183 F.3d 855 (D.C. Cir. 1999)
Sharon Ekedahl, Appelleev.COREStaff, Inc.,Appellant
No. 98-7119
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 12, 1999Decided July 30, 1999

Appeal from the United States District Court for the District of Columbia(No. 96cv01947)
R. Glen Rigby argued the cause for appellant.  With him  on the briefs were Thad T. Dameris and Tegan M. Flynn.
Eugene R. Fidell argued the cause for appellee.  Deborah  L. Pollock was with him on the brief.
Before:  Williams, Sentelle and Garland, Circuit Judges.
Opinion for the Court filed Per Curiam.

Per Curiam:

1
A jury awarded plaintiff Sharon Ekedahl  $661,875 in a breach of contract action against defendant  COREStaff, Inc.  COREStaff challenges the district court's  denial of its motion for judgment as a matter of law, asserting  that there was no stock options contract between the parties,  both because there was no agreement on an essential term  and because the alleged contract did not satisfy the Statute of  Frauds.  We conclude that there was no agreement on an  essential term regarding the vesting of the stock options.  We  therefore reverse the judgment of the district court and  remand for further proceedings.


2
* COREStaff, Inc. is a temporary staffing agency with its  principal place of business in Houston, Texas.  Ekedahl is a  resident of the District of Columbia.  In January 1995, Michael Willis, the President and Chief Executive Officer of  COREStaff, approached Ekedahl to discuss future employment with the company.  At the time Willis approached her,  Ekedahl was employed as a Vice President at Adia Personnel  Services, one of COREStaff's competitors.  Ekedahl had  worked at Adia for over ten years, and was receiving an  annual salary and bonuses totaling over $200,000, as well as a  package of stock options.  Ekedahl discussed the proposed  employment with Willis and other COREStaff representatives  over the ensuing several months.


3
On September 12, 1995, COREStaff sent Ekedahl a letter  making a formal offer of employment.  The letter stated that  Ekedahl would have the title of Senior Vice President, and  described the position's base salary, bonuses, vacation, and  insurance benefits.  In the provision central to this case, it  further stated:  "Stock Options--15,000 shares to be granted  immediately."  App. 22.  The letter contained signature lines  for both Ekedahl and Willis, preceded by the phrase "Accepted by and agreed to."  Id.  Both Willis and Ekedahl signed  and dated the letter.


4
On November 1, 1995, Ekedahl began her employment with  COREStaff.  On November 9, COREStaff sent Ekedahl a letter, stating that she was "being granted an option for  15,000 shares at the IPO price per share of $17.00" and that  she would receive a stock option agreement pursuant to which  her options would "vest equally over a three (3) year vesting  period" and be exercisable over a ten year period.  Id. at 26.1 Shortly thereafter, Ekedahl received a draft of COREStaff's  standard employment agreement.  Id. at 27-31.  Under this  agreement, "[v]esting for such stock options [would] occur  over a three (3) year period, with one-third vesting on the  first anniversary of employment, 1/3 vesting on the second  anniversary of employment, and the final 1/3 vesting on the  third anniversary of employment."  Id. at 30.  The agreement also indicated that "[t]he exact terms and conditions of  the stock options ... [would] be set forth in the COREStaff,  Inc. 1995 Long-Term Incentive Plan and a Stock Option  Agreement by and between Employee and the Company."Id.


5
Ekedahl testified that she was surprised to receive these  documents, particularly because they indicated that her options would vest in the future.  She told Willis and  COREStaff's general counsel, Peter Dameris, that the vesting  provisions were not consistent with the September 12 letter.Willis indicated that Ekedahl should have known there would  be vesting restrictions, but also said he would "work on  accelerating this."  1/27/98 p.m. Tr. at 7.  Dameris informed  her that as a matter of policy, COREStaff did not give  immediately-vested options.


6
On November 20, COREStaff sent Ekedahl a copy of the  stock options agreement for execution.  App. 37-41.  Like the November 9 letter and the proposed employment agreement, this document provided that the options would vest in  the future.  Id. at 38.  Ekedahl did not sign either the  proposed employment agreement or the stock options agreement, maintaining that they contained vesting provisions that  were inconsistent with the September 12 letter.  She continued to work for COREStaff until May 10, 1996, at which point  COREStaff dismissed her for other reasons.


7
After she left the company, Ekedahl brought a diversity  action in district court, alleging breach of contract by  COREStaff and fraudulent misrepresentation by COREStaff  and Willis.  The contract claim principally alleged that  COREStaff breached its agreement to grant Ekedahl immediately-vested stock options.  The district court dismissed the  fraudulent misrepresentation claim prior to submitting the  case to the jury.  After a three week trial, the jury returned  a verdict for Ekedahl on the contract claim.


8
After the verdict, COREStaff renewed its earlier motion  for judgment as a matter of law.  COREStaff argued that no  reasonable jury could find a meeting of the minds between  the parties with respect to the immediate vesting of Ekedahl's stock options.  It also argued that a provision of the  then-effective District of Columbia Statute of Frauds, D.C.  Code Ann. § 28:8-319(1) (1995), would preclude enforcement  of the purported options agreement because there was no  writing that described or indicated the price of the securities  to be given to Ekedahl.


9
The district court denied COREStaff's motion, concluding  that the jury could have found an agreement for immediate  vesting based on the provision in the September 12 letter  stating that the 15,000 shares were "to be granted immediately," together with Ekedahl's testimony that she would not  have left Adia without an agreement for immediate vesting.The court also rejected COREStaff's Statute of Frauds argument.  This appeal followed.

II

10
When reviewing a district court's ruling on a motion for  judgment as a matter of law, this court "evaluate[s] de novo whether the prevailing party proffered sufficient evidence  upon which a jury could properly base a verdict in its favor."Bennett Enter., Inc. v. Domino's Pizza, Inc., 45 F.3d 493, 497  (D.C. Cir. 1995).  We view the evidence "in the light most  favorable to the prevailing party, and the jury's verdict must  stand unless the evidence, together with all inferences that  can reasonably be drawn therefrom, is so one-sided" that we  cannot conclude a reasonable jury could have reached that  verdict.  Id.


11
Under District of Columbia law, the party asserting the  existence of an enforceable contract has the burden of proving that there has been agreement--a "meeting of the  minds"--as to all material terms.  See Jack Baker, Inc. v.  Office Space Dev. Corp., 664 A.2d 1236, 1238 (D.C. 1995);Davis v. Infield, 664 A.2d 836, 838 (D.C. 1995).  "Where the  parties fail to agree to all material terms, no contract is  formed...."  Jack Baker, 664 A.2d at 1239;  see Edmund J.  Flynn Co. v. LaVay, 431 A.2d 543, 547 (D.C. 1981).  Proof of  a meeting of the minds may be found either in the written  agreement or, if the agreement is ambiguous, in the parties'  actions at the time of contract formation.  See Davis, 664  A.2d at 838;  Nofziger Communications, Inc. v. Birks, 989  F.2d 1227, 1230 (D.C. Cir. 1993).


12
In the instant case, it is clear that the vesting of the stock  options was a term material to the alleged options agreement  between Ekedahl and COREStaff.  Ekedahl testified that her  belief that the options would vest immediately was critical to  her decision to leave her job at Adia and begin working at  COREStaff.  See 1/27/98 a.m. Tr. at 12-13 (stating that she  "absolutely [would] not" have accepted the September 12  offer if it indicated the options would vest in future);  1/28/98  p.m. Tr. at 75 (describing absence of vesting restrictions as  "the turning point" in her acceptance of offer).  COREStaff  witnesses, on the other hand, testified that a delayed vesting  structure was an integral part of the company's Long-Term  Incentive Plan, and that the company did not generally offer  immediately-vested options.  See 2/4/98 p.m. Tr. (pt. 1) at 4749;  2/5/98 Tr. at 56.  Given the significance that both parties  placed on the presence, or absence, of immediate vesting, it follows that vesting was a material term as to which  COREStaff and Ekedahl had to be in agreement in order to  reach a binding contract.


13
The record, however, is devoid of any evidence that the  parties reached an agreement on vesting.  The only reference  to stock options in the September 12 letter states:  "Stock  Options--15,000 shares to be granted immediately."  App. 22.Ekedahl made clear at oral argument that she does not  contend that the term "granted" meant "vested," and that she  understood that an option could be granted immediately  without vesting immediately.  See supra note 1;  see also  Ekedahl Br. at 29-30;  1/27/98 a.m. Tr. at 12.  Indeed, she  had received several documents in connection with her Adia  stock options that distinguished between the two terms.  See,  e.g., Joint Exs. 45, 48.  The parties' written agreement,  therefore, is silent as to vesting.


14
Nor is there any evidence that the parties orally agreed on  a vesting provision.  To the contrary, Ekedahl's testimony makes clear that she never discussed vesting with COREStaff  at all:


15
Q:So the record and I are very clear on this, at the time that you signed the agreement, ... dated September 12, 1995, you had absolutely no discussion what so ever with Mike Willis, or anyone else at COREStaff, about vesting, isn't that correct?


16
A: That's correct.


17
Tr. 1/28/98 p.m. at 16-17;  see also Tr. 1/27/98 a.m. at 8.COREStaff's testimony was in accord.  See 2/2/98 p.m. Tr.  (pt. 2) at 33, 35.  As the District of Columbia Court of  Appeals has said, "[t]he failure to ... even discuss an essential term of a contract may indicate that the mutual assent  required to make or modify a contract is lacking."  Owen v.  Owen, 427 A.2d 933, 937 (D.C. 1981).  In this case it surely  does.


18
There is also no evidence to support Ekedahl's contention that COREStaff knew it was only the prospect of  immediately-vested options that made its offer better than her current compensation package at Adia, and hence knew  that such a provision was the critical inducement in luring her  away.  As already noted, the parties agree that vesting was  never discussed.  Ekedahl further testified that she had no  conversations with COREStaff regarding the value of her  Adia stock options.  1/28/98 a.m. Tr. at 52-53.  Indeed, not  only is there no evidence that COREStaff had compared or  could compare the value of the two packages, there was no  evidence from which the jury itself could make such a comparison.  As Ekedahl conceded at oral argument, she never  introduced any evidence as to the total value of her Adia  compensation package, particularly its stock options.  Hence,  there was no evidence from which the jury could conclude  that only with an immediate-vesting provision would the  COREStaff package have been worth more than the compensation Ekedahl was receiving from Adia.


19
Both Ekedahl and COREStaff make arguments that could  be read as urging us to adopt default rules to apply whenever  a contract is silent as to vesting.  Ekedahl characterizes  delayed vesting as a "restriction," and argues that the failure  expressly to include such a restriction denotes its absence. But to support such a default rule, Ekedahl would have to  offer evidence that immediate vesting is the background norm  for personnel agreements, which she wholly failed to do. Even her own Adia options contained delayed vesting schedules.  COREStaff, on the other hand, suggests the opposite  default rule--that in the absence of a provision providing for  immediate vesting we should presume that vesting is to be  delayed.  Like Ekedahl, however, COREStaff offers no evidence that this is the industry standard.  Indeed,  COREStaff has itself entered into immediate-vesting agreements upon occasion.  App. 16.  Accordingly, we decline each  party's invitation to fashion a default rule and restrict our  decision to the documents and testimony before us in this  case.

III

20
We conclude that the vesting of the stock options was a  material term of the putative options contract between Eke-dahl and COREStaff, and that there is no evidence the  parties reached a meeting of the minds as to that term.  This  in turn compels the conclusion that, as a matter of law, there  was no contract between the parties with respect to the  vesting of the options.  There being no contract, we need not  consider whether the parties' various writings were sufficient  to satisfy the Statute of Frauds.


21
One final issue requires attention before we can specify a  disposition for this appeal.  COREStaff's briefs here and its  motion for judgment as a matter of law below focus exclusively on the parties' failure to reach an enforceable agreement  with respect to the stock options.  Ekedahl, however, contends that her breach of contract claim had two components,  stock options and severance pay.  Ekedahl Br. at 3, 5.  The  district court's jury instructions made reference to both issues:  if the jury found a breach of an enforceable options  agreement, it was directed to award Ekedahl an amount that  would make her whole;  if it found a breach of an enforceable  agreement for severance pay, it was directed to award her  the sum of $67,500.  App. 168, 169.  Although the verdict  form only referred specifically to stock options, the final  interrogatory simply asked the jury to state a sum of money  that "would fairly and reasonably compensate Sharon Ekedahl for her damages ... that resulted from [COREStaff's]  failure to comply with the agreement."  Id. at 154.  Hence,  we cannot determine whether the jury's answer of $661,875  included an award of severance pay.


22
Since we have heard no argument regarding severance pay  on this appeal, we limit our ruling to Ekedahl's claim to  immediately-vesting stock options.  In that respect, we reverse the judgment of the district court.  We remand the  issue of severance pay for further proceedings.


23
Reversed and remanded.



Notes:


1
  A stock option grants an employee the right to buy a specific  stock at a stated price at any time during a specified (exercise)  period, regardless of the prevailing market price.  See American  Bankers Ass'n, Banking Terminology 232 (1981).  Once the right  becomes vested, it is no longer contingent upon, for example, the  employee's continued employment with the company.  Id. at 254.Vesting may be total and immediate, graduated over a period of  years, or may occur upon the completion of stated service or  participation requirements.  Id.


