COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00195-CV

MELISSA MAIBERG ESTACIO DE 

FREITAS, INDIVIDUALLY AND ON 

BEHALF OF THE ESTATE OF 

ANDRE ESTACIO DE FREITAS, 

AND CARLA MARIA CORREA 

AGUIAR, INDIVIDUALLY AND ON 

BEHALF OF THE ESTATE OF 

ADRIANO EMERIM PINNA, AND AS 

NEXT FRIEND OF LUIZA AGUIAR 

PINNA, A MINOR, AND ARTHUR 

AGUIAR EMERIM PINNA, A MINOR

APPELLANTS

AND APPELLEES

V.

ROLLS-ROYCE CORPORATION APPELLEE

AND APPELLANT

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FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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1See Tex. R. App. P. 47.4.
2

Appellants Melissa Maiberg Estacio De Freitas, individually and on behalf of 

the Estate of Andre Estacio De Freitas (Maiberg) and Carla Maria Correa Aguiar, 

individually and on behalf of the Estate of Adriano Emerim Pinna, and as next friend 

of Luiza Aguiar Pinna, a minor, and Arthur Aguiar Emerim Pinna, a minor (Aguiar) 

(collectively the Heirs) appeal from the trial court’s take-nothing judgment following a 

jury trial on their claims against Appellee Rolls-Royce Corporation.

2

In one issue, 

they argue that the trial court erred by not applying the “most significant relationship 

test” and by consequently applying the wrong law to the issue of liability. Because 

the Heirs voluntarily dropped their claims to which they assert Brazilian law applies, 

we affirm.

Background

In 1985, the Brazilian navy purchased a helicopter engine that had been 

designed by the Detroit Diesel Allison Division of General Motors and tested, 

manufactured, and distributed by the Allison Gas Turbine Division of General 

Motors. In 2005, this engine was in use in a Bell helicopter that was owned and 

operated by the Brazilian navy. The engine’s compressor had been sold by the 

Allison Gas Turbine Division in 1973, and the helicopter’s compressor wheel had 

had been sold and delivered by that division in 1987. On June 27, 2005, Adriano 

 

2Rolls-Royce filed a notice of appeal, intending to assert a conditional crosspoint. In its brief, however, Rolls-Royce stated that it had decided not to pursue its 

conditional cross-point.
3

Emerim Pinna and Andre Estacio De Freitas, both citizens of Brazil, were killed in a 

crash while piloting the helicopter in Brazil.

In June 2007, Pinna’s heirs (represented by Aguiar) and Freitas’s heirs 

(represented by Maiberg) filed suit in Tarrant County against Bell Helicopter Textron 

Inc. (Bell). They originally filed two separate suits, but the suits were consolidated.

The Heirs also sued Rolls-Royce Corporation, which in 1995 had acquired the 

stock of the company that had bought the Allison Gas Turbine Division from General 

Motors. The Heirs alleged that venue was proper in Tarrant County because Bell 

maintains its principal place of business there. Rolls-Royce is a Delaware 

corporation that maintains its principal place of business in Indianapolis, Indiana. 

The Heirs alleged claims of (1) strict liability based on design defect; (2) negligence 

in the “marketing, testing, assembling, inspection, distribution, design and/or 

manufacture of the helicopter and its engine and component parts”; and (3) 

negligence “in failing to warn [Freitas] and others of the dangers posed by the 

defective product.”

Rolls-Royce filed a motion to dismiss for forum non conveniens. In the 

motion, Rolls-Royce argued that “[v]irtually all of the evidence in this case lies in 

Brazil,” that Tarrant County “has absolutely no connection to [the Heirs] or any event 

that led to this litigation,” and that “public interest factors also strongly support 

dismissal.” Rolls-Royce asserted as a factor favoring dismissal that the trial court 

had an interest in avoiding choice of law issues regarding liability, negligence law, 

product liability law, and damages.
4

In response, the Heirs argued among other things that Bell would not consent 

to suit in Brazil, that “United States law will likely govern [the Heirs’] claims,” and that 

“United States state law will certainly apply to [the Heirs’] tort claims.”

The trial court denied Rolls-Royce’s motion to dismiss. In July 2009, the Heirs 

filed a notice of nonsuit on their claims against Bell, and, accordingly, the trial court 

dismissed the claims against Bell.

In March 2010, Rolls-Royce filed a combined traditional and no-evidence 

motion for summary judgment. Among other grounds, Rolls-Royce asserted that the 

statute of repose—the federal General Aviation Revitalization Act of 19943—barred 

the Heirs’ claims and that under Texas law, Rolls-Royce had no duty to warn of any 

dangers posed by the engine because it did not design, manufacture, market, or sell 

the engine, compressor, or compressor wheel. Rolls-Royce also asserted that there 

was no evidence of most of the elements of a strict liability claim for defective 

design.

The Heirs filed a response, as well as a Notice of Intent to Raise Issue 

Concerning Brazilian Law, in which they stated that “Brazilian law applies to all 

issues raised in this case.” On April 15, 2010, the trial court granted summary 

judgment for Rolls-Royce and ordered that the Heirs take nothing. But on May 13, 

2010, the trial court vacated that order.

 

3

49 U.S.C.A. § 40101, Note, § 2 (West 2007).
5

On June 9, 2010, the trial court held a hearing on the summary judgment 

motion and to determine what forum’s law would be applicable. After hearing 

argument, the trial court decided that Texas law would apply. The court then heard 

the parties’ arguments regarding summary judgment. The trial court indicated that 

none of the Heirs’ asserted causes of action were viable. The Heirs argued that 

they had viable claims for negligent instruction and negligent undertaking but 

conceded that those claims were not in their pleadings.

The trial court stated that it would grant the summary judgment, and the Heirs 

asked “for leave to amend the petition to assert the negligence that we have been 

talking about.” The trial court gave permission for the Heirs “to file a motion to 

reconsider along with the petition.” The trial court signed an order that day granting 

summary judgment for Rolls-Royce.

On July 8, 2010, the Heirs filed a motion for new trial or for reconsideration, 

asking the trial court to reconsider its order “in its totality.” The motion asked the 

trial court to allow the Heirs to more specifically plead their negligence and negligent 

undertaking claims. The Heirs also argued once more that Brazilian law applied to 

the case and that therefore the summary judgment should not stand.

Maiberg filed a motion for leave to amend her petition on the same date. This 

motion stated that at the June 9 hearing, the trial court “appeared specially 

concerned with [Maiberg’s] failure to have more explicitly pled her general 

negligence and negligent undertaking claims,” and, accordingly, Maiberg requested 

that she be allowed to “cure the alleged pleading deficiencies by amendment.”
6

In the attached amended petition, Maiberg asserted that (1) “[u]nder Brazilian 

law or any other applicable law,” Rolls-Royce was negligent in its failure to issue 

proper instructions regarding the use of un-coated compressor wheels; (2) RollsRoyce had negligently undertaken providing its customers and operators with proper 

service bulletins, manuals, and guidelines; and (3) maintenance instructions put out 

by Rolls-Royce were inadequate. [Emphasis added.] Aguiar’s proposed amended 

petition asserted identical claims.

In August, 2010, the trial court held a hearing on the Heirs’ motion for new 

trial. The Heirs argued that the trial court had granted the summary judgment on 

defective pleadings, and they asked the trial court

to set aside the summary judgment to allow repleading, and then if 

Rolls-Royce then—if the Court is still inclined to, on the choice of law 

decision, to apply Texas law, then we all know that. If the Court wants 

to revisit that issue, then we can revisit it, and then allow repleading 

and then a summary judgment.

In its argument, Rolls-Royce argued that the summary judgment had not been 

granted based on defective pleadings and that the Heirs should not be allowed to 

replead to assert two new causes of action. After hearing the parties’ arguments, 

the trial court signed an order granting the Heirs a new trial. The order did not 

specify the trial court’s reason for granting the new trial.

On September 9, 2010, Maiberg filed another motion for leave to amend her 

petition. Whereas in her prior motion she had stated the need to cure pleading 

deficiencies as the reason for the requested amendment, this time she asserted that 

she wanted to amend in order to “properly reflect the Court’s ruling” that Texas law 
7

governed the claims. Aguiar filed a similar motion on the same date, giving the 

same reasoning. The trial court granted the motions on November 24, 2010. In the 

amended pleadings, the Heirs no longer included a claim for product liability.

The case proceeded to jury trial. The Heirs submitted a proposed jury charge 

“under Brazilian law.” The charge included a general negligence question and 

questions on defective design and defective marketing. At the charge conference, 

the Heirs told the trial court that they had submitted the charge “understanding the 

Court’s rulings, just to preserve the issue.”

The charge submitted by the trial court included a negligence question but did 

not include a design or marketing defect question. The jury found that the Brazilian 

navy was negligent and that Rolls-Royce was not negligent. The trial court signed a 

judgment that ordered that the Heirs take nothing. The Heirs now appeal.

Analysis

The Heirs bring one issue on appeal. In three subparts, they ask whether the 

trial court erred by failing to apply the “most significant relationship test” in making a 

choice-of-law determination, whether any such error resulted in the application of 

the wrong jurisdiction’s law to the dispositive issue of liability, and whether the 

application of the wrong law probably resulted in the rendition of an improper 

judgment. They argue that because the trial court erred by not applying the “most 

significant relationship test,” the court erroneously applied Texas law to the issue of 

liability and that the jury therefore “was deprived of proper instruction on Brazilian 
8

products liability law, which holds a successor corporation strictly liable for defective 

products manufactured by a company that the successor corporation owns.”

Rolls-Royce points out that the Heirs voluntarily dropped their product liability 

claims months before trial, and consequently, any conflict between Texas and 

Brazilian law regarding product liability claims became immaterial to the judgment.

Rolls-Royce is correct that prior to trial, the Heirs amended their pleadings and

dropped the product liability claims. Rule 278 of the rules of civil procedure requires 

the trial court to submit to the jury the questions, instructions, and definitions that are 

raised by the written pleadings.4 Similarly, rule 301 of the rules of civil procedure 

requires the trial court’s judgment to conform to the pleadings.5 At the time of trial, 

the Heirs’ pleadings no longer included the claims to which they say the trial court 

erroneously applied Texas law. Under rule 278, the trial court could not submit a 

jury question on the omitted claims,6and under rule 301, the trial court could not 

render a judgment on the omitted claims.7

 

4

Tex. R. Civ. P. 278.

5

Tex. R. Civ. P. 301; see also Cunningham v. Parkdale Bank, 660 S.W.2d 

810, 813 (Tex. 1983) (stating that “a judgment must be supported by the pleadings 

and, if not so supported, it is erroneous”).

6See Tex. R. Civ. P. 278; Harris Cnty. v. Smith, 96 S.W.3d 230, 236 (Tex. 

2002) (“[T]he trial court’s duty is to submit only those questions, instructions, and 

definitions raised by the pleadings and the evidence.”); Crowson v. Bowen, 320 

S.W.3d 486, 488–89 (Tex. App.—Fort Worth 2010, no pet.) (holding that the trial 

court abused its discretion by submitting a jury question that was neither supported 

by the pleadings nor tried by consent).

7See Tex. R. Civ. P. 301; Cunningham, 660 S.W.2d at 813.
9

The Heirs argue in their reply brief that although they amended their petitions 

to drop the claims, they did so solely because the trial court granted their motion for 

new trial “only for the limited purpose of repleading their claims as those sounding in 

negligent undertaking as opposed to strict product liability.” But the Heirs do not 

direct us to any place in the record showing that the trial court only allowed them to 

amend their pleadings in order to drop the product liability claims,8and we have not 

found any such order by the trial court. To the contrary, at the conclusion of the 

choice of law and summary judgment hearing, when the Heirs asked for leave to 

amend their petition to assert “the negligence that we have been talking about,” the 

trial court told the Heirs’ attorney, “if you want to file a motion to reconsider along 

with the petition, you can do that.” [Emphasis added.]

The Heirs then filed a motion for new trial or for reconsideration, asking the 

trial court to reconsider its order “in its totality” and arguing once more that Brazilian 

law applied to the case. And at the hearing on the motion for new trial, the Heirs’ 

attorney mentioned to the trial court that if the court wanted to “revisit [the choice of 

law] issue, then we can revisit it, and then allow repleading.” The trial court granted 

 

8See Tex. R. App. P. 38.1(i); Akin v. Santa Clara Land Company, Ltd., 34 

S.W.3d 334, 339 (Tex. App.—San Antonio 2000, pet. denied) (overruling Akin’s 

argument that the trial court erred by granting partial summary judgment on her 

DTPA and negligence claims and holding that “[b]y amending her pleading and 

eliminating the DTPA and negligence references, Akin abandoned those claims” and 

therefore waived any error regarding those claims); see also Ward v. ACS State & 

Local Solutions, Inc., 328 S.W.3d 648, 653 (Tex. App.—Dallas 2010, no pet.) 

(holding that when Ward abandoned her finance code claim in the trial court, she 

waived any right to complain about that claim on appeal).
10

the motion for new trial without limitation.

9

 This action by the trial court put the case 

back in the same position it had been in before the court granted summary judgment 

based on the application of Texas law.10

As we stated, from our review of the record, we have not found any indication 

that the trial court ordered the Heirs to drop their claims or that the Heirs alerted the 

trial court to their objection to dropping the claims to which they asserted Brazilian 

law should apply. Nothing that the Heirs have pointed out or that we have found in 

the record indicates that the decision to amend their pleadings in order to “properly 

reflect the Court’s ruling” about the application of Texas law was anything but 

voluntary. And although the Heirs later submitted a proposed jury charge including 

the claims under Brazilian law, they had not amended their pleadings to include any 

such claims, nor had they introduced evidence on those claims. The trial court 

consequently could not have included the claims in the charge even if it had wanted 

to.11 Accordingly, we hold that the trial court did not err by not applying Brazilian law 

 

9Cf. Hall v. Stephenson, 919 S.W.2d 454, 461 (Tex. App.—Fort Worth 1996, 

writ denied) (noting that the trial court had granted the appellant’s motion for new 

trial “on certain limited questions”); Primrose Operating Co., Inc. v. Senn, 161 

S.W.3d 258, 260 (Tex. App.—Eastland 2005, pet. denied) (noting that the trial court 

granted a motion for new trial only as to one issue).

10See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 

2005) (stating that “when the trial court grants a motion for new trial, the court 

essentially wipes the slate clean and starts over”).

11See Tex. R. Civ. P. 278.
11

or by not including an instruction on Brazilian law in the jury charge. We therefore 

overrule the Heirs’ sole issue.12

Having overruled the Heirs’ sole issue, we affirm the trial court’s judgment.

LEE ANN DAUPHINOT 

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: July 12, 2012

 

12See Ward, 328 S.W.3d at 653; Akin,34 S.W.3d at 339.