[Cite as Rayess v. Educational Comm. for Foreign Med. Graduates, 134 Ohio St.3d 509, 2012-
Ohio-5676.]




         RAYESS, APPELLEE, v. EDUCATIONAL COMMISSION FOR FOREIGN
                         MEDICAL GRADUATES, APPELLANT.
        [Cite as Rayess v. Educational Comm. for Foreign Med. Graduates,
                       134 Ohio St.3d 509, 2012-Ohio-5676.]
R.C. 2305.06—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—An application to take an examination
         is not an express written contract.
     (No. 2011-1933—Submitted August 21, 2012—Decided December 6, 2012.)
            APPEAL from the Court of Appeals for Montgomery County,
                                      No. 24125.
                                 __________________
                               SYLLABUS OF THE COURT
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.
                               ____________________
         O’DONNELL, J.
         {¶ 1} The Educational Commission for Foreign Medical Graduates
appeals from a judgment of the Second District Court of Appeals that reversed the
trial court judgment and held that an informational pamphlet describing the
United States Medical Licensing Examination (“USMLE”) and application
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materials submitted by Mohamed Bassem Rayess to participate in that
examination formed an express written contract governed by the 15-year statute
of limitations established by former R.C. 2305.06. Am.Sub.H.B. No. 152, 145
Ohio Laws, Part II, 3313, 3569.
       {¶ 2} The trial court had determined that the documents Rayess attached
to the complaint—which included part of an informational pamphlet published by
the commission describing the USMLE, written confirmation from the
commission regarding the testing site, and a copy of his proof of payment—did
not constitute an express written contract, and it further concluded that to the
extent Rayess alleged that an unwritten contract existed, the six-year statute of
limitations established by R.C. 2305.07 for contracts not in writing barred
recovery.
       {¶ 3} The court of appeals, on the other hand, found that the documents
attached to the complaint demonstrated that the commission had “promised, in
exchange for his payment of a four hundred dollar fee, which [the commission]
accepted, to allow Rayess to take the exam administered by [it].” 2d Dist. No.
24125 (Sept. 20, 2011). The appellate court held that the documents represented a
“promise in writing” by the commission, and it concluded that Rayess had timely
asserted a breach-of-contract claim because the 15-year statute of limitations for
written contracts applied.
       {¶ 4} 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. Similarly, an application to take an examination is a
request to do so, and if approved, it allows the applicant an 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.
       {¶ 5} The documents attached to the complaint do not include any promise
in writing, nor do they contain definite, mutually agreed-upon terms setting forth




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the rights and duties of the parties. These documents do not constitute a written
contract, and the 15-year statute of limitations does not apply to this case.
Accordingly, we reverse the judgment of the court of appeals and reinstate the
judgment of the trial court.
                              Facts and Procedural History
        {¶ 6} Rayess graduated from a Syrian medical school in 1986, and after
completing a residency in orthopedic surgery in France, he came to the United
States in 1991 to obtain a medical residency.
        {¶ 7} Graduates of foreign medical schools are required to be certified by
the commission before applying for medical residency in Ohio. The commission
is a not-for-profit corporation that administers various examinations to foreign-
medical-school graduates to assess whether an applicant is prepared to enter an
accredited medical residency or fellowship program in the United States.
        {¶ 8} The USMLE is one of the examinations administered by the
commission, and a passing score on Parts I and II of the exam is required for
certification. In an informational pamphlet, the commission described Part I as a
two-day, multiple-choice examination “consist[ing] of four, three-hour test
books.”
        {¶ 9} The commission approved Rayess’s application to take Part I of the
USMLE on September 21 and 22, 1993. Rayess took and failed that examination.
        {¶ 10} On September 19, 2008—almost 15 years later—Rayess sued the
commission for breach of an express written contract, alleging that it had failed to
administer Part I of the USMLE in accordance with the terms and conditions
contained in the pamphlet by denying him the entire amount of time allowed for
completing part of the examination.1                 Rayess voluntarily dismissed that

1. We note that Rayess filed two other actions that arose out of the same alleged incident: Rayess
v. Univ. of Cincinnati, 6th Cir. No. 97-3228, 1998 WL 69309 (Feb. 10, 1998) (claims against the
University of Cincinnati, which proctored the USMLE, did not survive a motion to dismiss), and
Rayess v. Kaplan Educational Ctr., 2d Dist. No. 08-CA-29, 2009-Ohio-1962 (claim for breach of




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complaint, but refiled it on October 16, 2009, further alleging that the breach of
contract caused him to fail the examination and suffer damages.
        {¶ 11} Rayess attached several exhibits to the 2009 complaint he filed in
the Montgomery County Court of Common Pleas: (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
canceled 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.
        {¶ 12} The commission denied the allegations in the complaint and
asserted the statute of limitations as a defense.               It subsequently moved for
judgment on the pleadings.
        {¶ 13} The trial court granted the motion, finding that the documents
attached to the complaint did not constitute an express written contract and that
“in the event that an oral contract existed,” the six-year statute of limitations for
oral contracts barred recovery. Rayess appealed, and the Second District Court of
Appeals reversed the judgment and remanded the cause to the trial court.
        {¶ 14} The commission appealed to this court and presents one
proposition of law:




a written contract dismissed as legally insufficient because the documents proffered by Rayess did
not constitute a contract in writing that supported his claim). Whether those cases trigger the
preclusive effect of res judicata in the present case is not an issue before us on appeal.




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         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.


         {¶ 15} The commission contends that the informational pamphlet does not
establish any enforceable duties and that Rayess therefore has failed to
demonstrate the existence of an express written contract. It notes that Rayess
attached no single document setting forth all the essential elements of a contract,
and it maintains that the documents on which Rayess relies cannot be construed as
a binding and enforceable written contract, because nothing defines the
obligations of the parties and because the exhibits reference other documents not
attached to the complaint.
         {¶ 16} Rayess maintains that the informational pamphlet the commission
provided and the application documents he submitted, construed together, prove
the existence of an express written contract and therefore the 15-year statute of
limitations governs his claim. He emphasizes that the informational pamphlet
represented that “[t]he examination consists of four, three-hour test books” and
claims that when the commission failed to give him three hours to complete part
of the examination, it breached the express terms of the contract. Rayess further
argues that if this court determines that an oral contract existed, issues related to
his immigration status and his immigration petition tolled the statute of limitations
in this case. Rayess waived any argument regarding an oral contract by failing to
appeal the judgment of the court of appeals in favor of the commission on that
issue.
         {¶ 17} We are called on to examine whether an informational pamphlet
and an application to take an examination can form an express written contract.




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                               Law and Analysis
       {¶ 18} Civ.R. 12(C) provides, “After the pleadings are closed but within
such time as not to delay the trial, any party may move for judgment on the
pleadings.” We construed Civ.R. 12(C) in State ex rel. Midwest Pride IV, Inc. v.
Pontious, 75 Ohio St.3d 565, 569-570, 664 N.E.2d 931 (1996), explaining:


       [D]ismissal is appropriate where a court (1) construes the material
       allegations in the complaint, with all reasonable inferences to be
       drawn therefrom, in favor of the nonmoving party as true, and (2)
       finds beyond doubt, that the plaintiff could prove no set of facts in
       support of his claim that would entitle him to relief. Thus, Civ.R.
       12(C) requires a determination that no material factual issues exist
       and that the movant is entitled to judgment as a matter of law.


(Citation omitted.) Id. at 570. Because the review of a decision to dismiss a
complaint pursuant to Civ.R. 12(C) presents only questions of law, id., our review
is de novo. See Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-
4362, 814 N.E.2d 44, ¶ 5.
       {¶ 19} In Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770
N.E.2d 58, we described the requirements for formation of a contract:


              “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.”




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Id. at ¶ 16, quoting Perlmuter Printing Co. v. Strome, Inc., 436 F.Supp. 409, 414
(N.D.Ohio 1976). We further explained that “[a] meeting of the minds as to the
essential terms of the contract is a requirement to enforcing the contract.” Id.,
citing Episcopal Retirement Homes, Inc. v. Ohio Dept. of Indus. Relations, 61
Ohio St.3d 366, 369, 575 N.E.2d 134 (1991).         And to be enforceable, “the
contract must be definite and certain.” Episcopal Retirement Homes at 369, citing
James Ward & Co. v. Wick Bros. & Co., 17 Ohio St. 159 (1867).
       {¶ 20} The version of R.C. 2305.06 in effect at all times relevant here
established the statute of limitations for written contracts and provided, “Except
as provided in sections 126.301 and 1302.98 of the Revised Code, an action upon
a specialty or an agreement, contract, or promise in writing shall be brought
within fifteen years after the cause thereof accrued.”        (Emphasis added.)
Am.Sub.H.B.No. 152, 145 Ohio Laws, Part II, 3313, 3569.
       {¶ 21} Because R.C. 2305.06 governs an agreement, contract, or promise
in writing, the 15-year statute of limitations 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. Thus, only those terms set forth in writing that establish the
mutually agreed-upon set of contractual rights and duties are subject to R.C.
2305.06.
       {¶ 22} Here, the documents attached to the complaint do not expressly set
out the parties’ mutually agreed-upon obligations in terms that are definite and
certain. Rather, the commission provided Rayess with an informational pamphlet
describing the testing procedure, and Rayess submitted an application to take the
examination. Neither the pamphlet nor the application imposed any express
enforceable duty on the commission or Rayess.
       {¶ 23} An application to take an examination is a mere request to do so
and, if approved, allows the applicant an opportunity to participate in the




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examination, subject to the direction of the test administrator. It is not an express
written contract.   And there is no language in the application materials that
expressly incorporates the statements in the pamphlet as part of a contract.
       {¶ 24} Although the pamphlet explains to applicants that Part I of the
USMLE consists of four three-hour test books, there is no promise in writing that
the examination will be governed by any terms and conditions set forth in the
pamphlet.     Notably, even the appellate court recognized that the pamphlet’s
statement that the examination consists of four three-hour test books is not an
express written promise but only “implies that applicants will be allowed a full
three hours to complete each of those sections.” (Emphasis added.) Describing a
certification process or a testing procedure does not transform an informational
pamphlet into a written contract. See, e.g., Minster Farmers Coop. Exchange Co.,
Inc. v. Meyer, 117 Ohio St.3d 459, 2008-Ohio-1259, 884 N.E.2d 1056 (invoice
and account statements did not constitute a written contract for the purposes of
R.C. 1343.03); Giuliani v. Duke Univ., M.D.N.C. No. 1:08cv502, 2009 WL
1408869 (May 19, 2009) (nonbinding student policy manuals are not contracts);
Love v. Duke Univ., 776 F.Supp. 1070, 1075 (M.D.N.C.1991) (“The court is of
the opinion that no contract existed between Love and Duke University.
Particularly, the academic bulletin is not a binding contract”).
       {¶ 25} In this case, the informational pamphlet and application materials
make no promises in writing regarding the certification process or the testing
procedures.
                                    Conclusion
       {¶ 26} The informational pamphlet provided by the commission
describing the certification process and the testing procedures of the examinations
it administers is not a written contract, because it contains no promises and no
definite, mutually agreed-upon terms setting forth the rights and duties of the
parties. Thus, Rayess can prove no set of facts in support of his claim that would




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entitle him to relief, and the commission is entitled to judgment as a matter of
law. Accordingly, the judgment of the court of appeals is reversed.
                                                              Judgment reversed.
       O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP,
and MCGEE BROWN, JJ., concur.
                               ________________
       Mohamed Bassem Rayess, pro se.
       Janik, L.L.P., Steven G. Janik, and Audrey K. Bentz, for appellant.
                           ______________________




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