                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-11-00195-CV


MELISSA MAIBERG ESTACIO DE                          APPELLANTS
FREITAS, INDIVIDUALLY AND ON                      AND APPELLEES
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

                                    V.

ROLLS-ROYCE CORPORATION                                APPELLEE
                                                  AND APPELLANT


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        FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

                                 ----------

                      MEMORANDUM OPINION1

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




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


                                           2
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.


                                           3
       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).


                                             4
      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.”


                                           5
      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) Rolls-

Royce 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


                                           6
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




                                            7
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,6 and 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”).
      6
        See 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).
      7
       See Tex. R. Civ. P. 301; Cunningham, 660 S.W.2d at 813.


                                            8
      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,8 and 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


      8
       See 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).


                                            9
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




      9
        Cf. 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).
      10
        See 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”).
      11
          See Tex. R. Civ. P. 278.


                                           10
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




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


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