United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-4150

___________

Visiting Nurse Association, *

St. Louis; Visiting Nurse Association *

of Greater St. Louis, formerly known *

as Visiting Nurse Association Home *

Health Care; Visiting Nurse *

Association Hospice Care; VNA *

Services Corporation, *

*

Appellants, *

*

v. * Appeal from United States

* District Court for the Eastern

VNAHealthcare, Inc.; VNA * District of Missouri.

Homecare, Inc.; Visiting Nurses *

Hospice; VNA Privatecare, Inc.; *

VNA Private Duty, Inc., *

*

Appellees. *

___________

Submitted: September 10, 2003

Filed: October 27, 2003 (corrected 11/3/03)

___________

Before MORRIS SHEPPARD ARNOLD, BEAM, and BYE, Circuit Judges.

___________
-2-

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The Visiting Nurse Association of St. Louis (VNASL) appeals from a judgment

denying its prayer for an injunction on various state claims of trade name

infringement against VNAHealthcare, Inc. (VNAH). The district court denied relief

after finding that the asserted trade name was generic and therefore not legally

protected. Before this ruling, the district court refused VNASL's request to enforce

a purported settlement agreement between the parties on the ground that the parties

had not reached a "meeting of the minds." We find that the parties did indeed make

a contract, and we therefore vacate the district court's judgment and remand the case

with instructions to enforce the settlement agreement.

I.

The substantive law of the state of Missouri, which includes its law respecting

the proper burden of proof, is applicable in this diversity case. See Dick v. New York

Life Ins. Co., 359 U.S. 437, 446-47 (1959); Bamirilease Capital Corp. v. Nearburg,

958 F.2d 150, 152 (6th Cir. 1992), cert. denied, 506 U.S. 867 (1992). Therefore to

determine whether the parties entered into an enforceable settlement agreement we

look to Missouri principles of contract formation, see L.B. v. State Committee of

Psychologists, 912 S.W.2d 611, 616 (Mo. Ct. App. 1993), and we require VNASL to

present "clear, convincing and satisfactory" evidence that there was an agreement

before specific performance will be ordered, see Randall v. Harmon, 761 S.W.2d 278,

278 (Mo. Ct. App. 1988); see also Stewart v. M.D.F., Inc., 83 F.3d 247, 251-52 (8th

Cir. 1996).

In this case, the parties entered into settlement negotiations and arrived at an

apparent oral agreement, but almost immediately thereafter (and before the apparent

agreement was committed to writing) several disputes arose. The ones involved in

this appeal have to do with how long VNAH would be required to carry a disclaimer

of any connection with VNASL on its printed materials, when it would be required
-3-

to begin using the disclaimer, and whether the disclaimer requirement extended to

materials not used within VNASL's "Trade Area." 

As the district court recognized, an oral agreement is unenforceable if the

parties did not intend to be bound by it until it had been reduced to writing. Any such

intent, however, must be clear. For example, the law will not imply the necessity of

a writing simply because the parties clearly intend to memorialize their agreement

later. See Byrd v. Liesman, 825 S.W.2d 38, 39-41 (Mo. Ct. App. 1992). Although

the district court briefly discussed this issue, it concluded that it was unnecessary to

reach it. 

Looking at the record of the parties' negotiations, we hold that it would have

been clear error for the district judge to have found that there was an intent to delay

the legal effect of the agreement. When the parties completed their original oral

negotiations, they thought that they had reached an agreement, and they contacted the

district court to cancel a pending hearing because they believed that the case had been

settled. There is simply no evidence in the record tending to show an intent to delay

the effect of the agreement until a writing was executed.

Following the language used in the district court's opinion, on appeal the

parties focus their arguments on whether the parties had accomplished a "meeting of

the minds," a phrase that, despite its capacity to confuse, has proved difficult to

eradicate from discussions of contract law. On its face, it can create the impression

that a contract is formed only when the parties to it entertain the same subjective

views as to its meaning. That, however, is not the law. Cf. Skycom Corp. v. Telstar

Corp., 813 F.2d 810, 814-15 (7th Cir. 1987). Rather, a court looks to the parties'

objective manifestations of intent and interprets those manifestations as a reasonable

person would. See McDaniel v. Park Place Care Ctr., Inc., 918 S.W.2d 820, 827

(Mo. Ct. App. 1996). If those manifestations produce a reasonably ascertainable

objective meaning, an enforceable agreement exists. 
-4-

Although the district court held that the agreement contained fatal ambiguities,

we respectfully disagree. Under Missouri law, an agreement is actionable if it is

specific enough to determine when one of the parties is in breach and provides a basis

for giving a remedy. See Olgive v. Olgive, 487 S.W.2d 40, 41 (Mo. Ct. App. 1972);

accord. Restatement (Second) of Contracts § 33(2). We see nothing in the provisions

of this agreement that would make it impossible to determine if they were violated.

According to the district court's factual findings, which the parties do not dispute,

they orally agreed that VNAH's use of the disclaimer was a "condition to the use of

this name [VNA] within [VNASL's] Trade Area." We find that the meaning of this

provision is perfectly clear: The disclaimer must be used whenever VNAH does

business in a particular area, using a particular name. Under the agreement, therefore,

VNAH could be rid of its obligation tomorrow simply by ceasing forever to operate

within VNASL's "Trade Area" or by changing its name to "Nurses Who Visit [NWV]

Healthcare, Inc." VNAH also maintains that the contract was fatally ambiguous as

to the date on which the obligation to disclaim was to begin. There is no dispute,

however, that the parties orally agreed that the name change (VNAH was to become

"VNA TIP HomeCare"), which triggered the obligation to disclaim, was to be

effective January 1, 2002, a date which seems to have left VNAH with a large

quantity of unused stationery, but which is nevertheless about as clear as it could be.

The district court also found that the disclaimer was limited to "stationary, [sic]

literature, business cards, forms and promotional materials used within the Trade

Area," a provision that excludes printed materials used outside of the "Trade Area."

Again, the parties do not dispute this finding. It is true that the parties did not agree

to the precise fate of VNAH's website, but this is an ancillary matter that can be

resolved by a construction of the term "promotional materials used within the Trade

Area." The meaning of an agreement need not be completely crystalline before it can

be enforced. Many contracts require construction, and the very idea of ambiguity is

itself necessarily a little fuzzy around the edges.
-5-

VNAH may now be unhappy with some or all of the terms just discussed, but

the fact that a party decides after the fact that a contract is not to its liking does not

provide a reason to suppose that a contract was not in fact formed or to release that

party from its obligation. See Worthy v. McKesson Crop., 756 F.2d 1370, 1373 (8th

Cir. 1985) (per curiam). We hold that the agreement was not fatally ambiguous. 

II.

VNAH maintained below that even if an otherwise valid contract was formed,

it is not actionable under the Missouri statute of frauds, see Mo. Rev. Stat. § 432.010,

the relevant section of which provides that "[n]o action shall be brought ... upon any

agreement that is not to be performed within one year from the making thereof"

unless it is in writing. VNAH argued that because the settlement agreement

contemplates performance over a period of more than a year, it is within the statute.

Few pieces of legislation have survived as long as the statute of frauds, but

there is perhaps no other statute that has been subject to such relentless narrowing by

the courts. Missouri, for instance, follows the familiar rule that any contract that can

hypothetically be performed within a year is without the statute, no matter how

fanciful the possibility of performance may be. See Crabb v. Mid-American

Dairymen, Inc., 735 S.W.2d 714, 715-16 (Mo. 1987). So if an otherwise unbounded

obligation contains a limiting condition that could conceivably occur in less than a

year, the contract is not within the statute. See Straatmann v. Straatmann, 809 S.W.2d

95, 99-100 (Mo. Ct. App. 1991). Here, it is possible that VNAH could withdraw

from VNASL's "Trade Area" tomorrow, never to return. The agreement is

conditioned on doing business within the "Trade Area," and thus VNAH's obligation

would be completely performed if it withdrew from doing business in that area for

good. Given that we can imagine VNAH's immediate and complete performance of

the contract, we cannot say that the contract is within the statute of frauds.
-6-

III.

For the reasons indicated, we vacate the district court's judgment and remand

the case with instructions to enforce the settlement agreement.

______________________________