* Of the District of Rhode Island, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 03-1453

SEABOARD SURETY COMPANY,

Plaintiff, Appellee,

v.

TOWN OF GREENFIELD,

acting by and through the

GREENFIELD MIDDLE SCHOOL BUILDING COMMITTEE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, U.S. District Judge]

Before

Torruella, Circuit Judge,

Lipez, Circuit Judge,

and Lisi,* District Judge.

Wendy Sibbison, for appellant.

Thomas H. Hayman, with whom Bert J. Capone and Cetrulo &

Capone LLP, were on brief, for appellee.

 June 9, 2004
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TORRUELLA, Circuit Judge. Defendant-appellant Town of

Greenfield, acting by and through the Greenfield Middle School

Building Committee ("GMSBC")(hereinafter referred to collectively

as "Greenfield"), appeals the district court's grant of summary

judgment in favor of plaintiff-appellee Seaboard Surety Company

("Seaboard") discharging Seaboard from liability on a construction

performance bond. After careful review, we affirm.

I. Background

We summarize the lengthy narrative of the failed

relationship between the parties, relating only those facts

relevant to our review. On June 18, 1998, Greenfield contracted

with Interstate Construction Company ("ICC") to renovate its Middle

School building. ICC provided the performance bond required by

Massachusetts law, with Seaboard as surety. The bond is a standard

performance bond, Form A312, issued by the American Institute of

Architects in 1984. It provides that the Contractor (ICC) and the

Surety (Seaboard), jointly and severally, bind themselves to the

Owner (Greenfield) for the performance of the Construction

Contract, which the bond incorporates by reference.

Paragraph 3 of the bond provides that the surety's

obligation under the bond arises after:

3.1 The Owner has notified the Contractor

and the Surety . . . that the Owner is

considering declaring a Contractor

Default and has requested and attempted

to arrange a conference with the

Contractor and the Surety to be held
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not later than fifteen days after

receipt of such notice to discuss

methods of performing the Construction

Contract. If the Owner, the Contractor

and the Surety agree, the Contractor

shall be allowed a reasonable time to

perform the Construction Contract, but

such an agreement shall not waive the

Owner's right, if any, subsequently to

declare a Contractor Default; and

3.2 The Owner has declared a Contractor

Default and formally terminated the

Contractor's right to complete the

contract. Such Contractor Default

shall not be declared earlier than

twenty days after the Contractor and

the Surety have received notice as

provided in Subparagraph 3.1; and

3.3 The Owner has agreed to pay the Balance

of the Contract Price to the Surety in

accordance with the terms of the

Construction Contract or to a

contractor selected to perform the

Construction Contract in accordance

with the terms of the contract with the

Owner.

Once the owner has complied with the provisions of Paragraph 3, and

the surety's obligations are triggered, Paragraph 4 provides that

the surety "shall promptly and at the Surety's expense" take one of

a list of specified "actions." The action at issue in this case,

as described in subparagraph 4.2, is to "[u]ndertake to perform and

complete the Construction Contract itself, through its agents or

through independent contractors."

Paragraph 5 provides that "[i]f the Surety does not

proceed as provided in Paragraph 4 with reasonable promptness, the

Surety shall be deemed to be in default on the Bond fifteen days
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after receipt of an additional written notice from the Owner to the

Surety demanding that the Surety perform its obligations under this

Bond, and the Owner shall be entitled to enforce any remedy

available to the Owner."

In compliance with subparagraph 3.1, Greenfield notified

ICC and Seaboard on November 12, 1998, and again on March 23, 2000,

that it was considering declaring a Contractor Default. On

August 24, 2000, after continuous struggle regarding ICC's

tardiness, Greenfield sent ICC a notice of default and termination

and filed suit in state court. That same day, Greenfield notified

Seaboard of ICC's termination and agreed to pay the balance of the

contract price to Seaboard or to a replacement contractor, as

required by Paragraphs 3.2 and 3.3 of the bond.

On August 25, 2000, Seaboard responded, asserting its

need for a reasonable time to investigate, requesting documentation

of ICC's default, and reminding Greenfield of the owner's duty to

mitigate the surety's damages. Greenfield hired an Interim

Construction Management Consultant, Baybutt Construction

Corporation ("Baybutt"), to evaluate and to advise the town on the

emergency work needed in the interim. Greenfield notified Seaboard

that moisture had caused the subflooring of the new floors to

buckle and the carpets to detach, and that the allocation of

responsibility for this damage (between Greenfield and ICC) was

already before the state court.
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On September 26, 2000, Greenfield sent Seaboard further

documentation regarding ICC's termination and "formally ask[ed] the

surety to undertake to perform and complete the construction

itself, or through its agents or independent contractors as set

forth in the surety contract, paragraph 4.2," with a response

requested from Seaboard by October 20, 2000, so that work might

begin by November 4, 2000.

On October 11, 2000, representatives of Greenfield, ICC,

and Seaboard met. Seaboard agreed to prepare a proposal by

October 18th addressing the emergency work. After some delay,

Seaboard delivered a proposal to perform the emergency work -- not

including the floor remediation – stating that this was not an

offer to perform under the bond because ICC's termination remained

contested and Seaboard was still investigating its position with

respect to the completion of the project and the remediation of the

floors.

On October 31, 2000, Greenfield and Seaboard signed an

Emergency Work Agreement to mitigate both parties' damages.

Seaboard agreed to perform the emergency work, beginning on

November 6th and finishing by December 31st, for which Greenfield

would pay $207,000. Seaboard hired a Construction Manager, Wayne

Sheridan, for the emergency work.

On November 15, 2000, Greefield's attorney faxed three

letters to Seaboard's attorney. The first conveyed the conclusion
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of Greenfield's interim consultant, Baybutt, that work would need

to be commenced by December 1st for the building to be ready for

school the next fall. Estimated costs, including moisture

remediation, were $5.6 million -- $3.8 million more than the

remaining contract funds. The second letter informed Seaboard that

the Building Committee had approached the Town Council to

appropriate these funds "if Seaboard declines to complete" and

insisted again that work needed to commence by early December. The

third letter demanded that Seaboard "soon decide if it will honor

its obligations . . . under the performance bond and complete the

project." This letter reiterated the necessity that work begin by

early December and asked Seaboard to commit by November 20th.

On November 20, 2000, Seaboard responded that, while its

investigation of ICC's termination continued, Seaboard was "willing

to perform the remedial and contract work," and was "prepared to

take all necessary action to expeditiously arrive at a

comprehensive agreement with [Greenfield] so that the remedial and

contract work can be commenced as soon as possible." Seaboard

requested further documentation regarding the floor remediation

work.

On November 21, 2000, Greenfield sent Seaboard further

documentation and, on November 22nd, objected to the Town being

required to pay for the entire cost of the floor remediation.

While the allocation of responsibility for the floors was still in
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dispute, Greenfield offered to split the costs, under reservation

of rights. Greenfield also expressed concern about Seaboard's

management team and timely completion. Greenfield was concerned

that Seaboard's project manager, Wayne Sheridan, was frequently

absent from the work site. Greenfield sought the right to review

and to approve any new project management team. Greenfield warned

Seaboard that if construction did not begin by December 1st,

Greenfield "will be compelled to proceed with its other completion

options."

Eventually, Greenfield acceded, under reservation of

rights, to cover the costs of the floor remediation, and on

December 1st, Seaboard sent Greenfield a draft Takeover Agreement.

Greenfield proposed revisions and further negotiations ensued. On

December 8th, Greenfield's attorney notified Seaboard that the

Building Committee would meet on December 11th to decide how to

proceed. On December 11th, Seaboard faxed Greenfield a new draft

of the Takeover Agreement which identified Sheridan, the

Construction Manager with whom Greenfield was dissatisfied, as the

proposed Project Manager. At the Building Committee meeting that

night, the Committee decided to hire Baybutt to complete the

project. The next day, Greenfield notified Seaboard of the

decision to proceed without Seaboard's involvement.

On December 22, 2000, Seaboard filed a complaint in the

district court seeking a declaratory judgment discharging it from
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obligation under the performance bond on the grounds that

Greenfield had materially breached the bond by hiring its own

contractor. Seaboard claimed that it had elected to complete the

contract, as permitted under the bond, but that Greenfield had

refused to allow the takeover, and that Seaboard was thus denied

the opportunity to limit its financial exposure. Greenfield filed

counterclaims, alleging Seaboard's breach of the bond. After

discovery, cross motions for summary judgment were filed.

On March 7, 2003, the district court granted Seaboard's

motion for summary judgment. Rejecting any anticipatory

repudiation defense for Greenfield as disallowed under

Massachusetts law, the court held that "[b]ecause a clear and

direct default notice was not served pursuant to Paragraph 5, . . .

Greenfield was in material breach of the Bond when it ceased its

dealings with Seaboard and hired another company." Seaboard Sur.

Co. v. Town of Greenfield, 266 F. Supp. 2d 189, 198 (D. Mass.

2003).

II. Analysis

Summary judgment is appropriate when the evidence before

the court shows "that there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a

matter of law." Fed. R. Civ. P. 56(c). For the purposes of

summary judgment, "'genuine' means that 'the evidence is such that

a reasonable jury could return a verdict for the nonmoving party',
1 Greenfield argues in the alternative that Paragraph 5 does not

make notice a condition precedent of surety default but instead

simply provides an optional vehicle through which the owner may

protect itself from any future claims of the surety. We find this

reading of Paragraph 5 contrary to the unambiguous language of the

bond, and, under Massachusetts law, "when the wording of a contract

is unambiguous, the terms will be enforced." Paterson-Leitch Co.,

Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir.

1988)(citing Edmonds v. United States, 642 F.2d 877, 881 (1st Cir.

1981)).

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and a 'material fact' is one which 'might affect the outcome of the

suit under the governing law.'" Hayes v. Douglas Dynamics, Inc.,

8 F.3d 88, 90 (1st Cir. 1993)(quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). We review de novo the district

court's grant of summary judgment, viewing the facts and making all

reasonable inferences in favor of Greenfield, the nonmoving party.

Rodríguez v. Smithkline Beecham, 224 F.3d 1, 5 (1st Cir. 2000). We

may affirm on any ground supported by the record. Id.

The parties agree that Greenfield complied with the

notice requirements regarding ICC's default provided by Paragraph

3 of the performance bond. Seaboard argues, however, that

Greenfield failed to provide notice of Seaboard's default before

terminating Seaboard's involvement, as required by Paragraph 5.

Greenfield contends that Seaboard had previously breached the

performance bond by failing to take prompt action following ICC's

default as required by Paragraph 4 and that Greenfield's

communications with Seaboard complied with Paragraph 5's notice

requirements.1
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We find it unnecessary to address Seaboard's compliance

with Paragraph 4. The district court examined the evidence on the

issue and denied Greenfield's motion for summary judgment because

"the Court cannot find as a matter of law that Seaboard committed

a material breach of the terms and conditions of the Bond by

failing to promptly select and undertake action under paragraph 4."

Seaboard Sur. Co., 266 F. Supp. 2d at 195. The district court

opinion ultimately rests, however, on Greenfield's failure to

comply with Paragraph 5. The district court concludes that

Greenfield's Paragraph 4 claims against Seaboard "necessarily fail

. . . due to Greenfield's material breach of the Bond," and

describes Greenfield's breach thus: "Because a clear and direct

default notice was not served pursuant to Paragraph 5, the Court

finds that Greenfield was in material breach of the Bond when it

ceased its dealings with Seaboard and hired another company to

complete the Project." Id. at 198. The district court therefore

concludes that "Greenfield's refusal to allow Seaboard to complete

the Project renders the Bond null and void and discharges Seaboard

from any and all liability under the Bond." Id. (citing St. Paul

Fire & Marine Ins. Co. v. City of Green River, 93 F. Supp. 2d 1170

(D. Wyo. 2000), aff'd, 6 Fed. Appx. 828 (10th Cir. 2001)).

We agree with the district court's conclusion that

Greenfield's compliance with Paragraph 5 is dispositive of both

parties' claims. Even assuming that Seaboard failed to provide the
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prompt response to contractor default required by Paragraph 4, the

surety default provision of Paragraph 5 constitutes an important

contractual right of the surety. Paragraph 5 provides the surety

fifteen days during which it may attempt to cure the alleged breach

prior to default and thus to minimize its economic exposure.

Failure to provide this notice constitutes a material breach of the

bond. School Bd. of Escambia Cty. v. TIG Premier Ins. Co., 110 F.

Supp. 2d 1351, 1353 (N.D. Fla. 2000)("[F]ailure to adhere to a

performance bond notification requirement is a material breach,

resulting in the loss of an obligee's rights under the bond."); St.

Paul, 93 F. Supp. 2d at 1178 ("Courts have consistently held that

an obligee's action that deprives a surety of its ability to

protect itself pursuant to performance options granted under a

performance bond constitutes a material breach, which renders the

bond null and void."); cf. Dragon Constr., Inc. v. Parkway Bank &

Trust, 678 N.E.2d 55, 58 (Ill. App. Ct. 1997)(owner's "failure to

provide adequate notice of [contractor's] termination . . .

stripped [surety] of its right to limit its liability and

constituted a material breach of contract which rendered the surety

bonds null and void.").

Greenfield seeks refuge in the contention that under

Massachusetts law "compensated sureties . . . ought not to be

relieved from their obligations on merely technical grounds, not

affecting substantially the character of the undertaking which they
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assumed." Bayer & Mingolla Constr. Co, Inc. v. Deschenes, 205

N.E.2d 208, 211 n.4 (Mass. 1965)(quoting Maryland Cas. Co. v.

Dunlap, 68 F.2d 289, 291 (1st Cir. 1933)). While it is true that

"Massachusetts courts have held that lack of prompt notice to the

compensated surety of a contractor's default (as required by a

Performance Bond) does not discharge the surety if it is not

harmed," notice requirements "exist[] precisely to provide the

surety an opportunity to protect itself against loss by

participating in the selection of the successor contractor to

ensure that the lowest bidder is hired and damages mitigated."

Enterprise Capital, Inc. v. San-Gra Corp., 284 F. Supp. 2d 166, 177

(D. Mass. 2003)(citations omitted). In the context of surety

default, the notice provision similarly provides an opportunity for

the surety to cure the breach and thus mitigate damages. As the

court concluded in Enterprise Capital, "even if [Seaboard] must

show injury, loss, or prejudice, it meets this hurdle, given its

deprivation of mitigation opportunities." Id.

We must therefore determine whether the record creates a

triable issue of fact as to Greenfield's compliance with Paragraph

5 of the performance bond. Paragraph 5 provides that:

If the Surety does not proceed as provided in

Paragraph 4 with reasonable promptness, the

Surety will be deemed to be in default on this

Bond fifteen days after receipt of an

additional written notice from the Owner to

the Surety demanding that the Surety perform

its obligations under this Bond, and the Owner
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shall be entitled to enforce any remedy

available to the Owner.

Greenfield contends that several letters it sent to Seaboard, and

particularly two letters dated November 15th, constituted "an

additional written notice . . . demanding that the surety perform

its obligations" in compliance with Paragraph 5 and that Seaboard

was thus properly deemed in default fifteen days thereafter and

prior to Greenfield's December 11th decision to hire Baybutt to

complete the project.

We describe and quote these letters at some length, as

our decision rests on whether a reasonable jury could find them to

constitute the "additional written notice" required by Paragraph 5.

The first, dated September 26, 2000, responds in detail to

Seaboard's requests for documentation regarding ICC's termination

and concludes thus:

Lastly, the Building Committee is

formally asking the surety to undertake to

perform and complete the construction contract

itself, or through its agents or independent

contractors as set forth in the surety

contract, paragraph 4.2. Please be further

advised that owner believes that they will

require a decision by the surety no later than

October 20, 2000 so that work may begin in

earnest to move forward on the project by

November 4, 2000.

Two additional letters were sent to Seaboard's counsel on

November 15th. The first informs Seaboard that Greenfield Middle

School Building Committee ("GMSBC") has presented a proposal to

obtain additional funding in case Seaboard declines to complete.
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It then discusses a report prepared by Baybutt indicating that work

must commence by early December in order for the school to be ready

for the 2001 school year. The pertinent paragraphs read:

The GMSBC believes Seaboard has

substantial financial exposure to the Town.

It would appear that one way for Seaboard to

minimize that financial exposure would be to

assume performance and complete the contract.

The alternative to completion by Seaboard is

completion by the GMSBC through a totally

different construction team, possibly after

receipt of competitive bids. If the GMSBC

must obtain competitive proposals, the

completion costs could rise even higher than

Baybutt's estimate.

The Greenfield Town Council is

scheduled to vote on the GMSCB's $4.35 million

request for additional funding on November 21,

2000. The GMSBC has asked that Seaboard

provide me with a statement of Seaboard's

intentions by Monday, November 20, 2000.

The second letter of November 15th begins thus: "Seaboard Surety

Co. must soon decide if it will honor its obligations to the

Greenfield Middle School Building Committee . . . under the

performance bond and complete the project." It explains the

GMSBC's insistence that Seaboard respond promptly:

The GMSBC must now decide how it will

complete the project. It is still the GMSBC's

preference to have Seaboard complete.

Seaboard has been aware of the problems with

ICC for several years and Seaboard has had two

and one half months since ICC's termination to

assess and determine its position on

completion. The time for Seaboard to make a

decision is here.

The GMSBC is concerned by Seaboard's

indecision regarding completion of the Project

and is concerned that Seaboard may be giving

too much credit to ICC's explanations and
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excuses as to what went wrong on the project.

The GMSBC asks that Seaboard undertake an

objective review of the facts that culminated

in the GMSBC's decision to terminate ICC,

before it decides if it will honor its

performance bond.

The letter then presents a detailed explanation of Greenfield's

decision to terminate ICC. It concludes thus:

The critical issue, at this time, is to

determine how the project will be completed.

The GMSBC believes it is in the best interests

of the Town and Seaboard to work together to

complete the Project since a mutual effort

will be required to get the school opened as

quickly as possible. If there are differences

in our positions that cannot immediately be

resolved, the GMSBC will entertain the

adoption of solutions that will allow the

parties to "agree to disagree" over those

differences, as long as construction

progresses. If Seaboard assumes completion of

the Project and adheres to a reasonable

construction schedule, the GMSBC's consultants

believe that the Project can still be

completed before the September 2001 school

opening. If, however, the GMSBC is compelled

to develop new bid packages and receive

competitive proposals to complete, the

increases in project cost and the delay in

completion could be even more severe than the

GMSBC's current projections.

Should Seaboard decide to honor its

performance bond, there will be a substantial

amount of work that will need to be completed

in a timely manner. Seaboard will need an

experienced project management team on site to

carefully direct the work.

Please ask Seaboard to give this matter

its immediate and careful consideration. The

GMSBC has asked that Seaboard provide it with

an indication of its intentions by

November 20, 2000, since an important vote in

the Town government on financing the

completion of the work, has been scheduled for

November 21, 2000.
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The final letter is dated November 22, 2000, and begins thus:

The [GMSBC] is somewhat encouraged by

your November 20, 2000 correspondence

indicating [Seaboard's] position on completing

the Project. The GMSBC wants Seaboard to

complete the Project and is anxious to get the

work underway. However, the GMSBC has

concerns with Seaboard's position that the

GMSBC must pay for all the costs to remedy the

floor damage . . . In addition to resolving

the question of who between Seaboard and the

GMSBC pays what portion of the floor

remediation work, the GMSBC has a number of

additional concerns that must be

satisfactorily addressed in a takeover

agreement.

The letter proceeds to describe the GMSBC's position on the floor

remediation costs and proposes that Seaboard and the GMSBC split

the costs, reserving their rights against one another and against

ICC, until the allocation of responsibility is determined in court.

The letter then lists and discusses seven "other key issues that

must be satisfactorily addressed in any takeover agreement." It

concludes thus:

Please contact me at your earliest

opportunity, to discuss Seaboard's position

regarding the above issues. The GMSBC would

like to be able to reach a general agreement

on the issues to be covered in the takeover

agreement by the end of the day on

November 27, 2000, with a written takeover

agreement to follow a few days thereafter.

Should we be able to successfully negotiate a

takeover agreement, construction

representatives of all parties should be

prepared to meet on short notice at the site .

. . .

Time is truly of the essence in

negotiating a takeover agreement and

commencing the completion of the work. The
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GMSBC has targeted December 1, 2000 as the

date by which work on the completion of the

contract should commence. The GMBSC is

prepared to do what is necessary to meet that

date. If the takeover agreement cannot be

reached, the GMSBC will be compelled to

proceed with its other completion options.

The district court found that none of the letters, taken

together or separately, constituted the additional written notice

required by Paragraph 5 of the bond, because the letters do not

demand performance in a manner sufficient to alert Seaboard to a

presumed default, nor do they indicate that Seaboard was in

material breach for failing to choose or to undertake performance

with reasonable promptness, nor do they reference the Paragraph 5

default provisions or warn that Seaboard will be deemed in default

in fifteen days. Seaboard Sur. Co., 266 F. Supp. 2d at 197. We

agree.

In the context of contractor default, courts have found

that "[a] declaration of default sufficient to invoke the surety's

obligations . . . must be made in clear, direct, and unequivocal

language." L & A Contracting Co. v. S. Concrete Serv., Inc., 17

F.3d 106, 111 (5th Cir. 1994)(finding insufficient notice of

default when owner's letters never mentioned the word "default");

Elm Haven Constr. Ltd. P'ship v. Neri Constr., LLC, 281 F. Supp. 2d

406 (D. Conn. 2003) (insufficient notice when letters only

complained about performance and financial status); Balfour Beatty

Constr., Inc. v. Colonial Ornamental Iron Works, Inc., 986 F. Supp.
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82, 86 (D. Conn. 1997) (insufficient notice when letters only

mention delay in performance). The district court applied this

standard in the related context of surety default before us and

concluded that Greenfield's letters failed to provide "a clear and

direct default notice" to Seaboard. Seaboard Sur. Co., 266 F.

Supp. 2d at 198.

While the standard for sufficiency of notice applied by

the district court comports with the general standard that

"[n]otice must be clear, definite, explicit, and unambiguous," 58

Am. Jur. 2d Notice § 2, there is no dispute that the performance

bond at issue here is governed by Massachusetts law. Although

neither party before us nor the decision below suggests that

Massachusetts law provides a relevant standard for sufficiency of

notice meaningfully distinct from that applied by the district

court, we must address the issue. In introducing the "clear,

direct and unequivocal" standard, the district court states, citing

Comm'r of Corps. & Taxation v. Springfield, 321 Mass. 31, 35

(1947), that "[l]ikewise, contractually required notices must

always be clear and unambiguous in order to fulfill their intended

purpose." Seaboard Sur. Co., 266 F. Supp. 2d at 196. Comm'r of

Corps., however, states the requirement under Massachusetts law

that "[n]otices required by law or by contract to be given by one

party to the other in order to establish rights or obligations must

state with reasonable certainty the essential facts required by law
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or by contract." Comm'r of Corps., 321 Mass. at 35. This

principle has been applied to suggest that the "form [of notice] is

not important but it must convey with reasonable certainty the

information reasonably needed to serve the statutory purpose."

Carey v. Planning Bd. of Revere, 335 Mass. 746, 748 (1957). In

both Carey and Comm'r of Corps., the notice in question was found

to be insufficient because it failed to supply the information

necessary to serve the purpose of the statutory notice provision at

issue. Carey, 335 Mass. at 747; Comm'r of Corps., 321 Mass. at 35.

As discussed earlier, the purpose of the notice provision

in Paragraph 5 of the performance bond is to provide the surety

with a fifteen-day period during which it might attempt to cure the

alleged breach prior to default. As Greenfield's letters to

Seaboard did not alert Seaboard to a presumed default, nor indicate

that Seaboard was in material breach, nor refer to Paragraph 5, nor

warn that Seaboard would be deemed in default in fifteen days, no

reasonable jury could find that Greenfield's letters "convey[ed]

with reasonable certainty the information reasonably needed" to

serve the purpose of Paragraph 5's notice requirement. Carey, 335

Mass. at 748. Therefore, as Greenfield's letters to Seaboard fail

to create a triable issue of fact under this threshold standard for

sufficiency of notice under Massachusetts law, we need not explore

the question further. Paragraph 5 of the performance bond provided

Seaboard with a fifteen-day period during which it might attempt to
2 The negotiations and exchanges of proposed and revised takeover

agreements that ensued and continued until the day of the Building

Committee's vote also belie Greenfield's claim that the letters

served as notice of default. Whether or not Seaboard was

inappropriately demanding concessions in the negotiations, as

Greenfield alleges, the record shows that neither Seaboard nor

Greenfield framed the proceedings in the context of impending

default. Greenfield argues that its efforts to work toward a

compromise after December 1st should not be held against it,

contending that Greenfield's efforts "to obtain even dilatory

performance" did not excuse Seaboard from its contractual duty to

act promptly. Bayer & Mingolla Const. Co., 205 N.E.2d at 212.

Similarly, however, Greenfield's continued efforts toward

compromise do not excuse Greenfield from its obligation to provide

an additional written notice of default to Seaboard as required by

Paragraph 5.

Greenfield also argues that Seaboard's complaint conceded that

the November 15th letter complied with Paragraph 5. The complaint

states that "[o]n or about November 15, 2000, Greenfield (through

its attorneys) called upon Seaboard to undertake completion of the

Project, and called for a response by November 20, 2000. Seaboard

duly responded on November 20, 2000, stating that Seaboard was

willing to undertake the work in question." No reasonable jury

could find that Seaboard's characterization of Greenfield's

November 15th letter as "call[ing] upon Seaboard to undertake

completion" conceded that the letter provided notice to the surety

that the fifteen-day period before it would be deemed in default

under Paragraph 5 had begun.

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cure the alleged breach. No reasonable jury could find that

Greenfield's letters put Seaboard on notice that this fifteen-day

period had commenced.2

III. Conclusion

Greenfield failed to provide an "additional written

notice" that could reasonably be found to put Seaboard on notice

that the fifteen-day period had begun after which Seaboard would be

deemed in default under Paragraph 5. This material breach by

Greenfield discharges Seaboard from liability under the bond as a
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matter of law. The district court's grant of summary judgment is

therefore affirmed.

Affirmed.

"Dissenting opinion follows"
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LIPEZ, Circuit Judge (Dissenting). Paragraph 5 of the

surety bond provides in relevant part:

If the Surety does not proceed as provided in

Paragraph 4 with reasonable promptness, the

Surety shall be deemed to be in default on

this Bond fifteen days after receipt of an

additional written notice from the Owner to

the Surety demanding that the Surety perform

its obligations under this Bond, and the Owner

shall be entitled to enforce any remedy

available to the Owner.

On August 24, 2000, Greenfield notified Seaboard of ICC's default

and termination, and agreed to pay the balance of the contract

price to Seaboard or to a replacement contractor pursuant to

Paragraphs 3.2 and 3.3 of the bond. Thus, after August 24, 2000,

Seaboard was required to "proceed as provided in Paragraph 4 with

reasonable promptness." If it did not, Greenfield was entitled to

deliver the "additional written notice" under Paragraph 5,

beginning the 15 day period before Seaboard would be deemed in

default.

As the majority recognizes, Massachusetts law governs the

provisions of the surety bond. In Massachusetts, "[n]otices

required by law or by contract to be given by one party to the

other in order to establish rights or obligations must state with

reasonable certainty the essential facts required by law or by

contract, as the case may be." Comm'n of Corps. & Taxation v.

Springfield, 321 Mass. 31, 35 (1947). See also Carey v. Planning

Bd. of Revere, 335 Mass. 746, 748 (1957) ("[The] form [of the
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notice] is not important but it must convey with reasonable

certainty the information reasonably needed to serve the statutory

purpose."). In this case, the essential information required by

Paragraph 5 was a "demand[] that the Surety perform its obligations

under [the] Bond." Thus, our task is to determine whether a

reasonable jury could find that Greenfield's communications to

Seaboard constituted an "additional written notice" that, with

reasonable certainty, "demand[ed] that the Surety perform its

obligations under [the] Bond."

In my view, there are several communications between

Greenfield and Seaboard that a reasonable jury might find meet this

requirement. As early as September 26, 2000, Greenfield had

formally asked Seaboard to perform its obligations under the bond

and had laid out a timetable for Seaboard's decision:

Lastly, [Greenfield] is formally asking the

surety to undertake to perform and complete

the construction contract itself, or through

its agents or independent contractors as set

forth in the surety contract, paragraph 4.2.

Please be further advised that [Greenfield]

believes that they will require a decision by

the surety no later than October 20, 2000 so

that work may begin in earnest to move forward

on the project by November 4, 2000.

A November 15, 2000, letter again called on Seaboard to decide

whether it would complete the project:

[Greenfield] must now decide if it will

complete the project. It is still

[Greenfield's] preference to have Seaboard

complete. Seaboard has been aware of the

problems with ICC for several years and
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Seaboard has had two and one half months since

ICC's termination to assess and determine its

position on completion. The time for Seaboard

to make a decision is here.

The November 15th letter concluded by asking that "Seaboard provide

[Greenfield] with an indication of its intentions by November 20,

2000," setting yet another deadline for Seaboard's decision.

Finally, a November 22, 2000, letter set a third deadline

and clearly indicated that Greenfield was prepared to pursue

completion by another contractor if Seaboard did not perform its

obligations under the bond:

Time is truly of the essence in negotiating a

takeover agreement and commencing the

completion of the work. [Greenfield] has

targeted December 1, 2000 as the date by which

work on the completion of the contract should

commence. [Greenfield] is prepared to do what

is necessary to meet that date. If the

takeover agreement cannot be reached,

[Greenfield] will be compelled to proceed with

its other completion options.

Each of these letters asked Seaboard to either perform its

obligations under the bond or allow Greenfield to pursue other

options. In my view, a reasonable jury could find that these

letters constituted an "additional written notice" that, with

reasonable certainty, "demand[ed] that the Surety perform its

obligations under the Bond."

The majority reasons that "[a]s Greenfield's letters to

Seaboard did not alert Seaboard to a presumed default, nor indicate

that Seaboard was in material breach, nor refer to Paragraph 5, nor
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warn that Seaboard would be deemed in default in fifteen days, no

reasonable jury could find that Greenfield's letters 'convey[ed]

with reasonable certainty the information reasonably needed' to

serve the purpose of Paragraph 5's notice requirement." Paragraph

5, however, does not require that Greenfield's notice contain any

of these provisions. It merely requires a "demand[] that the

Surety perform its obligations under the Bond." If the parties had

wished to require a more comprehensive notice -- including explicit

reference to Paragraph 5 and a recitation of the consequences of

Greenfield's notice -- they could have altered Paragraph 5's

requirements. They did not do so, and it is not our province to

read more stringent requirements into that provision.

Moreover, Greenfield was not required by principles of

contract law to educate Seaboard as to the consequences of

Greenfield's demand that Seaboard perform its obligations under the

bond. "[U]nder Massachusetts law, 'one who signs a writing that is

designed to serve as a legal document . . . is presumed to know

its contents.'" Salois v. Dime Sav. Bank, 128 F.3d 20, 26 n.10

(1st Cir. 1997) (quoting Hull v. Attleboro Sav. Bank, 33 Mass. App.

Ct. 18, 24 (1992)). Thus, we must presume that Seaboard understood

Paragraph 5's requirements, including that it would be deemed in

default 15 days after receiving additional written notice demanding

that it perform its obligations under the bond. It was Seaboard's

responsibility to protect its rights by acting within its 15 day
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window of opportunity. Greenfield's only duty was to provide the

notice required by Paragraph 5 in compliance with the Massachusetts

"reasonable certainty" standard, regardless of whether Seaboard

recognized that the notice formally triggered the terms of

Paragraph 5. See, e.g., Univ. Emergency Med. Found. v. Rapier

Inves., Ltd., 197 F.3d 18, 21 (1st Cir. 1999) (holding that the

parties to a contract may specify the manner of sufficient

termination notice in the terms of the contract); Westmoreland v.

Gen. Acc. Fire & Life Assur. Corp., 144 Conn. 265, 270 (1957) ("It

is always competent for parties to contract as to how notice shall

be given, unless their contract is in conflict with law or public

policy. When they do so contract, the giving of a notice by the

method contracted for is sufficient whether it results in actual

notice or not.") (collecting cases).

Greenfield and Seaboard have been engaged in a long and

bitter dispute over their respective obligations under the surety

contract. The financial stakes are considerable for both parties.

We should not resolve this case with a legal ruling that rewrites

the content of the notice required by Paragraph 5 of the bond.

Rather, whether Greenfield's multiple letters constituted an

adequate "demand[] that the Surety perform its obligations under

[the] Bond" is a quintessential jury question. I would therefore

vacate the entry of summary judgment and remand to the district
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court so that this issue could be resolved by the appropriate fact

finder.

I respectfully dissent.