CASE 14-3
ZELNICK v. ADAMS
Supreme Court of Virginia, 2002
263 Va. 601, 561 S.E.2d 711 http://scholar.google.com/scholar_case?
case=13963993610436500611&q=561+S.E.2d+711+&hl=en&as_sdt=2,34
Lemons, J.
In this appeal, we consider whether a contract for legal services entered into on behalf of a
minor is voidable upon a plea of infancy or subject to enforcement as an implied contract
for necessaries and, if enforceable, the basis for determining value of services rendered.
Facts and Proceedings Below
Jonathan Ray Adams (“Jonathan”) was born on April 5, 1980, the natural child of Mildred
A. Adams (“Adams” or “mother”) and Cecil D. Hylton, Jr. (“Hylton” or “father”).
Jonathan’s parents were never married to each other. On September 8, 1995, after highly
contested litigation, an agreed order (“paternity order”) was entered in Dade County,
Florida, establishing Hylton’s paternity of Jonathan.
Jonathan’s grandfather, Cecil D. Hylton, Sr. (“Hylton Sr.”), died testate [with a will] on
August 25, 1989. His will established certain trusts and provided that the trustees had sole
discretion to determine who qualified as “issue” under the will.
The will created two separate trusts for Hylton Sr.’s grandchildren: the First
On July 11, 1996, Adams met with an attorney, Robert J. Zelnick (“Zelnick”), about
protecting Jonathan’s interest as a beneficiary of the trusts. She had received information
leading her to believe that distributions were being made from the trusts to some of Hylton
Sr.’s grandchildren. Adams told Zelnick that she contacted Jonathan’s father about these
alleged distributions, but she had not received a response from him. Adams explained that
she had also contacted the law firm that had prepared Hylton Sr.’s will and the trustees, and
no one would provide her any information about the distributions or whether the Estate
would recognize Jonathan as a beneficiary. * * *
Zelnick’s firm to represent Jonathan on a one-third contingency fee basis “in his claim
against the estate of Cecil D. Hylton.”
In May 1997, Zelnick filed a bill of complaint for declaratory judgment, accounting and
other relief on Jonathan’s behalf to have Jonathan recognized as the grandchild and “issue”
of Hylton Sr. for the purposes of the will and trusts. * * * A consent decree was entered on
January 23, 1998, which ordered that Jonathan was “declared to be the grandchild and
issue of Cecil D. Hylton” and was “entitled to all bequests, devises, distributions and
On April 6, 2000, Jonathan filed a motion for summary judgment. He asserted that the
contract was “void as a matter of law” because it was not a contract for necessaries.
Jonathan argued that the 1997 suit was unnecessary due to the Florida paternity decree
which conclusively established Hylton’s paternity. He further argued that the 1997 suit was
unnecessary because the trusts could not distribute any funds until the years 2014 and 2021
and the issue was not “ripe for determination.” Finally, Jonathan claimed that the
contingency fee agreement was unreasonable.
The trial court granted Jonathan’s motion for summary judgment and ruled that the
contingency fee agreement was void. The trial court held that the contract was not binding
on Jonathan because he was “in his minority” when the contract was executed.
Furthermore, according to the trial court, the doctrine of necessaries did not apply to the
* * *
The trial court entered judgment in favor of Zelnick in the amount of $60,000. * * *
Both Zelnick and Jonathan have appealed the judgment of the trial court. * * *
Analysis
* * *
Under well and long-established Virginia law, a contract with an infant is not void, only
voidable by the infant upon attaining the age of majority. [Citation.] This oft-cited rule is
subject to the relief provided by the doctrine of necessaries which received thorough
analysis in the case of Bear’s Adm’x v. Bear, [citation].
In Bear, we explained that when a court is faced with a defense of infancy, the court
of these preliminary inquiries is answered in the negative, the party who provided the
goods or services to the infant under the disaffirmed contract cannot recover. If the
preliminary inquiries are answered in the affirmative, then the finder of fact must decide,
under all the circumstances, whether the “things supplied” were actually necessary to the
“position and condition of the infant.” If so, the party who provided the goods or services
“Things supplied,” which fall into the class of necessaries, include “board, clothing and
education.” [Citation.] Things that are “necessary to [an infant’s] subsistence and comfort,
and to enable [an infant] to live according to his real position in society” are also
considered part of the class of necessaries. [Citation.] * * *
Certainly, the provision of legal services may fall within the class of necessaries for
which a contract by or on behalf of an infant may not be avoided or disaffirmed on the
grounds of infancy. Generally, contracts for legal services related to prosecuting personal
injury actions, and protecting an infant’s personal liberty, security, or reputation are
The Supreme Court of Appeals of West Virginia recently addressed this issue in a
paternity action against the estate of an infant’s father, brought by the infant’s mother on
the infant’s behalf. [Citation.] The court held that contracts for legal services by infants
should be regarded as contracts for necessaries in some instances because “if minors are
not required to pay for legal representation, they will not be able to protect their various
interests.” [Citation.]
Other states have also broadened the definition of “necessaries” to include contracts for
legal services for the protection of an infant’s property rights. * * *
* * * The ultimate determination is an issue of fact. The trier of fact must conclude that
“under all the circumstances, the things furnished were actually necessary to the position
and condition of the infant * * * and whether the infant was already sufficiently supplied.”
[Citation.] If the contract does not fall within the “general classes of necessaries,” the trial
court must, as a matter of law, sustain the plea of infancy and permit the avoidance of the
contract. Similarly, if the contract does fall within the “general classes of necessaries,” but
upon consideration of all of the circumstances, the trier of fact determines that the
* * *
Upon review of the record, we hold that the * * * reason stated by the trial court for
holding that the necessaries doctrine did not apply, namely that the contract “was
conducted while he was in his minority and he’s not bound by that,” is an error of law. We
hold that a contract for legal services is within the “general classes of necessaries” that
may defeat a plea of infancy. * * *
* * *
The trial court’s determination that the necessaries doctrine did not apply was made
upon motion for summary judgment filed by Jonathan. Nowhere in Jonathan’s motion for
summary judgment is the issue raised that the services were unnecessary at the time
rendered. * * * Although Jonathan argues that the services were not necessary at all
because he alleges that the Florida litigation resolved the question of his inclusion as a
beneficiary under the will of Hylton Sr., the timing of the services was not even mentioned
as an issue, much less as a reason for granting summary judgment. * * *
Liability for Misrepresentation of Age
Most states allow a minor who lies about her age to nevertheless disarm
a contract, but either (a) require restitution or (b) allow the defrauded party
to recover damages against the minor in tort. Some states, however,
prohibit disarmance if a minor misrepresents her age and the adult, in
good faith, reasonably relies on the misrepresentation.
Liability for Tort Connected with Contract
A minor who commits a tort that is so greatly interwoven with and
connected to a contract may not be liable for the results of his tortious
conduct. If the minor violates the contract in committing the tort, it may be
possible to recover damages from the tort without enforcing the contract.
*** Chapter Outcome ***
Distinguish between the legal capacity of a person under guardianship and
a mentally incompetent person who is not under guardianship.
B. INCOMPETENT PERSONS
Person Under Guardianship
Contracts made by a person placed under guardianship by court order are
void. A party dealing with an individual under guardianship may be able to
recover the fair value of any necessaries provided.
Mental Illness or Defect
A contract entered into by a mentally incompetent person (one who is
unable to understand the nature and consequences of his acts) is voidable.
Some states and the Restatement also recognize mental incompetence if
*** Chapter Outcome ***
Explain the rule governing an intoxicated person’s capacity to enter into a contract and
contrast this rule with the law governing minors and incompetent persons.
C. INTOXICATED PERSONS
A contract entered into by an intoxicated person is voidable if the
unintoxicated party has reason to know that, because of intoxication, the
other person is unable to understand the nature and consequences of his
actions or is unable to act in a reasonable manner. Like incompetent
persons, intoxicated persons are liable in quasi contract for necessaries
furnished during their incapacity.
CASE 14-4
FIRST STATE BANK OF SINAI v. HYLAND
Henderson, J.
[Randy Hyland, unable to pay two promissory notes due September 19, 1981, negotiated
with The First State Bank of Sinai (Bank) for an extension. The Bank agreed on the
condition that Randy’s father, Mervin, act as cosigner. Mervin, a good customer of the
Bank, had executed and paid on time over sixty promissory notes within a seven-year
period. Accordingly, the Bank drafted a new promissory note with an April 20, 1982, due
date, which Randy took home for Mervin to sign. On April 20, 1982, the new note was
unpaid. Randy, on May 5, 1982, brought the Bank a check signed by Mervin to cover the
interest owed on the unpaid note and asked for another extension. The Bank agreed to a
second extension, again on the condition that Mervin act as cosigner. Mervin, however,
refused to sign the last note; and Randy subsequently declared bankruptcy. The Bank sued
Mervin on December 19, 1982. Mervin responded that he was not liable since he had been
incapacitated by liquor at the time he signed the note. He had been drinking heavily
throughout this period, and in fact had been involuntarily committed to an alcoholism
Mervin had numerous and prolonged problems stemming from his inability to handle
alcohol. However, he was not judicially declared incompetent during the note’s signing.
* * *
Contractual obligations incurred by intoxicated persons may be voidable. [Citation.]
Voidable contracts (contracts other than those entered into following a judicial
determination of incapacity) * * * may be rescinded by the previously disabled party.
[Citation.] However, disaffirmance must be prompt, upon the recovery of the intoxicated
party’s mental abilities, and upon his notice of the agreement, if he had forgotten it.
[Citation.] * * *
A voidable contract may also be ratified by the party who had contracted while
disabled. Upon ratification, the contract becomes a fully valid legal obligation. [Citation.]
Ratification can either be express or implied by conduct. [Citations.] In addition, failure of
a party to disaffirm a contract over a period of time may, by itself, ripen into a ratification,
especially if rescission will result in prejudice to the other party. [Citations.]
Mervin received both verbal notice from Randy and written notice from Bank on or
about April 27, 1982, that the note was overdue. On May 5, 1982, Mervin paid the interest
* * *
We conclude that Mervin’s obligation to Bank is not void. * * * Mervin’s obligation on
the note was voidable and his subsequent failure to disaffirm (lack of rescission) and his
payment of interest (ratification) then transformed the voidable contract into one that is
fully binding upon him.
We reverse and remand.
NOTE: See Figure 14-1 for the voidability of contracts by persons lacking contractual capacity