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Creech v. Melnik12/4/2001
r, because a minor lacks legal capacity there cannot be a valid contract in most transactions, unless it is for necessaries or the statutes make the contract valid. See Nationwide Mutual Ins. Co. v. Chantos, 293 N.C. at 443, 238 S.E.2d at 605.
Therefore, courts have "inherent authority over the property of infants and will exercise this jurisdiction whenever necessary to preserve and protect children's estates and interests. The court looks closely into contracts or settlements materially affecting the rights of infants [.]" Sigmund Sternberger Foundation, Inc. v. Tannenbaum, 273 N.C. 658, 674, 161 S.E.2d 116, 128 (1968). Thus, in addressing the impropriety of a covenant not to sue on behalf of a minor, our Supreme Court in Sell v. Hotchkiss, 264 N.C. 185, 191, 141 S.E.2d 259, 264 (1965), stated:
Although this point was not addressed in the briefs, we note that, irrespective of what construction is put on the covenant signed by Marguerite M. Hotchkiss, mother and natural guardian of plaintiff Barbara Sell, minor, defendant could not use it as a defense to the minor's suit against such a covenant as the one we have here. The settlement of an infant's tort claim became effective and binding upon him only upon judicial examination and adjudication. Id. (citations omitted); see also, Gillikin v. Gillikin, 252 N.C. 1, 113 S.E.2d 38 (1960) (holding that a minor could not be bound by a compromise or settlement of his personal injury claim except in a manner provided by law); Payseur v. Rudisill, 15 N.C. App. 57, 63, 189 S.E.2d 562, 566 (holding that "the settlement of a minor's tort claim becom s effective and binding upon him only upon judicial examination and adjudication"), cert. denied, 281 N.C. 758, 191 S.E.2d 356 (1972); In re Reynolds Guardianship, 206 N.C. 276, 173 S. E. 789, 795 (1934) (holding that "In the case of infant parties, the next friend, guardian ad litem, or guardian cannot consent to a judgment or compromise without the investigation and approval by the Court.").
In the present case, neither the record on appeal nor the brief on behalf of Dr. Melnik points to any evidence showing that the alleged implied contract on behalf of the minor was reviewed or approved by the trial court. Since it is well established in North Carolina that a covenant not to sue negotiated for a minor is invalid without investigation and approval by the trial court, we must reverse the jury's finding of a contract on behalf of the minor not to sue Dr. Melnik, and remand for a new trial.
Reversed and remanded.
Judges TIMMONS-GOODSON and HUDSON concur.
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