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                                 MEMORANDUM OPINION

                                         No. 04-08-00302-CV

                        Javier C. GAMEZ, Andres Reyes, and Sandra Gamez,
                                          Appellants

                                                   v.

                             Manuel R. FLORES and Virginia R. Flores,
                                           Appellees

                     From the 341st Judicial District Court, Webb County, Texas
                               Trial Court No. 2006-CVQ-001999-D3
                             Honorable Gus J. Strauss, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 15, 2009

REVERSED AND REMANDED

           Javier C. Gamez, Andres Reyes, and Sandra Gamez appeal from the trial court’s judgment,

arguing that the trial court erred in signing a judgment that added terms to the parties’ rule 11

agreement. We reverse and remand.

           Javier C. Gamez filed a civil lawsuit against Carlos T. Flores and his parents, Manuel R.

Flores and Virginia R. Flores, alleging numerous tortious theories and seeking actual, consequential,
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and exemplary damages. Manuel R. Flores and Virginia Flores (“the Floreses”) then filed a second

civil lawsuit against Javier C. Gamez, Sandra Gamez, Andres Reyes, Johnny Cuevas, Hector R.

Gonzales, and John Does, also alleging numerous tort theories and seeking actual, consequential,

and exemplary damages. These two civil actions were then consolidated.

        On October 25, 2007, the parties informed the trial court that they had settled all past,

present, and future disputes and read their agreement into the record. See TEX . R. CIV . P. 11 (“Unless

otherwise provided in these rules, no agreement between attorneys or parties touching any suit

pending will be enforced unless it be in writing, signed and filed with the papers as part of the

record, or unless it be made in open court and entered of record.”). That agreement called for (1) all

parties to “execute global mutual releases of any and all claims alleged or not, known or unknown,

and all things for anyone claiming through, by, or for them”; (2) Carlos T. Flores to pay Maria Elena

Morales, trustee for Javier Gamez, a confidential sum of money within thirty days; (3) no civil

claims by any named party to ever be brought against Carlos T. Flores or any of his attorneys; (4)

the amount of the settlement to remain confidential; and (5) each side to bear his costs and attorneys’

fees.

        On January 14, 2008, the parties again appeared before the trial court and informed the court

that they had a dispute over whether an indemnification clause should be included within the written

settlement agreement. The Floreses wanted the indemnification clause included, but the other side

would not agree to include it. Over objection, the trial court signed a final judgment, which in

addition to dismissing all claims with prejudice and ordering that all parties take nothing, ordered

the parties and their attorneys to sign a document attached to the judgment, entitled “Compromise




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Settlement Agreement, Global Mutual, Full and Final Release of all Claims, and Indemnity

Agreement.”

       On appeal, Javier C. Gamez, Andres Reyes, and Sandra Gamez (“the Gamezes”) argue that

the trial court erred in signing a judgment that added terms, to which the parties had not agreed, to

the parties’ rule 11 agreement. The Floreses did not file an appellees’ brief.

       A final judgment rendered upon a settlement agreement must be in strict and literal

compliance with the agreement. Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292, 293 (Tex.

1976); see Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006). A trial court has no power to

supply terms, provisions, or conditions not previously agreed upon by the parties. Donzis v.

McLaughlin, 981 S.W.2d 58, 63 (Tex. App.—San Antonio 1998, no pet.). And, if a trial court

supplies terms, provisions, or conditions not previously agreed upon by the parties, we must reverse

the judgment and remand the cause to the trial court for the entry of an agreed judgment that

conforms to the terms of the parties’ agreement. Id.

       The Gamezes argue on appeal that the trial court erred in adding an indemnity provision to

the written settlement agreement. They emphasize that pursuant to the rule 11 agreement, the parties

agreed to a global mutual release of all claims; they did not agree to indemnify each other. A release

and an indemnity agreement are different. An indemnity agreement is a promise by the indemnitor

to safeguard or hold the indemnitee harmless against existing or future loss or liability, or both. MG

Bldg. Materials, Ltd. v. Moses Lopez Custom Homes, Inc., 179 S.W.3d 51, 63 (Tex. App.—San

Antonio 2005, pet. denied); see Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508

(Tex. 1993). An indemnity provision does not apply to claims between the parties to the agreement,

but obligates the indemnitor to protect the indemnitee against claims brought by third parties. MG



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Bldg., 179 S.W.3d at 63. Thus, an indemnity agreement creates a potential cause of action in the

indemnitee. Id. A release, on the other hand, is an agreement by one party to surrender its own cause

of action against the other party. Id. at 64; see Dresser Indus., 853 S.W.2d at 508. A release

extinguishes any claim the releasormight have against the releasee without regard to the releasee’s

liability to third parties. MG Bldg., 179 S.W.3d at 64. A release is an affirmative defense and must

be pled. Id.; see TEX . R. CIV . P. 94. Thus, typical release language is “release, discharge, relinquish,”

while typical indemnity language is “indemnify, save, protect, save/hold harmless.” MG Bldg., 179

S.W.3d at 64.

        Because the parties agreed to a mutual release and not to an indemnity agreement, the trial

court erred in adding the indemnity provision to the written settlement agreement. We, therefore,

reverse the trial court’s judgment and remand the cause to the trial court for the entry of an agreed

judgment that conforms to the terms of the parties’ rule 11 agreement.



                                                          Karen Angelini, Justice




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