336 B.R. 866 (2006)
In re BAYSHORE YACHT & TENNIS CLUB CONDOMINIUM ASSOCIATION, INC., Debtor.
No. 05-12454-BKCRAM.
United States Bankruptcy Court, S.D. Florida.
January 12, 2006.
*867 James B. Miller, Esq., Miami, FL, Ronald J. Isriel, Esq., Isriel & Associates, P.A., Miami, FL, for Al Coletta.
Thomas L. Abrams, Esq., Gamber & Adams, Ft. Lauderdale, FL, Marc Auerbacher, Esq., Katz Barron, Miami, FL, for Debtor.
ORDER GRANTING DEBTOR'S MOTION FOR SUMMARY JUDGMENT; DENYING COLETTA'S CROSS MOTION FOR SUMMARY JUDGMENT AND DISALLOWING CLAIM # 20
ROBERT A. MARK, Chief Judge.
The Court conducted a hearing on December 21, 2005, on cross motions for summary judgment on Debtor Bayshore Yacht & Tennis Club Condominium Association's ("Bayshore" or "Debtor") objection to Proof of Claim # 20 filed by Creditor Al Coletta ("Coletta"). Specifically, on November 15, 2005, Debtor filed its Motion for Final Summary Judgment as to Proof of Claim # 20 ("Motion for Summary Judgment")(CP # 151). On November 22, 2005, Coletta filed his Response and Cross Motion for Summary Judgment ("Response and Cross Motion")(CP # 174). Debtor subsequently filed its Reply to Al Coletta's Response in Opposition to Bayshore's Motion for Summary Judgment on Claim # 20 and Response to Coletta's Cross Motion for Summary Judgment ("Reply")(CP # 216). Upon reviewing the record, including the legal memoranda, and after considering the arguments of counsel and relevant case law, the Court finds it appropriate to grant Debtor's Motion for Summary Judgment and deny Coletta's Cross Motion. As such, Coletta Claim # 20 is disallowed.

Factual and Procedural Background
Although the history between the parties is tortured, and certain facts are in *868 dispute, the relevant facts necessary to address this claim are undisputed. Bayshore Yacht & Tennis Club is a condominium building located in North Bay Village, Florida. The Debtor was created pursuant to a Declaration of Condominium, attached as Exhibit "1" to the Response and Cross Motion. The Declaration of Condominium was recorded on June 16, 1978. In 1981, Coletta purchased three units ("Penthouse Units") at the Debtor's premises.[1] The Penthouse Units were located on the eleventh floor of the building.[2] At the time of purchase, elevator service within the building ceased at the tenth floor. Access to the Penthouse Units was, and still is, by way of a stairway from the tenth floor. It is undisputed that at the time of purchase, Coletta knew that the elevator did not go up to the Penthouse Units.
Upon purchasing the Penthouse Units, Coletta attempted to convince the Debtor to provide elevator access to the eleventh floor. According to Coletta, on numerous occasions the Debtor committed to providing elevator access to the eleventh floor at no expense to Coletta. Deposition of Al Coletta at 18, 21, attached as Exhibit "6" to the Response and Cross Motion. However, no action was ever taken on this alleged commitment, purportedly because Bayshore lacked sufficient funds. Dep. Coletta at 17; Affidavit of Patrick Bilodeau ¶ 3, attached as Exhibit "9" to the Response and Cross Motion. Conversely, Debtor maintains that it never promised to pay for any elevator extension. Board Meeting Minutes of July 5, 2002, attached as Exhibit "3" to the Response and Cross Motion. As discussed below, this factual dispute over what Bayshore's board promised Coletta is not a factual issue precluding entry of summary judgment.
Over the years, the relationship between the parties deteriorated.[3] In connection with his dissatisfaction with the Debtor and members of its board of directors, Coletta, on February 15, 2001, filed a lawsuit in the Circuit Court of Florida against Bayshore, styled as Al Coletta v. Bavshore Yacht & Tennis Club Condominium Association, Inc., et al., Case No.: 01-03879CA(01)("State Court Case"). In his Third Amended Complaint, Coletta sought injunctive and declaratory relief (Counts I and III respectively) and damages (Count II) against the Debtor in connection with its alleged failure to provide elevator access to the Penthouse Units. In support of these claims, Coletta alleged that (1) Debtor and members of its board promised to provide elevator access to the Penthouse Units at no charge to Coletta; (2) to provide such elevator access would not require material alterations to the common elements; (3) such alterations were required pursuant to the Declaration of Condominium, the Americans with Disabilities Act ("ADA") and the Florida Americans with Disabilities Act ("FADA") and (4) because the Debtor had not provided such elevator access, Coletta suffered damages.
*869 On April 4, 2005, Bayshore filed its Chapter 11 petition. Amongst other claims, Coletta timely filed his Proof of Claim # 20 which referenced the State Court Case. Coletta subsequently sought stay relief, seeking to continue the State Court Case rather than litigating Claim # 20 in this Court. The requested relief was denied by Order dated October 31, 2005, and instead, this Court ruled that Claim # 20 would be resolved in connection with other contested matters arising from the Debtor's objections to Coletta's various proofs of claim.
While the bankruptcy was ongoing, the Debtor informed unit owners that it needed to raise $1,500,000 through a special assessment. Part of this assessment included $250,000 to modernize and replace the elevator system within the building. Board Letter to Unit Owners, attached as Exhibit "5" to the Response and Cross Motion. The proposed elevator project subject of the assessment does not include extending elevator service to the Penthouse Units.

Summary of the Arguments
Debtor's primary arguments are (1) Bayshore has no contractual obligation to extend the elevator at its expense; (2) extending the elevator is not a maintenance obligation; (3) extending the elevator is a material alteration requiring seventy-five percent approval from the unit owners; and (4) even if the alteration is not material and board approval is sufficient, the Declaration of Condominium requires Coletta to pay for the improvement.
Coletta argues that (1) extension of the elevator is a maintenance obligation; (2) if it is an alteration, it is not a material alteration and therefore, board approval is sufficient; and (3) he is not obligated to pay for the improvement because Bayshore agreed to pay and since, under the relevant section of the Declaration of Condominium, the Penthouse Units would not be the substantially exclusive beneficiary if the elevator was extended.
After a review of the legal memoranda and the exhibits attached thereto, the Court finds that there is no genuine issue of material fact that is in dispute. Extension of the elevator service would not constitute maintenance of the common elements. Moreover, pursuant to the Declaration of Condominium, Bayshore is not obligated to pay for any extension of the elevator. Thus, Coletta is not entitled to any relief on his claim.

Discussion
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 a judgment as a matter of law." Fed. R. Civ. P. 56(c).
Summary judgment is not properly viewed as a device that the trial court may, in its discretion, implement in lieu of a trial on the merits. Instead, Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of every element essential to that party's case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In such a situation, there can be no genuine issue as to any material fact, as a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. Id. at 322-23, 106 S.Ct. 2548.
*870 The movant bears the initial responsibility of asserting the basis for his motion. Id. at 323; Apcoa, Inc. v. Fidelity Nat'l Bank, 906 F.2d 610, 611 (11th Cir. 1990). The movant is not required to negate his opponent's claim, however. The movant may discharge his burden by merely "`showing'  that is, pointing out to the court  that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. After the movant has carried his burden, the nonmoving party is then required to "go beyond the pleadings" and present competent evidence. The nonmoving party may meet its burden through affidavit and deposition testimony, answers to interrogatories, and the like, Celotex, 477 U.S. at 324, designating "`specific facts showing that there is a genuine issue for trial.'" Id. at 324 (quoting Fed. R. Civ. P. 56(e)). While the court is to view all evidence and factual inferences in a light most favorable to the nonmoving party, Nat'l Parks Conservation Ass'n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
A fact is material when it is identified as such by the controlling substantive law. Id. at 248. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. at 249-50. The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.'" Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citations omitted). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson, 477 U.S. at 249-50.
I. Extending elevator access to the eleventh floor does not constitute maintenance of the common elements
Pursuant to Florida Statute § 718.111, a Florida condominium association has a statutory duty to "maintain the common elements."[4] Based on this duty to maintain the common elements, the underpinning of Coletta's prayer for damages and equitable relief is that extension of the elevator to the eleventh floor constitutes such maintenance.[5] In support of his position *871 that extension of the elevator should be considered maintenance and not an alteration, Coletta presents an offer from a contractor to extend the elevator ("Centrellx Offer"), attached as Exhibit "10" to the Response and Cross Motion. The Centrellx Offer lists in detail the tasks needed to be performed to extend the elevator. Specifically, extension of the elevator requires the Debtor to (1) build a shaft and motor room in accordance with ADA and state code requirements; (2) install concrete structure pockets for new elevator machine beams; (3) move various components of the elevator system into a new machine room; (4) install a door to the machine room that must be fire rated, self-closing and self-locking; (5) and provide an overhead steel beam in the new machine room so that Centrellx may raise the machine and motor up one floor. The total cost of the Centrellx Offer is $41,900. Based on this detail, Coletta argues that extension of the elevator would constitute maintenance of the common elements.
As previously noted, the Debtor has a statutory duty to maintain the common elements. The Debtor's Declaration of Condominium reaffirms this obligation, stating:

Section XXI Maintenance and Repair of Common Elements by Association: [Bayshore], at its expense, shall be responsible for the maintenance, repair and replacement of all of the COMMON ELEMENTS. . . .
The duty to maintain the common elements also includes making changes and modifications as to protect the common elements. Tiffany Plaza Cond. Ass'n, Inc. v. Spencer, 416 So.2d 823 (Fla. 2d DCA 1982); Ralph v. Envoy Point Condo. Ass'n, 455 So.2d 454 (Fla. 2d DCA 1984).
Based on a review of the Centrellx Offer, the Court finds that as a matter of law, extension of the elevator to the eleventh floor does not constitute maintenance of the common elements. Although used in the Declaration of Condominium, the term "maintenance" is not defined. Looking to common meaning, "maintenance," is the "upkeep or preservation of condition of property." Black's Law Dictionary (6th ed. 1990).
Nothing in the Centrellx Offer indicates that extension of the elevator to the eleventh floor effectuates an "upkeep or preservation" of the common elements. Certainly, extending the elevator to the eleventh floor is not necessary to maintain and preserve the existing elevator service through the tenth floor. Quite to the contrary, as detailed above, the Centrellx Offer requires Bayshore to spend $41,000 to build, install and move various components of the elevator system in order to extend it to the eleventh floor. Even Coletta characterizes the various steps to extend the elevator as "modifications" in his Third Amended Complaint. Clearly, extending the elevator to the eleventh floor is not maintenance of the existing common elements.
Neither party cited case law directly on point in analyzing the maintenance versus alteration issue but one case reviewed by the Court provides some guidance, Ralph v. Envoy Point Condominium Association, cited earlier. In Ralph, the board of directors of the association approved a special assessment to extend the seawall on the premises to protect the common elements. The issue in Ralph was whether the board of directors needed unit owner approval of the change to the seawall, or rather, could make such change without approval on the basis that it was maintaining the common elements. Looking at the evidence, the court concluded that a sufficient basis existed for the trial court's finding that the raising of the seawall constituted maintenance of the common elements *872 and therefore, did not require a unit owner vote. Here, unlike Ralph, failure to extend the elevator to the eleventh floor will not jeopardize the existing common elements on the Debtor's premises. The only effect of extending the elevator to the eleventh floor is to provide convenience to Coletta in his private or potentially, commercial use, of the Penthouse Units.
II. The ADA and FADA, even if applicable, do not make extending the elevator a maintenance obligation
Although he cites no law, Coletta alleges that the duty to maintain the common elements also requires that such maintenance be done in accordance with applicable laws. As such, when the Debtor attempts to modernize and replace the current elevator system, a task that the Debtor concedes is "maintenance," it must also comply with the ADA and FADA.[6] Under the ADA and FADA, Coletta argues that various provisions require elevator access to the eleventh floor. Coletta's argument is unavailing.
Section 12183 of the ADA, in full, states:
(a) as applied to public accommodations and commercial facilities, discrimination for purposes of section 12182(a) of this title includes
(1) a failure to design and construct facilities for first occupancy later than 30 months after July 26, 1990, that are readily accessible to and usable by individuals with disabilities . . . and (2) with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.
42 U.S.C. § 12183 (2006)(emphasis added). Regardless of whether the ADA applies at all in this matter,[7] a plain reading highlights that it specifically pertains to alterations and not maintenance. Thus, assuming that Coletta's position is correct, that is, that the elevator modernization program somehow triggers ADA compliance on the part of the Debtor, it must follow that the modernization program is then an alteration, and not maintenance as the Debtor has characterized it.
As for FADA, the Notice of Violation issued to the Debtor does not state that the association has failed to properly maintain the common elements of the building, specifically, the elevator. It does not state that the elevator is in some manner faulty or defective. Rather, the Notice merely cites the Debtor for failing to extend the elevators up to the top floor of the building. In fact, assuming that the Notice of Violation was appropriately issued,[8] the *873 only action that could be taken by Debtor to comply would be to alter the elevators rather than maintain them as is. Accordingly, Debtor is entitled to summary judgment on Coletta's maintenance claim. Extension of the elevator does not fall within the Debtor's duty to maintain the common elements. It follows then that Coletta's claim for damages under Florida Statute § 718.111 fails as a matter of law.
III. Coletta's claim fails since Coletta, not Bayshore, must pay for an alteration which extends elevator service to the Penthouse Units
In its Motion for Summary Judgment, Bayshore argues that any alteration to the elevators requires a vote of the unit owners in the building. In support of this argument, the Debtor points to the Declaration of Condominium, a document binding on all unit owners. See Neuman v. Grandview at Emerald Hills, Inc., 861 So.2d 494 (Fla. 4th DCA 2003). Relevant portions of the Declaration of Condominium state the following:[9]

Section XVIII Limitation Upon Right of Owners to Alter and Modify Units: No owner of any UNIT shall make or permit to be made any structural modifications or alterations in such UNIT which would materially affect or in any manner endanger the CONDOMINIUM in part or its entirety, or which would materially affect or interfere with the provision of utility services constituting COMMON ELEMENTS located therein without first obtaining the written consent of the [Debtor].

Section XIX Right of Association to Alter and Improve Property and Assessment THEREFOR: [Bayshore] shall have the right to make or cause to be made such alterations or improvements to the COMMON ELEMENTS as do not prejudice the rights of the owner of any UNIT, provided the making of such alterations and improvements are approved by the Board of Directors of [Bayshore], and the cost of such alterations or improvements shall be . . . assessed and collected from all of the owners of UNITS. However, where any alterations and improvements are exclusively or substantially exclusively for the benefit of the owner or owners of a UNIT or UNITS requesting the same, then the cost of such alterations and improvements shall be assessed against and collected solely from the owner or owners of the UNIT or UNITS exclusively or substantially exclusively benefitted. . . .
Debtor argues that because the Declaration of Condominium is silent in regard to approval of material alterations to the common elements, Florida Statute § 718.113(2)(a) establishes a default rule:
[t]here shall be no material alteration or substantial additions to common elements or real property, except in a manner provided in the declaration. If the declaration does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association *874 must approve the alterations or additions.
F.S.A. § 718.113(2)(a)(2006).
Based on these provisions, Debtor maintains that the elevator is a common element and that the change proposed by Coletta would constitute a material alteration as that term is used in Florida Statute § 718.113(2)(a) and defined under Florida case law. Accordingly, a unit owner vote would be required. Because it is undisputed that the unit owners have not voted to approve the elevator extension, Bayshore argues that it cannot be obligated to make the alteration. Coletta argues that any change to the elevator would not constitute a material alteration, and thus, no unit owner vote would be required, only approval by Bayshore's board.
The Court is not determining whether extending the elevator would be an alteration requiring only board approval or a material alteration requiring a vote. Under the case law reviewed by the Court, this issue is subject to bona fide dispute. See, e.g., Sterling Vill. Condo., Inc. v. Breitenbach, 251 So.2d 685, 687 (Fla. 4th DCA 1971)(holding that replacement of screen enclosures with glass jalousies constituted a material alteration); Tower House Condo., Inc. v. Millman, 410 So.2d 926 (Fla. 3d DCA 1981)(finding that acquisition of land to extend parking area constituted material alteration requiring unit owner approval); Islandia Condo. Ass'n, Inc. v. Vermut, 501 So.2d 741 (Fla. 4th DCA 1987)(change of color scheme of complex found to be material alteration). Resolving this issue is not necessary here because under either scenario, Coletta's claim fails. If the extension is a material alteration, Coletta's claim fails since it is without dispute that the improvement was not approved by a vote under Florida Statute § 718.113(2)(a). If the extension is an alteration requiring only board approval, Coletta still loses because, as discussed below, the applicable section of the Declaration of Condominium would require Coletta, not Bayshore, to pay for the alteration.
"The declaration of condominium, which is the condominium's `constitution,' creates the condominium and strictly governs the relationships among the condominium units owners and the condominium association.'" Neuman, 861 So.2d at 496-97 (quoting Woodside Vill. Condo. Ass'n v. Jahren, 806 So.2d 452, 456 (Fla. 2002)). Here, there is no dispute that the Declaration of Condominium governs the relationship between Coletta and Bayshore. With this in mind, Section XIX of the Declaration of Condominium clearly states:
[w]here any alterations and improvements are exclusively or substantially exclusively for the benefit of the owner or owners of a UNIT or UNITS requesting the same, then the cost of such alterations and improvements shall be assessed against and collected solely from the owner or owners of the UNIT or UNITS exclusively or substantially exclusively benefitted. . . .
Although Coletta argues that he is not the exclusive or substantially exclusive beneficiary, it is hard for this Court to imagine a situation where this section would ever apply more aptly than here. Simply, extension of the elevator to the eleventh floor will not benefit those unit owners who reside on lower floors. Rather, it only benefits those units which are not receiving elevator service to the eleventh floor, in this case, the Penthouse Units. Thus, if Coletta, as the owner of the Penthouse Units, requests extension of the elevator to the eleventh floor, and it is determined that such extension falls within the ambit of Section XIX, he is obliged to pay on the basis that he is "exclusively or substantially exclusively benefitted" from *875 this alteration. Coletta's belief that he is not the exclusive beneficiary of this alteration because he does not reside in the Penthouse Units, nor intends to, is misplaced. This provision only requires that the alteration be "for the benefit of the owner or owners of a UNIT or UNITS," and not as Coletta posits, residents of those units.
IV. Coletta's contract argument also fails
Finally, Coletta argues that even if Section XIX of the Declaration of Condominium would obligate him to pay, that section does not control because the Debtor orally promised to pay for the extension. This contract argument fails for several reasons.
First, Coletta's deposition testimony, the affidavit of Patrick Bilodeau and the allegations in the State Court Case all refer, without specifics, to alleged oral promises made no later than in 1998 or 1999. The Court finds that these general allegations of oral promises cannot support a contract claim, particularly since the only written statement of Bayshore's position is that Coletta could extend the elevator at his own expense. See Board Meeting Minutes of July 5, 2002 ("The Board has no objection to Coletta taking the elevators to the [Penthouse Units] at his own costs."). This written statement of the board's position was made well after the time that Coletta argues that the Debtor promised to pay for any extension.
Second, even if these vague oral promise allegations created a factual issue over Bayshore's commitment to pay, any alleged contract would fail for lack of consideration. A central tenet of contract law is that for a contract to be enforceable, there must be consideration. "A mere gratuitous promise of a future gift, lacking consideration, is unenforceable." Kaufman v. Harder, 354 So.2d 109, 109 (Fla. 3d DCA 1978). Even assuming arguendo that the Debtor and its representatives did orally promise to provide elevator access to the eleventh floor at the Debtor's expense and Coletta subsequently accepted such a promise, Coletta cannot point to any consideration that he provided to induce a promise obligating Bayshore to pay for an alteration Coletta would otherwise have to pay for himself, nor is there any evidence that he detrimentally relied on such a promise.
Coletta's deposition is devoid of any statements that would support an argument that Debtor made an enforceable promise to Coletta. Nowhere did Coletta state that he provided any consideration to the Debtor.[10] Coletta states that one point he loaned $300,000 to the Debtor in return, for among other things, elevator access to the Penthouse Units. After commencing litigation based on this loan, Coletta reached settlement and the Debtor agreed to repay him on this loan. Dep. Coletta at 8-9. The settlement made no mention of any alleged obligation to extend the elevators. *876 Statements made by Patrick Bilodeau, further emphasize that any promise to provide elevator access, if at all, to the eleventh floor was solely at the discretion of the Debtor. Bilodeau Aff. ¶ 3. Nor does Coletta's deposition testimony provide any evidence that Coletta detrimentally changed his position on the basis of a promise to provide elevator access.[11] Simply, the record reflects that Coletta asked, the Debtor allegedly promised and nothing happened over a span of twenty years. In sum, there is no genuine issue of material fact and Bayshore is entitled to judgment as a matter of law on Coletta's alternative theory that Bayshore is contractually obligated to extend the elevator at its expense.[12]

Conclusion
At first blush, it would appear that a condominium owner's demand for elevator service would be reasonable and supportable under the law since condominium elevators typically service all floors. In this case, however, the claim has no legal or equitable merit. Coletta bought the Penthouse Units knowing that they were not serviced by the elevators. Moreover, he bought the Penthouse Units subject to the condominium documents which clearly obligate him to pay for an extension of the elevator if an extension is authorized by Bayshore. Thus, Coletta's Claim # 20, which seeks damages, injunctive and declaratory relief fails in its entirety. Bayshore has no legal obligation to extend the elevator service to Coletta's Penthouse Units at its own expense. For the foregoing reasons, it is
ORDERED as follows:
1. Bayshore's Motion for Summary Judgment is granted.
2 Coletta's Cross Motion is denied.
3. Claim # 20 is disallowed.
NOTES
[1]  The three units are specifically identified as RU-1101, RU-1102 and RU-1103 within the Debtor's Declaration of Condominium, attached as Exhibit "1" to the Response and Cross Motion. Coletta also purchased several "commercial units" as that term is used in the Declaration of Condominium at Bayshore.
[2]  Coletta's papers sometimes refer to the Penthouse Units as being located on the twelfth floor. To avoid any confusion as to numbering, all references to floors within the Debtor's property will coincide with the schematic layout found in the Declaration of Condominium. In this schematic, the Penthouse Units are located on the eleventh floor.
[3]  Although an amusing read with possible late-night cable movie potential, the Affidavit of Horace Anthony Fonseca, attached as Exhibit "8" to the Response and Cross Motion for Summary Judgment, has little relevance to this matter.
[4]  Florida Statute § 718.111 provides that "[t]he association may contract, sue, or be sued with respect to the exercise or nonexercise of its powers. For these purposes, the powers of the association include, but are not limited to, the maintenance, management, and operation of the condominium property." F.S.A. § 718.111(3)(2006).
[5]  Coletta's claim for damages, as presented in the Third Amended Complaint, alleges that the Debtor and its board of directors, by refusing to extend the elevators to the eleventh floor, "breached its duty to manage the affairs of the condominium." Such breach resulted in "lost profits and loss of value" to the Penthouse Unit. The claim for equitable relief, specifically, extension of the elevator to the eleventh floor at the Debtor's expense, also flows from the Debtor's alleged failure to manage the affairs of the condominium. However, as Coletta's counsel conceded at oral argument, if the extension of the elevator to the eleventh floor is not considered maintenance, then Coletta's claim for damages would fail.
[6]  As for FADA, Coletta points to a Notice of Violation issued to the Debtor on January 25, 2001, attached as Exhibit "7" to the Response and Cross Motion. The Notice of Violation states that Bayshore is in violation of Florida Accessibility Code 4.10.1, which provides that elevator access must be "to all floors inclusive of the top floor of the building."
[7]  Although it appears that the ADA and FADA are not applicable, the Court will not address whether Debtor is a "public accommodation" or "commercial facility" as those terms are defined in the ADA, and more importantly, whether Coletta has standing to assert Debtor compliance under either statute.
[8]  The evidentiary value of this Notice of Violation is at best minimal based on the fact that there is nothing in the record indicating any further governmental action on the Notice of Violation since the time it was entered almost five years ago.
[9]  The Declaration of Condominium provisions cited by Coletta in his Response and Cross Motion provide no guidance. Furthermore, Coletta's counsel cites "Section XIV Use of Common Elements Subject to Rules of Association" for the proposition that "Commercial UNITS shall be permitted to use such portions of the COMMON ELEMENTS as may be reasonable and appropriate." Unfortunately, Coletta's counsel failed to read the entire sentence. In full, it reads "owners and lessees of Commercial UNITS shall be permitted to use such portion of the COMMON ELEMENTS as may be reasonable and appropriate for the advertising of the business being conducted on said Commercial UNITS."
[10]  At oral argument Coletta's counsel asked for further discovery to find out what consideration his client provided to the Debtor in exchange for the promise to provide elevator access. Aside from it being highly unusual to need discovery from other parties to find out what your own client said or did, Coletta's counsel was fully aware that the hearing on the Motion for Summary Judgment was going forward on December 21, 2005. Moreover, Coletta knew, as stated in his own Response and Cross Motion, that as the non-moving party, he "may not rest upon the mere allegations or denials . . . but . . . must set forth specific facts showing that there is a genuine issue for trial." Response and Cross Motion p. 6. Debtor raised the issue of consideration in its Motion for Summary Judgment and Coletta failed to meet his burden of establishing a genuine issue of fact over the existence of consideration to support the alleged contract.
[11]  In his Response and Cross Motion, Coletta alleges in conclusory fashion that he detrimentally relied upon Bayshore's representation. However, Coletta does not state what this detrimental reliance was. And as stated above, Coletta knew that he "may not rest upon the mere allegations or denials."
[12]  In rejecting Coletta's contract claim, the Court has not even reached at least two other potential contract defenses: (1) whether Coletta's claim is barred by the applicable statute of limitations; and (2) whether the alleged oral promise falls within the statute of frauds, and therefore, is unenforceable. See F.S.A. § 725.01 (2006)(stating that "any agreement that is not to be performed within the space of one year from the making thereof" is not enforceable unless in writing).


80 F.3d 558
317 U.S.App.D.C. 82
NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.UNITED STATES of America, Appellee,v.James William TURNER, Appellant.
Nos. 93-3015, 95-3090.
United States Court of Appeals, District of Columbia Circuit.
Feb. 16, 1996.

Before:  HENDERSON, RANDOLPH and TATEL, Circuit Judges.

JUDGMENT

1
These cases were heard on the record from the United States District Court for the District of Columbia and on the briefs and arguments by counsel.   The court has accorded the arguments full consideration and has determined the issues presented occasion no need for a published opinion.   See D.C.Cir.Rule 36(b).   It is therefore

2
ORDERED that the judgment of conviction be affirmed.   We find no plain error in the prosecutor's closing argument.   Moreover, the judge gave clear jury instructions on burden of proof and the defendant's right to remain silent.  Cf. United States v. Spencer, 25 F.3d 1105, 1110 (D.C.Cir.1994).   Nor do we find plain error in the admission of the police expert's testimony, especially in the absence of any showing that it prejudiced the defendant.  See United States v. Glenn, 64 F.3d 706 (D.C.Cir.1995).   Finally, we conclude that defense counsel was not ineffective in failing to move for suppression of physical evidence because the defendant lacked standing to object to the search of the closet where the cocaine was found.  See United States v. Anderson, 533 F.2d 1210, 1214 (D.C.Cir.1976).

3
The clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing.   See D.C.Cir.Rule 41(a)(1).


                                                                                Opinions of the United
2005 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

7-20-2005

USA v. Thomas
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4447

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                                                  NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

                           No. 03-4447

                UNITED STATES OF AMERICA

                                v.

                     MARSHAUN THOMAS
                                 Appellant

          On Appeal from the United States District Court
                    for the District of New Jersey
                      (D.C. No. 01-cr-00058-1)
          District Judge: Honorable Katharine S. Hayden

            Submitted Under Third Circuit LAR 34.1(a)
                        October 7, 2004

                   Decided November 26, 2004

               On Remand from the Supreme Court
                of the United States June 20, 2005

Before: SLOVITER, VAN ANTWERPEN, and COWEN, Circuit Judges.

                      (Filed: July 20, 2005)

                            OPINION
SLOVITER, Circuit Judge.

       This matter is before us on remand by the United States Supreme Court. This

court, by way of an opinion filed November 26, 2004, affirmed Marshaun Thomas’

judgment of conviction for violation of the Racketeer Influenced and Corrupt

Organizations Act (“RICO”), 18 U.S.C. § 1962(c), and his sentence of 360 months

incarceration (less time served in state custody). United States v. Thomas, 389 F.3d 424

(3d Cir. 2004). In so doing, we rejected Thomas’ argument that he was entitled to

withdraw his guilty plea because of several alleged defects with his Fed. R. Crim. P. 11

colloquy. Id. at 428-29. We further rejected his contention that the Supreme Court’s

decision in Blakely v. Washington, 542 U.S. 296 (2004), rendered his sentence

unconstitutional. 389 F.3d at 428. Finally, relying on, inter alia, United States v.

Theodoropoulos, 866 F.2d 587 (3d Cir. 1989), we denied Thomas’ claim of ineffective

assistance of trial counsel without prejudice to his “right to raise the issue in an

appropriate collateral proceeding.” Thomas, 389 F.3d at 429.

       On June 20, 2005, the Supreme Court granted Thomas’ subsequent petition for a

writ of certiorari, vacated the judgment of this court, and remanded the case for further

consideration in light of United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005).

United States v. Thomas,      U.S.    , 125 S. Ct. 2953 (2005) (mem.). Thus, upon further

consideration as directed by the Supreme Court, we reaffirm all portions of our prior

decision with respect to Thomas’ conviction, guilty plea, and claim of ineffective

                                               2
assistance of counsel, including our discussion of the facts admitted by the defendant, and

incorporate by reference herein those portions of our prior opinion. On the other hand,

having determined that the sentencing issues Thomas has raised are, in light of Booker,

best addressed by the District Court in the first instance, see generally United States v.

Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), we will vacate that portion of our judgment

that affirmed the judgment of sentence and remand to the District Court for resentencing.

Compare with United States v. Agnew, 407 F.3d 193, 195 (3d Cir. 2005) (“In vacating

the judgment, the Supreme Court did not indicate any disagreement with our analysis

wherein we affirmed Agnew’s conviction. [Thus], we will again affirm the conviction . .

. [h]owever, having concluded that the sentencing issues based on Booker are best

determined by the District Court in the first instance, we will vacate the sentence and

remand. . . .”).

       For the foregoing reasons, we will reaffirm Thomas’ conviction, reaffirm our

denial of his ineffective assistance of counsel claim without prejudice, vacate his

sentence, and remand to the District Court for resentencing in accordance with Booker.

                                              3


NUMBER 13-01-613-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

____________________________________________________________________

MC/VC, INC. D/B/A PARTY PLACE CABARET ,  Appellant,

v.

TEXAS ALCOHOLIC BEVERAGE COMMISSION , Appellee.
____________________________________________________________________

On appeal from the 347th  District Court
of Nueces County, Texas.

____________________________________________________________________

MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Castillo
Opinion Per Curiam

 Appellant, MC/VC, INC. D/B/A PARTY PLACE CABARET , perfected an appeal from a judgment entered
by the 347th District Court of Nueces County, Texas, in cause number 01-3767-H .  After the record and
briefs were filed and after the cause was set for submission and oral argument, appellant filed a motion to
dismiss the appeal.  In the motion, appellant states that the issues raised in this appeal have since become
moot.  Appellant requests that this Court dismiss the appeal.
 The Court, having considered the documents on file and appellant's motion to dismiss the appeal, is of the
opinion that the motion should be granted.  Appellant's motion to dismiss is granted, and the appeal is hereby
DISMISSED.
PER CURIAM

Opinion delivered and filed this
the 1st day of May, 2003 .


15-179-cv
AT Engine Controls Ltd. v. Goodrich Pump & Engine Control Systems, Inc.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 5th day of February, two thousand sixteen.

PRESENT: REENA RAGGI,
                 DENNY CHIN,
                 CHRISTOPHER F. DRONEY,
                                          Circuit Judges.
----------------------------------------------------------------------
AT ENGINE CONTROLS LTD.,
            Plaintiff-Counter-Defendant-Appellant,

                               v.                                         No. 15-179-cv

GOODRICH PUMP & ENGINE CONTROL SYSTEMS,
INC.,
      Defendant-Counter-Claimant-Appellee,

GOODRICH CORPORATION,
                                              Defendant.
---------------------------------------------------------------------
APPEARING FOR APPELLANT:                          THOMAS M. BYRNE (John H. Fleming and
                                                  Tracey K. Ledbetter, on the brief), Sutherland
                                                  Asbill & Brennan LLP, Atlanta, Georgia.

                                                                  1
APPEARING FOR APPELLEE:                  MARC L. ZAKEN (Kelly M. Cardin, on the
                                         brief), Ogletree, Deakins, Nash, Smoak &
                                         Stewart, P.C., Stamford, Connecticut.

      Appeal from a judgment of the United States District Court for the District of

Connecticut (Jeffrey A. Meyer, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on December 23, 2014, is AFFIRMED.

      In this diversity action, plaintiff AT Engine Controls Ltd. (“ATEC”) sued defendant

Goodrich Pump & Engine Control Systems, Inc. (“GPECS”) for alleged misappropriation

of proprietary data. On appeal from an award of summary judgment to GPECS, ATEC

challenges the determination that its claims were untimely under Connecticut law. We

review a statute-of-limitations-based award de novo and will affirm if the record, viewed

most favorably to the non-moving party, reveals no genuine issue of material fact and the

movant’s entitlement to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Nunn v.

Massachusetts Cas. Ins. Co., 758 F.3d 109, 114 n.4 (2d Cir. 2014). We assume the

parties’ familiarity with the facts and the record of prior proceedings, which we reference

only as necessary to explain our decision to affirm largely for the reasons stated by the

district court in its thorough and well-reasoned opinion. See AT Engine Controls Ltd. v.

Goodrich Pump & Engine Control Sys., Inc., No. 3:10-cv-01539 (JAM), 2014 WL

7270160 (D. Conn. Dec. 18, 2014).

                                            2
1.     Contract Claims

       ATEC does not dispute that its contract-based claims for breach of contract, breach

of the implied covenant of good faith and fair dealing, and unjust enrichment arose no later

than 2003, when GPECS allegedly used ATEC’s proprietary technology. Nor does it

dispute that, absent tolling, these claims, filed on September 28, 2010, were untimely under

Connecticut’s six-year statute of limitations. See Conn. Gen. Stat. § 52-576(a). Rather,

ATEC faults the district court for concluding as a matter of law that the statute had not been

tolled—at least through September 2004—by GPECS’s fraudulent concealment of the

alleged breach. See id. § 52-595. To secure tolling by fraudulent concealment, ATEC

had to adduce “clear, precise, and unequivocal evidence,” Falls Church Grp., Ltd. v. Tyler,

Cooper & Alcorn, LLP, 281 Conn. 84, 105, 912 A.2d 1019, 1033 (2007), that GPECS

“(1) had actual awareness, rather than imputed knowledge, of the facts necessary to

establish [ATEC’s] cause of action; (2) intentionally concealed these facts from [ATEC];

and (3) concealed the facts for the purpose of obtaining delay on [ATEC’s] part in filing a

complaint on [its] cause of action,” Iacurci v. Sax, 313 Conn. 786, 799–800, 99 A.3d 1145,

1154 (2014) (internal quotation marks omitted).            As the district court correctly

determined, ATEC failed to carry its burden to establish GPECS’s intentional

concealment, the second element of its tolling claim.

       ATEC adduced no evidence that GPECS affirmatively misrepresented whether it

used technology developed by ATEC for their jointly developed digital electronic control

                                              3
unit (“DECU”) in developing the EMC-100. Indeed, ATEC concedes that it never asked

GPECS about such use.            ATEC insists nonetheless that GPECS’s alleged

misrepresentations regarding its competitive intent effectively concealed its use of ATEC’s

technology.1 Specifically, ATEC argues that (1) although GPECS had contracted with the

Army to develop a “drop-in” control device for helicopters running on T55 engines,

including the Chinook, (2) GPECS assured ATEC that it would not compete with ATEC to

replace the DECU on the Chinook 47-D,2 (3) which ATEC understood to mean that the

EMC-100 would not be compatible with the DECU, because (4) if it were, that would

necessarily mean that GPECS had misappropriated ATEC’s technology. Accordingly,

ATEC reasons, GPECS intentionally concealed its use of ATEC’s technology by implying

that GPECS’s device was not compatible with ATEC’s, which GPECS did by stating that

its own device would not be used on the 47-D, even though the Army’s original Statement

of Work required the devices to be interoperable.

1
  In opposing summary judgment, ATEC also argued that even absent affirmative
concealment, GPECS’s misappropriation was “self-concealing,” a theory that the
Connecticut Supreme Court has yet to adopt. See S.A. 24 n.18 (citing Fichera v. Mine
Hill Corp., 207 Conn. 204, 215, 541 A.2d 472, 477 (1988)). At oral argument on this
appeal, ATEC explicitly abandoned this claim and, thus, we do not consider it further.
2
  ATEC acknowledges that nothing in its 1979 Marketing Agreement with GPECS
prevented GPECS from developing a competing device, so long as GPECS did not
misappropriate ATEC’s technology.

                                            4
       The argument fails because GPECS never stated, and ATEC never asked, whether

its device would be compatible with DECU technology.3 Rather, the record shows only

that GPECS repeatedly explained that it did not intend to use its device on the 47-D

because it was not economically rational to do so, not because the devices were

incompatible.   Nor is there record support for ATEC’s assumption that GPECS’s

representation that its device would not compete with the DECU on the 47-D meant that

GPECS’s device would not be compatible with the DECU.                    In fact, ATEC’s

argument—that had GPECS disclosed its intent to replace the DECU on the 47-D, ATEC

would have known the facts necessary to bring its contract claims—is contradicted by its

assertion that it could not have concluded the devices were interoperable even in 2008,

when ATEC learned that GPECS had replaced the DECU on the 47-D.

       While ATEC argues that, on summary judgment, it was entitled to the inference that

GPECS’s disclaimer of competitive intent disavowed use of ATEC’s proprietary data, we

disagree. It is “incumbent upon the party opposing summary judgment to establish a

factual predicate from which it can be determined, as a matter of law, that a genuine issue

of material fact exists.” Iacurci v. Sax, 313 Conn. at 799, 99 A.3d at 1154 (internal

quotation marks omitted).      In the absence of evidence that GPECS affirmatively

represented either (a) that it was not using ATEC’s technology, or (b) that its device would

3
  Further, in deposing GPECS executive Tony Gentile, ATEC never asked whether he
understood any ATEC inquiry to pertain to compatibility, much less to utilization of
proprietary technology.

                                             5
not be compatible with the DECU, no reasonable juror could find GPECS’s intentional

concealment of its breach established by “clear, precise, and unequivocal evidence.” Falls

Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. at 105, 912 A.2d at 1033.

      Because ATEC was therefore not entitled to tolling on fraudulent concealment

grounds, the district court correctly granted summary judgment in favor of GPECS on

ATEC’s untimely contract-based claims.4

2.    Tortious Interference Claim

      Apart from fraudulent concealment, which we have already rejected as a ground for

tolling, ATEC does not challenge the district court’s determination that its tortious

interference claim based on GPECS’s marketing of its device as a replacement for the

DECU was barred by Connecticut’s three-year statute of limitations for torts. See Conn.

Gen. Stat. § 52-577. GPECS began marketing its new technology in a July 2002 press

release announcing that it had been selected for use in Chinook engines by 2004; and

ATEC does not dispute that, by then, it was aware of GPECS’s intent ultimately to replace

the DECU. See Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409,

420 (2d Cir. 1999) (holding that plaintiff must establish ignorance of cause of action to

assert fraudulent concealment under Conn. Gen. Stat. § 52-595). Accordingly, because

4
  As a result, we need not decide whether—as GPECS insists, and the district court further
held—ATEC was required to plead fraudulent concealment with particularity under Fed.
R. Civ. P. 9(b) in its complaint or amended complaint when GPECS never moved to
dismiss the operative complaint as time-barred. Cf. Armstrong v. McAlpin, 699 F.2d 79,
88–89 (2d Cir. 1983).

                                            6
ATEC’s tortious interference claim accrued by 2004, it was time-barred when asserted in

September 2010.5

3.     Connecticut Uniform Trade Secrets Act Claim

       As to its claim under the Connecticut Uniform Trade Secrets Act (“CUTSA”),

ATEC does not dispute that the relevant statute of limitations imposes a “duty of

investigation” on a plaintiff who suspects misappropriation of trade secrets. S.A. 31; see

Conn. Gen. Stat. § 35-56; see also J.A. 1811 (“ATEC’s suspicion triggered the duty to

investigate . . . .”).6 Rather, ATEC appears to contend that a reasonable jury could find

that, despite its diligence, ATEC could not have discovered the misappropriation before

September 2007. See Appellant Reply 12. We disagree.

       ATEC contends that its “multiple inquiries” to GPECS regarding its “new device

and its intended usage and function” established reasonable diligence under the

circumstances. Id. at 8. This claim rests on ATEC’s assumption that GPECS’s device

would not be compatible with the DECU because GPECS assured ATEC that it would not

use its device on the Chinook 47-D, the 47-D was an older aircraft, and, therefore, ATEC

presumed, GPECS’s device would use newer technology, so that it “would make no sense”

5
  ATEC also does not specifically challenge the district court’s further determination that,
insofar as its tortious interference claim was premised on GPECS’s false misrepresentation
of DECU technology as “obsolete,” ATEC provided “no evidentiary support for this
claim.” S.A. 33. Accordingly, we deem this argument abandoned on appeal. See
Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 205 n.1 (2d Cir. 2009).
6
  Neither the Connecticut Supreme Court nor any Connecticut appellate court has
published a decision construing this provision of the CUTSA.

                                             7
for GPECS to appropriate ATEC’s proprietary data, Appellant Br. 7–8. As we have

already observed, however, ATEC never tested the validity of its assumption by asking

GPECS the crucial questions—whether its device would be compatible with the DECU, or,

more importantly, whether it utilized DECU technology—instead, inquiring only as to

whether GPECS would compete to replace the DECU on the 47-D.

       ATEC asserts that such inquiries were “unnecessary” to due diligence. Appellant

Reply 13. Yet no reasonable jury could reach that conclusion where the record shows that

(1) in 2001, ATEC knew that (a) GPECS’s device appeared physically to be a “direct

copy” of the DECU, and (b) GPECS intended to design a universal controller, J.A. 2029–

32; (2) by February 2003, ATEC was seeking legal advice on its intellectual property rights

(“IPR”) in the DECU vis-à-vis GPECS’s new device, see id. at 1182; (3) in August 2004,

when selling DECU assets to ATEC, Vosper Thornycroft (“VT”) wrote that it suspected

“GPECS . . . has copied, without permission, all or part of the T55 [engine] IPR,” and that

VT “sought external legal advice on this subject,” with a view toward “challeng[ing]

GPECS in the future should this product become a threat to the use of the T55 IPR in the

Business,” id. at 1488; (4) in discovery, ATEC produced a document from its files dated

September 9, 2004, stating, “Goodrich have been developing their own [device] . . . which

they claim could be used in place of [ATEC’s] DECU (even on the same airframe/engine

as [ATEC’s] DECU)—as a Plug and Play replacement. . . . [ATEC] would consider a

lawsuit, as Goodrich . . . would have found it hard to prove that their own unit is a Plug and

                                              8
Play replacement without infringing” on ATEC’s IPR, id. at 11967; and (5) Terry Madden,

ATEC’s Chairman, confirmed in March 2006 that “because [ATEC thought] Goodrich

cloned some of the design from the existing DECU,” ATEC “had thought of asking VT, as

IPR owner, to take this up with them,” id. at 2905; see also id. at 2289.

       As evidence of a genuine issue notwithstanding these facts, ATEC points to

Madden’s assertion that VT’s August 2004 disclosure generated “no concerns” because in

“many of these disclosure documents, everybody puts anything and everything that they

think might ever, however unlikely, become an event.” Id. at 2279. While a court cannot

itself weigh competing evidence or assess credibility on a motion for summary judgment, a

party with the burden of demonstrating due diligence must offer more than a self-serving

disavowal of concern, particularly where, as here, it also asserts that it “repeatedly

7
  ATEC asserts this document is not properly considered both because it is unauthenticated
and hearsay. We discern no manifest error in the district court’s consideration of the
document. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d
Cir. 1998). The bar for authentication is not high, see Fed. R. Evid. 901(a); United States
v. Al-Moayad, 545 F.3d 139, 172 (2d Cir. 2008), and here, the document’s substantive
detail regarding ATEC’s business, see Fed. R. Evid. 901(b)(4), as well as the fact that it
was produced by ATEC itself, made it “reasonably likely” that it is, as GPECS maintains, a
third-party consultant’s report, see, e.g., Rodriguez v. Village Green Realty, Inc., 788 F.3d
31, 47 (2d Cir. 2015).

   ATEC’s hearsay objection also fails because the document is not considered for its truth,
i.e., that ATEC knew GPECS’s device was compatible with the DECU or that it
contemplated suing GPECS. See Fed. R. Evid. 801(c)(2). Rather, the document shows
that ATEC had access to information that due diligence required it to pursue. In other
words, this document’s presence in ATEC’s files makes it less likely that its investigation
was reasonable. See United States v. Dupree, 706 F.3d 131, 137 (2d Cir. 2013) (noting
“statement is not hearsay where, as here, it is offered, not for its truth, but to show that a
listener was put on notice”).

                                              9
attempted to investigate [GPECS]’s new device during the ten years it was being

developed,” Appellant Reply 12, and that its inquiries regarding GPECS’s competitive

intent amounted to an investigation of GPECS’s use of ATEC’s technology.               See

Cameron v. City of New York, 598 F.3d 50, 59 (2d Cir. 2010) (“[O]ur obligation to draw

all reasonable inferences in favor of [the non-movant] does not mean we must credit a

version of the facts that is belied by the record.” (internal quotation marks omitted)). In

these circumstances, ATEC’s failure even to inquire as to the critical fact for its

claim—whether GPECS used ATEC’s proprietary information from the DECU in

developing the EMC-100—precludes it from demonstrating due diligence, without which

it cannot establish a CUTSA violation.

      Accordingly, the district court correctly determined that because ATEC had failed

to raise a triable issue of reasonable diligence prior to September 2007, its CUTSA claim

was time-barred.

4.     Connecticut Unfair Trade Practices Act Claim

      ATEC argues that its claim under the Connecticut Unfair Trade Practices Act

(“CUTPA”), see Conn. Gen. Stat. § 42-110b(a) (prohibiting “unfair or deceptive acts or

practices in the conduct of any trade or commerce”), is not barred by the statute’s

three-year limitations period, see id. § 42-110g(f), because it adduced sufficient evidence

for a reasonable jury to find that GPECS’s April 2009 email inquiry was a “deceptive act.”

See J.A. 1598–1601. The district court did not address this argument in its December 18,

                                            10
2014 order, although ATEC did assert it in opposing summary judgment.             GPECS

nonetheless urges us to affirm dismissal of the CUTPA claim on the grounds that ATEC

failed adequately to plead this email act in its Amended Complaint and, in any event, that

the email inquiry was not a “deceptive act” as a matter of law. Because we affirm on the

former basis, we do not reach the latter.

       There is no dispute that ATEC’s Amended Complaint does not specifically mention

the email inquiry. Nor does ATEC contend that it was entitled to raise new claims in

response to GPECS’s motion for summary judgment. See Greenidge v. Allstate Ins. Co.,

446 F.3d 356, 361 (2d Cir. 2006). Rather, ATEC argues that its CUTPA claim was

sufficiently pleaded through its assertion that “GPECS’s conduct as alleged constitutes

unfair or deceptive acts or practices” within the meaning of the statute, see Am. Compl.

¶ 54, together with its allegation that GPECS “improperly used [ATEC’s] proprietary

information and technology to develop a competing engine control unit,” see id. ¶ 28.

       Assuming arguendo that Fed. R. Civ. P. 9(b) did not require ATEC to plead its

CUTPA claim with particularity, cf., e.g., Associated Inv. Co. Ltd. P’ship v. Williams

Assocs. IV, 230 Conn. 148, 158, 645 A.2d 505, 510 (1994) (stating that fraud requires

“proof that defendant knew of falsity of representation, whereas CUTPA claimant need not

prove defendant’s knowledge that representation was false”), ATEC’s allegations still fail

to comply with Rule 8. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do

                                            11
not suffice.”). In other words, ATEC’s assertion that GPECS committed “unfair or

deceptive acts or practices” because it “improperly used” ATEC’s proprietary technology

did not provide GPECS with sufficient notice of the CUTPA claim asserted against it—the

“central purpose of a complaint.” Greenidge v. Allstate Ins. Co., 446 F.3d at 361; see

Caldor, Inc. v. Heslin, 215 Conn. 590, 597, 577 A.2d 1009, 1013 (1990) (stating that act is

“deceptive” under CUTPA where plaintiff offers proof of material representation or

omission that is reasonably likely to mislead); see also Macomber v. Travelers Prop. &

Cas. Corp., 261 Conn. 620, 635–36, 804 A.2d 180, 191 (2002) (noting that omission is

deceptive “only if, in light of all the circumstances, there is a duty to disclose” (internal

quotation marks omitted)). As GPECS points out, the Amended Complaint did not even

generally allege that GPECS sought to obtain DECU technology from ATEC through

some kind of duplicity. This failure precludes relief.

       To the extent ATEC was unable to plead a CUTPA claim based on the email until it

had conducted discovery, the proper course then would have been to seek leave to amend

pursuant to Fed. R. Civ. P. 15(a)(2). See, e.g., Mauro v. Southern New Eng. Telecomms.,

Inc., 208 F.3d 384, 386 n.1 (2d Cir. 2000). Indeed, ATEC did move to amend its

complaint almost two months after filing its opposition; but its proposed Second Amended

Complaint contained no further allegations regarding this claim. Accordingly, we affirm

the district court’s conclusion that the CUTPA claim was time-barred because ATEC’s

pleadings were insufficient to allege that GPECS engaged in any unfair or deceptive acts or

                                             12
practices within three years of initiating this action. See Crawford v. Franklin Credit

Mgmt. Corp., 758 F.3d 473, 482 (2d Cir. 2014) (approving affirmance on any basis

supported by record).

5.    Conclusion

      We have considered ATEC’s remaining arguments and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                 FOR THE COURT:
                                 CATHERINE O’HAGAN WOLFE, Clerk of Court

                                          13


182 S.W.3d 692 (2006)
Ronnie BOONE, Movant/Appellant,
v.
STATE of Missouri, Respondent.
No. ED 86175.
Missouri Court of Appeals, Eastern District, Division Three.
January 17, 2006.
Lisa M. Stroup, St. Louis, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Asst. Atty. Gen., Jefferson City, MO, for respondent.
Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SAW, JJ.

ORDER
PER CURIAM.
The movant, Ronnie Boone, appeals the motion court's order denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We have reviewed the parties' briefs and the record on appeal and find no clear error. Rule 24.035(k). An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this decision.
The motion court's order denying the movant's Rule 24.035 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).


539 U.S. 983
Curtisv.Ohio, ante, p. 945.
No. 02-10181.
Supreme Court of United States.
August 25, 2003.

1
Petition for rehearing denied.


583 N.W.2d 370 (1998)
7 Neb. App. 525
Jerry W. BENNETT, Appellant,
v.
J.C. ROBINSON SEED CO., Appellee.
No. A-97-1185.
Court of Appeals of Nebraska.
August 18, 1998.
*371 Stephen L. Gerdes, of Law Offices of Stephen L. Gerdes, Omaha, for appellant.
Melvin C. Hansen and Julie M. Martin, of Hansen, Engles & Locher, P.C., Omaha, for appellee.
HANNON, IRWIN, and INBODY, JJ. IRWIN, Judge.

I. INTRODUCTION
Jerry W. Bennett appeals from an order of the Workers' Compensation Court review panel which affirmed an order of the Workers' Compensation Court dismissing *372 Bennett's application to modify a previous compensation award. On appeal, Bennett challenges the court's conclusion that he failed to demonstrate a material and substantial increase in his incapacity since the time of the previous award and the court's method of computing the amount of temporary total disability benefits to which Bennett was entitled for a short period of temporary total disability. For the reasons stated herein, we affirm in part and in part reverse, and remand with directions.

II. BACKGROUND
Bennett was injured in a work-related accident on April 28, 1987. As a result of the accident, Bennett suffered injuries to his back. Bennett was awarded temporary total disability benefits and permanent partial disability benefits in an award on August 15, 1989. The initial permanent partial disability award was computed based upon a finding that Bennett had suffered a 40-percent permanent impairment of earning capacity. On September 15, 1992, the court modified the initial award by raising Bennett's impairment rating to 60 percent and modifying his permanent partial disability benefits accordingly.
On May 14, 1996, Bennett filed a petition to modify the September 1992 compensation award. Bennett alleged that he had suffered a material and substantial increase in his incapacity and sought to have the court declare him permanently totally disabled. On January 13, 1997, the compensation court entered an "Order of Dismissal." In the order, the court found that Bennett failed to prove by a preponderance of the evidence that he had suffered a material and substantial increase in incapacity. The court found that Bennett had suffered a short period of temporary total disability during October and November 1994 and held that Bennett was entitled to temporary total disability benefits for a 2 4/7-week period. The entire temporary total disability period occurred after Bennett had received his full 300 weeks of permanent partial disability benefits pursuant to Neb.Rev.Stat. § 48-121(2) (Reissue 1993). Nonetheless, the compensation court gave defendant, J.C. Robinson Seed Co. (J.C. Robinson), credit for having paid past partial disability benefits based on an impairment rating of 60 percent and ordered it to pay the 2 4/7 weeks of temporary total disability benefits based on the remaining 40-percent impairment rating.
On October 23, 1997, the review panel entered an order of affirmance on review. The review panel held that the compensation court's factual findings were not clearly wrong and that they were supported by competent evidence. Bennett filed this timely appeal.

III. ASSIGNMENTS OF ERROR
On appeal, Bennett has assigned nine errors. Because a number of these assigned errors are merely restatements of one another, we have consolidated the assigned errors for discussion to two. First, Bennett asserts that the compensation court erred in finding that he failed to prove a material and substantial increase in incapacity. Second, Bennett asserts that the court erred in giving J.C. Robinson credit for past permanent partial disability benefits when computing the amount he was entitled to receive for the period of temporary total disability.

IV. ANALYSIS

1. STANDARD OF REVIEW
Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 1993), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Smart v. Scrivner/Food 4 Less, 254 Neb. 111, 574 N.W.2d 505 (1998); Hammelman v. Dreesen Enters., 6 Neb.App. 564, 575 N.W.2d 176 (1998). In determining whether to affirm, modify, reverse, or set aside the judgment of the review panel, a higher appellate court reviews the findings of the trial judge who conducted *373 the original hearing. Hammelman v. Dreesen Enters., supra.
Findings of fact made by a Workers' Compensation Court after review have the same force and effect as a jury verdict and will not be set aside unless clearly erroneous. Id. However, as in other cases, an appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Smart v. Scrivner/Food 4 Less, supra; Hammelman v. Dreesen Enters., supra.

2. INCREASED INCAPACITY
Neb.Rev.Stat. § 48-141 (Reissue 1993) provides the statutory authority for an action to modify a previous compensation award. Under § 48-141, an applicant seeking modification of a workers' compensation award must prove by a preponderance of the evidence that the increase in his or her incapacity is due solely to the injury resulting from the original accident. Hohnstein v. W.C. Frank, 237 Neb. 974, 468 N.W.2d 597 (1991). In proving an increase in incapacity, the applicant must demonstrate by a preponderance of the evidence that there exists a material and substantial change for the worse in the applicant's condition justifying a modification and distinct and different from that for which an adjudication has been previously made. Id.
In the present case, Bennett testified that various physical symptoms had gotten worse since the most recent award was entered in September 1992. Additionally, Bennett offered various medical records and office notes from treating physicians to support his claim that his physical condition had deteriorated. Bennett did not offer any evidence that his impairment rating had changed, except that his treating physician's notes indicated that he may have become "totally disabled."
In concluding that Bennett failed to demonstrate a material and substantial change in incapacity, the compensation court found that most, if not all, of the physical complaints which Bennett testified about had been documented in medical records prior to September 1992 and that Bennett had failed to provide any numerical impairment rating. The court considered two functional capacity assessments and various vocational rehabilitation reports contained in the record.
Previous cases in Nebraska recognize that in order to succeed in obtaining a modification, an applicant must demonstrate a change in his or her physical disability. See, Gomez v. Kenney Deans, Inc., 232 Neb. 646, 441 N.W.2d 632 (1989); Ludwickson v. Central States Electric Co., 142 Neb. 308, 6 N.W.2d 65 (1942). As such, where a claimant is unable to demonstrate that his physical condition has changed since the prior award, a compensation court does not commit error in refusing to modify the previous award. Gomez v. Kenney Deans, Inc., supra.
The record in the present case contains competent evidence to support the compensation court's conclusion that Bennett failed to demonstrate a material and substantial change in incapacity. The rehabilitation specialist concluded that there were "no knew [sic] objective findings other than [Bennett] has reported increased pain. Dr. Bowman does report degenerative changes, however, degenerative changes have been noted in the medical records going back to 1981." Because there was competent evidence to support a finding that Bennett's physical condition had not materially changed, we conclude that the compensation court was not clearly wrong in finding that Bennett failed to meet his burden of proof.

3. CREDIT FOR PAST PARTIAL DISABILITY BENEFITS
The compensation court found that Bennett had demonstrated that he was temporarily totally disabled during a period of time between October 24 and November 10, 1994. During those 2 4/7 weeks, J.C. Robinson failed to pay Bennett any compensation for his disability, and his period of partial disability payments pursuant to § 48-121(2) had expired. The compensation court concluded that Bennett was entitled to temporary total disability benefits for the 2 4/7-week period. However, rather than awarding Bennett benefits computed at a rate of 100 percent impairment, the court gave J.C. Robinson credit for having previously paid benefits *374 computed at a rate of 60 percent impairment and ordered that Bennett receive 2 4/7 weeks' compensation computed at a rate of 40 percent impairment.
Section 48-121(2) limits the number of partial disability payments which may be received by a plaintiff to 300 weeks' payments. Section 48-121(2) further provides that if a period of temporary total disability is followed by partial disability, then the 300 week period is to be reduced by the number of weeks for which temporary total disability benefits are paid. Bennett argues on appeal that § 48-121(2) does not apply when the period of temporary total disability occurs after the conclusion of partial disability payments but only applies where the period of temporary total disability occurs before a portion of the partial disability period.
The general rules of statutory interpretation in Nebraska provide that in the absence of anything to the contrary, statutory language is to be given its plain and ordinary meaning, and when the words of a statute are plain, direct, and unambiguous, no interpretation is necessary or will be indulged to ascertain their meaning. Memorial Hosp. of Dodge Cty. v. Porter, 251 Neb. 327, 557 N.W.2d 21 (1996). It is not within the province of a court to read anything plain, direct, and unambiguous out of a statute. Memorial Hosp. of Dodge Cty. v. Porter, 4 Neb.App. 716, 548 N.W.2d 361 (1996). An appellate court will, if possible, give effect to every word, clause, and sentence of a statute, since the Legislature is presumed to have intended every provision of a statute to have a meaning. Id.; Gatewood v. Powell, 1 Neb.App. 749, 511 N.W.2d 159 (1993).
In light of the foregoing principles, we conclude that the compensation court erred in determining that Bennett's period of temporary total disability, which occurred entirely after he had received his entire permanent partial disability award of 300 weeks' payments, should be computed based on a 40percent impairment instead of a 100-percent impairment. The effect of the court's action was to reduce the 300-week period of partial disability payments by the 2 4/7-week period of total disability which occurred after Bennett's partial disability. The language of § 48-121(2), in plain and unambiguous language, provides that such a reduction is to be done when "total disability [is] followed by partial disability." To hold that the compensation court was correct in reducing the period of partial disability by the number of weeks of temporary total disability occurring after the partial disability would render the above-quoted language meaningless.

4. SIGNATURES ON REVIEW PANEL DECISION
We note that Bennett also indicates in his brief that the order of the review panel was "signed by only two of the three judges who heard the case." Brief for appellant at 2. Our review of the record indicates that this is correct. The order of the review panel contains three lines, with the word "Judge" immediately below each line. On two of the three lines are signatures, while the third line remains blank. Nothing else on the order indicates who the third judge was or what the third judge's decision was.
Workers' Comp. Ct. R. of Proc. 12 (1998) provides that an appeal from a trial judge's decision will be to "a three-judge panel." There is no allegation raised by Bennett that his review was heard by less than a complete panel, and he has not assigned or argued any error concerning the fact that only two of the judges signed the order. In Craig v. American Community Stores Corp., 205 Neb. 286, 287 N.W.2d 426 (1980), the Nebraska Supreme Court noted that a decision of the review panel, even if signed by only one of the judges, constitutes a valid judgment so long as the findings and award are concurred in by at least two of the three judges. As such, despite the confusion caused by the review panel's actions in this case, and despite the fact that the review panel's order would be clearer if all three judges' votes were reflected on this order, we need not comment further on the failure of the third judge to render a signature on the order of the review panel.

V. CONCLUSION
We conclude that the compensation court was not clearly wrong in finding that Bennett failed to meet his burden of establishing a material and substantial change in his physical *375 condition, and the compensation court's order is affirmed in that regard. We conclude that the court erred, however, in computing Bennett's temporary total disability award for the period of October 24 through November 10, 1994. As a result, we reverse that portion of the court's order and remand the case with directions to enter an award of temporary total disability in conformance with this opinion.
AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED WITH DIRECTIONS.


135 F.3d 667
98 Cal. Daily Op. Serv. 849, 98 Daily JournalD.A.R. 1163UNITED STATES of America, Plaintiff-Appellee,v.Francisco H. GARCIA, Sr., Defendant-Appellant.
No. 96-10043.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 5, 1997.Decided Feb. 2, 1998.

Constance L. Trecartin, Tucson, Arizona, for defendant-appellant.
Frederic J. Dardis, Law Offices of Dardis & Hippert, P.C., Tucson, Arizona, for defendant-appellant.
Terry Chandler, Assistant United States Attorney, Tucson, Arizona, for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona;  Richard M. Bilby, District Judge, Presiding.  D.C. No. CR 94-00119-TUC-RMB.
Before:  BOOCHEVER and KLEINFELD, Circuit Judges, and WILSON, District Judge.*
WILSON, District Judge:
Francisco H. Garcia, Sr.  ("Garcia") appeals his conviction on three counts of conspiracy, which alleged:  laundering money in violation of 18 U.S.C. §§ 1956(a)(1)(B)(i), 1956(a)(1)(B)(ii), and 2;  engaging in monetary transactions in property derived from unlawful activity in violation of 18 U.S.C. §§ 1957 and 2;  and possessing with the intent to distribute marijuana in violation of 21 U.S.C. § 846.  Garcia argues that his conviction and sentence should be reversed because (1) his due process rights were violated, (2) his Sixth Amendment right to compulsory process was violated, and (3) the district court erred by increasing his offense level by two levels for obstruction of justice.  In a separate unpublished memorandum, the Court rejected Garcia's first two claims.  We now reject Garcia's third claim, and affirm.
BACKGROUND
The government claimed that Garcia was involved in a conspiracy to transport marijuana from Tucson, Arizona to Columbus, Ohio.  The evidence disclosed that money received from the drug conspiracy was used to fund the operation of a radio station in Tucson called "Radio Pantera."   The evidence also indicated that the deposits into Radio Pantera's corporate account had been structured to avoid the Internal Revenue Service's reporting requirements.
As part of Garcia's defense, he claimed that the money he allegedly laundered was generated by legitimate businesses in Mexico.  To lay an evidentiary foundation for the admission of certain business documents, Garcia called Francisco Javier Leon-Reyes ("Reyes"), who claimed to be Garcia's accountant.  Reyes testified through a translator as to the authenticity of the documents, which included a registration receipt, annual statements from the Secretaria de Hacienda ("Hacienda"),1 and tax returns or statements.  According to Reyes, a red stamp on the documents demonstrated that they had been filed with the Mexican government.
After Reyes testified, the government called as a rebuttal witness Maria de la Luz Nunez ("Nunez"), a representative from the Hacienda.  Ms. Nunez testified that she conducted a search of the Hacienda tax records, and she concluded that the tax statements submitted by the defense through Reyes were falsified and that Garcia had not been paying taxes in Mexico.
On June 2, 1995, the jury convicted Garcia on all three counts.  At the January 16, 1996 sentencing hearing, the district court found that Garcia suborned the perjury of Reyes when Reyes falsely testified as to the authenticity of Garcia's Mexican business documents.  Based upon that finding, the court increased Garcia's offense level by two levels for obstruction of justice pursuant to § 3C1.1 of the Federal Sentencing Guidelines.

1
On appeal, Garcia claims inter alia that the district court erred by increasing his offense level by two levels for obstruction of justice.  Garcia argues that the proper standard of proof for a court's finding of obstruction of justice based on subornation of perjury is greater than a preponderance of evidence.  Furthermore, Garcia argues that even if the proper standard is a preponderance of evidence, the district court did not make findings sufficient to satisfy that standard.

DISCUSSION
I. Standard of Review

2
A district court's interpretation of the Sentencing Guidelines is reviewed de novo.  United States v. Newland, 116 F.3d 400, 402 (9th Cir.1997).  We review a district court's factual findings in the sentencing phase for clear error.  See United States v. Parrilla, 114 F.3d 124, 126 (9th Cir.1997).  A district court's application of the Guidelines to the facts of a particular case is reviewed for an abuse of discretion.  Id.

II. Analysis

3
Section 3C1.1 of the Federal Sentencing Guidelines provides for a two-level upward adjustment for obstruction of justice:

4
If the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.

5
U.S. Sentencing Guidelines Manual § 3C1.1 (1996).  The Application Notes of the Guidelines state that the enhancement applies to conduct such as "committing, suborning, or attempting to suborn perjury."  Id. § 3C1.1 cmt. 3(b).  Furthermore, "the defendant is accountable for his own conduct and for conduct that he aided or abetted, counseled, commanded, induced, procured, or willfully caused."  Id. § 3C1.1 cmt. 7.

A. Standard of Proof for Upward Adjustment

6
Findings of fact under the Guidelines require only a preponderance of evidence.  United States v. Wilson, 900 F.2d 1350, 1354 (9th Cir.1990).  In United States v. Rafferty, 911 F.2d 227, 231 (9th Cir.1990), we specifically held that the preponderance of evidence standard articulated in Wilson applies to obstruction of justice adjustments under § 3C1.1.  Nevertheless, Garcia argues that the Guidelines require a district court's findings of subornation of perjury to exceed a preponderance of evidence before applying an upward adjustment for obstruction of justice.  Garcia relies on Application Note 1 under § 3C1.1, which provides:  "In applying this provision in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant."  Id. § 3C1.1 cmt. 1 (emphasis added).

7
Assuming without deciding that Application Note 1 mandates a standard greater than a preponderance of evidence for a sentence enhancement for a defendant's own false testimony, it does not apply to the facts here.  Garcia's upward adjustment was not based on his own perjured testimony, but rather on the fact that he suborned the perjured testimony of a witness.  See United States v. Johnson, 968 F.2d 208, 216 (2d Cir.1992) (holding that Application Note 1 applies only to perjury by defendant, not subornation of perjury).  This distinction between perjury and subornation of perjury is justified.  A finding that a witness committed perjury does not involve the same concerns about inhibiting a defendant's right to testify that arise when finding that the defendant has committed perjury.  See U.S.S.G. § 3C1.1 cmt. 1. Therefore, the district court was only required to find by a preponderance of evidence that Garcia suborned Reyes's perjured testimony.

8
B. Sufficiency of the District Court's Findings

9
Garcia next argues that the district court's findings were insufficient to support the upward adjustment even under a preponderance of the evidence standard.  In United States v. Dunnigan, 507 U.S. 87, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993), the Supreme Court stated:

10
[I]f a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice, or an attempt to do the same, under the perjury definition we have set out.  When doing so, it is preferable for a district court to address each element of the alleged perjury in a separate and clear finding.  The district court's determination that enhancement is required is sufficient, however, if, as was the case here, the court makes a finding of an obstruction of, or impediment to, justice that encompasses all of the factual predicates for a finding of perjury.

11
Id. at 95, 113 S.Ct. at 1117.  Dunnigan upheld the lower court's upward adjustment where the lower court's findings were as follows:

12
The court finds that the defendant was untruthful at trial with respect to material matters in this case.  [B]y virtue of her failure to give truthful testimony on material matters that were designed to substantially affect the outcome of the case, the court concludes that the false testimony at trial warrants an upward adjustment by two levels.

13
Id.

14
Prior to Dunnigan, we held in United States v. Barbosa, 906 F.2d 1366, 1369-70 (9th Cir.1990), cert. denied, 498 U.S. 961, 111 S.Ct. 394, 112 L.Ed.2d 403 (1990), that the district court was not required to make specific findings as to specific portions of a defendant's testimony it believed to be false.  In United States v. Arias-Villanueva, 998 F.2d 1491 (9th Cir.1993), cert. denied, 510 U.S. 937, 114 S.Ct. 359, 126 L.Ed.2d 322 (1993), a post-Dunnigan opinion, we rejected the contention that Dunnigan effectively overruled Barbosa, and reaffirmed our holding in that case.

15
So long as the district court finds that a defendant's trial testimony satisfies the elements for perjury as set forth in Dunnigan, an enhancement for obstruction of justice is proper.

16
Id. at 1512.

17
In the present case, the district court found that Reyes committed perjury and that Garcia suborned that perjury.  As to Reyes's perjury, Ms. Nunez testified at trial that the tax documents that Reyes authenticated were falsified.2  Because Ms. Nunez, as a representative from the Hacienda, was qualified to testify as to the genuineness of documents filed with the Hacienda, the district court's finding that Reyes committed perjury was not clearly erroneous.

18
At the sentencing hearing, the prosecution argued that Reyes would not have, on his own initiative, taken it upon himself to perjure himself and to falsify and manufacture documents.  The prosecution further argued that because the documents were purportedly Garcia's, he would have known that he had not filed them, and that the tax returns and the bank records were false.  The district court agreed with the prosecution:

19
As to paragraph [35 of the pre-sentence report], there's not much question that the documents were phony, and I have a hard time--I think I have to agree with Mr. Fink [the prosecutor], even though it goes against my grain to sentence when somebody's under indictment.  It just seems to me that--feel that that man [Reyes] did that out of whole [cloth] all by himself is straining credulity.  So I find that paragraph 35, the evidence does support the probation officer's position.

20
Garcia argues that because Reyes had not yet been convicted of perjury at the time of the sentencing hearing, the district court erred in finding that Garcia suborned perjury.  However, the district court was required only to find by a preponderance that Reyes perjured himself, whereas a perjury conviction would require proof beyond a reasonable doubt.  Given Ms. Nunez's testimony at trial, the district court's finding that Reyes committed perjury was not clearly erroneous.

21
Garcia further argues that there was no evidence that he suborned Reyes's perjury.  Garcia is correct that there is no direct evidence of subornation.  The district court, however, based on the circumstantial evidence and the prosecution's arguments at the hearing, found that it was more likely than not that Garcia suborned Reyes's perjury.  See United States v. Duranseau, 26 F.3d 804, 810 (8th Cir.1994) (holding that the government can sustain its burden for obstruction of justice through circumstantial or direct evidence);  United States v. Hang, 75 F.3d 1275, 1285 (8th Cir.1996) (affirming upward adjustment for obstruction of justice based on circumstantial evidence).  "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."  Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).  Based on the evidence before the district court, the court's findings were sufficient and were not clearly erroneous.  In light of those findings, the district court did not abuse its discretion by increasing Garcia's offense level by two levels for obstruction of justice.

22
AFFIRMED.

*
 The Honorable Stephen V. Wilson, United States District Court for the Central District of California, sitting by designation

1
 The Secretaria de Hacienda is the Mexican equivalent to the Internal Revenue Service

2
 At the time of the sentencing hearing, Reyes had already been indicted for perjury.  On May 24, 1996, Reyes was found guilty of seven counts of perjury


549 F.2d 797
U. S.v.Lee
No. 76-2434
United States Court of Appeals, Third Circuit
2/23/77

1
W.D.Pa.

AFFIRMED


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4360

TYRONE WILLIS,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
C. Weston Houck, Chief District Judge.
(CR-97-147)

Submitted: June 8, 1999

Decided: June 23, 1999

Before MURNAGHAN, WILLIAMS, and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Marcus Lynn Smith, Greenville, South Carolina, for Appellant. J.
Rene Josey, United States Attorney, Alfred W. Bethea, Jr., Assistant
United States Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Tyrone Willis pleaded guilty to conspiracy to possess cocaine base
with intent to distribute, in violation of 21 U.S.C.§ 846 (1994), and
was sentenced to a prison term of 168 months. He appeals his sen-
tence, contending that the district court violated Fed. R. Crim. P. 32
when it considered evidence of firearm use that had not been included
in the initial presentence report to which the Government lodged no
objection. We affirm.

In Willis's plea agreement, it was stipulated that he would be held
accountable for 500 grams to 1.5 kilograms of cocaine base. This stip-
ulated quantity dictated a base offense level of 36 under U.S. Sentenc-
ing Guidelines Manual § 2D1.1(c)(2) (1995) and a mandatory
minimum prison sentence of 120 months under 21 U.S.C.A.
§ 841(b)(1)(A) (West Supp. 1999). The initial presentence report,
which was prepared in May and mailed to the parties on June 20,
1997, included a finding that Willis was eligible for treatment under
the so-called "safety valve" provision that eliminates the mandatory
minimum sentence. See USSG § 5C1.2. In Willis's case, the safety
valve would have also acted to reduce his offense level by two points.
See USSG § 2D1.1(b)(4). One of the criteria for application of the
safety valve provisions is that "the defendant did not use violence . . .
or possess a firearm or other dangerous weapon . . . in connection
with the offense." USSG § 5C1.2(2). The initial presentence report
did not mention firearm use or possession by Willis or his co-
defendants in the operation of their drug conspiracy.

In the cover letter to the report, the probation officer noted that a
local court rule required that any objections to the report had to be
filed by July 3, 1997. The Government and defense counsel con-
firmed that they had no objections. However, in the case of a co-
defendant, Alloric Tewan Lane, which was proceeding on a parallel
track and whose presentence report also contained no mention of fire-
arms, the Government formally objected to application of the safety
valve provision on the basis of possession of firearms by all defen-
dants in their drug trafficking business.

                    2
The first sentencing hearing for Willis, Lane, and another co-
defendant was held on September 12, 1997. Without objection from
any party, the district court conducted an evidentiary hearing concern-
ing the unresolved issue of the presence of firearms. In addition to
testifying about the extensive use of firearms by the defendants, a fed-
eral law enforcement officer also testified that he had provided evi-
dence of firearm use to the probation officer about two months earlier.
The district court then continued the hearing to permit the probation
officer to consider the evidence and to prepare new presentence
reports if necessary. Revised reports were mailed to the parties on
September 23, 1997, reflecting evidence of firearm possession. In
light of this evidence, the probation officer eliminated the "safety
valve" from her calculation of the sentencing ranges.*

At the final sentencing hearing held on October 27, 1997, Willis's
counsel did not object to the substance of the factual statements in the
revised report concerning the firearms. He moved, however, to
exclude all evidence relating to firearms on the ground that the Gov-
ernment's failure to file an objection within fourteen days after receipt
of the original presentence report constituted waiver. He based his
argument on Fed. R. Crim. P. 32(b)(6)(B), which states:

          Within 14 days after receiving the presentence report, the
          parties shall communicate in writing to the probation offi-
          cer, and to each other, any objections to any material infor-
          mation, sentencing classifications, sentencing guideline
          ranges, and policy statements contained in or omitted from
          the presentence report. After receiving objections, the pro-
          bation officer may meet with the defendant, the defendant's
          counsel, and the attorney for the Government to discuss
          those objections. The probation officer may also conduct a
          further investigation and revise the presentence report as
          appropriate.

The district court, noting that Willis had sufficient opportunity to con-
test the evidence of firearms, ruled that Willis's due process rights
_________________________________________________________________
*For Willis, elimination of the safety valve resulted in an increase in
offense level from 31 to 35, with an increase in the applicable sentence
range from 108-135 months to 168-210 months.

                     3
were not violated and noted that granting Willis's motion would pre-
vent the court from considering the true nature and seriousness of the
offense when imposing sentence. See 18 U.S.C.A. § 3553(a)(1) (West
1985 & Supp. 1999). We agree.

Under Fed. R. Crim. P. 32(b)(6)(D), the district court may for good
cause allow new objections at any time before sentence is imposed.
Although the court did not specifically find good cause, such a find-
ing was not necessary because Willis failed to object when evidence
of firearms was presented at the first sentencing hearing. See United
States v. Archuleta, 128 F.3d 1446, 1452 n.12 (10th Cir. 1997) ("[N]o
explicit finding of good cause is necessary to preserve the issue for
appeal" when defendant failed to contemporaneously object to gov-
ernment's challenge to recommendation in presentence report at sen-
tencing hearing). Willis was aware that his possession of firearms was
a disputed issue well before he was sentenced, and the district court
gave him ample opportunity to contest the issue. See USSG § 6A1.3.
Therefore, we find that the district court fully complied with the
requirements of Rule 32 in considering and resolving the issue.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED

                    4