                    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.
                         ___________
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


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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.

                                          -3-
       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.



                                           -4-
       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.




                                           -5-
                                         III.
      For the reasons indicated, we vacate the district court's judgment and remand
the case with instructions to enforce the settlement agreement.
                        ______________________________




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