In re Mike Glickman Realty, Inc.

59 F.3d 175 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. In re MIKE GLICKMAN REALTY, INC., Debtor. Donald W. HENRY, Chapter 7 Trustee for Mike Glickman Realty, Inc., Appellant, v. ANDOCS I; Orange County Emergency Clinic, Inc.; Melvin L. Gerstner; Deena M. Gerstner; Andocs III; David I. Tannenbaum; Richard S. Glassberg; Lyle D. Price; Rosalinda E. Fernandez; United States Trustee, Appellees. No. 92-55331. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 2, 1993. Decided June 29, 1995. Before: BRUNETTI, KOZINSKI, and BOGGS*, Circuit Judges. [1] MEMORANDUM** [2] The bankruptcy appellate panel affirmed a grant of summary judgment to ANDOCS I ("ANDOCS"). We have jurisdiction of this appeal under 28 U.S.C. Sec. 158(d) and affirm. [3] Because Glickman failed to produce a buyer willing to offer $1.5 million for the property in question, he failed to perform according to the terms of the original listing agreement. ANDOCS' representative Les Malo then told James A. Gary & Co.'s representative Gail Marcus that ANDOCS would accept a $1.2 million offer for the property in question only if the brokerage commission were reduced to 4%, "payable only if escrow closed." The property was not sold to Glickman's buyer at this price or any other. We agree with the bankruptcy panel that, whether this oral condition constituted a modification of the listing agreement or a new promise, supported by new consideration, Glickman failed to perform according to the terms of this condition. See Steve Schmidt & Co. v. Berry, 228 Cal. Rptr. 689, 692-93 (Ct. App. 1986). [4] AFFIRMED. Footnotes [-s] * Danny J. Boggs, United States Circuit Judge for the Sixth Circuit Court of Appeals, sitting by designation [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3