Merri-Bowl, Inc. v. Hazifotis , 1989 Ind. App. LEXIS 1255 ( 1989 )

SULLIVAN, Judge,

concurring.

From an equitable standpoint, I agree that Hazifotis and Malczewski are entitled to be compensated for obtaining the purchaser of the Merri-Bowl real estate. I do not, however, agree with the Judge Hoffman’s position that there was an agreement in writing between and among Merri-Bowl, Hazifotis and Malczewski to pay a commission of ten percent (10%).

To be sure there was a writing executed by one of the parties to the alleged agreement. It may well be that such writing was a recitation of an oral agreement or that there may have been an agreement implied in law but such writing was not an agreement between the parties.

That there may in fact have been a valid and enforceable agreement for a ten percent (10%) commission is not demonstrated as a matter of law. That a trier of fact would perhaps, or even most probably, determine that such an agreement existed does not justify a summary judgment premised upon such expectation.

Upon the appeal as it has been presented to us, I concur in the reversal and remand for further proceedings.