                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                               No. 99-4297/00-1158
                                  ___________

Augustine Medical, Inc.,              *
                                      *
       Cross-Appellant/Appellee,      *
                                      *
                                      * Appeal from the United States
       v.                             * District Court for the
                                      * District of Minnesota
Blue Ridge Anesthesia &               *
Critical Care, Inc.,                  * [UNPUBLISHED]
                                      *
       Appellant/Cross-Appellee.      *
                                      *
                                      *
                                 ___________

                           Submitted: November 13, 2000
                              Filed: January 12, 2001
                                    ___________

Before MORRIS SHEPPARD ARNOLD and JOHN R. GIBSON, Circuit Judges,
      and GOLDBERG,1 Judge.
                            ___________

PER CURIAM.




      1
       The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
      Appellant, Blue Ridge Anesthesia & Critical Care, Inc. (“Blue Ridge”)
appeals the decision of the district court2 to dismiss all claims against Appellee
Augustine Medical Inc. (“Augustine”). Augustine cross-appeals on alternative
grounds. We affirm the decision of the district court.

       Augustine manufactures medical warming blankets. On June 1, 1992, Blue
Ridge and Augustine entered into a written distribution agreement (“Agreement”)
whereby Blue Ridge was to distribute Augustine’s product to end users in specific
geographic regions.


     The Agreement was valid for a term of three years, but included the following
renewal clause:

      This agreement shall be renewed for additional consecutive periods of one
      (1) year if the Distributor and the Company have agreed in writing to
      Quotas for each three-month period in such renewal term not less than
      ninety (90) days prior to the expiration of the existing term of this
      Agreement . . . This Agreement may be terminated by the Company with
      written notice effective as of the end of the initial or any renewal term if
      the Distributor and Company have not so agreed on sales quotas in
      writing within such period of ninety (90) days.

      After effecting the Agreement, the parties did not further agree in writing to
renewal quotas. Augustine sent Blue Ridge a written notice of nonrenewal and
termination on March 30, 1995.




      2
        The Honorable James Rosenbaum, District Judge, United States District Court
for the District of Minnesota.
                                          -2-
       On March 8, 1998, a magistrate judge conducted an evidentiary hearing on
Augustine’s Motion for Partial Summary Judgment against Blue Ridge as to the
contract issue. After the hearing, the magistrate judge issued a report and
recommendation finding that Augustine was entitled to decline to renew the
Agreement as Augustine and Blue Ridge had not agreed in writing to renewal quotas.
The magistrate judge also found that Augustine was not under any contractual duty
to negotiate for renewal quotas. See Sterling Capital Advisors, Inc. v. Herzog, 575
N.W.2d 121, 125 (Minn. Ct. App. 1998). The district court adopted the magistrate
judge’s report and recommendation and issued an order granting Augustine’s Motion
for Partial Summary Judgment.


       After careful review, we agree with the district court that the unambiguous
language of the Agreement created no obligation for Augustine to negotiate or agree
to renewal quotas. See Barry v. Barry, 78 F.3d 375, 382 (8th Cir. 1996). Without
an accord as to renewal quotas, neither party had an obligation to renew the term of
the Agreement. Accordingly, we affirm the judgment of the trial court. See 8th Cir.
R. 47B.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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