AFFIRM; and Opinion Filed October 18, 2016. 

# S

In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05
- 15
- 00359
- CV LEE PURSER , Appellant V. BRENT L. CORALLI, JE T TEXT, LLC, AND CORALLI, INC. , Appellees On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401
- 05082
- 2013



### MEMORANDUM OPINION Before Justices Fillmore, Brown, and O’ Neill 1 Opinion by Justice Brown Appellant Lee Purser sued appellee s Brent L. Coralli , Jet Text, LLC and Coralli, Inc. for claims arising out of Purser’s purported investment in a Peruvian gaming operation . The trial court granted summ ary judgment in favor of appellees based on the statute of limitations. In a single is sue, Purser asserts the trial court erre d in doing so because he raised a genuine issue of material fact on his fraudulent concealment defense . For the following reasons, we affirm the trial court’s judgment.
In late 2007, Brent Coralli approached P u r s er wit h an opportunity to invest in Corporacion Galena (“Galena”) , a Peruvian business entity whose purpose was to obtain a license to operate a mobile lottery in Peru. Galena was to be owned, in part, by Silverstrings

1 The Hon. Michael J. O'Neill, Justice, Assigned

.– 2

– Investments, NV

. Coralli instructed Pu r s er his investment would be funded through Jet Tex, an entity owned and controlled by Coralli. In December 2007 and January 2008, Pur s er paid Jet
Text a total of $200,000 to invest in Galena

. Pur s er did not receive any confirmation or documents evidencing his o wnership in Jet Text, Silverstrings, or any other entity. In fact, after he paid Jet Text, he heard nothing further from appellees. In January 2009, an affiliate of Galena issued a press release publically announcing Galena had been awar ded the lottery license. Over four years late r , i n December 2013, Pur s er filed this suit . In his petition, Purser alleged t he money he paid Jet Text n ever reached Galena, but instead was used to fund fiscal shortages in other entities owned and controll ed by Coralli

. Without alleging any specific cause s of action, Pur s er sought to recover his investment and other “appropriate damages.” Appellees answered and pleaded the statute of limitations as an affirmative defense.
A lmost a year later, a ppellee s filed a traditional mo tion for summary judgment asserting Pur s er’s claims were barred by the statute of limitations as a matter of law

. To support their motion, appelle es relied on the allegations in Pur s er’s pleadings that ( 1) he paid Jet Text the funds in 2007 and 2008, (2) a January 2009 press release announced Galena was awarded the license, and (3) Pur s er never heard from appellees again. According to appellees, Pur s er’s pleadings themselves established the very latest any claim asserted coul d have accrued was January 2009

. B ecause Pur s er filed suit more than four years later, appellees asserted all of his claims were barred by the statute of limitations.
Pur s er responded to appellees’ motion with a combined “Opposition to Motion for Summary Judgmen t and Rule 166 a (g) Request to Continue to Permit Deposition of Defendant.” Specifically, Pur s er requested a continuance to permit him to depose Brent Coralli. The only reference Pur s er’s response made to t he statute of limitation s was his contention that the accrual date appellees were relying on was irrelevant because , after the conflict arose, appellees– 3

– represented to him he was still an investor in the entities. Nevertheless, appellees would not provide him with information he would be entitled to receive if he was an owner. Pur s er sought to depose Coralli to determine whether or not appellees considered him to be an owner of the entities. Pur s er asserted that as long as appellees “ continue to e ngage in fraudulent concealment , there [ was ] no ‘ accrual date ’ that impacts this case. ” Pur s er concluded his response asserting the trial court’s “ consideration of the motion should be continued pending a deposition of [] Coral li .” Appellees’ filed a written reply asserting Pur s er was n ot entitled to a continuance because the case had been pending for eleven months and he had not conducted any discovery

. Appellees requested the trial court grant their motion for summary judgment because Pur s er had not responded to or challenged the meri ts of the motion

. In a single issue, Pur s er asserts the trial court erred in granting appelle es’ motion for summary judgment because he raised a fact issue on his fraudulent concealment defense

. A party that moves for traditional summary judgment has the burden of proving that it is entitled to judgment as a matter of law on the grounds expressly set out in its motion. T EX
. R. C IV
. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co ., 690 S.W.2d 546, 548 (Tex. 1985). If a movant meets that burden, the non

- movant mus t expressly present to the trial cou rt, in a written response , any issue that defeats the movant’s entitlement to summary judgment. T EX
. R. C IV
. P. 166a(c); City of Houston v. Clear Creek Basin Auth ., 589 S.W.2d 671, 678 (Tex. 1979). If the non - movant

s eeks to avoid summary judgment based on an affirmative defense, it must exp ressly raise the defense in a written response and present summary judgment evidence sufficient to raise a genuine issue of material fact on each element of the defense. Cove Inves tments, Inc. v. Manges , 6 02 S.W.2d 512, 514 (Tex. 1980). If the non

- movant fails to do so, the non

- movant may not rely on the affirmative defense as grounds for reversal on appeal

. See T EX
. R. C IV
. P. 166a(c). To “expressly” present an issue, the written response must fairly apprise the movant and the trial– 4

– court of the issue the non - movant contend s should defeat summary judgment. Burruss v. Citibank (S.D.), N.A ., 392 S.W.3d 759, 761 ( Tex. App

. — Dallas 2012, pet. denied)

. Fraudulent conc ealment is an affirmative defense to the statute of limitations. Weaver v.
Witt , 561 S.W.2d 792, 793 (Tex. 1977) (plaintiff bears burden of pleading and proving fraudulent concealment as defense to limitations challenge); Rivera v. Countrywide Home Loans,
Inc ., 262 S.W.3d 834, 841 (T ex. App.

— Dallas 2008, no pet .)

. Therefore, fraudulent concealment must be pleaded under Rule 94. See T EX
. R. C IV
. P . 94. Further, to rely on fraudulent concealment to defeat summary judgment, the plaintiff has the burden to expressly raise fraudulent concealment and present sufficient evidence to raise a fact issue on each element of the defense. See T EX . R. C IV . P. 94; Compass Bank v. MFP Fin. Services, Inc ., 152 S.W.3d 844, 851 (Tex. App.

— Dallas 2005, pet. denied) (affirmative defense not pleaded is waived unless tried by consent). On appeal, Pur s er does not dispute appellees met their initial summary judgment burden to conclusively establish his claims were barred by limitations. See Pustejovsky v. Rapid

- Am. Corp., 35 S.W.3d 643, 646 (Tex. 2000) (defendant is entitled to summary judgment if it conclusively establishes suit barred by limitations). Instead, he asserts the trial court erred in granti ng summary judgment because his response rai sed fraudulent concealment as a defense to the statute of limitations and because he presented sufficient evi dence to raise a fact issue on each element of the defense. We disagree.
Pur s er did not assert fraudulent concealment in any of his pleadings

. Although he used the phrase “ fraud u lent concealment” in his summary judgment respon s e, he did not assert it was

an affirmative defense to the statute of limi tations

. Nor did he assert the trial court should deny appellees’ motion because he raised a genuine issue of material fact on each element of fraudulent concealment. Instead, it appears from our review of Pur s er’s response, he was relying– 5

– on fraudulent conceal ment to support his request for a continuance under rule 166a(g). See T EX
. R. C IV
. P. 166a(g) (trial court may grant a continuance to permit deposition s to be taken if non

movant shows he cannot otherwise p resent facts essential to oppose the motion ). We conclude
Pur s er’s response was insufficient to fairly apprise the trial c ourt or appellees he was relying on fraudulent concealment and evidence of fraudulent concealment as a basis to defeat summary judgment. See Clear Creek Basin Authority , 589 S.W.2d at 678 (“the non

- movant must expressly present to the trial court any rea sons seeking to avoid movant's entitlement . . . .”); see also McConnell v. Southside Indep. Sch. Dist ., 858 S.W.2d 337, 341 (Tex. 1993).
Moreover , because Pur s er did not plead fraudulent concealment , he was not only required to proper l y raise it in the summary judgment proceedings, he mu st show it was tried by consent

. Trial by consent is intended to cover the exceptional case where it clearly appears from the record as a whole that the parties actually tried the unple d issue. Cooper v. Circle Ten Council Boy Scouts of Am ., 254 S.W.3d 689, 695 (Tex. App.

— Dallas 2008, no pet.). In the summary judgment cont ext, an affirmative defense is tried by consent if the non

- movant expressly raises the defense in its response and the movant responds to the defe nse on the merits without objecting. See Via Net v. TIG Ins. Co ., 211 S.W.3d 310, 313 (Tex. 2006); John C. Flood of DC, Inc. v. SuperMedia , L.L.C., 408 S.W.3d 645, 655 (Tex. App.

— Dallas 2013, pet. denied). In such circumstances, the unpled affirmative de fense is placed “ squarely before the trial court. ”
See Via Net , 211 S.W.3d at 313. Here, Pur s er ’s reference to f raudulent concealment in his summary judgment response was, at best, unclear. In their written reply, appellees asserted they were entitled to summary judgment because Pur s er had not responded to the merits of the motion , but only requested an unwarranted continuance . Appellees’ reply clearly reflect s they did not construe Pur s er’s motion as raising limitations at all, much less an y unpleaded affirmative defense. We conclude the– 6

– record , as a whole, does not show the parties actually tried fraudulent concealment

. Therefore,
Pur s er cannot rely on the defense as grounds for reversal. Rivera , 262 S.W.3d at 841 (fraudulent concealment waived if not pleaded). We resolve Pur s er’s sole issue against him and affirm the trial court’s judgment.

150359F.P05 /Ada Brown/ ADA BROWN JUSTICE– 7

– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LEE PURSER, Appellant
No. 05

- 15

- 00359

- CV V. BRENT L. CORALLI, JET TEXT, LLC, AND CORALLI, INC., Appellees On Appeal from the 401st Judicial District Court, Collin County, Texas Trial Court Cause No. 401

- 05082

- 2013. Opinion delivered by Justice Brown. Justices Fillmore and O’Neill participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee BRENT L. CORALLI, JET TEXT, LLC, AND CORALLI, INC. recover their costs of this appeal from appell ant LEE PURSER.
Judgment entered this 18th day of October, 2016.