Opinion
No. 01-07-00187-CV
Opinion issued February 26, 2009.
On Appeal from the 280th District Court, Harris County, Texas, Trial Court Cause No. 2005-22806.
Panel consists of Justices TAFT, KEYES, and ALCALA.
SUPPLEMENTAL OPINION ON MOTION FOR REHEARING
Appellant, CMA-CGM (America), Inc., filed a motion for rehearing asserting for the first time that section 623.0155 of the Texas Transportation Code renders the indemnification provision of the Uniform Intermodal Interchange and Facilities Access Agreement unenforceable. See Tex. Transp. Code Ann. § 623.0155 (Vernon 1999). In its motion for rehearing, CMA acknowledges that section 623.0155 "was not raised by either parties's brief to this Court, or in the summary judgment papers below." As a general rule, we do not address new arguments presented in a rehearing. See Tex. Mut. Ins. Co. v. Ruttiger, 265 S.W.3d 651, 658 n. 8 (Tex.App.-Houston [1st Dist.] 2008, pet. filed).
In our opinion and judgment issued December 4, 2008, we reversed the trial court's order and remanded the cause for further proceedings consistent with this opinion. We determined that, under the terms of the Agreement, the Agreement provided that Maryland law shall govern the validity, construction, enforcement, and interpretation of the Agreement. We also held that the Agreement is enforceable under Maryland law. Other than the instruction that the trial court must conduct proceedings that are consistent with our opinion, we have not limited the issues that may be presented upon remand to the trial court. The implications, if any, of section 623.0155 have never been addressed by us or the trial court, and, upon proper presentation, may be addressed by the trial court upon remand. We therefore do not address the new argument concerning section 623.0155. See Port Neches-Groves Indep. Sch. Dist. v. Pyramid Constructors, L.L.P., 201 S.W.3d 679, 681 (Tex. 2006) (declining to review issue that was not presented to trial court because parties can develop record as they deem necessary upon remand to trial court).
We deny CMA-CGM (America), Inc.'s motion for rehearing.