Buyer Beware: Determining Liability When the Deal Falls Apart

Raleigh, NC (November 2, 2011) – Scott Miskimon, a partner in Smith Anderson’s contract disputes and litigation practice area, authored an article in the October 2011 edition of Real Property, a publication of the North Carolina Bar Association’s Real Property Law Section. The article is entitled Buyer Beware: Determining Liability When the Deal Falls Apart. It analyzes a recent case that Mr. Miskimon successfully litigated on behalf of the defendant seller of commercial real estate located in Wake County. The plaintiff buyer contracted to purchase the land, which it planned to develop into a shopping center. The buyer sued claiming that the seller anticipatorily repudiated the purchase agreement when the seller demanded a closing one month sooner than the closing date and later contracted to sell the land to a second buyer. The North Carolina Court of Appeals examined the plaintiff’s conduct, including the fact that the plaintiff insisted it was ready, willing and able to close and that it had demanded a closing. The Court of Appeals ruled that the plaintiff buyer’s conduct and statements showed that, as a matter of law, the buyer did not treat the seller’s statements or actions as a repudiation. Therefore, the seller did not breach the contract, and the trial court should have ruled in favor of the seller and dismissed the buyer’s lawsuit.

Mr. Miskimon is a commercial litigator who prosecutes and defends significant business disputes in state and federal court. A large part of his practice involves commercial real estate litigation, and land-use and zoning litigation. He is the co-author of the authoritative treatise North Carolina Contract Law, which he updates annually, and which has been frequently cited and quoted by North Carolina’s appellate courts.