Sometimes the hardest aspect of an appeal is determining exactly why a judge tossed out a client’s case. And that’s what Scott Lisman says he faced before convincing Houston’s 14th Court of Appeals to reverse and remand a trial court decision that had granted summary judgment on his client’s legal malpractice claim.

The background to Shelli Flores v. Richard Tholstrup is as follows, according to the 14th Court’s Jan. 17 opinion.

Flores sued Tholstrup, a lawyer, alleging legal malpractice and breach of fiduciary duty in connection with matters involving a separate suit. The separate suit arose from a bounced check allegedly signed by Flores that was written on a corporate bank account. The holder of the bounced check sued Flores and the corporation, and judgment was entered against the corporation and against Flores individually.

Flores then sued Tholstrup, alleging that he “breached his fiduciary duty to Flores by failing to advise Flores that she could be personally liable on any checks written on a business bank account if she did not disclose her representative capacity” and “by not withdrawing when he knew a conflict of interest existed,” among other things.

Flores also sued Tholstrup for legal malpractice, alleging that he “prepared a banking resolution for [the corporation], naming Flores as the authorized signatory for the [corporation] bank account. She alleged Tholstrup failed to advise Flores that “if she did not sign in a representative capacity, she could be personally responsible for checks written” on the corporate bank account, and he “failed to withdraw from representation as representing both [the corporation] and Shelli Flores when he was aware that a conflict of interest existed,” among other things.

Tholstrup moved for summary judgment on the pleadings, alleging that Flores “suffered no damage” as a result of his actions and that Flores “was individually liable” in the underlying case because she signed the check in her individual capacity. But he attached no evidence in support of his motion. The trial court granted the summary judgment motion, a decision Flores appealed to the 14th Court.

In determining whether Tholstrup was entitled to summary judgment, the 14th Court noted that it must assume that all facts alleged by Flores are true.

“Under Flores’s petition, if Tholstrup had properly advised her, Flores’s signature would have included her representative capacity, and therefore she would not have been sued individually, and she would not have been personally liable for the check amount,” wrote Senior Justice Margaret Garner Mirabal, who was sitting on the panel by assignment. The panel also included Justices Kem Thompson Frost and Sharon McCally.

“Contrary to his assertions in his motion for summary judgment, Tholstrup failed to conclusively negate that his alleged breach of fiduciary duties and negligence proximately caused injury to Flores,” Mirabal wrote in the decision that reversed and remanded the summary judgment ruling to the trial court.

Tholstrup, a Houston solo who represents himself pro se in the dispute, denies Flores’ allegations. He says he plans to file another summary judgment motion in the trial court again “and back it up with affidavits.”

Lisman, an attorney in Houston’s Law Office of John Polk who represents Flores, says overturning the trial court’s summary judgment decision in the case was difficult because “the judge didn’t give any reason for granting it.”

“You had to cover a number of potential bases for the summary judgment being upheld, without knowing the exact reason the court granted it,” Lisman says.

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