However, "[d]uress exists where one, by the unlawful act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will." Radford v. Keith, 160 N.C. App. 41, 43-44, 584 S.E.2d 815, 817 (2003) (emphasis added) (quoting Smithwick v. Whitley, 152 N.C. 369, 371, 67 S.E. 913, 914 (1910)) (internal quotation marks omitted), aff'd per curiam, 358 N.C. 136, 591 S.E.2d 519 (2004). "By duress, in its more extended sense, is meant that degree of severity, either threatened and impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness." Id. at 45, 584 S.E.2d at 818 (quoting Edwards v. Bowden, 107 N.C. 58, 60, 12 S.E. 58, 58 (1890)) (internal quotation marks omitted).
"Duress exists where one, by the unlawful act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will." Radford v. Keith, 584 S.E.2d 815, 817 (N.C. Ct. App. 2003) (citation omitted).
A party asserting duress must show a wrong or unlawful act that induces the claimant to act under circumstances depriving the claimant of the exercise of free will. See Link v. Link, 278 N.C. 181, 194, 179 S.E.2d 697, 704-05 (1971); Smithwick v. Whitley, 152 N.C. 369, 67 S.E. 913, 914 (1910); Radford v. Keith, 160 N.C. App. 41,43-44, 584 S.E.2d 815, 817-18 (2003). Lonesource contends that United threatened to stop supplying Lonesource.
“Duress exists where one, by the unlawful act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will.” Radford v. Keith, 160 N.C.App. 41, 43-44, 584 S.E.2d 815, 817 (2003). A threatened act is unlawful “if made with the corrupt intent to coerce a transaction grossly unfair to the victim and not related to the subject of such proceedings.”
Complaint at ¶ 95. A person who threatens to do that which he or she may lawfully do cannot be held to have intentionally inflicted emotional distress. United States v. Twenty Miljam-350 IED Jammers, 669 F.3d 78 (2d Cir. 2011); Radford v. Keith, 160 N.C.App. 41 (2003). Plaintiffs have, therefore, failed to state any cognizable IIED claim against any defendant.
Complaint at \ 95. A person who threatens to do that which he or she may lawfully do cannot be held to have intentionally inflicted emotional distress. United States v. Twenty Miljam-350 IED Jammers, 669 F.3d 78 (2d Cir. 2011); Radford v. Keith, 160 N.C.App. 41 (2003). Plaintiffs have, therefore, failed to state any cognizable IIED claim against any defendant.
Duress exists where one party to a contract, by the wrongful act of another, is induced to enter the contract under circumstances which deprive him of the exercise of free will.Radford v. Keith, 584 S.E.2d 815, 817 (2003) (citation omitted). A simple breach of contract by itself is not sufficient to state a claim for duress, George Shinn Sports, Inc. v. Bahakel Sports, Inc., 393 S.E.2d 580, 584 (N.C. Ct. App. 1990), especially where the other party has an adequate remedy at law, Rose v. Vulcan Materials Co., 194 S.E.2d 521, 536 (N.C. 1973).
The factual allegations in this case are a far cry from those which courts have found sufficient to state a claim for or constitute duress. SeePerformance Sales & Mktg., 2010 WL 2294323, at *7 (defendant threatened to withhold money that was essential to the continuation of plaintiff's business operations); Radford v. Keith, 160 N.C.App. 41, 45–46, 584 S.E.2d 815, 818–19 (2003) (plaintiff was detained in defendant's office for two hours before she agreed to sign note); Fallston Finishing, Inc. v. First Union Nat'l Bank, 76 N.C.App. 347, 333 S.E.2d 321 (1985) (trial court erred in refusing to submit issue of economic duress to jury; plaintiffs had two options: enter agreement, or watch four companies collapse); Weaver, 37 N.C.App. at 297–98, 246 S.E.2d at 226–27 (defendants threatened to destroy the whole project if plaintiffs did not enter agreement); Rose, 282 N.C. at 666, 194 S.E.2d at 536 (plaintiffs options were to cede to defendant's demands or go out of business); Link v. Link, 278 N.C. 181, 195, 179 S.E.2d 697, 705 (1971) (evidence to support finding of duress where husband threatened to take children from wife to coerce her to transfer her property to him without consideration). The plaintiffs actually benefitted from the 2013 Note, which extended the maturity date on the previous advances despite the occurrence of defaults and released and substit
"Duress exists where one, by the unlawful act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will." Radford v. Keith, 160 N.C. App. 41, 43-44, 584 S.E.2d 815, 817 (2003) (citation and internal quotation marks omitted). The absence of free will may be determined from the following factors:
"A wrongful act or threat is an important element of duress." Radford v. Keith, 160 N.C. App. 41, 44, 584 S.E.2d 815, 817 (2003). "In the instance where the court cannot find sufficient threat to constitute duress, it may still find the presence of undue influence."