Filed 6 February 2004 Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 584 S.E.2d 815 (2003), affirming a judgment entered 8 May 2002 by Judge John R. Jolly, Jr. in Superior Court, Brunswick County. Heard in the Supreme Court 8 December 2003. The Del Re' Law Firm, by Benedict J. Del Re' Jr., for plaintiff-appellee.Michael E. Mauney for defendant-appellants.
To demonstrate the existence of duress, Molina must proffer evidence that VF Jeanswear's conduct was unlawful or wrong, that Molina was coerced into signing the agreement, and that Molina's consent to the agreement was involuntary because VF Jeanswear prevented Molina from exercising his free will. See Radford v. Keith, 160 N.C. App. 41, 44, 584 S.E.2d 815, 817-18 (2003). Molina characterizes his situation as "an intolerable choice: Either he sign an Agreement which he had repeatedly complained was unfair and unlawful under Honduran law, or he would be stranded in a foreign country without pay and the ability to move his family back home."
ion of N.C. Gen. Stat. § 14-234(a)(1), and (2) Greene was speaking on behalf of all the individual defendants in an attempt to wrongfully interfere with plaintiffs' contract with the Authority to operate the FBO. Though N.C. Gen. Stat. § 14-234 does not contemplate recovery of compensation by an individual, plaintiffs' complaint also expressly states a claim for extortion. While we are aware that two federal district courts which have considered the issue have concluded that "no [civil] cause of action for extortion exists under North Carolina law[,]"Delk v. ArvinMeritor, Inc., 179 FSupp.2d 615, 626 (W.D.N.C. 2002); Godfredson v. JBC Legal Group, EC, 387 FSupp.2d 543, 555 (E.D.N.C. 2005) ("[A] survey of the applicable North Carolina authority indicates that no civil cause of action exists for the tort of extortion."), we construe plaintiffs' complaint as a cause of action for duress for the sole purpose of determining whether or not it is barred by the affirmative defense of POI. See Radford v. Keith, 160 N.C. App. 41, 43-44, 584 S.E.2d 815, 817 (2003) ("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." (Citation and quotation marks omitted.)
While we are aware that two federal district courts which have considered the issue have concluded that “ no [civil] cause of action for extortion exists under North Carolina law[,]" Delk v. ArvinMeritor, Inc., 179 F.Supp.2d 615, 626 (W.D.N.C.2002); Godfredson v. JBC Legal Group, P.C., 387 F.Supp.2d 543, 555 (E.D.N.C.2005) (“ [A] survey of the applicable North Carolina authority indicates that no civil cause of action exists for the tort of extortion." ), we construe plaintiffs' complaint as a cause of action for duress for the sole purpose of determining whether or not it is barred by the affirmative defense of POI. SeeRadford v. Keith, 160 N.C.App. 41, 43-44, 584 S.E.2d 815, 817 (2003) (“ 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." (Citation and quotation marks omitted.)
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).
"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."
A motion for directed verdict or JNOV should be denied “unless the evidence, taken as true and viewed in the light most favorable to the plaintiff, establishes an affirmative defense as a matter of law.” Radford v. Keith, 160 N.C.App. 41, 43, 584 S.E.2d 815, 817 (2003). Our review is de novo. Austin v. Bald II, L.L.C., 189 N.C.App. 338, 342, 658 S.E.2d 1, 4 (2008).
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.
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).
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.