UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BOARD OF DIRECTORS OF THE COUNCIL

OF CO-OWNERS OF PLACE ONE

CONDOMINIUM,

Plaintiff-Appellant,

No. 99-1711

v.

INTERNATIONAL FIDELITY INSURANCE

COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-99-251-A)

Submitted: November 30, 1999

Decided: January 6, 2000

Before MICHAEL and MOTZ, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Kenneth E. Chadwick, Daniel B. Streich, CHADWICK, WASHINGTON, OLTERS, MORIARTY & LYNN, P.C., Fairfax, Virginia, for

Appellant. Dawn C. Stewart, Lorraine M. Magee, Tamara M.

McNulty, MITTERHOFF, HENRICHSEN & STEWART, P.L.L.C.,

Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Board of Directors of the Council of Co-Owners of Place One

Condominium ("Place One") appeals from the district court's order

dismissing its complaint and denying its motion for reconsideration,

Fed. R. Civ. P. 59. For the reasons that follow, we vacate and remand

for further proceedings.

In May 1995, Place One hired Proceres Companies, Inc., to repair

certain balcony tiers. International Fidelity Insurance Co. (IFIC)

issued a performance bond for the work. The bond contract provided

that:

Any proceeding, legal or equitable, under this Bond may be

instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and

shall be instituted within two years after Contractor Default

or within two years after the Contractor ceased working or

within two years after the Surety refuses or fails to perform

its obligations under the Bond, whichever occurs first.

Proceres failed to complete the repairs and Place One filed this action

against IFIC on November 25, 1998.

IFIC moved to dismiss the complaint, claiming that it was filed

more than two years after Proceres defaulted on the contract. In support of its motion to dismiss, IFIC included a letter dated "November

1996" from Proceres to its creditors stating that: "With great regret,

and after consultation with counsel, [Proceres] ha[s] ceased operations as of November 13, 1996, with the exception on[sic] finishing

two or three minor projects."

In response to IFIC's motion, Place One claimed that the earliest

date of breach was November 27, 1996--the date that Place One

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wrote a letter to Proceres stating that "the Board feels that Proceres

has breached its contract with the Association." Also included with

Place One's response was a letter from its attorney to IFIC, dated

December 11, 1996, stating that Place One was "considering declaring a Contractor Default" against Proceres. With respect to the "November 1996" letter included with IFIC's motion to dismiss, Place

One argued, first, that the letter failed to identify the "two or three

minor projects" which the company planned to complete. Second,

Place One argued that because the letter was date-stamped December

5, 1996, this was the earliest date that the letter could be deemed to

be effective notice of the date that Proceres ceased working. Neither

party filed supporting affidavits.

The district court found that, based on the November 1996 letter,

the date of breach was November 13, 1996, and dismissed the complaint pursuant to Fed. R. Civ. P. 12(b)(6). Place One then filed a

motion to reconsider under Fed. R. Civ. P. 59 in which it claimed, for

the first time, that it had never actually received the November 1996

letter and attached an affidavit to that effect. The district court denied

the motion. Place One appeals.

While purportedly granting IFIC's motion to dismiss under Fed. R.

Civ. P. 12(b)(6), the district court's consideration of documents outside the pleadings resulted in a grant of summary judgment. See Fed.

R. Civ. P. 12(b); Jakubiak v. Perry, 101 F.3d 23, 25 n.1 (4th Cir.

1996); Herbert v. Saffell, 877 F.2d 267, 270 (4th Cir. 1989). Rule

12(b)(6) allows a district court to convert a motion to dismiss for failure to state a claim into a motion for summary judgment, provided

that the parties receive "reasonable opportunity" to present all pertinent materials. See Herbert, 877 F.2d at 270.

This court reviews the district court's granting of summary judgment de novo. See Farwell v. Un, 902 F.2d 282, 287 (4th Cir. 1990).

Summary judgment is appropriate when "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter

of law." Fed. R. Civ. P. 56(c). We construe all facts and draw reasonable inferences in favor of the nonmovant. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).

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We conclude that Proceres's November 1996 letter does not clearly

establish that the date of Proceres' default with respect to the Place

One contract was November 13, 1996. As stated by Place One in its

opposition to IFIC's motion to dismiss, there was no evidence put

forth that the Place One contract with Proceres was not one of the

"two or three minor projects" mentioned in the letter. Because neither

party put forth any evidence as to when Proceres actually ceased

working on the Place One contract, summary judgment was improperly granted to IFIC.

Accordingly, we vacate the district court's orders and remand the

case for further proceedings. We dispense with oral argument because

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

VACATED AND REMANDED

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