concurring and dissenting.
[¶ 26] I agree with the majority opinion that the judgment of the district court should be reversed but I do so for different reasons than does the majority and I disagree with the rationale used by the majority to reach its result.
[¶ 27] I believe the judgment should be reversed because, if we were to apply an economic duress doctrine, I cannot conclude, under the facts of this case, that the essential elements of the doctrine, as outlined in ¶ 9 of the majority opinion, have been met. In particular I question whether the facts sustain the first element, i.e., that one side involuntarily accepted the terms of another, as well as the second element, i.e., that the circumstances permitted no other alternative. If one looks at the “no other alternative” to mean there was no other alternative to the Finstads receiving the $2,500 PFC payment I might agree the element was met. However, I believe we must look beyond the $2,500 and I am unconvinced that there was no other alternative. As noted by the majority in ¶ 5, John Finstad testified he was “under a lot of stress and ... I have no strength for this.” There was, of course, an alternative and that was to contest the District’s decision to terminate the leaseback rights in 2001. Cf Mellon v. Norwest Bank, 493 N.W.2d 700, 702-04 (N.D. 1992) (holding doctrine does not apply because specific performance to enforce oral contract was an alternative to signing other contract). Furthermore, John Finstad testified “we thought we’d just cooperate and try to preserve our rights to rent the *173land back at some point in time.” Majority at ¶ 5. I am unconvinced that rises to an “involuntary” acceptance of the terms of the other party.
[¶ 28] Because I do not believe the elements of economic duress were established as a matter of law in this instance, I would follow this Court’s precedent, outlined in ¶ 9 of the majority opinion, and conclude it is unnecessary to decide whether or not to adopt the doctrine.
[¶29] More significantly, however, the majority concludes that the economic distress doctrine cannot apply in North Dakota, as a matter of law, because the Legislature has preempted the issue by the enactment of N.D.C.C. § 9-08-05. This was an issue neither raised nor briefed by the parties. In its cross-appeal the District argued that the trial court erred, as a matter of law, in holding the facts constituted economic duress. It did not argue economic duress could not, regardless of the facts, apply in North Dakota as a matter of law.
[¶ 30] Although the lack of citation to a controlling statute does not entitle this Court to ignore that statute, I am not prepared, without briefing and argument, to so quickly conclude the Legislature has preempted the field in this instance. Whether or not the definition of duress, which on its face is limited to physical confinement of persons or unlawful detention of property, is the only form of duress that the Legislature has or allows to be recognized is an open question which I would not answer under the facts of this case.
[¶ 31] CAROL RONNING KAPSNER, J., concur.