The Virginia Court of Appeals issued an important ruling the other year that spells out the burden of proof that a plaintiff has when seeking to utilize the alternative-pleading model of Hunter v. Hunter, 298 Va. 414 (2020). Full disclosure: I litigated Hunter v. Hunter (“Hunter I”) before the Virginia Supreme Court in 2020, and I also litigated this case before the Court of Appeals in 2023. The case styling is Hunter v. Hunter, 77 Va. App. 468 (2023). I’ll refer to it here as “Hunter II.”
In Hunter II, the Court of Appeals examined a case where the plaintiff used the alternative-pleading model to bring a multiple-count complaint surrounding allegedly improper gifts. The trust at issue contained a no-contest clause, so the plaintiff utilized the alternative-pleading framework of Hunter I to first seek a ruling as to whether the later counts would fall within the scope of the no-contest clause. At the trial on Count I of the complaint (the count that sought a declaratory judgment as to whether the later counts would fall within the scope of the no contest clause), the plaintiff offered into evidence a copy of the complaint and then argued that it did not fall within the scope of the no contest clause. The defendant argued that the plaintiff needed to present evidence in support of the allegations in the complaint in order to obtain a declaratory judgment that those allegations, if true, would not violate the no-contest clause.
The trial court agreed with the plaintiff and found that the complaint would not fall within the scope of the no-contest clause. On appeal in Hunter II, the Court of Appeals agreed. The Court of Appeals held:
We disagree with [Defendant] that [Plaintiff] was required to present evidence in support of the allegations in the complaint in order to obtain a declaratory judgment that those allegations, if true, would not violate the no-contest provision. [Plaintiff’s] Exhibit 1 [the complaint] provided the trial court with sufficient information to rule on Count I. To determine whether the complaint, on its face, violated the no-contest clause, the trial court needed only to compare the two documents. [Plaintiff] provided both, satisfying his burden of production.
Id. at 480. The Virginia Supreme Court later denied the defendant’s petition for an appeal to review the decision of the Court of Appeals.
The ruling in Hunter II is a very helpful one, as now attorneys have certainty about the evidence that needs to be presented for the trial court to rule on the first part of a complaint brought under the alternative-pleading model of Hunter I.
