UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


EKEDAHL, SHARON

v.

CORESTAFF INC


98-7119a

D.C. Cir. 1999


*	*	*


Opinion for the Court filed Per Curiam.


Per Curiam: 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


I


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, Mi- chael Willis, the President
and Chief Executive Officer of  COREStaff, approached Ekedahl to
discuss future employ- ment 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.


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
"Accept- ed by and agreed to." Id. Both Willis and Ekedahl signed  and
dated the letter.


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 agree- ment 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


Ekedahl testified that she was surprised to receive these  documents,
particularly because they indicated that her op- tions 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


On November 20, COREStaff sent Ekedahl a copy of the  stock options
agreement for execution. App. 37-41. Like 




__________

n 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.


the November 9 letter and the proposed employment agree- ment, 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 agree- ment, maintaining that they contained vesting
provisions that  were inconsistent with the September 12 letter. She
contin- ued to work for COREStaff until May 10, 1996, at which point 
COREStaff dismissed her for other reasons.


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 imme- diately-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.


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 Eke- dahl's stock options. It also argued that a
provision of the  then-effective District of Columbia Statute of
Frauds, D.C.  Code Ann. s 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.


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 immediate- ly," 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 argu-
ment. This appeal followed.


II


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.


Under District of Columbia law, the party asserting the  existence of
an enforceable contract has the burden of prov- ing 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).


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 47- 49; 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


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.


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:


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


A: That's correct.


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 essen- tial 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.


There is also no evidence to support Ekedahl's conten-  tion 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 com- parison.
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
compen- sation Ekedahl was receiving from Adia.


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 sched- ules. 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 evi- dence that this is the industry standard.
Indeed,  COREStaff has itself entered into immediate-vesting agree-
ments 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


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.


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 exclusive- ly on the parties' failure
to reach an enforceable agreement  with respect to the stock options.
Ekedahl, however, con- tends 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 is- sues:
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 Eke- dahl 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.


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 re- verse the judgment of the
district court. We remand the  issue of severance pay for further


Reversed and remanded.