OPINION
GRADY, P.J.
{¶ 1} This appeal is before the court on a notice of appeal filed on June 29, 2010, by Plaintiff-Appellant, Mohamed Bassem Rayess. The appeal is from a final order filed on June 3, 2010, granting a Civ.R. 12(C) motion for judgment on the pleadings filed by Defendant-Appellee, Educational Commission For Foreign Medical Graduates ("ECFMG").
{¶ 2} Rayess commenced an action against ECFMG on September 19, 2008. Rayess voluntarily dismissed that action pursuant to Civ.R. 41(A) on October 17, 2008. On October 16, 2009, Rayess commenced the underlying action against ECFMG on the same claims
{¶ 3} for relief pleaded in the prior action, pursuant to R.C. 2305.19.
{¶ 4} Rayess is a native of Syria who obtained a medical degree there and subsequently pursued a residency in orthopedic surgery in France. Rayess alleged in his complaint that "[o]n August 6, 1993, and on September 14, 1993, Plaintiff signed a written contract with the Defendant to administer to him the United States Medical Licensing Exam Part 1, on September 21 and 22 of 1993" in Cincinnati, Ohio, ¶3, and that "[o]n September 21, 1993, . . . Defendant breached the written contract by failing to give Plaintiff the exact and sufficient time to complete the exam." ¶5. Rayess's complaint further alleged that ECFMG's failure prevented him from passing the exam and "is a breach of a written contract under Ohio law, as the receipts including cancelled checks, the receipts, and the accompanying letters and application are considered written (sic) contract." ¶49.
{¶ 5} Rayess's complaint attached the documents to which he referred. Exhibit 1 consists of copies of Rayess's application to take the United States Medical Licensing Exam ("the exam") administered by ECFMG and ECFMG's acknowledgment that it received Rayess's application. Exhibit 2 consists of a copy of a letter from Rayess to ECFMG enclosing a check in the amount of four hundred dollars in payment of the fee to take the exam and a copy of the cancelled check. Exhibit 3 is a copy of another letter from Rayess to ECFMG, thanking ECFMG for transferring his exam site from Washington, D.C. to Cincinnati and a copy of Rayess's cancelled check in the amount of thirty-five dollars in payment for that service. Exhibit 4 is a copy of a document published by ECFMG describing the exam and a copy of a Western Union telegram from ECFMG to Rayess confirming the time and place of the exam he was scheduled to take, along with a statement of Rayess's account with ECFMG showing that he paid the four hundred dollar fee.
{¶ 6} In addition to breach of a written contract, Rayess pleaded tort claims for damages resulting from the breach, negligent infliction of emotional distress, and intentional infliction of emotional distress. Those latter claims for relief arise from immigration problems and career losses Rayess allegedly suffered because he failed to pass Part 1 of the exam on September 21, 1993.
{¶ 7} Rayess's complaint prayed for a judgment for compensatory and punitive damages and for prejudgment and postjudgment interest. Rayess also asked the court "to clean Plaintiff's exam record because the court of appeal for the second district in Rayess v. Kaplan Educational Center declared that Plaintiff was defrauded by Kaplan and that resulted in Plaintiff failing the medical licensing exams . . ." ¶.6, Prayer for Relief.1
{¶ 8} ECFMG filed an answer to Rayess's complaint on November 20, 2009. (Dkt. 7). ECFMG denied the allegations of the complaint discussed above, including that Rayess and ECFMG had executed a written contract, ¶3, but nevertheless admitted that Rayess "submitted an application and payment" to take the exam that ECFMG administered. ¶23. ECFMG also pleaded multiple affirmative defenses, including statute of limitations.
{¶ 9} ECFMG filed a Civ.R. 12(C) motion for judgment on the pleadings, relying primarily on its statute of limitations affirmative defenses. (Dkt. 19). ECFMG argued that the action on the claims for relief that Rayess commenced on September 19, 2008, accrued on September 21, 1993, almost fifteen years earlier, when he took the test administered by ECFMG. Because the tort claims in Rayess's complaint are subject to four year statutes of limitation, ECFMG argued that the action on those claims is barred. ECFMG further argued that because Rayess failed to attach a copy of his alleged written contract with ECFMG to his complaint or, failing that, to state a reason for the omission in the pleading, which Civ.R. 10(D)(1) requires, Rayess cannot prove a written contract governed by the fifteen year statute of limitations, R.C. 2305.06. Therefore, by default, his action on his breach of contract claim is governed by the six year statute of limitations for actions on oral contracts, R.C. 2305.07, and on this record the action is barred because it was not timely filed.
{¶ 10} Rayess filed a memorandum contra ECFMG's motion. (Dkt. 26). Rayess argued that copies of documents he attached to his complaint constitute a written contract. Rayess also attached to his memorandum other documents of a kind similar to those attached to his complaint.
{¶ 11} The trial court granted ECFMG's motion for judgment on the pleadings. (Dkt. 47). The court found that Rayess's action on his breach of contract and tort claims against ECFMG accrued on September 19, 1993, when Rayess took the test administered by ECFMG. The court found that the tort claims in the action Rayess commenced on September 19, 2008, almost fifteen years later, are subject to the four-year statute of limitations in R.C. 2305.09, and are therefore barred. The court also found that, on the operative facts alleged in his complaint, Rayess's claims for negligent infliction of emotional distress and intentional infliction of emotional distress cannot lie, as a matter of law, for lack of the required harm.
{¶ 12} With respect to Rayess's breach of contract claim, the court agreed with ECFMG that the documents which Rayess attached to his complaint and on which he would rely to prove the terms of a written contract between Rayess and ECFMG do not constitute an enforceable written contract governed by the fifteen year statute of limitations, R.C. 2305.06, and that Rayess's breach of contract claim is instead subject to the six year statute of limitations, R.C. 2305.07. Therefore, the action on his breach of contract claim that Rayess commenced more than six years after the action accrued is barred.
{¶ 13} Rayess filed a timely notice of appeal from the trial court's final judgment.
FIRST ASSIGNMENT OF ERROR
{¶ 14} "TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION FOR JUDGMENT ON THE PLEADINGS UNDER RULE 12(C) OF THE OHIO RULES OF CIVIL PROCEDURES TO DENY PLAINTIFF-APPELLANT'S CLAIM UNDER BREACH OF WRITTEN CONTRACT."
{¶ 15} A Civ.R. 12(C) motion for judgment on the pleadings will only reach a defect apparent from the face of the pleadings. The motion presents a question of law, and determination of the motion is restricted solely to the allegations in the pleadings. Peterson v. Teodosio (1973), 34 Ohio St.2d 161.
{¶ 16} A Civ.R. 12(C) motion goes to all of the pleadings, including any materials incorporated therein by reference or attached thereto as exhibits. Baldwin's Ohio Civil Practice (2d Ed), §12:10. Because the motion goes to all the pleadings, it may be used to test the substantial sufficiency of any defensive pleading. Id. In the determination of a Civ.R. 12(C) motion, the non-moving party is entitled to have all material allegations in the pleadings with all reasonable inferences therefrom, construed in his favor as true. State ex rel. Midwest Pride IV v. Pontious, 75 Ohio St.3d 565, 1996-Ohio-459.
{¶ 17} We have held that where it is obvious from the face of the pleadings that the statute of limitations period governing a claim for relief expired before the action on the claim commenced by the filing of a complaint, the trial court does not err when it grants a Civ.R. 12(C) motion for a judgment on the pleadings and dismisses the action. Frayne v. Client Services, Inc., Montgomery App. No. 21758, 2007-Ohio-4893.
{¶ 18} R.C. 2305.06 provides that "an action upon a specialty or an agreement, contract, or promise in writing shall be brought within fifteen years after the cause thereof accrued." In Claxton v. Mains (1986), 33 Ohio App.3d 49, the Court of Appeals of Franklin County held: "In order for an action to come within the statute of limitations governing actions under R.C. 2305.06, the written instrument must clearly define the unilateral or bilateral obligations of the parties without reference to supplemental evidence to establish the terms of the agreement, contract, or promise." Id., Syllabus by the Court. Further, "abbreviated commercial forms, sales slips and checks, which did not on their face define mutual obligations or specific contractual terms" are insufficient to constitute a writing for purposes of R.C. 2305.06. Id., at 51.
{¶ 19} It is undisputed that the Exhibits Rayess attached to his complaint and similar documents attached to his memorandum in opposition to ECFMG's Civ.R. 12(C) motion comprise the proof on which he relies to claim the existence of a contract in writing between Rayess and ECFMG. Construing those documents most strongly in Rayess's favor, they demonstrate that ECFMG promised, in exchange for his payment of a four hundred dollar fee, which ECFMG accepted, to allow Rayess to take the exam administered by ECFMG at Cincinnati on September 21 and 22, 1993. A brochure titled "ECFMG Certification And Application," which is included in Exhibit 4 attached to Rayess's complaint, explains the purpose of the exam and identifies the various medical topics on which applicants are tested. Regarding Step 1 of the exam, which Rayess failed to pass, the brochure states: "The examination consists of four, three-hour test books; each book presents items from the full range of topics" identified. That recitation is a statement of the terms of the parties' contract in that respect.
{¶ 20} In granting ECFMG's motion, the trial court explained that "[a]lthough Rayess contends that the documents attached to the Complaint and his Memorandum in Opposition comprise the contract, the Court finds that for the purposes of the instant Motion, the Court is unable to look beyond the initial pleadings to determine the sufficiency of the Complaint. Thus, without the contract specifying the terms of the agreement between Rayess and ECFMG, it is impossible to determine whether a breach of contract occurred." (Dkt. 47, p. 11).
{¶ 21} The trial court was correct in holding that it is limited to the face of the pleadings in determining ECFMG's Civ.R. 12(C) motion. However, the issue that motion presented, in relation to ECFMG's statute of limitations defense, was ECFMG's burden to prove. The court shifted that burden to Rayess in reasoning that it was Rayess's burden to prove, through the documents he filed, that the fifteen-year statute of limitations in R.C. 2305.06 applies. ECFMG's motion assumed the burden to prove that the six-year statute of limitations in R.C. 2305.07 instead applies. The court could grant ECFMG's Civ.R. 12(C) motion only if that proposition is obvious from the face of the pleadings. Frayne v. Client Services, Inc. We believe it is not obvious.
{¶ 22} A copy of a page from ECFMG's "Certification and Application" brochure attached to Rayess's complaint states that Step 1 of the exam "consists of four, three-hour books." That statement reasonably implies that applicants will be allowed a full three hours to complete each of those sections of the exam. Rayess alleged at paragraph 5 of his complaint that ECFMG "breached the written contract by failing to give the Plaintiff the exact and the sufficient time to complete the exam." Paragraph 24 alleges that Rayess "was not given sufficient time to complete the first portion of the exam." Paragraph 27 alleges that counsel for ECFMG later "claimed that the Plaintiff lost only 7-8 minutes from the total time of the exam." Paragraph 51 alleges that "[b]y the Defendant's admission . . ., the Plaintiff was not given three hours for the first book of part 1 of the exam of September 21, 1993."
{¶ 23} ECFMG denied each of those allegations in its answer, but the pleadings must be read most strongly in favor of Rayess, and so ECFMG's denials do not entitle it to a judgment on its Civ.R. 12(C) motion. Further, in relation to the promises in ECFMG's brochure concerning the times allowed applicants to complete the exam, the allegations in Rayess's complaint plead a breach of their contract by ECFMG. Finally, the documents Rayess attached to his complaint constitute a "promise in writing" by ECFMG on which Rayess brought an action for an alleged breach. Therefore, the action is governed by the fifteen year statute of limitations, R.C. 2503.06.
{¶ 24} Rayess's action accrued on September 21, 1993. His action was commenced on September 19, 2008, only a few days short of the fifteen-year limit. For purposes of the Civ.R. 12(C) motion that ECFMG filed, the action is not barred by the applicable statute of limitations. The trial court erred when it granted ECFMG's motion.
{¶ 25} The first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
{¶ 26} "THE TRIAL COURT ERRED WHEN IT STATED THAT THE PLAINTIFF-APPELLANT WOULD NOT HAVE A CLAIM UNDER BREACH OF ORAL CONTRACT BECAUSE THE STATUTE OF LIMITATIONS HAS EXPIRED."
THIRD ASSIGNMENT OF ERROR
{¶ 27} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S CLAIMS FOR TORTIOUS DAMAGES, NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS."
{¶ 28} The arguments Rayess presents in support of these two assignments of error overlap. Therefore, they will be considered jointly.
{¶ 29} Rayess argues that the statutes of limitations applicable to his breach of contract and tort claims should be tolled until March 31, 2008, the date on which he was granted asylum by the United States. Rayess contends that any earlier filing of his action against ECFMG would have alerted immigration authorities to his status, putting Rayess in jeopardy of being deported to Syria, where his safety and that of his family would be put at risk on account of statements Rayess had made which were critical of the government of Syria. Rayess further argues that the amount of his claim for lost wages could not be determined until he was granted asylum, and that equitable estoppel should therefore toll the application of the statutes of limitations on his claims until March 31, 2008, the date on which he was granted asylum.
{¶ 30} The doctrine of equitable tolling permits courts to extend a statute of limitations on a case-by-case basis. Truitt v. County of Wayne (1998), 148 F.3d 644. "Typically, `equitable tolling applies only when a litigant's failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant's control.'" Baden-Winterwood v. Life Time Fitness (2007), 474 F.Supp. 822, 826, quoting Graham-Humphreys v. Memphis Brooks Museum of Art, Inc. (2000), 209 F.3d 552.
{¶ 31} Rayess's contention that his immigration status would have been put in jeopardy by a timely filing of his action is speculative, at best. Therefore, he fails to demonstrate that being unable to timely file unavoidably arose from circumstances beyond his control. Further, Rayess did not promptly commence his action against ECFMG after he was granted asylum, but waited for five and one-half more months before doing so. Equity assists only those who are diligent in demanding their rights. Bialosky v. Newburg & South Shore R. Co. (1932), 12 Ohio L. Abs. 411.
{¶ 32} Next, Rayess argues that the causes of action on his breach of contract and tort claims did not accrue, and the statues of limitations applicable to the action on those claims did not begin to run, until Rayess later discovered the extent of his losses resulting from the injury he suffered. Under the "discovery rule," a statute of limitations does not begin to run until (1) a plaintiff knows or reasonably should have known that he has been injured, and (2) the plaintiff knows or reasonably should have known that his injury proximately resulted from the defendant's wrongful conduct. Viock v. Stowe-Woodward Company (1983), 13 Ohio App.3d 7.
{¶ 33} Even if his resulting losses, in the form of lost wages and the like, did not manifest themselves fully until time had passed, the actionable injury that Rayess suffered, ECFMG's alleged failure to allow Rayess the time to take Step 1 of the test ECFMG had promised, was fully known to Rayess on that date, September 21, 1993. The discovery rule therefore cannot apply to toll the statutes of limitation on the claims in the action against ECFMG that Rayess commenced on September 19, 2008.
{¶ 34} Finally, Rayess argues that R.C. 2903.15 tolls the statutes of limitation applicable to the claims in his action against ECFMG because ECFMG is headquartered in Pennsylvania and not amenable to service in Ohio. R.C. 2903.15 provides that a statute of limitations is tolled "if the person is out of state, has absconded, or conceals self . . . until the person comes into the state or while the person is so absconded or concealed."
{¶ 35} R.C. 2903.15 has been held unconstitutional when applied to an out-of-state corporation, merely because it is headquartered out-of-state and lacks an agent for service in Ohio. Bendix Autolife Corp. v. Midwestco Enterprises, Inc. (1988), 486 U.S. 888, 108 S.Ct. 2218, 100 L.Ed.2d 896. Therefore, Rayess cannot rely on R.C. 2903.15.
{¶ 36} The second and third assignments of error are overruled.
FOURTH ASSIGNMENT OF ERROR
{¶ 37} "THE TRIAL COURT ERRED IN CONSIDERING ANY STATEMENT MADE BY THE APPELLEE IN ITS REPLY MEMORANDUM FOR JUDGMENT ON THE PLEADINGS WHICH WAS FILED ON May 17, 2010, BECAUSE IT WAS FILED IN VIOLATION OF THE CONFIDENTIALITY ORDER THAT WAS ISSUED ON APRIL 5, 2010, BY THE TRIAL COURT."
{¶ 38} We need not decide the error assigned because it is rendered moot by our decision sustaining the first assignment of error. App.R. 12(A)(1)(c).
FIFTH ASSIGNMENT OF ERROR
{¶ 39} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT ENTERTAINED DEFENDANT-APPELLEE'S MOTION FOR JUDGMENT ON THE PLEADINGS AS IT WAS FILED LATE TO DELAY THE TRIAL AND APPELLANT'S UNOPPOSED MOTION FOR LEAVE TO AMEND THE COMPLAINT FOR FRAUD CLAIM AND OTHERS SHOULD BE GRANTED."
{¶ 40} Civ.R. 12(C) provides:
{¶ 41} "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings."
{¶ 42} Rayess complains that the pleadings were closed on November 20, 2009, when ECFMG filed its answer, and that ECFMG did not file its Civ.R. 12(C) motion until March 17, 2010. The record demonstrates that the court had set the case for trial on August 9, 2010. We fail to see how the Civ.R. 12(C) motion filed five months earlier delayed the trial.
{¶ 43} The fifth assignment of error is overruled.
Conclusion
{¶ 44} Having sustained the first assignment of error, we will reverse the judgment from which this appeal was taken, to the extent that it granted ECFMG's Civ.R. 12(C) motion on Rayess's breach of contract claim. The judgment will be otherwise be affirmed.
Fain, J. and Donovan, J., concur.
