Zelnick v. Adams

PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ.

ROBERT J. ZELNICK
OPINION BY
v. Record No. 040916 JUSTICE G. STEVEN AGEE
January 14, 2005
JONATHAN RAY ADAMS

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Thomas A. Fortkort, Judge Designate

In Zelnick v. Adams, 263 Va. 601, 561 S.E.2d 711 (2002),

(Zelnick I), we held that "a contract for legal services is

within the 'general classes of necessaries' that may defeat a

plea of infancy." Id. at 611, 561 S.E.2d at 717. We remanded

the case for further proceedings "on the issue of the factual

determination of necessity 'under all the circumstances.' " Id.

at 612, 561 S.E.2d at 718. The trial court, on remand,

determined the legal services at issue were not " 'necessities'

under all the circumstances of [the] case." For the reasons set

forth below, we will affirm the judgment of the trial court.

I. BACKGROUND

The facts relating to this controversy were thoroughly

stated in Zelnick I. We additionally state here only facts

particularly pertinent to the matters on remand.

"A contract with an infant is not void, only voidable by

the infant upon attaining the age of majority." Id. at 608, 561

S.E.2d at 715 (citation omitted). When a plea of infancy is
timely raised, as in this case, the trial court makes a mixed

inquiry of law and fact to ascertain whether the defense applies

to the case at hand. As we described in Zelnick I, the initial

inquiry of the trial court is a matter of law: "whether the

'things supplied' to the infant under a contract may fall within

the general class of necessaries"? Id. If this first query is

answered in the affirmative, then the trial court proceeds to a

second inquiry on a matter of fact: "whether there is

sufficient evidence to allow the finder of fact to determine

whether the things supplied were in fact necessary in the

instant case." Id.

Should this second inquiry also be answered in the

affirmative, then the trial court must resolve a third query,

also one of fact, which is "whether the 'things supplied' were

actually necessary to the 'position and condition' of the

infant"? Id. Should all three inquiries be answered in the

affirmative, then the plea of infancy is defeated and the infant

is bound "under an implied contract to pay what the goods or

services furnished were reasonably worth." Id.

In Zelnick I, the trial court erroneously answered the

first inquiry in the negative because "a contract for legal

services is within the 'general classes of necessaries' that may

defeat a plea of infancy." Id. at 611, 561 S.E.2d at 717.

Although our decision definitively answered the first inquiry as

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a matter of law, the prior record was without evidence upon

which the trial court could answer the remaining questions of

fact. See Id. at 612, 561 S.E.2d at 717-18. We, therefore,

remanded the case for the taking of such evidence as necessary

to answer those questions. Id., 561 S.E.2d at 718.

Upon remand, Jonathan Ray Adams (Jonathan) contended the

legal services provided for him by Robert J. Zelnick (Zelnick),

under the contract executed for Jonathan by his mother, Mildred

A. Adams (Adams) were not "in fact necessary." Alternatively,

even if Zelnick's legal services were necessary, Jonathan argued

they were not "actually necessary to the 'position and condition

of the infant'" at the time rendered.

Jonathan introduced evidence that he was living a

comfortable lifestyle in a middle class home and was not

"necessitous." He further argued that the suit filed by Zelnick

was not necessary because his status as issue for purposes of

distributions from the trusts of Jonathan's grandfather, Cecil

D. Hylton, Sr. (Mr. Hylton) was settled by a Florida court's

paternity order establishing Cecil D. Hylton, Jr. (Sonny) as his

biological father.

Jonathan also argued that Zelnick's legal services, even if

necessary at some point, were not necessary during the time of

his minority because he had not been consulted with, or asked to

approve, the legal services contract. In addition, Jonathan

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contended no legal action was necessary during his minority

because distributions under the trusts would not be made until

2014 and 2021, long after he was an adult. Accordingly,

Jonathan averred no prejudice could have occurred to him had

Zelnick waited until Jonathan was 18 and obtained his consent

before proceeding with legal action against the trusts.

Further, Jonathan testified the legal proceedings prosecuted by

Zelnick had harmed Jonathan because it exacerbated tensions

between Adams and Sonny thus adversely affecting him.

In response, Zelnick contended the Florida court's

paternity order was not determinative of Jonathan's status under

the trusts. Zelnick argued that reliance on the foreign

judgment was suspect in view of the long-standing hostility

between Adams and Sonny regarding Jonathan and Sonny's

consistent opposition to any recognition or support for him.

Moreover, Zelnick directed the trial court's attention to the

fact that Mr. Hylton's will placed the decision as to Jonathan's

status as issue for purposes of trust distributions within the

purview of the trustees. Despite repeated requests from Adams

and Zelnick, the trustees had not confirmed Jonathan's status

for the purposes of the prospective trust distributions. Adams

also communicated to Zelnick that she feared payments were being

made to some of Mr. Hylton's grandchildren through the trusts

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although there appeared to be no mechanism in the trust to

permit payments at that time.

The trial court initially determined that the Florida

paternity order did not settle Jonathan's status as issue of Mr.

Hylton for purposes of the trust distributions. Jonathan's

position asserting the conclusive effect of the Florida judgment

was "not supported by the evidence." In effect, the trial

court's initial determination was that Zelnick's legal services,

"the things supplied," were in fact necessary because Jonathan

"would be unable to receive a final answer as to whether or not

he would share in his grandfather's estate without court

intervention."

Having determined that Zelnick's legal services were

necessary, the trial court then addressed the final inquiry,

"whether the 'things supplied' were actually necessary to the

'position and condition of the infant.' " Id. at 608, 561

S.E.2d at 715. The trial court answered this query in the

negative, finding that the provision of legal services at the

time provided were not " 'necessities' under all the

circumstances of his case." The trial court set out two primary

grounds for its holding. First, "[t]he delay in litigation for

less than two years would not have compromised Jonathan's

position." Second, that Zelnick failed to consult Jonathan and

obtain his approval before filing suit because "with a minor

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approaching his majority, he is entitled to at least participate

in far-reaching decisions affecting his position and condition

in life unless there is some reason requiring immediate legal

attention." The trial court then entered judgment in favor of

Jonathan sustaining his plea of infancy and denying any recovery

to Zelnick.

Zelnick assigns error to the trial court's judgment on two

grounds. First, Zelnick contends the trial court erred in

finding his legal services "were not actually necessary to the

position and condition of the infant." Second, Zelnick claims

the trial court erred by not fashioning a remedy to award him

compensation. We awarded Zelnick this appeal.

II. STANDARD OF REVIEW

In Zelnick I, our holding that legal services come within

the ambit of necessaries resolved a question of law. We noted,

however, that the second and third determinations to be

addressed in analyzing a plea of infancy were issues of fact.

Id. at 609, 561 S.E.2d at 716. As such, we will reverse the

factual finding of the trial court only if it is plainly wrong

or without evidence to support it. Eure v. Norfolk Shipbuilding

& Drydock Corp., 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002)

(citation omitted). We also give deference to the trial court's

findings of fact and view those findings in the light most

favorable to Jonathan, the prevailing party below. Caplan v.

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Bogard, 264 Va. 219, 225, 563 S.E.2d 719, 722 (2002) (citation

omitted).

III. ANALYSIS

The issues to be resolved by the trial court on remand

relate to two matters of fact: Were Zelnick's legal services

"in fact necessary" to Jonathan, and, if so, were the legal

services "actually necessary" to his "position and condition"?

As noted above, the trial court found that Zelnick's legal

services were "in fact necessary" because Jonathan's status as

issue of Mr. Hylton for purposes of trust distributions would

not have been resolved without legal proceedings to compel a

resolution. This finding is not challenged by Jonathan on

appeal. Our inquiry, therefore, goes only to the final question

of whether Zelnick's legal services were "actually necessary" to

Jonathan's "position and condition." As we indicated in Zelnick

I, the answer to this inquiry "must be determined by

consideration of the circumstances at the time of rendering the

services or providing the things in issue." Zelnick I, 263 Va.

at 611, 561 S.E.2d at 717.1

1
When a plea of infancy is raised, the facts answering the
inquiry into whether the "things supplied" are "necessary" will
often also answer the related question of whether the "things
supplied" are necessary at the time supplied. However, as this
case illustrates, that is not always so. Here, the trial court,
having found Zelnick provided a necessary service, was then
required to separately determine whether that service was

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 The trial court found that Zelnick's services were not

actually necessary to Jonathan when rendered. It is to this

finding that Zelnick specifically assigns error. While we

review a trial court's factual findings under a deferential

standard of review, not overturning the trial court's factual

findings unless plainly wrong or without evidence to support

them, the trial court's ruling on this point is based on a dual

foundation. See Eure, 263 Va. at 631, 561 S.E.2d at 667. One

prong of that foundation is the trial court's determination that

Jonathan had a legal right to be consulted or approve Zelnick's

retainer agreement before it could be effective. The trial

court erred in reaching this conclusion.

Specifically, the trial court erred in ruling that "a minor

approaching his majority . . . is entitled to at least

participate in far reaching decisions affecting his position and

condition in life." Minority is a legal status established by

the legislature. Hurdle v. Prinz, 218 Va. 134, 137, 235 S.E.2d

354, 356 (1977) (citations omitted). That status appends to any

person under the age of eighteen. Code § 1-13.42(a)(1). By

contrast, an adult is "a person eighteen years of age or over."

Code § 1-13.42(a)(3). The law makes a distinction between the

two classes, and by the plain language of the statute, one

actually necessary when rendered in 1997 prior to Jonathan's
attaining adulthood.

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cannot be both a minor and an adult. The terms are mutually

exclusive. See Temple v. Petersburg, 182 Va. 418, 424, 29

S.E.2d 357, 359 (1944). This court has previously drawn a clear

line between minority and majority.

In law there is no "twilight zone" between an infant
ten years of age and an infant on the verge of
maturity.

Strother v. Lynchburg Trust & Sav. Bank, 155 Va. 826, 833, 156

S.E. 426, 428 (1931). While it might be prudent to consult a

minor approaching his majority regarding his view on legal

contracts or proceedings concerning him, an obligation to do so

is not the law of the Commonwealth. Where the General Assembly

desires to mandate consultation with, or the consent of a minor,

it knows how to do so, but has not in this circumstance. See

Code § 16.1-283(G) (allowing a child over 14 years of age to

object to the court's termination of his parents' residual

parental rights). The trial court thus erred, as a matter of

law, in partly basing its decision on a failure of Zelnick to

consult Jonathan or obtain his consent to legal representation.

That error, however, does not resolve Zelnick's assignment

of error as to the trial court's finding of fact which the trial

court states as follows:

In this case, the facts are that the waiting until the
child reached his majority would not have prejudiced
his position in any way and that under the
circumstances of this case the legal services were not
necessities in the factual context of this case.

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 The record amply supports the trial court's determination.

Zelnick filed suit on Jonathan's behalf on May 15, 1997, when

Jonathan was less than a year from attaining status as an adult.

The consent decree establishing Jonathan as Mr. Hylton's

grandchild and issue was entered on January 23, 1998, less than

three months before Jonathan's eighteenth birthday.

Before Zelnick executed the retainer agreement, he obtained

a copy of Mr. Hylton's probated will and reviewed the trust

accountings. Zelnick knew that the distribution dates for the

grandchildren's trusts would be in 2014 and 2021.2 Zelnick

testified that he "read the will over many times" in order to

"make sure [he] had a full understanding of the terms and

conditions and how the will would work." Even though any

interest Jonathan might have had in the trusts would not be

realized for at least 17 years, Zelnick began writing to the

trustees, asking them to acknowledge Jonathan as Mr. Hylton's

grandson and issue for the purposes of trust distributions.

2
Zelnick testified that in deciding to file suit when he
did, he considered the fact that Mr. Hylton had also set up a
trust for his children. If Sonny died before that trust was
disbursed, and Jonathan had already been declared a grandchild
of Mr. Hylton, Jonathan would be able to take as a child of
Sonny's under that separate trust. Zelnick noted that these
trusts had earlier distribution dates than the grandchildren's
trusts. Even had Sonny died at the time Zelnick filed suit,
however, the disbursement date was still somewhat after Jonathan
reached the age of majority.

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 In defending his decision to file suit when he did, Zelnick

makes much of the fact that the trustees did not respond with a

definite acknowledgement of Jonathan as Mr. Hylton's issue. He

testified that Adams "had heard that distributions were being

made from the estate to the other grandchildren," and she was

unable to get any information about Jonathan's status from the

executors or trustees of Mr. Hylton's estate.

However, trustees' counsel did confirm by letter of

December 13, 1996, that the triggering events for any

distributions from Mr. Hylton's trust were "many years in the

future." Trustees' counsel also informed Zelnick that the

trustees had been advised to "carefully evaluate the merits of

[Jonathan's] claim" "as soon as any amount is to be paid to Mr.

Hylton's grandchildren . . . ." Trustees' counsel also

confirmed distributions of the trusts would be made in 2014 and

2021 respectively. On February 19, 1997, trustee's counsel

again replied to Zelnick indicating that the trust was "still in

the process of conducting a due diligence analysis of

[Jonathan's] claim." Nonetheless, Zelnick filed suit on

Jonathan's behalf on May 15,1997, 11 months before Jonathan

became an adult.

"By consideration of the circumstances at the time of

rendering the services," Zelnick I, 263 Va. at 611, 561 S.E.2d

at 717, we agree with the trial court's judgment that delaying

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the suit until Jonathan became 18 "would not have compromised

Jonathan's position." The record does not reflect any advantage

to the legal proceedings before Jonathan turned 18 or that he

would have been disadvantaged by waiting. While the

communications from the trustees' counsel did not confirm

Jonathan's status as Mr. Hylton's grandson, neither was it

denied. In fact, the trustees confirmed Zelnick's understanding

of the trust's provisions that any distribution to Jonathan was

years away, long after he would be an adult. Reliance on these

facts does not constitute the retrospective analysis we

cautioned against in Zelnick I, because these were the

circumstances at the "time of rendering the services or

providing the things in issue" and known to Zelnick. 263 Va. at

611, 561 S.E.2d at 717.

Zelnick's legal action on Jonathan's behalf was not a

necessity to his "position and condition" at the time this

service was rendered. The trial court thus did not err in so

finding because its decision is supported by the record and is

not plainly wrong.3

IV. CONCLUSION

3
Having determined that the trial court correctly sustained
Jonathan's plea of infancy, we do not address Zelnick's second
assignment of error. As we clearly held in Zelnick I: "[S]hould
the trial court upon remand hold that the doctrine of
necessaries does not apply because the evidence adduced does not

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 We find sufficient support in the record for the trial

court's judgment that Zelnick's legal services were not

necessary for Jonathan's position and condition under all the

circumstances. The trial court was thus correct in sustaining

Jonathan's plea of infancy and denying any fee award to Zelnick.

We will accordingly affirm the judgment of the trial court.

Affirmed.

support the claim, the contract is avoided and no award shall be
made." 263 Va. at 612, 561 S.E.2d at 718.

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