complaint did not constitute an express written contract, and granted judgment on the pleadings to the Commission.

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, and that the case was timely filed within the fifteen year statute of limitations.  (sorry, no link, since most of this case was filed under seal).

Commission’s Appeal and Proposed Proposition of Law

The Commission appealed and proposed 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.”

Issue

Can an informational pamphlet and an application to take an exam form an express written contract?

Short answer: They don’t in this case.

Some Contract Fundamentals

In case it’s been awhile since you took first year contracts, the Court abstracts this definition from Kostelnik v. Helper, 2002-Ohio-2985:

“A contract is generally defined as a promise, or a set of promises, actionable upon breach. Essential elements of a contract include an offer, acceptance, contractual capacity, consideration (the bargained for legal benefit and/or detriment), a manifestation of mutual assent and legality of object and of consideration.”

And a few other contract bromides:

  • There must be a meeting of the minds as to all essential terms of the contract
  • The contract must be definite or certain.

Why There is No Written Contract in this Case

 “[T]he 15-year statute of limitations (set forth in R.C. 2305.06) applies only when a written instrument clearly defines the obligations of the parties without implying terms and without referring to supplemental evidence to establish the express terms of the agreement,” O’Donnell wrote.

In this case, “the documents attached to the complaint do not set out the parties mutually agreed-upon set of rights and obligations in terms that are definite and certain.”

Description of Rayess’ Documents

The application to take the exam was just a request to do so; nothing more. The pamphlet contains a lot of explanatory information for the applicants, there is no written promise in it that the exam will be governed by any terms and conditions set forth in the pamphlet.

“Describing a certification process or a testing procedure does not transform an informational pamphlet into a written contract,” wrote O’Donnell. “In this case, the informational pamphlet and application materials make no promises in writing regarding the certification process or the testing procedures.”

Conclusion

No written contract. The court of appeals is reversed and the Commission is granted judgment as a matter of law.

Case syllabus

1. An informational pamphlet describing the testing required of a foreign medical- school graduate in order to obtain a medical license in the United States is not a contract.

2. An application to take an examination is a request to do so, and if approved, allows an applicant the opportunity to participate in the examination, subject to the direction of the testing authority; it is not an express written contract subject to the 15-year statute of limitations.

Concluding Observations

I felt everyone bent over backward at oral argument because Mr. Rayess appeared pro se, even though that isn’t supposed to happen. I guess I did too, because I missed on this one—I predicted a majority would find that the combination of the informational brochure, the payment of a fee, and the application did constitute a written contract. I thought Rayess would get the right to sue, but would probably never prevail on the merits.  Student contributor Greg Kendall did better. He noted after argument that Justice O’Donnell was not convinced that a contract could be found in the large number of documents Rayess argues constitute the contract.

My favorite exchange from the argument was when Justice Cupp asked counsel for the Commission, if this wasn’t a contract what was it?  It had to be something, didn’t it? The answer was “Reservation of a chair and the chance to take the test.” Indeed.

Even though this isn’t necessary given this result, for those in the business of drafting brochures, it wouldn’t hurt to include this language in large bold print: This is Not a Contract!

 

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