Stanley R. Palowsky, III Versus W. Brandon Cork, Anthony White, Ohc Services, L.L.C. and Alternative Environmental Solutions, Inc.

STANLEY R. PALOWSKY, III NO. 21-CA-435

VERSUS FIFTH CIRCUIT

W. BRANDON CORK, ANTHONY WHITE, COURT OF APPEAL
OHC SERVICES, L.L.C. AND ALTERNATIVE
ENVIRONMENTAL SOLUTIONS, INC. STATE OF LOUISIANA

ON APPEAL FROM THE FOURTH JUDICIAL DISTRICT COURT
PARISH OF OUACHITA, STATE OF LOUISIANA
NO. 13-2059, DIVISION "L"
HONORABLE RONALD D. COX, AD HOC, JUDGE PRESIDING

March 16, 2022

HANS J. LILJEBERG
JUDGE

Panel composed of Judges Robert A. Chaisson,
Stephen J. Windhorst, and Hans J. Liljeberg

REVERSED AND REMANDED
HJL
RAC
SJW

COUNSEL FOR PLAINTIFF/APPELLANT,
STANLEY R. PALOWSKY, III AND ALTERNATIVE ENVIRONMENTAL
SOLUTIONS, INC.
Joseph R. Ward, Jr.
Sedric E. Banks
Stacy R. Palowsky

COUNSEL FOR DEFENDANT/APPELLEE,
ANADARKO PETROLEUM CORPORATION
R. Keith Jarrett
Tiffany D. Davis
Alexander J. Baynham

LILJEBERG, J.

Plaintiffs, Stanley R. Palowsky, III and Alternative Environmental

Solutions, Inc. (“AESI”), appeal the trial court’s judgment granting a summary

judgment motion filed by defendant, Anadarko Petroleum Corporation

(“Anadarko”), and dismissing AESI’s claims for damages against Anadarko, with

prejudice, based on is application of the doctrine of unclean hands.1 Anadarko

alleges that the alleged fraudulent conduct of AESI’s president, W. Brandon Cork,

must be imputed to AESI and therefore, AESI cannot recover against it due to its

unclean hands. In granting the motion, the trial court reasoned that as a matter of

public policy, the unclean hands doctrine permits courts to bar all relief to

plaintiffs who have engaged in unlawful or inequitable conduct with respect to the

matter or transaction at issue.

On appeal, plaintiffs contend the trial court erred by failing to recognize that

the unclean hands doctrine is an equitable doctrine that should only be applied to

claims seeking equitable relief ‒ not to their claims seeking damages resulting

from the defendants alleged fraudulent conduct. Plaintiffs further contend that

applying the unclean hands doctrine violates the provisions of La. C.C. art. 2323,

which requires the determination of fault of all persons contributing to the loss,

even when both the plaintiff and defendant engage in intentional conduct.

Anadarko argues, on the other hand, that the unclean hands doctrine is not and has

never been limited to claims for equitable relief, and cites to cases applying the

unclean hands doctrine to bar claims seeking damages.

1
The judgment at issue was rendered by Judge Ronald D. Cox, who was appointed by the Louisiana Supreme Court
to serve as an ad hoc judge in these proceedings following the recusal of all judges in the Fourth Judicial District
Court for the Parish of Ouachita. According to plaintiffs, they also filed a motion to recuse the entire panel of
judges presiding at the Louisiana Second Circuit Court of Appeals. On July 1, 2021, the Louisiana Supreme Court
entered an order transferring the captioned matter to this Court based on the request of the Second Circuit’s Chief
Judge D. Milton Moore, III.

21-CA-435 1

After conducting an extensive analysis of the jurisprudence addressing the

equitable doctrine of unclean hands, we find the trial court erred by applying the

doctrine to bar AESI’s claims against Anadarko as a matter of law. Louisiana

Supreme Court jurisprudence does not support the extension of this equitable

doctrine to serve as an absolute bar to AESI’s request for damages arising from its

claims for fraud, conspiracy and racketeering. To the contrary, La. C.C. art. 4

instructs courts to apply equitable concepts only when no legislation or custom

exists to govern a situation. The Louisiana Supreme Court declared in Landry v.

Bellanger, 02-1443 (La. 5/20/03), 851 So.2d 943, 954, that La. C.C. art. 2323

mandates the allocation of fault even when the plaintiff and defendant have both

engaged in intentional conduct. Therefore, because legislation exists to address the

situation at hand, we find that even if Cork’s conduct is imputed to AESI, the

conduct would not serve as a bar to recovery as a matter of law, but rather would

be subject to the law of comparative fault.

FACTUAL AND PROCEDURAL BACKGROUND

This matter has an extensive factual and procedural history outlined in detail

in the First Circuit Court of Appeal’s decision in Palowsky v. Cork, 19-148 (La.

App. 1 Cir. 5/20/20), 304 So.3d 867. We provide a brief overview of the

underlying facts and procedural history. AESI was a corporation engaged in

environmental remediation services. Palowsky and defendant, W. Brandon Cork,

were each fifty percent (50%) shareholders of AESI, and Cork served as president

of the corporation. Anadarko, a company engaged in oil and gas exploration and

production, contracted with AESI to remediate a site located in Wyoming through

a process referred to as soil shredding, which involves treating and replacing

contaminated soil. AESI engaged defendant subcontractor, OHC Services, LLC

(“OHC”), to work on the site in Wyoming. OHC further subcontracted with

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defendant, TP Environmental and Pipeline Services, LLC (“TP Environmental”),

to assist in providing the remediation services.

Palowsky originally filed this matter as a shareholder derivative action on

behalf of AESI against Cork, and also filed claims against OHC, and its managing

member, Anthony White. Palowsky alleged that in 2012, he discovered that Cork

and other named defendants were engaged in a fraudulent conspiracy to overbill

Anadarko for environmental work and skim money from the project. He alleged

that Cork used the money he received from the scheme to fund a separate company

he formed with White to compete against AESI. Palowsky alleged that as a result

of the fraudulent scheme, Anadarko removed AESI from ongoing and future

remediation projects and caused AESI great financial loss. In a second

supplemental and amending petition, Palowsky added TP Environmental and its

employee/officer, Michael L. Holder, as defendants.

In a third supplemental and amending petition, Palowsky added AESI as a

plaintiff, and also added Anadarko and its employee, Dana E. Howard, as

defendants. Plaintiffs alleged that Howard was involved in the fraudulent scheme

and asserted claims for conspiracy to commit fraud, racketeering, and aiding and

abetting defendants in committing fraud, intentional breach of fiduciary duty and

racketeering. Plaintiffs alleged that Anadarko was vicariously liable for Howard’s

actions.

Anadarko filed an exception of no cause of action alleging that plaintiffs

could not establish vicarious liability and opposed plaintiffs’ request for leave to

file a fourth supplemental and amending petition to add additional claims against

Anadarko. The trial court sustained the exception and denied plaintiffs leave to

amend. In Palowsky, supra, the First Circuit affirmed the trial court’s judgment

sustaining the exception of no cause of action and prohibiting plaintiffs from

adding new causes of action against Anadarko, but granted plaintiffs leave to

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amend their petition to allege additional facts “demonstrating how Howard’s

actions were in Anadarko’s interest or benefitted Anadarko” in order to state a

cause of action for vicarious liability against Anadarko. Id. at 876.

In their fourth supplemental and amending petition, plaintiffs added facts

alleging that Anadarko conspired with other named defendants and agreed to allow

them to overbill Anadarko for environmental remediation services in exchange for

their agreement to provide reports which understated the expected costs Anadarko

would incur for future oilfield remediation liabilities. Plaintiffs allege that these

reports allowed Anadarko to reduce its remediation liabilities on its balance sheet

and, in turn, to artificially inflate its stock price.

In response, Anadarko then filed the motion for partial summary judgment at

issue before this Court, which sought to dismiss AESI’s claims against it based on

the doctrine of unclean hands. In its motion, Anadarko argued that it disputed

plaintiffs’ allegations. However, for the purposes of its request for summary

judgment, Anadarko argued that even if the facts alleged in plaintiffs’ fourth

supplemental and amending petition were accepted as true, the doctrine of unclean

hands barred AESI’s claims because Cork’s conduct should be imputed to AESI

due to his position as a member and officer of AESI. Anadarko further argued that

as a co-conspirator, AESI could not bring actions for fraud and racketeering

because AESI took part in the fraudulent scheme. In their opposition, plaintiffs

argued that the equitable doctrine of unclean hands did not bar AESI’s claims for

damages because the doctrine only applies when a party seeks equitable relief.

Plaintiffs also argued that Cork’s conduct should not be imputed to AESI because

AESI did not benefit from his actions.

The trial court held oral argument of November 23, 2020, and took the

matter under advisement. On December 3, 2020, the trial court rendered a

judgment which granted Anadarko’s summary judgment motion and dismissed

21-CA-435 4

AESI’s claims against Anadarko, with prejudice. The trial court also certified the

judgment as final and immediately appealable.2 The trial court incorporated

written reasons into its judgment and found Cork’s involvement in the fraudulent

scheme must be imputed to AESI due to his position as a member and officer of

the corporation.3 As a result, the trial court concluded that the doctrine of unclean

hands precluded AESI from recovering against Anadarko. The trial court’s

written reasons did not discuss or analyze plaintiffs’ legal argument that the

doctrine of unclean hands only applies to claims for equitable relief.

On January 28, 2021, plaintiffs filed a timely notice of appeal, which the

trial court granted on February 1, 2021.

LAW AND DISCUSSION

Plaintiffs raise the following assignments of error on appeal:

1) The trial court erred by applying the equitable doctrine of unclean
hands to this case in which no equitable relief is sought.

2) The trial court erred by imputing Cork’s acts to AESI, thereby
finding that AESI had unclean hands and dismissing its claims.

3) The trial court erred by finding that “extensive” discovery had been
done “over years” and granting Anadarko’s premature motion.

4) The trial court erred by find that there were no genuine issues of
material fact and granting Anadarko’s motion.

Appellate courts review the granting of a summary judgment de novo under

the same criteria governing the trial court’s consideration of whether summary

judgment is appropriate. Ross v. C. Adams Const. & Design, LLC, 10-852 (La.

App. 5 Cir. 6/14/11), 70 So.3d 949, 951. A motion for summary judgment shall be

granted if the motion, memorandum, and supporting documents show there is no

2
It does not appear that it was necessary for the trial court to designate the judgment as final pursuant to La. C.C.P.
art. 1915(B). According to the record, the judgment resolved all claims existing between AESI and Anadarko and
therefore, was final as a matter of law pursuant to La. C.C.P. art. 1915(A)(1).
3
Both the current version (effective August 1, 2021), and prior version of La. C.C.P. art. 1918 in effect at the time
the trial court entered its judgment, provide that written reasons for judgment “shall be set out in an opinion
separate from the judgment.” [Emphasis added.]

21-CA-435 5

genuine issue as to material fact and the mover is entitled to judgment as a matter

of law. La. C.C.P. art. 966(A)(3).

We begin with an analysis of whether, as a matter of law, the trial court

properly applied the doctrine of unclean hands, also referred to as the “clean

hands” doctrine, in this matter.4 Plaintiffs contend that this doctrine is limited to

claims for equitable relief, which they do not seek. Anadarko argues, on the other

hand, that Louisiana courts have never limited the doctrine of unclean hands to

equitable claims.

In its brief discussion of the doctrine, the trial court claimed that “the

Louisiana Supreme Court recognized the importance this doctrine has in the

protection of public policy” and quoted the following from a 1928 Louisiana

Supreme Court case, Rhodes v. Miller, 179 So. 430, 432 (La. 1938): “[t]he courts

recognize the rule that every suitor who seeks relief at their hands must himself be

free from any unlawful or inequitable conduct with respect to the matter or

transaction in question.” The trial court, however, excluded the following

sentence, wherein the Supreme Court stated: “[t]his rule is known in equity as the

rule of ‘clean hands.’” Id. [Emphasis added.]

In Rhodes, the plaintiff did not seek damages, but rather sought to annul his

marriage with the defendant based on a former provision in the Louisiana Civil

Code (La. C.C. art. 161), that at that time, prohibited a divorced person from

marrying the individual with whom he or she committed adultery under the penalty

of nullity of the new marriage. The trial court granted the judgment to annul the

marriage and the defendant appealed. The plaintiff and defendant in Rhodes

engaged in an affair during the plaintiff’s prior marriage and the plaintiff’s first

4
Though they do not assign it as a specific assignment of error, plaintiffs also argue that the trial court erred in
considering the unclean hands doctrine because Anadarko did not file an answer raising the doctrine as an
affirmative defense in response to plaintiffs’ fourth supplemental and amending petition. We find that this argument
is without merit as La. C.C.P. art. 966(A)(1) does not require a defendant to file an answer prior to filing a motion
for summary judgment: “A plaintiff’s motion may be filed at any time after the answer has been filed. A
defendant’s motion may be filed at any time.”

21-CA-435 6

wife obtained a divorce based on adultery. The plaintiff and defendant then went

to Chicago to get married to avoid the law prohibiting their marriage. Plaintiff

later filed an action in Louisiana seeking to annul his marriage to the defendant as

an absolute nullity based on former Article 161. The defendant argued on appeal

that the Supreme Court should deny the request to annul the marriage based on its

application of “the rule of equity that courts will not relieve a litigant who appeals

for relief with unclean hands.” Id. at 431. The Supreme Court declined to apply

the doctrine finding that the governing law rendered the marriage an absolute

nullity and concluded that the object of a prohibitory law could not “be defeated by

estoppel.” Id. at 434.

La. C.C. art. 4, which provides that a court should proceed “according to

equity” only “[w]hen no rule for a particular situation can be derived from

legislation or custom,” would still dictate the same conclusion today. In other

words, when legislation exists to address the subject at hand, courts may not resort

to equitable concepts to reach a decision. See Bossier Parish School Bd. v. Pioneer

Credit Recovery, 49,525 (La. App. 2 Cir. 1/14/15), 161 So.3d 1007, 1009; H&E

Equipment Services, Inc. v. Sugar & Power International, LLC, 16-1070 (La. App.

1 Cir. 2/17/17), 215 So.3d 446, 450.

In City of New Orleans v. Levy, 98 So.2d 210 (La. 1957), the Supreme Court

reversed the trial court’s judgment and applied the doctrine of unclean hands to

deny an equitable claim seeking a mandatory injunction sought by the City of New

Orleans.5 In its reasoning, the court repeatedly emphasized that the doctrine

applied to parties seeking equitable relief:

Relative to the latter instance of discriminatory acts referred to
above, it is axiomatic that while a court of equity endeavors to
promote and enforce justice, good faith, uprightness, fairness, and

5
Injunctive relief is an equitable remedy available to a plaintiff without an adequate remedy at law. See Deer
Slayers, Inc. v. Louisiana Motel and Inv. Corp., 434 So.2d 1183, 1188 (La. App. 1 st Cir. 1983), writ denied, 440
So.2d 151 (La. 1983); Coxe Property Management and Leasing v. City of New Orleans, 19-911 (La. App. 4 Cir.
4/8/20), 294 So.3d 1098, 1107.

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conscientiousness on the part of the parties who occupy a defensive
position in judicial controversies, it no less stringently demands the
same from the litigants who come before it as plaintiffs in such
controversies. This fundamental principle is expressed in the maxim:
‘He who comes into a court of equity must come with clean hands.’
This doctrine universally affects the entire administration of equity
jurisprudence as a system of remedies and remedial rights.

It is likewise fundamental that equity imperatively demands of
suitors in its courts fair dealing and righteous conduct with reference
to the matters concerning which they seek relief. One who has
resorted to injustice, unfairness and unrighteous dealing, which it is
the purpose of courts of equity to suppress, will appeal in vain, even
though in his wrongdoing he may have kept himself strictly within the
law. Manifestly, under this maxim any act which would be
condemned and pronounced wrongful by honest and fair-minded men
must be held sufficient to make the hands of one who seeks equity
unclean. [Emphasis added.]

Id. at 218.

Following these decisions, the Louisiana Supreme Court in Poole v. Guste,

262 So.2d 339, 344-45 (La. 1972), questioned the application of the “common-

law” doctrine of unclean hands in Louisiana’s civil law system:

The defendant Gustes further contend that, even if the Poole property
is due a servitude of drain by the Guste estate, the plaintiff Pooles are
not entitled to the equitable remedy of injunctive relief. The
defendants' argument is based upon limitations to the remedy of
equity recognized in common-law jurisdictions, based on the
historical use in them of injunctions by the chancery court where the
damage-remedy in the regular courts was inadequate. Cf. James, Civil
Procedure, Section 1.4 (1965). These doctrines are not necessarily
applicable to Louisiana, with its different civilian procedural
background, and where the injunction has historically been recognized
as a remedy available to protect possession of property, cf.
La.C.Civ.P. Art. 3663(2), including (see cases previously cited) the
continued use of a servitude of drain over another's land.

The Poole court further observed that, though it referred to the

doctrine of unclean hands in Rhodes, supra, the court nevertheless held that

the plaintiff’s wrongful conduct did not bar his suit to annul his marriage.

Id. at 345, fn. 16. It further reasoned that in City of New Orleans v. Levy,

supra, it simply held “that courts will not sanction unjust and illegal

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discriminatory enforcement of zoning (Vieux Carre) ordinances and will, in

those cases, refuse misuse of injunctions.” Id.

Since Poole, the Louisiana Supreme Court has applied the doctrine of

unclean hands, but continues to recognize the doctrine as a defense to claims

seeking equitable relief. In City of New Orleans v. Board of Directors of

Louisiana State Museum, 98-1170 (La. 3/2/99), 739 So.2d 748, 759, the Supreme

Court reversed the appellate court’s ruling and reinstated the trial court’s judgment

finding that the plaintiff was not entitled to a mandatory injunction. The court

recognized that a “party who seeks equitable relief, must not be pari delicto; that

is, he himself must be free from any unlawful or inequitable conduct with respect

to the matter or transaction in question.” Id. [Emphasis added.]

More recently, in Cimarex Energy Co. v. Mauboules, 09-1170, 09-1180, 09-

1194 (La. 4/9/10), 40 So.3d 931, 945, the Supreme Court quoted the language cited

above from City of New Orleans v. Levy, supra, regarding the equitable nature of

the unclean hands doctrine and declined to find that the plaintiff violated the clean

hands doctrine, or otherwise acted in bad faith, in invoking a concursus

proceeding. Louisiana courts recognize that the “purpose of the concursus

proceeding is equitable in nature, meaning to protect a person finding himself in

possession of money which is not his from having to referee the rights of rival

claimants and risk paying same to the wrong party.” Bank of Sunset & Trust Co. v.

Charlot, 614 So.2d 1386, 1388 (La. App. 3rd Cir. 1993).

We also recognize that the Supreme Court recently cited to the “clean

hands” doctrine in Maroulis v. Entergy Louisiana, LLC, 21-384 (La. 6/8/21), 317

So.3d 316, in the context of the application of La. C.C. art. 2033. This article

provides in pertinent part that “[a]n absolutely null contract, or a relatively null

contract that has been declared null by the court, is deemed never to have existed.

... Nevertheless, a performance rendered under a contract that is absolutely null

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because its object or its cause is illicit or immoral may not be recovered by a party

who knew or should have known of the defect that makes the contract null.”

Revision Comment (c) to La. C.C. art. 2033 explains that “[t]his conclusion flows

naturally from the principle expressed in the traditional Roman maxim, nemo

propriam turpitudinem allegare potest (no one may invoke his own turpitude),

sometimes called the ‘clean hands’ doctrine. ...” Therefore, the “clean hands”

doctrine discussed in Maroulis, is not the equitable defense at issue in the present

matter, but rather the law codified in La. C.C. art. 2033, applicable to absolutely

null contracts. Plaintiffs have not alleged a breach of contract claim against

Anadarko and Anadarko does not cite to the language in La. C.C. art. 2033 as the

basis for its unclean hands defense.6

Based on the foregoing, we do not find that the Louisiana Supreme Court

has applied, or signaled an intent to apply, the equitable doctrine of unclean hands

to causes of action such as the tort claims for damages currently at issue before this

Court.7

We observe that Louisiana appellate courts directly addressing the legal

issue before this Court have recognized that the unclean hands doctrine is an

equitable concept and only applies in situations where no legislation governs the

subject matter. In H&E Equipment Services, Inc. v. Sugar & Power International,

LLC, 16-1070 (La. App. 1 Cir. 2/17/17), 215 So.3d 446, 450, the First Circuit

6
Defendants also cite to a Third Circuit case, Guilbeau v. Domingues, 14-328 (La. App. 3 Cir. 10/1/14), 149 So.3d
825, 829, writ denied, 14-2283 (La. 1/16/15), 157 So.3d 1132, for its statement that “the clean hands doctrine is
‘alive and well in Louisiana’ and prevents a litigant from maintaining an action if he must rely, even partially, on his
own illicit or immoral act to establish a cause of action.” However, defendants fail to discuss that the Third Circuit
made this statement in the context of its analysis of La. C.C. art. 2033. The plaintiff in Guilbeau admitted that she
transferred stock to the defendant to protect the stock from her potential creditors. When the defendant refused to
return the stock, the plaintiff sued to be declared owner of the stock. The appellate court found that the “transfer of
her stock was for an illicit and immoral purpose – to shield her assets from her anticipated creditors – and that the
purpose had been achieved.” Id. at 830. Therefore, the court held that “the application of La.Civ.Code art. 2033,
the doctrine of ‘unclean hands,’ is appropriate in this case,” and concluded that the plaintiff could not reclaim her
stock. Id.
7
We further observe that a Louisiana federal court recently recognized that the unclean hands doctrine only applies
as a defense to claims for equitable relief under Louisiana law. See F&M Mafco, Inc. v. Ocean Marine Contractors,
LLC, 434 F.Supp.3d 428, 435, fn.6 (E.D. La. 2020) (“[The unclean hands] doctrine is a defense only to equitable
claims. . . ECapital’s claims are legal ‒ not equitable. So, the unclean doctrine does not apply.”)

21-CA-435 10

refused to apply the doctrine of unclean hands to bar the plaintiff’s claims because

it was not seeking a remedy in equity, but rather seeking relief based on the law of

contract. The court reasoned that the “equitable doctrine of clean hands,

sometimes referred to as ‘unclean hands,’ mandates that ‘[h]e who comes into a

court of equity must come with clean hands.’” Id., citing Cimarex, supra. The

First Circuit further explained that pursuant to La. C.C. art. 4, courts may resort to

equity only when “no rule for a particular situation can be derived from legislation

or custom.” Id; see also Bossier, 161 So.3d at 1009 (finding the unclean hands

doctrine did not apply because the existence of positive law on the subject

precluded the application of equitable concepts).

While this Court has not directly addressed the legal issue of whether the

doctrine of unclean hands applies to claims other than those seeking equitable

relief, we have recognized that the doctrine is a rule “known in equity” in Pannagl

v. Kelly, 13-823 (La. App. 5 Cir. 5/14/14), 142 So.3d 70, 76-77. In Pannagl, the

plaintiff sued the defendant to recover funds owed on a promissory note and the

defendant asserted numerous affirmative defenses in an attempt to bar the

plaintiff’s recovery, including a defense based on the unclean hands doctrine. This

Court recognized that the unclean hands doctrine only applies when the alleged

fraud relates to the transaction being asserted as a claim or defense. Id. at 76-77,

citing United Financial Services of Baton Rouge, Inc. v. Guste, 555 So.2d 561, 565

(La. App. 1st Cir. 1989).8 This Court declined to apply the doctrine because the

plaintiff’s alleged fraudulent conduct arose from his efforts to hide assets from his

former wife as part of their community property litigation and did not relate to the

8
United, supra, involved claims for injunctive and declaratory relief to stop the release of the plaintiff’s financial
records by state agencies. The defendants argued that the plaintiff engaged in fraudulent conduct and that pursuant
to the doctrine of unclean hands, the plaintiff did not have a right to stop the disclosure of its records. In addition to
finding that the unclean hands doctrine did not apply because the alleged fraudulent conduct did not relate to the
release of the records, the United court also determined that existing legislation prohibited the disclosure of the
records and the doctrine of unclean hands could not be used to impair the force and effect of the applicable law. Id.
at 565.

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transaction at issue, the promissory note. Id. at 77. The parties did not raise and

therefore, this Court did not address, the legal issue of whether the doctrine of

unclean hands should apply to a suit seeking to recover funds due under a

promissory note.

In support of its argument that the unclean hands doctrine is not limited to

claims seeking equitable relief, Anadarko relies on three Louisiana appellate cases

that applied the doctrine to bar the plaintiff’s claims seeking damages. See Cole v.

Mitchell, 46,546 (La. App. 2 Cir. 9/2/11), 73 So.3d 452, writ denied, 11-2319 (La.

12/16/11), 76 So.3d 1205, Allvend, Inc. v. Payphone Commissions Co., Inc., 00-

661 (La. App. 4 Cir. 5/23/01), 804 So.2d 27, and Guillie v. Comprehensive

Addiction Programs, 98-2605 (La. App. 4 Cir. 4/21/99), 735 So.2d 775.9 As

illustrated more fully below, while these cases cite to the unclean hands doctrine,

they do not consider or analyze the legal issue of whether the doctrine should serve

as a basis to bar tort-based claims seeking relief in the form of damages.

First, in Cole, supra, the First Circuit cited to the unclean hands doctrine, but

ultimately dismissed the plaintiff’s claims on causation grounds. The plaintiff was

a trustee for a foundation and fraudulently transferred property and mineral rights

from the foundation to himself without paying consideration. After he pleaded

guilty to criminal charges arising from the fraudulent transfers, the trustee sued his

attorney and the attorney’s malpractice insurer alleging that the attorney committed

legal malpractice by failing to advise him against self-dealing. The defendants

filed a motion for summary judgment seeking the dismissal of the plaintiff’s

claims, which the trial court denied. The Cole court reversed the trial court’s

decision and granted the summary judgment motion based on its finding that the

9
The trial court and Anadarko also cite to Lakewood Prop. Owner’s Ass’n v. Smith, 14-1376, 15-178 (La. App. 4
Cir. 12/23/15), 183 So.3d 780, writ denied, 16-138 (La. 2/26/16), 187 So.3d 469. However, the Lakewood case
involved a request by the plaintiff for equitable relief in the form of an injunction.

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plaintiff’s illegal conduct was the cause of his damages, “and not the result of [the

plaintiff’s attorney] failing to advise [him] of the prohibitions against self-dealing

. . . . ” Id. at 457.

In reaching this decision, the Cole court first found that the plaintiff was

estopped from arguing he did not have the intent to commit fraud in the legal

malpractice proceedings, because he admitted to fraudulent intent in his criminal

proceedings. Id. at 456. Based on this finding, the Cole court reasoned that

“[o]nce the intent to defraud is shown, then [the plaintiff] cannot prove that his

attorney’s advice, whatever it may have been, caused his subsequent damages.

Therefore, there are no remaining material issues of fact.” Id. The Cole court

went on to discuss the “common law doctrine of in pari delicto, a corollary of the

‘unclean hands doctrine’” as a “mechanism by which a plaintiff is precluded from

recovery as a result of plaintiff’s own participation in the tortious conduct.” Id. at

457. It also cited to the Supreme Court’s discussion of the “clean hands” doctrine

in Rhodes, supra. Though the Cole court mentioned the concept of unclean hands

and recognized that the plaintiff would be estopped from recovering damages as a

result of his fraudulent conduct, it repeatedly addressed the issues before it in terms

of causation by declaring that the plaintiff’s alleged damages were the “direct

result of his guilty plea and sentence” and “the direct result of his specifically

intended and knowingly created scheme to defraud.” Id. at 456-57. Therefore,

despite its discussion of the unclean hands doctrine, the Cole court ultimately

granted the summary judgment motion based on its finding that the plaintiff could

not prove his attorney’s advice caused his damages. Id.

Anadarko also relies heavily on the Fourth Circuit’s decision in Allvend,

supra.10 The appellate court in Allvend reversed the trial court’s judgment and

10
The trial court also cited to Allvend in its reasons for judgment, but did not analyze or discuss the application of
the unclean hands doctrine in the case.

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applied the unclean hands doctrine to bar claims for damages arising from the

defendants’ alleged conspiracy to deprive the plaintiff of its contractual rights and

future profits through fraud. 804 So.2d at 33. The Allvend court did not discuss

whether it was appropriate to apply the equitable doctrine of unclean hands to a

fraud claim seeking damages. In fact, its entire discussion of the doctrine was

limited to the following two sentences:

The clean hands doctrine is recognized as a defense in Louisiana. A
person cannot maintain an action if, in order to establish his cause of
action, he must rely in whole or in part, on any illegal or immoral act
or transaction to which he is a part. Guillie v. Comprehensive Addict.
Programs, (La. App. 4 Cir. 4/21/99), 735 So.2d 779 (sic).

Id. at 31.

The Guillie case cited by the Allvend court also provides little guidance on

the appropriate scope of application of the unclean hands doctrine in Louisiana.

Just as in the Cole case, the Guillie court ultimately dismissed the plaintiffs’ claims

on causation grounds. Furthermore, all of the caselaw the Guillie court cited to

regarding the application of the unclean hands doctrine was from other states,

primarily Michigan and Iowa. The plaintiffs in Guillie brought claims for

malpractice and negligence against the defendants claiming they failed to properly

diagnose the plaintiff’s psychiatric disorders and allowed him to leave their facility

without receiving proper treatment. After leaving the facility, the plaintiff stole

money from his employer which resulted in his termination. The trial court

granted the defendants’ summary judgment motion and dismissed the plaintiffs’

claims.

On appeal, the Fourth Circuit recognized that the defendants may have

breached a duty to properly diagnose the plaintiff. Guillie, 735 So.2d at 778.

However, it affirmed the trial court’s judgment to dismiss the plaintiff’s claims

based on its finding that the plaintiff’s theft was a “superceding intervening cause”

of his injury that precluded his recovery against the defendants. Id. at 779. After

21-CA-435 14

discussing causation, the appellate court cited to the general proposition that an

individual is precluded from recovering when the claim is based on his/her illegal

or immoral act. Id. The Guillie court relied primarily on similar malpractice cases

rendered by courts in Michigan and Iowa to support its application of this common

law concept to completely bar the plaintiffs from recovering against the

defendants. Id. at 779.

We disagree with the application of the doctrine of unclean hands in these

cases to the extent they rely on an equitable concept when there is express law

governing the matter at issue. “Louisiana embraces a broad civilian concept of

‘fault’ that encompasses any conduct falling below a proper standard, including

intentional torts.” Landry, 851 So.2d at 949. Louisiana’s comparative fault

statute, La. C.C. art. 2323, eliminated contributory negligence as a complete bar to

a plaintiff’s recovery and instead provides for the application of comparative fault

to reduce a plaintiff’s recovery in an action for damages. See Murray v. Ramada

Inns, Inc., 521 So.2d 1123, 1132-33 (La. 1988). Section A provides as follows:

In any action for damages where a person suffers injury, death, or
loss, the degree or percentage of fault of all persons causing or
contributing to the injury, death, or loss shall be determined,
regardless of whether the person is a party to the action or a nonparty,
and regardless of the person's insolvency, ability to pay, immunity by
statute, including but not limited to the provisions of R.S. 23:1032, or
that the other person's identity is not known or reasonably
ascertainable. If a person suffers injury, death, or loss as the result
partly of his own negligence and partly as a result of the fault of
another person or persons, the amount of damages recoverable shall
be reduced in proportion to the degree or percentage of negligence
attributable to the person suffering the injury, death, or loss.
[Emphasis added.]

La. C.C. art. 2323(B) states that “[t]he provisions of Paragraph A shall apply

to any claim for recovery of damages for injury, death, or loss asserted under any

law or legal doctrine or theory of liability, regardless of the basis of liability.”

21-CA-435 15

[Emphasis added.] 11 La. C.C. art. 2323 (C) provides that a negligent plaintiff’s

recovery of damages shall not be reduced if he suffers loss partly due to an

intentional tortfeasor. However, in Landry, 851 So.2d at 954, the Louisiana

Supreme Court held La. C.C. art. 2323(C) does not apply when a plaintiff is also

found to have engaged in intentional conduct and further explained that the fault of

intentional actors in such a scenario can be compared pursuant to La. C.C. art.

2323(A):

In the face of the silence of La. C.C. art. 2323(C) regarding how to
address the comparative fault of two intentional actors, we can
extrapolate from paragraphs A and B of La. C.C. art. 2323 that the
fault of the intentional actors can be compared. In the instant case, the
plaintiff's conduct was not merely negligent, but intentional, and
therefore the provisions of Section C are inapplicable.

Id.; see also Martinez v. Wilson, 19-17 (La. App. 1 Cir. 9/27/19), 287 So.3d 27, 32

(“. . . when the plaintiff and defendant are both intentional actors, La. C.C. art.

2323(C) is inapplicable and the fault of the intentional actors may be compared.”)12

Therefore, even assuming that Cork’s intentional conduct is imputed to

AESI, the comparative fault rules apply. Considering the foregoing, we find that

the trial court erred in applying the equitable doctrine of unclean hands as a

complete bar to AESI’s claims for damages against Anadarko, when laws

governing comparative fault address the situation. Because we find that the

doctrine of unclean hands is not applicable to bar AESI’s claims against Anadarko,

11
We recognize that some controversy may exist as to whether La. C.C. art. 2323 applies only to tort claims. See
Justiss Oil Company, Inc. v. Oil Country Tubular Corporation, 15-1148 (La. App. 3 Cir. 4/5/17), 216 So.3d 346,
357, writ denied, 17-747 (La. 10/9/17), 227 So.3d 830. In Merlin v. Fuselier Construction, Inc., 00-1862 (La. App.
5 Cir. 5/30/01), 789 So.2d 710, 717, this Court recognized that the law of comparative fault established in La. C.C.
art. 2323 may only be asserted in a tort action. Regardless, our review of the petition and allegations contained in
the record in the present matter indicate that plaintiffs seek damages based on the alleged fraudulent and tortious
conduct of defendants and are therefore rooted in tort.
12
Anadarko also argues in a footnote that because plaintiffs allege that the defendants conspired to commit
intentional acts, as an alleged intentional actor, AESI is also a solidary obligor pursuant to La. C.C. art. 2324, if
Cork’s action are imputed to AESI. Anadarko contends that this further supports its argument that AESI’s claims
must be dismissed. We disagree. La. C.C. art. 2323(A) requires the determination of the degree of percentage of
fault of all persons causing or contributing to the loss, including solidary obligors. See Dileo v. Horn, 15-684 (La.
App. 5 Cir. 3/16/16), 189 So.3d 1189, 1207. La. C.C. art. 1804 provides that “[a]mong solidary obligors, each is
liable for his virile portion.” Further, La. C.C. art. 1905 provides that “[i]f a solidary obligor becomes an obligee,
confusion extinguishes the obligation only for the portion of that obligor.” Accordingly, even if Cork’s intentional
conduct as a conspirator is imputed to AESI, we do not find that AESI’s claims are completely extinguished as a
matter of law.

21-CA-435 16

we pretermit discussion of the other assignments of error raised by plaintiffs and

do not express an opinion as to these other issues.

DECREE

Accordingly, we reverse the trial court’s December 3, 2020 judgment, which

granted Anadarko’s motion for partial summary judgment and dismissed AESI’s

claims against Anadarko based on the doctrine of unclean hands and remand for

further proceedings.

REVERSED AND REMANDED

21-CA-435 17

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
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21-CA-435
E-NOTIFIED
OTHER (CLERK)
HONORABLE RONALD D. COX (DISTRICT JUDGE)
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