If a father tells his daughter he will pay her law school tuition, and she accordingly matriculates and completes her studies, and the father then repudiates, saying he lied, does the daughter have legal recourse against the father? That is the supposed real-life situation reported over at Above the Law, commenting on the anonymous daughter’s query to Slate’s Dear Prudence. The latter, in turn, says she consulted Prof. Randy Barnett of Georgetown, who reportedly opined that the daughter would have no claim. I am not so sure.
The case reminded me of Zimmerman v. Zimmerman,* where a daughter sued her father to recover college tuition incurred (to attend Adelphi University) and future law school tuition to be incurred. A New York state appellate court suggested four alternative routes for a daughter to recover tuition bills already incurred (though rejecting all claims for future tuition): contract, promissory estoppel, maintenance & support, or fraudulent representation.
The contract claim failed in Zimmerman, however, as the promised performance would extend beyond one year, putting it within the statute of frauds. In New York, as in most states, that requires such a promise to be in writing. Prudence reports that this was the same conclusion Prof. Barnett reached, as this father’s promise was not memorialized in writing either.
But the Zimmerman court upheld the daughter’s claim under promissory estoppel, which took the case out of the statute of frauds. A writing was required if the daughter had also contractually committed to complete college. But the jury found that the father made his promise without any return promise from the daughter. So the father had the right to terminate his obligations upon reasonable notice. Under that view of the case, which is by no means inevitable in promissory estoppel cases, his promise was capable of performance within one year and therefore no writing was required.
A concurring judge in Zimmerman, not eager to embrace those two rationales, supposed that the father’s promise to cover his daughter’s college tuition might have reflected his acceptance of his duty to provide her maintenance and support (citing Matter of Roe v. Doe, 29 N.Y.2d 188). If so, the daughter’s obligation to Adelphi was his obligation to Adelphi. Even if college tuition is part of such parental obligations, however, the Dear Prudence case concerns law school, almost certainly outside that ambit.
But perhaps the most compelling theory of recovery is one the dissent in Zimmerman picked up on as an alternative to contract, which is the tort of fraudulent misrepresentation. If the Dear Prudence father is to be believed today that his promise was a lie, then this theory is a strong one, though the dissent in Zimmerman rejected both this tort route to recovery as well as the other grounds.
Prof. Barnett reportedly told Dear Prudence that the daughter might threaten suit to induce a settlement. I would not give that advice if I also concluded that the suit would be frivolous. But based on Zimmerman, I think there is a credible basis for suit. Were I a litigator rather than a deal lawyer, I might even take the case on a contingency basis.
* 86 A.D. 525, 447 N.Y.S.2d 675 (1st Dept. 1982).