Affirmed in part, Reversed and Remanded in part, and Memorandum 

Opinion filed December 31, 2019.

In The

Fourteenth Court of Appeals

NO. 14-18-00240-CV

LINDA CAROL GOEHRS, Appellant

V.

U.S. SPECIALTY INSURANCE COMPANY, Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2017-00802

MEMORANDUM OPINION

Appellant Linda Goehrs appeals a summary judgment against her on an 

indemnity agreement. Appellee U.S. Specialty Insurance Company issued a surety 

bond for the benefit of Goehrs, conditioned on Goehrs’s agreement to indemnify 

U.S. Specialty for certain damages it incurred by reason of the bond, including 

attorney’s fees and expenses. Alleging it incurred such damages and that Goehrs 

refused demands for indemnity, U.S. Specialty sued to enforce the indemnity 
2 

agreement. The trial court granted U.S. Specialty’s motion for summary judgment, 

denied Goehrs’s motion for summary judgment, and awarded U.S. Specialty 

$255,432.01 in damages, including attorney’s fees and expenses as well as bond 

premiums U.S. Specialty contends were unpaid. 

Goehrs attacks the summary judgment on several grounds. First, she argues 

that the indemnity agreement is invalid due to a mutual mistake. Second, Goehrs 

contends the trial court’s damages award is error because (1) U.S. Specialty, as the 

movant, did not conclusively establish its attorney’s fees and unpaid bond 

premiums, and (2) alternatively, Goehrs raised a genuine issue of material fact as 

to the reasonableness and necessity of attorney’s fees and expenses. 

We conclude that the trial court correctly granted summary judgment in U.S. 

Specialty’s favor on liability because U.S. Specialty conclusively established its 

right to judgment, and Goehrs failed to raise a fact question on her mutual mistake 

affirmative defense. However, as to damages, U.S. Specialty was required to 

prove that its claimed attorney’s fees and expenses were reasonable and necessary, 

but it failed to do so. Accordingly, we affirm the judgment in part, reverse in part 

only as to attorney’s fees and expenses, and remand the case for further 

proceedings.

Background

In June 2008, a Harris County probate court appointed Goehrs temporary 

guardian pending contest of the person and estate of Mary Olive Calkins and 

ordered that letters of temporary guardianship be issued to Goehrs upon issuance 

of a surety bond. The same day, Goehrs applied for a surety bond from U.S. 

Specialty. As part of the bond application, Goehrs signed an “INDEMNITY 

AGREEMENT,” in which she: 
3 

agree[d] to pay the Company the usual annual premiums; and . . . 

agree[d] to indemnify and keep indemnified the Company from and 

against any liability and all costs, charges, suits, damages, counsel 

fees and expenses of whatever kind or nature which said Company 

shall at any time sustain or incur, for or by reason, or in consequence 

of said Company having become surety or entering into such bond or 

bonds and agree[d] to place the Company in funds to meet any claim

or demand before it shall be required to make payment. 

U.S. Specialty then issued a $500,000 bond, which it subsequently increased 

to $3.2 million upon order of the probate court. 

In December 2008, Carolyn James, the daughter of Mary Olive Calkins, 

sued Goehrs based on Goehrs’s alleged acts or omissions while serving as 

temporary guardian; James later added U.S. Specialty as a party and asserted 

claims against the bond. According to U.S. Specialty, James alleged that Goehrs 

committed numerous wrongful acts or omissions, including wasting and 

mismanaging Calkins’s estate, misapplying Calkins’s assets, breach of fiduciary 

duty, professional negligence, negligence, and legal malpractice.1

 James sought 

damages for the value of the cash and property that Goehrs, directly or indirectly, 

allegedly misappropriated, converted, or lost. U.S. Specialty retained counsel to 

defend itself against James’s attempt to possibly exhaust the penal limit of the 

bond.

 1 The pleadings from the underlying probate-related litigation are not included in our 

record. U.S. Specialty requests that we take judicial notice of the proceedings, but we need not 

do so. Goehrs does not dispute any of U.S. Specialty’s factual characterizations of the probaterelated proceedings. In fact, Goehrs in her response to U.S. Specialty’s motion for summary 

judgment asserted, “Plaintiff has outlined the lawsuits in detail in its Motion for Summary 

Judgment,” and on appeal Goehrs cites to U.S. Specialty’s description of the probate-related 

litigation in its summary judgment motion. In the absence of a dispute, we will accept U.S. 

Specialty’s factual characterizations as true. See Tex. R. App. P. 38.1(g) (“In a civil case, the 

court will accept as true the facts stated unless another party contradicts them.”).
4 

In May 2009, the probate court signed an order finding that the court had not 

acquired jurisdiction over the person and estate of Mary Olive Calkins until 

January 27, 2009. In that order, the court indicated that it would, upon motion or 

hearing, determine if any orders prior to January 27, 2009, were “not void.” The 

probate court later found that all previous orders signed prior to January 27, 2009, 

were void, except for an order appointing an attorney ad litem and an order 

appointing a court investigator, neither of which concerns Goehrs, the surety bond, 

or the indemnity agreement at issue.

U.S. Specialty sent Goehrs three written indemnity demands. The final 

demand, sent in December 2015, requested $161,405.35 in attorney’s fees and 

expenses incurred through that date and $54,754 in unpaid bond premiums. 

Goehrs rejected all demands, arguing that the June 2008 order appointing her 

temporary guardian was void and, therefore, the indemnity agreement executed as 

part of the surety bond application was also void or otherwise invalid.

Mary Olive Calkins died in 2015. In 2017, the administrator of her estate 

initiated another proceeding in probate court against Goehrs and U.S. Specialty, 

asserting a claim against the bond. Upon U.S. Specialty’s motion, the probate 

court dismissed the claim against U.S. Specialty three months later. 

U.S. Specialty filed the present suit against Goehrs, alleging that Goehrs had 

breached the indemnity agreement.

2

 U.S. Specialty sought to recover all amounts 

expended in defense of the bond-related litigation and the unpaid bond premiums, 

as well as attorney’s fees, interest, and court costs. Goehrs denied U.S. Specialty’s 

claims, asserted numerous defenses including mutual mistake, and sought a 

 2 U.S. Specialty’s petition alternatively captioned its breach of contract claim as 

“exoneration” or “collateralization,” but the nature of U.S. Specialty’s allegations sound solely in 

contract.
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declaration of non-liability under the indemnity agreement. Goehrs alleged that, at 

the time she signed the indemnity agreement, both parties mistakenly believed she 

had been legally appointed temporary guardian when in fact the court’s order 

appointing her was void; this mistake, in turn, rendered the indemnity agreement 

void.

The parties filed competing motions for summary judgment. U.S. Specialty 

argued that Goehrs was liable under the indemnity agreement in two respects: 

(1) by failing to indemnify the surety for its incurred costs under the bond; and 

(2) by failing to pay annual premiums on the bond since 2008. U.S. Specialty 

sought a total of $255,432.01, consisting of attorney’s fees and expenses incurred 

in defending itself against all claims made under the bond, unpaid premiums, and 

attorney’s fees incurred in prosecuting the present suit. Goehrs opposed U.S. 

Specialty’s motion on two grounds: (1) the indemnity agreement is invalid 

pursuant to the doctrine of mutual mistake; and (2) U.S. Specialty failed to 

conclusively prove its entitlement to damages. Goehrs also moved for summary 

judgment in her favor on the sole basis that the mutual mistake doctrine rendered 

the agreement void and unenforceable. 

The trial court granted U.S. Specialty’s motion in its entirety and denied 

Goehrs’s motion. The court awarded U.S. Specialty damages in the amount of 

$255,432.01, conditional appellate attorney’s fees, and prejudgment and 

postjudgment interest. Goehrs appeals.

Analysis

Goehrs challenges the trial court’s rulings in three issues. In her first two 

issues, she argues that the trial court erred in granting U.S. Specialty’s motion for 

summary judgment and in denying hers. According to Goehrs, her mutual mistake 

defense defeats U.S. Specialty’s motion for summary judgment and, additionally, 
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entitles Goehrs to summary judgment as a matter of law. In her third issue, Goehrs 

argues that the trial court erred in awarding $255,432.01 to U.S. Specialty, because 

the evidence was legally insufficient to support the award or, alternatively, because 

she raised a fact question on damages. 

A. Standard of review 

 We review the trial court’s summary judgment rulings de novo. See 

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); 

Lane-Valente Indus. (Nat’l), Inc. v. J.P. Morgan Chase, N.A., 468 S.W.3d 200, 204 

(Tex. App.—Houston [14th Dist.] 2015, no pet.). In doing so, we take all evidence 

favorable to the nonmovant as true, indulging every reasonable inference and 

resolving any doubts in her favor. Provident Life, 128 S.W.3d at 215.

When both sides move for summary judgement and the trial court grants one 

motion and denies the other, we review both sides’ summary judgment evidence to 

determine all questions presented. Lane-Valente, 468 S.W.3d at 204. A movant is 

entitled to summary judgment if it establishes that there is no genuine issue of 

material fact and it is entitled to judgment as a matter of law. Id. If the movant’s 

motion and summary judgment evidence facially establish its right to judgment as 

a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact 

issue sufficient to defeat summary judgment. Gray v. Entis Mech. Servs., L.L.C., 

343 S.W.3d 527, 529 (Tex. App.—Houston [14th Dist.] 2011, no pet.). 

B. Goehrs’s motion for summary judgment on mutual mistake 

We first address Goehrs’s argument that she is not liable under the 

indemnity agreement pursuant to the mutual mistake doctrine. See Bradleys’ Elec., 

Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (per curiam) 

(“Generally, when a party presents multiple grounds for reversal of a judgment on 
7 

appeal, the appellate court should first address those points that would afford the 

party the greatest relief.”). “A mutual mistake of fact occurs when the parties to an 

agreement have a common intention, but the written agreement does not accurately 

reflect that intention due to a mutual mistake.” Wyrick v. Bus. Bank of Tex., N.A., 

577 S.W.3d 336, 350 (Tex. App.—Houston [14th Dist.] 2019, no pet. h.). The 

elements of mutual mistake are: (1) a mistake of fact; (2) held mutually by the 

parties; (3) which materially affects the agreed-on exchange. Id. The mistake 

must relate to the subject matter of the contract involved and not to a matter that is 

collateral or incidental to that contract. See De Monet v. PERA, 877 S.W.2d 352, 

357 (Tex. App.—Dallas 1994, no writ).

“Pursuant to the doctrine of mutual mistake, when parties to an agreement 

have contracted under a misconception or ignorance of a material fact, the 

agreement will be avoided.” Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990). 

However, only under “narrow circumstances” will a party be able to raise a fact 

issue to set aside a contract based on mutual mistake. See id. at 265. “The 

doctrine of mutual mistake must not routinely be available to avoid the results of 

an unhappy bargain.” Id. 

We agree with Goehrs that it is clear she operated under the mistaken belief 

that she had lawfully been appointed temporary guardian when she sought and 

obtained the surety bond from U.S. Specialty. But we disagree that this mistake, 

even if held by both parties, involved the subject matter of the indemnity 

agreement. The indemnity agreement makes no reference to Goehrs’s appointment

as guardian, nor is the agreement conditioned upon Goehrs’s lawful appointment.3

 

 3 Goehrs heavily emphasizes language included in the bond, which was 

“CONDITIONED THAT THE ABOVE BOUND PRINCIPAL [Goehrs], WHO HAS BEEN 

APPOINTED Temporary Guardian (pending contest) of the Person and ESTATE OF Mary 

Olive Calkins, Incapacitated Person, SHALL WELL AND TRULY PERFORM THE DUTIES
8 

While Goehrs’s appointment surely motivated her to seek the bond and, in doing 

so, agree to indemnify the surety, there is nothing to indicate that Goehrs’s 

appointment as guardian induced both parties to enter into the indemnification 

agreement. See Morris v. Ashland-Katy Co., No. 14-91-00557-CV, 1992 WL 

141136, at *4 (Tex. App.—Houston [14th Dist.] June 25, 1992, no writ) (not 

designated for publication) (proponent must show that the mistake was mutual and 

that it was a material inducement to the transaction). There is certainly no 

evidence that U.S. Specialty considered Goehrs’s lawful appointment a material 

term of the indemnification agreement. See Durham v. Uvalde Rock Asphalt Co., 

599 S.W.2d 866, 870 (Tex. App.—San Antonio 1980, no writ) (no evidence of 

mutual mistake when there was no evidence to indicate that knowledge of mistake 

would have caused one party not to enter into the contract).

On this record, we hold that Goehrs has not conclusively proven the defense 

of mutual mistake. Accordingly, she did not meet her burden to establish her 

entitlement to judgment as a matter of law, and the trial court did not err in denying 

her motion for summary judgment. We overrule Goehrs’s second issue. 

C. U.S. Specialty’s motion for summary judgment on the indemnity 

agreement

U.S. Specialty sued Goehrs for breach of the indemnity agreement and 

moved for summary judgment on that ground. A successful breach of contract 

claim requires proof of (a) a valid contract, (b) performance or tendered 

performance by the plaintiff, (c) breach of the contract by the defendant, and 

(d) damages sustained by the plaintiff as a result of that breach. M7 Capital LLC v. 

Miller, 312 S.W.3d 214, 220 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).

 

REQUIRED OF HER BY LAW UNDER SAID APPOINTMENT.” (Emphasis added). 

Goehrs’s reliance is misplaced. The contractual agreement at issue is the indemnity agreement,

not the bond. 
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In support of its claim, U.S. Specialty attached a copy of the indemnity 

agreement, a copy of the executed bond, and affidavits from U.S. Specialty’s 

attorneys, who testified that the bond accrued annual premiums, that U.S. Specialty 

incurred costs to defend several claims against the bond and to enforce the 

indemnity agreement, that the surety made payment demands upon Goehrs, and 

that Goehrs refused to pay. 

First, we address U.S. Specialty’s entitlement to judgment on the first three 

elements of its claim—a valid contract, performance, and breach. U.S. Specialty’s 

evidence facially established its right to judgment as a matter of law on these 

elements. The burden then shifted to Goehrs to raise a genuine issue of material 

fact on one of these elements, see Allison v. Serv. Lloyds Ins. Co., 437 S.W.3d 589, 

593 (Tex. App.—Houston [14th Dist.] 2014, pet. denied), or present evidence on 

each element of an affirmative defense such as mutual mistake, see Lunsford 

Consulting Grp., Inc. v. Crescent Real Estate Funding VIII, L.P., 77 S.W.3d 473, 

475 (Tex. App.—Houston [1st Dist.] 2002, no pet.). In the trial court, Goehrs did 

not challenge the validity of the indemnity agreement (apart from her mutual 

mistake argument), U.S. Specialty’s performance under the contract, or her failure 

to comply with the agreement. Further, as explained above, Goehrs did not present 

evidence that both parties to the contract considered Goehrs’s lawful appointment a 

material term of the bargain. For these reasons, Goehrs failed to raise a fact issue 

either as to U.S. Specialty’s proof of liability or as to her mutual mistake 

affirmative defense, and she therefore failed to defeat U.S. Specialty’s entitlement 

to judgment as a matter of law on the liability elements of its breach of contract 

claim. We overrule in part Goehrs’s first issue. 

Next, we address the final element of U.S. Specialty’s breach of contract 

claim: damages. In her first and third issues, Goehrs asks this court to reverse the 
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trial court’s summary judgment and specifically challenges U.S. Specialty’s 

evidence of damages. Among other arguments, Goehrs argues that U.S. Specialty 

failed to meet its initial summary judgment burden that its requested attorney’s 

fees, costs, and expenses were reasonable and necessary. Goehrs also argues that 

U.S. Specialty presented insufficient evidence of unpaid bond premiums. 

1. Attorney’s fees and expenses

The purpose of indemnity for attorney’s fees, such as other fee-shifting 

mechanisms, is to compensate the prevailing party generally for its losses resulting 

from the litigation process. See generally In re Nalle Plastics Family Ltd. P’ship, 

406 S.W.3d 168, 173 (Tex. 2013) (orig. proceeding) (although attorney’s fees 

ordinarily are not awarded as damages, they can be viewed as compensating the 

prevailing party for its losses because the award helps make the party whole); see

also Jordan v. Centerpoint Energy Houston Elec., LLC, No. 14-18-00663-CV, 

2019 WL 5565978, at *9 (Tex. App.—Houston [14th Dist.] Oct. 29, 2019, no pet. 

h.) (mem. op.) (“The purpose of indemnity is to make a party whole.”).

When fee-shifting is authorized by contract, as it is here, the party seeking 

the fee award must prove the reasonableness and necessity of the requested 

attorney’s fees. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 

469, 487 (Tex. 2019). Even when an indemnity agreement does not explicitly 

restrict recovery only to those fees and expenses reasonably and necessarily 

incurred, we generally imply such a limit. See Kurtz v. Kurtz, 158 S.W.3d 12, 18 

& n.6 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); Tenneco Oil Co. v.

Gulsby Eng’g, Inc., 846 S.W.2d 599, 606-07 (Tex. App.—Houston [14th Dist.] 

1993, writ denied); In re B.N.L.-B., 375 S.W.3d 557, 566 (Tex. App.—Dallas 

2012, pet. denied); Crimson Expl., Inc. v. Intermarket Mgmt., LLC, 341 S.W.3d 

432, 446 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Sieber & Calicutt, Inc. v. 
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La Gloria Oil & Gas Co., 66 S.W.3d 340, 350-51 (Tex. App.—Tyler 2001, pet. 

denied). To determine the amount of attorney’s fees to be awarded, Texas follows 

the lodestar method, which is essentially a “short hand version” of the Arthur 

Andersen factors.4

 Rohrmoos Venture, 578 S.W.3d at 496. The lodestar method 

requires the fact finder to derive reasonable attorney’s fees by first determining the 

reasonable hours spent by counsel in the case and the reasonable hourly rate for 

counsel’s work. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). 

The fact finder then multiplies the number of hours counsel worked on the case by 

the applicable rate, the product of which is the base fee or lodestar. Id.5

 

It is the fee claimant’s burden to provide sufficient evidence of both the 

reasonable hours worked and the reasonable hourly rate. Rohrmoos Venture, 578 

S.W.3d at 498. Sufficient evidence includes, at a minimum, evidence of 

(1) particular services performed, (2) who performed those services, 

(3) approximately when the services were performed, (4) the reasonable amount of 

time required to perform the services, and (5) the reasonable hourly rate for each 

person performing such services. See id.; see also City of Laredo v. Montano, 414 

S.W.3d 731, 736 (Tex. 2013) (per curiam) (“In El Apple, we said that a lodestar 

calculation requires certain basic proof, including itemizing specific tasks, the time 

required for those tasks, and the rate charged by the person performing the work.”). 

Conclusory or general testimony devoid of specifics will not support a fee 

award. The Supreme Court of Texas consistently has held that evidence of 

attorney’s fees was insufficient under the lodestar method when counsel failed to 

indicate how the aggregate time spent in the case was devoted to any particular 

 4 Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). 

5 The base fee is presumed to reflect the reasonable and necessary attorney’s fees, though 

the fact finder may adjust the lodestar up or down if relevant factors indicate an adjustment is 

necessary to reach a reasonable fee in the case. Rohrmoos Venture, 578 S.W.3d at 500-01. 
12 

tasks or category of tasks. See Rohrmoos Venture, 578 S.W.3d at 505; Long v.

Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (per curiam); Montano, 414 S.W.3d at 

736; El Apple, 370 S.W.3d at 763.

With this in mind, we turn to U.S. Specialty’s evidence offered in support of 

its claimed damages. U.S. Specialty submitted an affidavit from its attorney, 

Gregory Weinstein, who testified as an expert on U.S. Specialty’s reasonable and 

necessary attorney’s fees. Weinstein testified that: he reviewed invoices to 

determine whether the tasks performed were reasonable and necessary; it was his 

opinion that the tasks performed were reasonable and necessary; attorneys and 

paralegals worked a total of 700.70 hours; the billing rates ranged from $185.00 to 

$295.00; and the billing rates for the attorneys and paralegals were reasonable and 

necessary charges in Harris County for legal services in probate surety litigation 

matters. As for the services performed by counsel, Weinstein testified generally 

that the work included, inter alia: analysis and legal research; attending docket 

control conferences; preparing a plea to the jurisdiction, a motion to dismiss, and 

other unspecified pleadings; preparing for and attending hearings; extensive 

communications with opposing counsel and representatives of the surety; and 

preparing written discovery. Weinstein testified that U.S. Specialty incurred a total 

of $150,030.50 in attorney’s fees and $18,807.51 in costs of court and expenses.

Like in El Apple and Rohrmoos Venture, Weinstein did not indicate how the 

hours the attorneys and paralegals spent in the aggregate were devoted to any 

particular task or category of tasks. El Apple, 370 S.W.3d at 763-65; Rohrmoos

Venture, 578 S.W.3d at 505. Moreover, he did not present time records or 

otherwise substantiate the specific tasks performed, the time required for those 

tasks, and the rate charged by each person performing the work. El Apple, 370 

S.W.3d at 765. In sum, Weinstein’s testimony is too general to establish that the 
13 

requested fees and expenses were reasonable and necessary. Rohrmoos Venture, 

578 S.W.3d at 505.

We hold that U.S. Specialty failed to conclusively prove the reasonableness 

and necessity of its attorney’s fees and expenses as part of the damages element of

its breach-of-contract claim. We therefore sustain in part Goehrs’s first and third 

issues and reverse the trial court’s judgment solely as it pertains to the amount of 

U.S. Specialty’s attorney’s fees and expenses. 

2. Unpaid bond premiums

Finally, Goehrs contends that U.S. Specialty presented legally insufficient 

proof of the amount of bond premiums Goehrs owed and failed to pay. The extent 

of Goehrs’s argument on appeal is:

The disputed summary judgment evidence further does not support an 

award of claimed unpaid bond fees when there was no valid 

appointment. Though the Surety claims a lump sum as unpaid bond 

premiums for unspecified years at unspecified rates, the trial court 

apparently included the requested sum with the disputed attorneys’ 

fees, another basis for reversal and remand.

U.S. Specialty presented affidavit testimony that Goehrs owed, but did not 

pay, $70,398 in bond premiums. In response, Goehrs argued that U.S. Specialty 

did not present proof of an annual rate or the years that she failed to pay. But in 

the absence of controverting evidence or a sustainable objection,6 the lack of an 

annual rate or the failure to specify the length of time the debt accrued does not 

render U.S. Specialty’s affidavit legally insufficient. See, e.g., Tex. Commerce 

Bank, Nat’l Ass’n v. New, 3 S.W.3d 515, 517 (Tex. 1999) (per curiam) 

 6 Goehrs lodged several objections to U.S. Specialty’s affidavit in the trial court, all of 

which the court overruled, but she does not reassert those objections or explain why the trial 

court erred in its rulings, and so we do not consider the objections on appeal. 
14 

(“Testimony of the total amount due under a written instrument is legally sufficient 

to support an award of that amount.”).

We overrule this part of Goehrs’s third issue. 

Conclusion

U.S. Specialty did not meet its burden of proof regarding the damage 

element of its breach of contract claim as to its reasonable and necessary attorney’s 

fees and expenses. We therefore reverse in part the trial court’s summary 

judgment in U.S. Specialty’s favor, and we remand the case to the trial court solely 

for redetermination of attorney’s fees and expenses in accordance with this 

opinion. We affirm the judgment in all other respects.

 

 /s/ Kevin Jewell

 Justice

Panel consists of Justices Jewell, Bourliot, and Zimmerer.