dissenting.
I respectfully dissent from the majority’s conclusion that the trial court properly denied defendants’ motions for directed verdict and judgment notwithstanding the verdict.
As stated by the majority, a movant is entitled to have either motion granted if the evidence, when viewed in the light most favorable to the non-movant, is insufficient for a jury to decide the issue in question. See United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). When that issue involves duress, sufficient evidence must be offered establishing that “ ‘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.’ ” Link v. Link, 278 N.C. 181, 194, 179 S.E.2d 697, 704-05 (1971) (citation omitted) (emphasis in original). Having reviewed the record and transcript, I believe the evidence offered was insufficient to prove essential elements of duress, i.e., that the Note and Deed of Trust signed by plaintiff was (1) induced by a wrongful act of defendants, and (2) executed under circumstances that deprived plaintiff of free will.
*47“Unquestionably, an essential element of duress is a wrongful act or threat.” Id. at 194, 179 S.E.2d at 705 (emphasis in original). As to the “wrongful act” element, this Court held in Link that “the threat to institute legal proceedings, criminal or civil, which might be justifiable, per se, becomes wrongful ... if made with the corrupt intent to coerce a transaction grossly unfair to the victim and not related to the subject of such proceedings.” Id. Link also recognized that settlements often arise from threatened lawsuits and that potential litigants frequently choose to settle disputes to avoid the consequences of those lawsuits. Thus, this holding provided a difficult burden for potential litigants to overcome if they claim settlements were reached under duress. The absence of such a burden could possibly result in every settlement being collaterally attacked and set aside for duress.
In the case sub judice, I conclude plaintiff did not sign the Note and Deed of Trust under duress because defendants’ actions were not wrongful. First, there was no evidence offered that the option selected by plaintiff was grossly unfair. Plaintiff did not testify, or offer the testimony of any qualified witness, that either the terms or amount of the Note and Deed of Trust were unreasonable. Second, defendants’ threat to file a lien and then institute legal proceedings against plaintiff for fraud was related to the subject of such proceedings. During their meeting, Keith alleged that plaintiff had unilaterally altered the contract between them to get her home built with several additions at a lower price. This fact clearly establishes that defendants’ attempt to collect a fair price for the home they built was related to the contract between the parties. See generally Chemical Co. v. Rivenbark, 45 N.C. App. 517, 263 S.E.2d 305 (1980). Therefore, defendants giving plaintiff the option to sign the Note and Deed of Trust in lieu of them instituting legal proceedings against her was not a wrongful act.
Nevertheless, assuming there was sufficient evidence that defendants engaged in a wrongful act, there was still insufficient evidence that plaintiff was deprived of “free will” when she executed the Note and Deed of Trust. For a wrongful act to constitute duress, it must occur under circumstances which deprive one of the exercise of free will. See Link, 278 N.C. at 194, 179 S.E.2d at 704-05. In the case sub judice, the majority concludes that the jury could have found that plaintiff was prevented “from exercising her [free] will to leave defendants’ office []” because Keith directed his associate to “ ‘go outside and be sure that [Keith and plaintiff were] not interrupted.’ ” *48However, plaintiff never testified that she felt she was not free to leave the meeting at any time. On the contrary, plaintiffs testimony emphasized her concerns that a legal proceeding would delay the closing thereby resulting in significant inconvenience and economic difficulties because plaintiff had already made plans to vacate her rental property and have her furniture moved. Plaintiff further testified that she was actually “embarrassed” when Keith accused her of fraud because she had worked hard to establish an amicable working relationship with him. Thus, when the evidence is viewed in the light most favorable to plaintiff, it most clearly indicates that she voluntarily chose to remain in the meeting to remedy the situation and not because she believed defendants would not let her leave.
Finally, with respect to plaintiff’s “free will” (or lack thereof), I note that: (1) plaintiff signed the Note and Deed of Trust a week after the meeting with Keith; and (2) plaintiff had been a licensed real estate agent for approximately four years prior to the incident in question, which strongly suggest that she was not naive to the possibility of last minute issues arising that may require the postponement of a closing. Yet, prior to signing the Note and Deed of Trust, plaintiff chose not to use that time, use her professional experience, or consult with someone else to effectively evaluate defendants’ proposed options to her, as well as, consider her own options as to coordinating the move into the new house. This evidence further indicates no deprivation of plaintiff’s free will, simply her desire to elect whichever option that would prevent postponing the scheduled closing date.
In conclusion, I conclude that the evidence, when viewed in the light most favorable to plaintiff, was insufficient to prove essential elements of duress. Therefore, the trial court should have granted either defendants’ motion for directed verdict or motion for judgment notwithstanding the verdict.