concurring and dissenting.
I agree with the majority’s analysis and its conclusion that the Mahr is unenforceable as a premarital agreement. I further agree that the trial court’s award enforcing the agreement must be reversed and the case remanded for reconsideration of the distribution of the parties’ assets. I respectfully disagree, however, with the majority’s conclusion that, on these facts, the interests of justice are served by allowing Afreen the opportunity to recharacterize the Mahr and relitigate its enforceability under another theory. The parties do not contend that the case was tried on the wrong theory, and the decision to try the Mahr solely as a premarital agreement presumably reflects the intent of the contracting parties. I would therefore conclude that this is not an appropriate case for the exercise of a power that is best reserved for more compelling circumstances. Cf. Fanning v. Fanning, 847 S.W.2d 225, 226 (Tex.1993) (per curiam) (op. on reh’g) (remand in interests of justice after law changed while appeal was pending); Scott v. Liebman, 404 S.W.2d 288, 294 (Tex.1966) (counsel represented that party relied on statement in Texas Supreme Court opinion that was subsequently disapproved); Scott Bader, Inc. v. Sandstone Prods., Inc., 248 S.W.3d 802, 822 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (trial court’s sanctions prevented development of evidence).