AFFIRM; and Opinion Filed October 18, 2016.




                                           Court of Appeals
                                                           S   In The


                                    Fifth District of Texas at Dallas
                                                         No. 05-15-00359-CV

                               LEE PURSER, Appellant
                                        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

                                          MEMORANDUM OPINION
                                     Before Justices Fillmore, Brown, and O’Neill 1
                                              Opinion by Justice Brown
          Appellant Lee Purser sued appellees 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 summary judgment in favor of appellees based on the statute of limitations. In a

single issue, Purser asserts the trial court erred 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 Purser with 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.
Investments, NV. Coralli instructed Purser his investment would be funded through Jet Tex, an

entity owned and controlled by Coralli. In December 2007 and January 2008, Purser paid Jet

Text a total of $200,000 to invest in Galena. Purser did not receive any confirmation or

documents evidencing his ownership 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 awarded the lottery license.

       Over four years later, in December 2013, Purser filed this suit. In his petition, Purser

alleged the money he paid Jet Text never reached Galena, but instead was used to fund fiscal

shortages in other entities owned and controlled by Coralli. Without alleging any specific causes

of action, Purser sought to recover his investment and other “appropriate damages.”

        Appellees answered and pleaded the statute of limitations as an affirmative defense.

Almost a year later, appellees filed a traditional motion for summary judgment asserting Purser’s

claims were barred by the statute of limitations as a matter of law. To support their motion,

appellees relied on the allegations in Purser’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) Purser never heard from appellees again.         According to appellees, Purser’s pleadings

themselves established the very latest any claim asserted could have accrued was January 2009.

Because Purser filed suit more than four years later, appellees asserted all of his claims were

barred by the statute of limitations.

       Purser responded to appellees’ motion with a combined “Opposition to Motion for

Summary Judgment and Rule 166a(g) Request to Continue to Permit Deposition of Defendant.”

Specifically, Purser requested a continuance to permit him to depose Brent Coralli. The only

reference Purser’s response made to the statute of limitations was his contention that the accrual

date appellees were relying on was irrelevant because, after the conflict arose, appellees

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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. Purser sought

to depose Coralli to determine whether or not appellees considered him to be an owner of the

entities. Purser asserted that as long as appellees “continue to engage in fraudulent concealment,

there [was] no ‘accrual date’ that impacts this case.” Purser concluded his response asserting the

trial court’s “consideration of the motion should be continued pending a deposition of [] Coralli.”

       Appellees’ filed a written reply asserting Purser was not 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 Purser had

not responded to or challenged the merits of the motion.

       In a single issue, Purser asserts the trial court erred in granting appellees’ 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. TEX. R. CIV. 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 must expressly present to the trial court, in a written response, any

issue that defeats the movant’s entitlement to summary judgment. TEX. R. CIV. P. 166a(c); City

of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). If the non-movant

seeks to avoid summary judgment based on an affirmative defense, it must expressly 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 Investments, Inc. v. Manges,

602 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 TEX. R. CIV. P. 166a(c). To

“expressly” present an issue, the written response must fairly apprise the movant and the trial

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court of the issue the non-movant contends should defeat summary judgment.             Burruss v.

Citibank (S.D.), N.A., 392 S.W.3d 759, 761 (Tex. App.—Dallas 2012, pet. denied).

       Fraudulent concealment 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 (Tex. App.—Dallas 2008, no pet.).                 Therefore, fraudulent

concealment must be pleaded under Rule 94. See TEX. R. CIV. 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 TEX. R. CIV. 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, Purser 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

granting summary judgment because his response raised fraudulent concealment as a defense to

the statute of limitations and because he presented sufficient evidence to raise a fact issue on

each element of the defense. We disagree.

       Purser did not assert fraudulent concealment in any of his pleadings. Although he used

the phrase “fraudulent concealment” in his summary judgment response, he did not assert it was

an affirmative defense to the statute of limitations. 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 Purser’s response, he was relying

                                               –4–
on fraudulent concealment to support his request for a continuance under rule 166a(g). See TEX.

R. CIV. P. 166a(g) (trial court may grant a continuance to permit depositions to be taken if non-

movant shows he cannot otherwise present facts essential to oppose the motion). We conclude

Purser’s response was insufficient to fairly apprise the trial court 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 reasons seeking to avoid movant's entitlement . . . .”); see

also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

       Moreover, because Purser did not plead fraudulent concealment, he was not only required

to properly raise it in the summary judgment proceedings, he must 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 unpled 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 context, an affirmative defense is tried by consent if the non-movant expressly raises

the defense in its response and the movant responds to the defense 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 defense is placed “squarely before the trial court.”

See Via Net, 211 S.W.3d at 313.

       Here, Purser’s reference to fraudulent concealment in his summary judgment response

was, at best, unclear. In their written reply, appellees asserted they were entitled to summary

judgment because Purser had not responded to the merits of the motion, but only requested an

unwarranted continuance. Appellees’ reply clearly reflects they did not construe Purser’s motion

as raising limitations at all, much less any unpleaded affirmative defense. We conclude the

                                                –5–
record, as a whole, does not show the parties actually tried fraudulent concealment. Therefore,

Purser cannot rely on the defense as grounds for reversal.       Rivera, 262 S.W.3d at 841

(fraudulent concealment waived if not pleaded). We resolve Purser’s sole issue against him and

affirm the trial court’s judgment.




                                                   /Ada Brown/
                                                   ADA BROWN
                                                   JUSTICE



150359F.P05




                                             –6–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

LEE PURSER, Appellant                                On Appeal from the 401st Judicial District
                                                     Court, Collin County, Texas
No. 05-15-00359-CV         V.                        Trial Court Cause No. 401-05082-2013.
                                                     Opinion delivered by Justice Brown. Justices
BRENT L. CORALLI, JET TEXT, LLC,                     Fillmore and O’Neill participating.
AND CORALLI, INC., Appellees

     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 appellant LEE PURSER.


Judgment entered this 18th day of October, 2016.




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