Lee Purser v. Brent L. Coralli, Jet Text, LLC, and Coralli, Inc.
05-15-00359-CV
| Tex. App. | Oct 18, 2016Background
- Purser sued Brent L. Coralli, Jet Text, LLC, and Coralli, Inc. in 2013 for an alleged investment in a Peruvian gaming venture; the trial court granted summary judgment based on statute of limitations.
- Purser was allegedly solicited to invest in Galena in late 2007; funds of $200,000 were paid to Jet Text in Dec 2007 and Jan 2008 with no ownership confirmations provided.
- In Jan 2009, a Galena press release announced the gaming license; Purser received no further contact from the defendants.
- Purser claimed the funds never reached Galena and were used to cover other entities’ fiscal shortfalls; he sought to recover his investment and damages.
- Purser moved for a continuance to depose Coralli, arguing fraudulent concealment affected accrual; the court later granted summary judgment without recognizing fraudulent concealment as a pleaded defense.
- The appellate court affirmed, concluding Purser did not plead fraudulent concealment, did not raise it as a live defense, and there was no trial by consent of that unpleaded issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Fraudulent concealment defeats accrual for limitations | Purser relied on fraudulent concealment to avoid accrual; sought continuance to depose | Fraudulent concealment was not pleaded and not tried; no defense preserved | Affirmed court’s judgment; no pleaded defense, no trial by consent |
Key Cases Cited
- Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834 (Tex. App.—Dallas 2008) (fraudulent concealment must be pleaded under Rule 94)
- Weaver v. Witt, 561 S.W.2d 792 (Tex. 1977) (fraudulent concealment is an affirmative defense to limitations)
- Compass Bank v. MFP Fin. Servs., Inc., 152 S.W.3d 844 (Tex. App.—Dallas 2005) (burden on defendant to raise defense with evidence to create fact issue)
- Burruss v. Citibank (S.D.), N.A., 392 S.W.3d 759 (Tex. App.—Dallas 2012) (expressly present issue to avoid summary judgment)
- Via Net v. TIG Ins. Co., 211 S.W.3d 310 (Tex. 2006) (trial by consent hinges on response and response on merits)
- John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645 (Tex. App.—Dallas 2013) (affirmative defense not pleaded is waived absent trial by consent)