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; Rosalindae. Fernandez; United States Trustee, Appellees, 59 F.3d 175 (9th Cir. 1995)

MEMORANDUM^** 

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. § 158(d) and affirm.

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).

AFFIRMED.