Synopsis: When parties to a lawsuit reach an oral settlement agreement during the frenzied moments before trial, unforseen complications will often arise later as the parties try to determine exactly what agreement was reached.

The eve of trial. All parties work late into the night feverishly trying to reach a dollar figure that will allow them to avoid the unknowns of trial. The coffee flows, the jackets come off, the eyes redden. Phone lines blink and stomachs churn. Attorneys whisper and clients fret. Families are called and apologies are issued. Finally, just as all appears hopeless and trial appears inevitable, the fateful words are uttered: "I think we can agree to that."

A dollar figure is stated. Clients are relieved. Attorneys are relieved. The lights are turned off. Everyone goes home. A few hours later, the attorneys inform the court that a settlement has been reached. The trial is called off and the jury discharged.

Then the fax arrives.

As the paper begins to stream forth from the fax machine, the attorney sees the dollar figure, but it has now become immersed in a sea of words. Clause after clause emerges from the fax machine. The attorney begins to wonder: "Just what did I agree to last night?"

That is, after all, a good question. Does the oral settlement agreement bind the parties like a contract? What type of contract is it? What are its terms? What terms are necessary for a valid contract? What gap-fillers are used? Does the statute of frauds apply? What constitutes a valid writing?

I. What Have We Done?

The first quandary for the bleary-eyed attorney is to determine exactly what was accomplished last night. Thinking back to first-year Contracts, the attorney, through a sleep-deprived fog, attempts to recall the requirements for a valid contract. Like a bad dream, the stream of fax paper reminds the attorney of a dreaded foe: the statute of frauds.

Settlement agreements are essentially contracts and are governed by the law of contracts.¹ Therefore, contract law will be used to determine if an agreement was actually reached and the legal effect of the paper streaming from the fax machine.

A. Formation of the Contract

As a form of contract, a settlement agreement must be a meeting of the minds on the essential elements of a contract.² The essential elements of a contract are "parties competent to contract, a proper subject matter, legal consideration, mutuality of agreement, and mutuality of obligation."³ The element of consideration was discussed in Dickey v. Thirty-Three Venturers.⁴ Dickey involved a settlement agreement in which one side agreed to abandon a declaratory judgment action as consideration for the settlement of the action.⁵ It was later determined by the court of appeals, in a suit to enforce the settlement, that the declaratory judgment action had been barred by a previous action between the parties and was, therefore, not a valid claim.⁶ Because the abandoned claim was not valid anyway, the court held the "compromise agreement without consideration [became] a nullity."⁷

"Mutuality of agreement," according to the court in L.B. v. State Committee of Psychologists,⁸ requires a "mutuality of assent by the parties to the terms of the contract."⁹ "The nature and extent of the contract's essential terms which form the basis of the parties' mutual assent must be certain or capable of being certain. . . . If the parties reserve any of the essential terms of the purported contract for future determination, there is no valid, binding agreement."¹⁰

This "meeting of the minds" requirement involves a determination of the "objective manifestations of the parties."¹¹ The subjective intent of the parties is irrelevant.¹² "It is the actions, and not the intentions or suppositions of the parties, that determine whether or not there is a contract and the terms of the contract."¹³

While an additional requirement of an on-the-record agreement in open court had at one time been implied from the Supreme Court of Missouri's decision in Fair Mercantile Co. v. Union-May-Stern Co.,¹⁴ that is no longer the case. The Supreme Court of Missouri later stated, in Landau v. St. Louis Public Serv. Co.,¹⁵ that the on-the-record procedure set forth in Fair Mercantile was not necessary because settlement agreements "need not be in writing unless the subject matter is within the statute of frauds."¹⁶

Finally, a settlement agreement is still valid even though it contemplates later action.¹⁷ In Byrd v. Liesman, a plaintiff orally agreed to settle the claim with the defendant's insurance company and to sign a release at a later date.¹⁸ Upon receiving the release, the plaintiff refused to sign and the defendant moved to enforce the settlement, including the release.¹⁹ The court of appeals held that the entire agreement, including the release, was binding upon the plaintiff.²⁰

The existence of the essential elements and other requirements for a valid contract must be determined on a case by case basis. It is relatively easy to meet the minimum requirements for a valid and enforceable contract. The difficulty begins when it is time to actually follow through on the terms of the contract.

B. Applicability of the Statute of Frauds

Settlement agreements need not always be in writing to be effective. However, one of the most important issues in determining the validity and effect of the settlement agreement is whether the agreement is covered by the statute of frauds and must be in writing.²¹ If it is covered by the statute of frauds, it must be determined which statute of frauds applies and what writing is sufficient.

Settlement agreements are subject to the statute of frauds if, outside of the settlement context, the statute of frauds would apply to the contract being formed.²² This determination may not be as easy as it appears. In making this determination, "the courts are concerned with the intended effect of the compromise, and not with the question of whether the parties' antecedent claims are based on matters governed by the Statute of Frauds."²³

In Sappington v. Miller, the intended consequence of the oral settlement agreement at issue was that one party would convey her interest in the disputed piece of property in exchange for money.²⁴ Since the settlement involved real property, the Court of Appeals for the Western District held that the oral settlement was governed by the statute of frauds and was not enforceable as an oral contract.²⁵

In Jackson v. Shain,²⁶ which involved a suit for specific performance of an oral agreement to settle a quiet title action, the plaintiff made an oral offer to compromise that included the payment of the fire insurance premium for the year.²⁷ The plaintiff then reduced the offer to written form and paid the fire insurance premium, after which the defendant rejected the offer.²⁸ The plaintiff amended the petition to ask for specific performance of the settlement offer based upon the theory of sufficient performance.²⁹ The court held that because one effect of the oral compromise was to transfer the land in question, the transaction was governed by the statute of frauds and the oral contract was not enforceable.³⁰

Therefore, regardless of the underlying action that is being settled, if the settlement agreement involves one of the areas covered by the statute of frauds it must be in writing to be effective. For example, assume Bob sues Sarah for fraud over a forged Mark McGwire baseball. If, in settlement of the claim, Sarah agrees to buy back the ball from Bob for $1,000, what is the nature of the settlement? The effect of the settlement is to transfer ownership of the ball to Sarah for an amount in excess of $500 therefore, the statute of frauds under the Uniform Commercial Code (UCC) applies.³¹

As another example, assume Paula sues David for removing the wrong leg during surgery. During the settlement negotiations, David agrees to pay Paula one million dollars per year for 20 years and Paula agrees. If Paula changes her mind the next day and wants to gamble on a jury, can David enforce the agreement? The answer is no, because the agreement cannot be performed within one year and must be in writing under the statute of frauds.³²

On the other hand, assume Steven, Inc. sues Bradley Corp. to enforce an alleged oral contract for the sale of one million widgets to Bradley Corp. for $10,000. During settlement negotiations, Bradley Corp. orally offers to pay Steven, Inc. $1000 to walk away and Steven, Inc. orally accepts. If, the following day, Steven, Inc. changes its mind, can it get out of the agreement? The answer is no, because the settlement was for a one time payment of money in exchange for dropping the lawsuit. Therefore, the settlement agreement is not within the statute of frauds and is enforceable, even though the underlying lawsuit involved a contract that may not have been enforceable if the court had found that it fell within the coverage of the UCC statute of frauds.

While it is not required, an on-the-record agreement in open court would meet the requirements of the statute of frauds.³³ As the Supreme Court of Missouri stated in Fair Mercantile, "[s]uch a stipulation should be as binding as a written contract; indeed, it is a contract but made with more solemnity and with better protection to the rights of the parties than an ordinary contract made out of court."³⁴

The next step in analyzing the result of the settlement agreement involves determining which statute of frauds applies. Choosing the proper statute of frauds is an important determination that can have a dramatic effect on the ultimate validity of the underlying contract. If the traditional statute of frauds³⁵ is applied, no contract has been formed without a writing. If the UCC statute of frauds is applied, however, a fax received by the attorney may be a sufficient writing if not objected to within 10 days.³⁶ Once again, this determination is done by looking at the "intended effect of the compromise."³⁷ If the intended effect is to sell goods for more than $500, it must also be determined whether the parties to the agreement qualify as merchants under the UCC.³⁸

This also raises a potential malpractice hazard for the attorney. The failure to make the determination that the merchants' confirmation provision of the UCC applies in time to object to the proposed terms provided by the other party, resulting in a binding written contract on those terms, may result in malpractice liability.³⁹ A case for legal malpractice would be particularly strong in a situation that would fall under this UCC provision. If an attorney represents a client who would qualify as a merchant and the representation involves goods of any form, the bells of the UCC should be going off in the attorney's head and a thorough review of any possibly applicable UCC provisions should be one of the first steps taken by the attorney.

Even if the contract is not in writing, however, it may be enforceable in equity. The court in Sappington v. Miller addressed the issue of enforcement in equity and determined that the land sale agreement should be enforced regardless of the lack of a writing.⁴⁰

[D]espite the strict terms of the Statute of Frauds, equity will enforce an oral contract to convey real estate where one party has partially performed or has done other acts in reliance on such contract, and thereby has changed his position so materially that to invoke the statute to deny the performer the benefit of the agreement would itself amount to a fraud. . . . To induce that favor of equity the performance must amount to cogent evidence of a contract to convey, the acts done must be in reliance upon the contract, the performance must so materially change the positions of the contractors that restitution becomes inadequate, and gross injustice may be avoided only by enforcement of the oral agreement.⁴¹

The court concluded that because the plaintiff had done everything possible in reliance on the agreement, including allowing his case to be dismissed with prejudice, his position had been materially changed and a "gross injustice [could] only be avoided by enforcement of said agreement."⁴² The court in Jackson v. Shain discussed the possibility of enforcing the land transfer settlement agreement based upon the theory of part performance because the plaintiff paid the fire insurance premium, and to "prevent a virtual fraud or gross injustice to one of the contractors."⁴³ The court ultimately held, however, that because the payment of the premium can be restored through a different remedy, there was no injustice in not enforcing the oral contract.⁴⁴

Therefore, the determination of whether the statute of frauds applies and which provision is proper can dramatically change the effect of the late-night agreement.

II. What Are the Terms?

The next quandary facing the attorney as the seemingly endless fax continues to stream forth from the fax machine is to ascertain what has been agreed to and what else binds the client. As the coffee takes hold, the attorney remembers a few minor issues that were not agreed to during the frenzy of last night, and begins to wonder how they will be decided.

A. Effect of Terms in Writing

In interpreting and construing the settlement agreement, normal rules of contract construction apply.⁴⁵ If the oral agreement is enforceable, it does not matter what terms are included in the proposed written agreement.⁴⁶ Any terms beyond the actual agreement will simply act as offers of additional terms, and will need to be agreed upon by the parties. The main exception to this rule, as discussed above, is if the UCC Statute of Frauds applies and the receiving party fails to object within 10 days.⁴⁷

There may also be other exceptions to this rule. The Missouri Court of Appeals for the Western District has held, in B-Mall Co. v. Williamson,⁴⁸ that the addition of terms may not render the settlement agreement void.⁴⁹ In B-Mall, after all the agreements were reduced to writing and signed by all parties, a settlement check was issued to the claimants that included the name of a former attorney as a payee.⁵⁰ The claimants objected to this and filed a motion to enforce the original agreement without the attorney's name on the check, and the court of appeals held that the inclusion of the name was simply an acknowledgment of an existing attorney's lien and did not breach the settlement agreement.⁵¹

The existence of ambiguous terms will also not destroy the agreement. In Frederick v. Heim,⁵² the Missouri Court of Appeals for the Southern District held that an ambiguous term in the settlement agreement did not render the agreement void and could be interpreted by the court.⁵³ Heim involved a settlement agreement between three doctors regarding who had a controlling interest in a shared clinic.⁵⁴ One doctor sought to have the settlement agreement voided, claiming that the term "coverage" in the context of caring for one physician's patients in their absence was too vague and ambiguous to be enforceable.⁵⁵ The court of appeals held that the term could be implied from common usage in the profession and, although it was ambiguous, it was not so vague "as to be totally unenforceable."⁵⁶

B. Gap-Fillers

As with any contract, the law will imply certain terms beyond the agreed upon terms to aid the parties in the performance of the settlement agreement. Therefore, if the attorney rejects the additional terms in the fax, the law will imply any additional terms as are necessary to allow the full performance of the terms that were agreed to in the late-night negotiations.

When no time for performance is specified, a reasonable time will be implied.⁵⁷ The law will also imply a requirement of "good faith and fair dealing" in the contract.⁵⁸ As the court of appeals stated in Boatmen's Bank v. Crossroads West Shopping,⁵⁹

When the parties to a contract have not agreed with respect to a term which is essential to determination of their rights and duties, the term which is reasonable in the circumstances is supplied by the Court. . . . [T]erms may be implied where necessary to give business efficacy to the contract.⁶⁰

Therefore, the client is not necessarily required to accept the offered terms in order to complete the settlement of the lawsuit, as those terms may be implied.

III. What Do We Do Next?

The attorney's head begins to throb as the realization sets in that the never-ending fax may represent the beginning of many more months of litigation. Knowing that the client never agreed to the sheer number of clauses contained in the streaming fax and paranoid that the fax represents the other side digging in their heels, the attorney begins to formulate a plan to bring last night's compromise to fruition.

Several options exist for enforcement of the settlement agreement. The proper action is an action for specific performance of the settlement agreement. The most common approach would be to make a motion for specific enforcement of the settlement agreement in the ongoing action.⁶¹ A settlement agreement "may be enforced by a proper motion."⁶² This motion is a collateral action to the original petition.⁶³ In addition "[t]he party requesting the specific performance of a settlement agreement has the burden of proving, by clear, convincing and satisfactory evidence, his claim for relief."⁶⁴

An alternative method of enforcing a settlement agreement is by filing a separate action for enforcement. This is most useful if the action had not yet been commenced when settlement was reached,⁶⁵ if in the course of the settlement the action was dismissed,⁶⁶ or even as a concurrent action.⁶⁷ An alternative to filing a concurrent petition would be to amend the original petition to add a count for specific performance of the settlement agreement.⁶⁸

Another potential wrinkle arises when the settled case was in federal court. If, as part of the settlement, a stipulation of dismissal was entered pursuant to Federal Rule of Civil Procedure 41(a)(1)(ii),⁶⁹ the federal court may no longer have jurisdiction to enforce the agreement. In Kokkonen v. Guardian Life Ins. Co. of America,⁷⁰ the United States Supreme Court addressed this issue in the context of a diversity action in the United States District Court for the Eastern District of California that was settled and a stipulation and dismissal under Rule 41(a)(1)(ii) was agreed to by the parties and signed by the judge. Following dismissal, problems arose in the parties' attempts to finish the terms of the settlement, and the district court enforced the agreement on a motion from one party.⁷¹

The Supreme Court held that because federal courts are courts of limited jurisdiction, they have no power to enforce a settlement agreement in this context.⁷² The Court held that once the agreement is reached and the case dismissed, any problems in enforcement become issues of state contract law and the proper jurisdiction is state court.⁷³ Therefore, despite the fact that the underlying case was in federal court and that part of the consideration for the agreement was the dismissal of a federal court suit, the federal court is powerless to enforce the agreement.

The Supreme Court, however, left open the possibility of an alternative that would allow the federal court to enforce the agreement. If, in agreeing to the stipulation and dismissal, the federal court expressly retains jurisdiction as one of the terms in the stipulation, the parties are not forced into state court for enforcement.⁷⁴ Therefore, when stipulating to the settlement and dismissal, it would be prudent for the attorney to request that the court retain jurisdiction, at least for a long enough period of time to assure a smooth progression of the settlement.

III. Conclusion

Finally, the paper has stopped streaming forth, the beeps and buzzes of the fax machine are silent, the coffee has staved off complete collapse, and the associate with dreams of partnership arrives with doughnuts. With the issues beginning to clarify, the attorney is now ready to study the fax and advise the client on the full effect of the late-night negotiations.

Next time, the attorney thinks, I will not let this happen.

Next time, the attorney resolves, I will send the first fax.

Endnotes

1 B-Mall Co. v. Williamson, 997 S.W.2d 74 (Mo. App. W.D. 1998); L.B. v. State Committee of Psychologists, 912 S.W.2d 611, 616 (Mo. App. W.D. 1995); Payne v. E&B Carpet Cleaning, Inc., 896 S.W.2d 650, 651 (Mo. App. E.D. 1995); Sappington v. Miller, 821 S.W.2d 901, 903 (Mo. App. W.D. 1992); Randall v. Harmon, 761 S.W.2d 278, 279 (Mo. App. S.D. 1988); Dickey v. Thirty-Three Venturers, 550 S.W.2d 926, 930 (Mo. App. W.D. 1977).

2 McDaniel v. Park Place Care Ctr., Inc., 918 S.W.2d 820, 827 (Mo. App. W.D. 1996); L.D. v. State Comm'n of Psychologists, 912 S.W.2d at 616 (Mo. App. W.D. 1995); Randall, 761 S.W.2d 278, 279 (Mo. App. S.D. 1988).

3 L.B. v. State Comm'n of Psychologists, 912 S.W.2d 611, 617 (Mo. App. W.d. 1995).

Competency of parties and proper subject matter are not the subject of this article. They are both requirements for any contract and have not been specifically addressed in the litigation settlement context.

4 550 S.W.2d 926 (Mo. App. W.D. 1977).

5 Id. at 928.

6 Id. at 930.

7 Id. at 931.

8 912 S.W.2d 611, 612 (Mo. App. W.D. 1995).

9 Id. at 617.

10 Id.

11 McDaniel, 918 S.W.2d 820, 827 (Mo. App. W.D. 1996). See also B-Mall Co., 977 S.W.2d 74 (Mo.App. W.D. 1998); L.B. v. State Comm'n of Psychologists, 912 S.W.2d 611, 617 (Mo. App. W.D. 1995).

12 McDaniel, 918 S.W.2d 820, 827 (Mo. App. W.D. 1996).

13 B-Mall Co., 977 S.W.2d 74 (Mo. App. W.D. 1998).

14 221 S.W.2d 751, 755 (Mo. 1949).

15 273 S.W.2d 255 (Mo. banc 1954).

16 Id. at 257. See also Carroll v. Ghidoni, 730 S.W.2d 280, 284 (Mo. App. E.D. 1987).

See Section I.B. for the applicability of the statute of frauds.

17 Byrd v. Liesman, 825 S.W.2d 38, 39 (Mo. App. S.D. 1992).

18 Id. at 40.

19 Id.

20 Id. at 41.

21 The contracts covered by the statute of frauds are: (1) sales of goods over $500, (2) agreements by executors, (3) suretyship agreements, (4) agreements in consideration of marriage, (5) agreements for the sale of land or for a lease greater than one year, and (6) agreements that cannot be performed within one year. Sections 400.2-201 and 432.010, RSMo 1994.

22 Landau v. St. Louis Public Serv. Co., 273 S.W.2d 255, 257 (Mo. banc 1954); McDaniel v. Park Place Care Ctr., Inc., 918 S.W.2d 820, 826 (Mo. App. W.D. 1996); Sappington v. Miller, 821 S.W.2d 901, 903 (Mo. App. W.D. 1992); Jackson v. Shain, 619 S.W.2d 860, 862 (Mo. App. W.D. 1981).

23 Sappington, 821 S.W.2d at 903.

24 Id.

25 Id.

26 619 S.W.2d 860 (Mo. App. W.D. 1981).

27 Id. at 861.

28 Id.

29 Id.

30 Id. at 862.

31 Section 400.2-201, RSMo 1994.

32 Section 432.010, RSMo 1994.

33 Fair Mercantile Co. v. Union-May-Stern Co., 221 S.W.2d 751, 755 (Mo. 1949); Frederick v. Heim, 943 S.W.2d 343, 347 (Mo. App. S.D. 1997).

34 Id. at 755.

35 Section 432.010, RSMo 1994.

36 Section 400.2-201(2), RSMo 1994.

37 Jackson, 619 S.W.2d at 862.

38 Section 400.2-104(1), RSMo 1994

"Merchant" means

a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.

39 Malpractice liability results from a breach of a duty of care to the client. Klemme v. Best, 941 S.W.2d 493, 495 (Mo. 1997). In representing a client, an attorney "has a duty to know what is going on in his case, and he must vigilantly follow its progress." Gibson v. White, 904 S.W.2d 22, 24 (Mo. App. W.D. 1995).

40 Sappington, 821 S.W.2d at 904.

41 Id. at 903-04.

42 Id. at 904.

43 Jackson, 619 S.W.2d at 862. The court rejected an enforcement of the settlement in equity due to the small amount of the fire insurance payment and that another remedy would be sufficient to restore the plaintiff to their previous position. Id.

44 Id.

45 Park Lane Medical Center of Kansas City, Inc. v. Blue Cross/Blue Shield of Kansas City, 809 S.W.2d 721, 724 (Mo. App. W.D. 1991).

46 The result is different, of course, when the essential terms have not been agreed to by the parties. If no "meeting of the minds" has taken place, the addition of terms acts as a counteroffer and rejection of the original offer. L.B. v. State Committee of Psychologists, 912 S.W.2d 611, 618 (Mo. App. W.D. 1995); Randall v. Harmon, 761 S.W.2d 278, 280 (Mo. App. S.D. 1988).

47 See supra notes ___ - ___ and accompanying text.

48 977 S.W.2d 74 (Mo. App. W.D. 1998).

49 Id. at 79.

50 Id. at 76.

51 Id. at 79.

52 943 S.W.2d 343 (Mo. App. S.D. 1997).

53 Id. at 347.

54 Id. at 344.

55 Id.

56 Id. at 347.

57 Harris v. Desisto, 932 S.W.2d 435, 444 (Mo. App. W.D. 1996).

58 Acetylene Gas. Co. v. Oliver, 939 S.W.2d 404, 410 (Mo. App. E.D. 1996); Amecks, Inc. v. Southwestern Bell Telephone Co., 937 S.W.2d 240, 243 (Mo. App. W.D. 1996).

59 907 S.W.2d 800 (Mo. App. W.D. 1995).

60 Id. at 803.

61 See generally B-Mall Co. v. Williamson, 977 S.W.2d 74 (Mo. App. W.D. 1998); Frederick v. Heim, 943 S.W.2d 343 (Mo. App. S.D. 1997); McDaniel v. Park Place Care Center, Inc., 918 S.W.2d 820 (Mo. App. W.D. 1996); Garrison v. Nichols, 908 S.W.2d 373 (Mo. App. S.D. 1995); Payne v. E & B Carpet Cleaning, Inc., 896 S.W.2d 650 (Mo. App. E.D. 1995); Byrd v. Liesman, 825 S.W.2d 38 (Mo. App. S.D. 1992); Randall v. Harmon, 761 S.W.2d 278 (Mo. App. S.D. 1988); Carroll v. Ghidoni, 730 S.W.2d 280 (Mo. App. E.D. 1987).

62 B-Mall, 977 S.W.2d 74 (Mo. App. W.D. 1998); see also Garrison, 908 S.W.2d 373, 374 (Mo. App. S.D. 1995); Byrd, 825 S.W.2d 38, 39 (Mo. App. S.D. 1992); Randall, 761 S.W.2d 278 (Mo. App. S.D. 1988).

63 Frederick, 943 S.W.2d 343, 346 (Mo. App. S.D. 1997); see also Garrison, 908 S.W.2d 373, 374 (Mo. App. S.D. 1995); Byrd, 825 S.W.2d 38, 39 (Mo. App. S.D. 1992); Randall, 761 S.W.2d 278 (Mo. App. S.D. 1988).

64 Randall, 761 S.W.2d 278 (Mo. App. S.D. 1988); see also B-Mall, 977 S.W.2d 74 (Mo. App. W.D. 1998); Frederick, 943 S.W.2d 343, 346 (Mo. App. S.D. 1997); Garrison, 908 S.W.2d 373, 374 (Mo. App. S.D. 1995); Byrd, 825 S.W.2d 38, 39 (Mo. App. S.D. 1992).

65 See L.B. v. State Committee of Psychologists, 912 S.W.2d 611 (Mo. App. W.D. 1995). In L.B., the plaintiff brought the action for an injunction to prevent the underlying action by the state committee, and to compel specific performance of the alleged settlement agreement. Id. at 616.

66 See Sappington v. Miller, 821 S.W.2d 901 (Mo. App. W.D. 1992). In Sappington, the plaintiff brought the action for specific performance of the settlement agreement after the end of the underlying action because the underlying action had been dismissed with prejudice by the plaintiff based upon the settlement agreement. Id. at 904.

67 See Landau v. St. Louis Public Service Co., 273 S.W.2d 255 (Mo.banc 1954). In Landau, after the plaintiff brought an action for personal injuries, the defendant filed a petition for specific performance of an oral settlement agreement. Landau, 273 S.W.2d at 257.

68 See Jackson v. Shain, 619 S.W.2d 860 (Mo. App. W.D. 1981). In Jackson, following the partial performance of the plaintiff on the proposed settlement agreement, he amended his petition to add a count for specific performance of the agreement. Id. at 861.

69 The relevant provision of Rule 41(a)(1) is as follows: "Subject to the provisions of . . . an action may be dismissed by plaintiff without order of court . . . (ii) by filing a stipulation of dismissal signed by all the parties who have appeared in the action." Fed. R. Civ. Pro. 41(a)(1).

70 511 U.S. 375 (1994).

71 Id. at 377.

72 Id. at 381.

The Supreme Court did recognize a distinction between enforcement of an agreement, as was the issue in this case, and the court re-opening a case under Rule 60(b)(6) which allows relief from final judgment. Id. at 378. The Court recognized than several Circuits have allowed this as an alternative when settlement terms have not been met. Id.

73 Id. at 382.

74 Id. at 381.

Mr. Blegen is a law clerk to the Honorable Scott O. Wright of the United States District Court for the Western District of Missouri. He graduated from the University of Missouri-Columbia School of Law in 1998, where he is a member of the Order of the Coif and the Order of Barristers. The opinions expressed in this article are that of the author and are not endorsed by the court.

1999, Daniel Blegen