Zelnick v. Adams

PRESENT: All the Justices

ROBERT J. ZELNICK
OPINION BY
v. Record No. 011390 JUSTICE DONALD W. LEMONS
April 19, 2002
JONATHAN RAY ADAMS

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

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.

I. 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 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.
Specifically, Fourteenth section of the will provided the

following:

D. . . . I DIRECT that in the case of any
person claiming that a particular
individual was born out of wedlock to a
descendant of mine, and thus is an issue
of mine for purposes of this, my Will, the
decision of my Executors, or, as the case
may be, my Trustees, as to whether such
individual is an “issue” of mine shall be
conclusive and binding and not subject to
question by any person or court.

The will created two separate trusts for Hylton Sr.’s

grandchildren: the First Grandchildren’s Charitable Trust and

the Second Grandchildren’s Charitable Trust (“the trusts”).

Hylton Sr.’s grandchildren and great grandchildren would

potentially receive distributions from the trusts in the years

2014 and 2021.

As subsequent testimony in litigation revealed, the amount

of the potential distributions from the trusts cannot be

determined at this time. This uncertainty is due to the

possibility of a diminishing corpus and the possibility that the

number of beneficiaries could change before the dates of

distributions.

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

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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.

During the meeting, Adams gave Zelnick a copy of the Florida

paternity order.

Adams explained that she could not afford to pay Zelnick’s

hourly fee and requested legal services on her son’s behalf on a

contingency fee basis. At the conclusion of the meeting,

Zelnick told Adams that he was unsure whether he would take the

case, but that he would investigate the matter.

Zelnick next spoke with Adams during a telephone

conversation on July 18, 1996. He informed her that he had

obtained a copy of the will and reviewed it, and that he was

willing to accept the case “to help her have Jonathan declared a

beneficiary of the estate.” Adams went to Zelnick’s office the

next day, July 19, 1996, where Zelnick explained that the gross

amount of the estate was very large. According to Zelnick, he

“wanted to make sure that she had some understanding of the size

of the estate before she entered into this agreement.” He

further explained that, due to the contingency nature of the

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agreement, it was impossible to know the ultimate amount of his

fee. On July 19, 1996, Adams signed a retainer agreement (“the

contract”) for Zelnick’s firm to represent Jonathan on a one-

third contingency fee basis “in his claim against the estate of

Cecil D. Hylton.”

On November 8, 1996, Zelnick sent a letter to the co-

executors of the Estate, wherein he mentioned the Florida

paternity order and demanded that the co-executors “recognize

and acknowledge Jonathan Ray Adams as ‘issue’ and the grandchild

of Cecil D. Hylton, Sr. for purposes of his will and trusts

created thereunder.” After receiving no response to the

November letter, Zelnick sent another letter dated December 9,

1996, making further inquiry. Zelnick received a response from

counsel for the Estate, Howard M. Zaritsky (“Zaritsky”), dated

December 13, 1996. In the letter, Zaritsky outlined the four

trusts created under Hylton Sr.’s will and stated:

The trustees of all four trusts are aware
of your November 8 letter and of the court
order to which you have referred. I have
advised them that, as soon as any amount is to
be paid to Mr. Hylton’s grandchildren, or to
the children of Cecil D. Hylton, Jr., they
should carefully evaluate the merits of your
client’s claim.

Until then, I believe that the matter is
not yet ripe for determination, either by my
clients or by the courts.

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 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. Zelnick

subsequently filed an amended bill of complaint, naming as

defendants all of the potential beneficiaries under 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 benefits under the Last Will and

Testament of Cecil D. Hylton and the trusts created thereunder

that inure to the benefit of the grandchildren and issue of

Cecil D. Hylton.”

In March 1998, Jonathan’s father brought a bill of

complaint for declaratory judgment against Adams and Zelnick, on

Jonathan’s behalf, to have the contract with Zelnick declared

void. Upon reaching the age of majority, Jonathan filed a

petition to intervene, wherein he disaffirmed the contract.

Jonathan was substituted for his father and subsequently filed

an amended bill of complaint for declaratory judgment against

Zelnick, wherein he again disaffirmed the contract and asked

that the trial court declare the contract void.

On April 6, 2000, Jonathan filed a motion for summary

judgment. He asserted that the contract was “void as a matter

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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 contract “because

the matter could have been adjudicated after the majority of

[Jonathan], who was within a few years of his majority at the

time that all of this came out.”

Nonetheless, the trial court held that Zelnick was entitled

to a fee under the theory of quantum meruit. Jonathan objected,

arguing that Zelnick did not affirmatively request such relief

in either of his answers to the bill of complaint. The trial

court heard evidence from Zelnick about the amount of time he

spent on Jonathan’s case and his assessment of the risks

involved. Zelnick testified that he spent approximately 150 to

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200 hours on the case, and that in 1996-1997, his hourly rate

was $200 an hour. At the close of the evidence, the trial court

stated:

The case here involves substantial
amounts of money and a substantial benefit
to this young man. Until he got that
consent decree he was the outsider looking
in on this trust. And while I might have
agreed that a contingent fee may have been
overreaching, I still think that the work
[Zelnick] did was extremely valuable to
this young man and it should be rewarded
at least to some extent.

The trial court entered judgment in favor of Zelnick in the

amount of $60,000, with prejudgment interest as of January 23,

1998, and on March 20, 2001, an order was entered memorializing

the rulings. Both Zelnick and Jonathan have appealed the

judgment of the trial court. Zelnick’s appeal is resolved in

this opinion. Jonathan’s appeal is resolved by order entered

this day.

II. Analysis

In this appeal, Zelnick argues that the trial court erred

in finding that the contract entered into on a minor’s behalf by

his mother was not a contract for necessaries. He further

argues that the trial court erred in finding that the

contingency contract was unreasonable. In response, Jonathan

maintains that the trial court did not err in holding that the

contract was void and was not a contract for necessaries. He

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further argues that the contingent fee contract was “patently

unreasonable.”

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. Mustard v. Wohlford’s Heirs, 56

Va. (15 Gratt.) 329, 337 (1859). 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,

131 Va. 447, 109 S.E. 313 (1921).

In Bear, we explained that when a court is faced with a

defense of infancy, the court has the initial duty to determine,

as a matter of law, whether the “things supplied” to the infant

under a contract may fall within the general class of

necessaries. Id. at 454, 109 S.E. at 316. The court must

further decide 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. If either 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. Id. 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.” Id. If so, the party who provided

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the goods or services to the infant is entitled to the

“reasonable value” of the things furnished. In contracts for

necessaries, an infant is not bound on the express contract, but

rather is bound under an implied contract to pay what the goods

or services furnished were reasonably worth. Id. at 450, 454,

109 S.E. at 314, 316.

“[T]hings supplied,” which fall into the class of

necessaries, include “board, clothing and education.” Gayle v.

Hayes’ Adm’r, 79 Va. 542, 546 (1884). 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.

Wallace v. Leroy, 50 S.E. 243, 244 (W. Va. 1905). See also 5

Williston on Contracts § 9:18 at 149 (Richard A. Lord, ed., 4th

ed. 1993). Williston describes “necessaries” as things

“generally . . . under the broad headings of food, clothing of a

reasonable kind . . . and shelter.” Id. § 9:19 at 159-61.

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 considered

contracts for necessaries. See generally, E.R. Tan, Annotation,

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Infant’s Liability For Services Rendered By Attorney At Law

Under Contract With Him, 13 A.L.R.3d 1251 (1967). “[W]hether

attorney’s services are to be considered necessaries or not

depends on whether or not there is a necessity therefor. If

such necessity exists, the infant may be bound. . . . If there

is no necessity for services, there can be no recovery” for the

services. Fenn v. Hart Dairy Co., 83 S.W.2d 120, 124 (Mo. App.

1935).

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. Statler v. Dodson, 466 S.E.2d 497 (W. Va.

1995). The court held that contracts for legal services by

infants should be regarded as contracts for necessaries in some

instances because “[i]f minors are not required to pay for legal

representation, they will not be able to protect their various

interests.” Id. at 503.

Other states have also broadened the definition of

“necessaries” to include contracts for legal services for the

protection of an infant’s property rights. In Epperson v.

Nugent, 57 Miss. 45 (1879), the Supreme Court of Mississippi

held an infant, without a guardian, liable on a contract for

legal services incurred for the protection of the infant’s

property rights. The court noted that the “liability of an

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infant for necessaries is based on the necessity of his

situation.” Id. at 47. The court further noted that “[w]hat

are ‘necessaries’ . . . depends on circumstances, and each case

must be governed by its own.” Id. Similarly, in Owens v.

Gunther, 86 S.W. 851, 852 (Ark. 1905), the Supreme Court of

Arkansas considered as necessaries the legal services incurred

for the protection of infants’ property rights when the infants’

guardian had an interest adverse to the infants’ interest in the

property.

In determining whether the doctrine of necessaries may be

applied to defeat an attempt to avoid or disaffirm a contract on

the grounds of infancy, the trial court must first determine as

a matter of law if the class of “things supplied” falls within

the “general classes of necessaries.” We hold that a contract

for legal services falls within this class. However, the

inquiry does not end with this determination. 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.” Bear, 131 Va. at 454, 109 S.E. at 316. 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.

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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 provision

of the particular services or things was not actually necessary,

the plea of infancy must be sustained. Where there is a

successful avoidance of the contract, the trial court may not

circumvent the successful plea of infancy by affording a

recovery to the claimant on the theory of quantum meruit.

However, if the plea of infancy is not sustained, the claimant

is not entitled to enforcement of the express contract. Rather,

as we have previously held, “[e]ven in contracts for

necessaries, the infant is not bound on the express contract but

on the implied contract to pay what they are reasonably worth.”

Id. at 450, 109 S.E. at 314.

While the term “quantum meruit” is not used in our prior

cases concerning the necessaries doctrine, it is the measure of

any award when a court has found an implied contract by

application of the necessaries doctrine. We agree with the

Court of Appeals of Kentucky (then the highest appellate court

in that state), in a case dealing with a ward confined in an

asylum for the insane, that “the asylum may recover for

necessaries furnished him on a quantum meruit, just as a

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recovery may be had for necessaries furnished an infant.”

Michaels v. Central Ky. Asylum, 81 S.W. 247, 248 (Ky. 1904). 1

In this case, the final decree provided, in pertinent part,

that “for the reasons stated from the bench, it being the

opinion of the [c]ourt that the contract at issue (which was

made while [Jonathan] was a minor) was not one for necessities

and therefore, was void.” The reasons stated from the bench

were as follows:

[T]o the extent that the contract between
Mr. Zelnick and Ms. Adams is binding upon
the child I rule that it is not. That it
was conducted while he was in his minority
and he’s not bound by that.

* * * *

The [c]ourt doesn’t find that the
doctrine of necessity necessarily applies
because the matter could have been
adjudicated after the majority of the
young man, who was within a few years of
his majority at the time that all of this
came out.
So the [c]ourt therefore finds that
the contract entered into was void. At the
same time the [c]ourt believes in equity,

1
In the companion appeal, Adams v. Zelnick, Record No.
011391 (April 19, 2002), Jonathan argues that Zelnick may not
recover quantum meruit because it was not pled. While it is
generally correct that a party may not recover upon a theory not
pled, see Potts v. Mathieson Aklali Works, 165 Va. 196, 207, 181
S.E. 521, 525 (1935), in this case, quantum meruit is the only
basis for recovery, if any, when a plea of infancy is met with a
claim that necessaries were provided. Consequently, the issue
of quantum meruit was properly before the trial court as a basis
for recovery inherent in a case involving the application of the
necessaries doctrine.

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 that the attorney is entitled to a fee,
and maybe even a very substantial fee.

If the trial court properly determined that the necessaries

doctrine did not apply to this case, then it was error to,

nonetheless, make an award of attorney’s fees on a quantum

meruit basis. However, as more fully developed below, the trial

court erred, on this record, in determining that the doctrine of

necessaries did not apply.

Upon review of the record, we hold that the first 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 second reason stated by the trial court

for holding that the necessaries doctrine did not apply, namely

that “the matter could have been adjudicated after the majority

of the young man,” is a factual determination. We hold that

this determination is plainly wrong and without evidence in this

record to support it.

The factual resolution of whether services or things

provided are necessaries must be determined by consideration of

the circumstances at the time of rendering the services or

providing the things in issue. While vision is often clearer in

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hindsight, it is unfair and inappropriate to impose a

retrospective analytical burden upon the provider of alleged

necessaries to an infant.

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 and should have been delayed until Jonathan

reached the age of majority. 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. As such, the issue was

not before the trial court and no evidence was before the court

upon which the judgment could rest.

Because the trial court erred in its determination, on this

record, on summary judgment, that the doctrine of necessaries

did not apply, we will reverse the judgment of the trial court

and remand for further proceedings, including the taking of

evidence on the issue of the factual determination of necessity

“under all of the circumstances.” Consistent with this opinion,

should the trial court upon remand hold that the doctrine of

necessaries does not apply because the evidence adduced does not

15
support the claim, the contract is avoided and no award shall be

made.

Should the trial court upon remand hold that the evidence

is sufficient to defeat Jonathan’s plea of infancy, the trial

court shall receive evidence of the reasonable value of the

services rendered. If an award is to be made, nothing herein

should be interpreted to preclude the trier of fact from

fashioning an award appropriate to the unique circumstances of

this case, 2 including a contingent award at an appropriate

percentage. Any award, if made by the trial court, must be

fully supported by the evidentiary record and in accordance with

our various opinions concerning an award based upon quantum

meruit. See, e.g., Wood v. Carwile, 231 Va. 320, 343 S.E.2d 346

(1986); see also Hughes v. Cole, 251 Va. 3, 465 S.E.2d 820

(1996).

Reversed and remanded.

2
We note the particular difficulty of making a present award
subject to judgment and execution, where Jonathan’s potential
receipt of distributions, if any, was anticipated by the parties
to be in the years 2014 and 2021.

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