Cherry v. Victoria Equip. & Supply, Inc., 645 S.W.2d 781 (Tex. 1983). · Go Syfert
Cherry v. Victoria Equip. & Supply, Inc., 645 S.W.2d 781 (Tex. 1983). Cases Citing This Book View Copy Cite
38 citation events (21 in the last 25 years) across 3 distinct courts.
Strongest positive: B. Mahler Interests, LP v. DMAC Construction, Inc. (texapp, 2015-11-09)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) B. Mahler Interests, LP v. DMAC Construction, Inc. (2×) also: Cited as authority (rule)
Tex. App. · 2015 · quote attribution · 1 verbatim quote · confidence high
the ultimate duty to weigh the evidence, determine credibility and decide if fraudulent concealment achmlly existed rests upon the trier of fact.
examined Cited as authority (verbatim quote) Etan Industries, Inc. and Etan Industries, Inc., D/B/A CMA Cablevision and/or CMA Communications v. Ronald Lehmann and Dana Lehmann (3×) also: Cited as authority (rule), Cited "see"
Tex. App. · 2010 · signal: see · quote attribution · 1 verbatim quote · confidence high
the ultimate duty to weigh the evidence, determine credibility and decide if fraudulent concealment actually existed rests upon the trier of fact.
examined Cited as authority (verbatim quote) ETAN INDUSTRIES, INC. v. Lehmann (6×) also: Cited as authority (rule), Cited "see"
Tex. App. · 2010 · signal: see · quote attribution · 2 verbatim quotes · confidence high
the ultimate duty to weigh the evidence, determine credibility and decide if fraudulent concealment actually existed rests upon the trier of fact.
examined Cited as authority (verbatim quote) Etan Industries, Inc. and Etan Industries, Inc., D/B/A CMA Cablevision and/or CMA Communications v. Ronald Lehmann and Dana Lehmann (3×) also: Cited as authority (rule), Cited "see"
Tex. App. · 2010 · signal: see · quote attribution · 1 verbatim quote · confidence high
the ultimate duty to weigh the evidence, determine credibility and decide if fraudulent concealment actually existed rests upon the trier of fact.
discussed Cited as authority (rule) Samson Lone Star Limited Partnership, N/K/A Samson Lone Star, L.L.C. v. Charles G. Hooks, III, Individually and as Independent of the Estate of Charles G. Hooks, Jr., as Trustee of the Scott Ira McKeever Trust and the David Wayne McKeever Trust, and on Behalf of Chas. G. Hooks & Son, a General Partnership
Tex. App. · 2015 · confidence medium
Co., 749 S.W.2d 762, 766 (Tex.1987) (“[W]e agree that whether the plaintiffs knew or should have known of the fraud ... raises a fact issue....”); Borderlon, 661 S.W.2d at 909 (“A fact issue exists whether, in the exercise of reasonable diligence, Borderlon knew, or should have known ..., that the presence of the foreign object in her abdomen gave rise to a cause of action against Dr. Peck.”); Cherry v. Victoria Equip. & Supply, Inc., 645 S.W.2d 781, 782 (Tex.1983) (“The ultimate duty to weigh the evidence, determine credibility and decide if fraudulent concealment actually existed r…
discussed Cited as authority (rule) Charles G. Hooks, III v. Samson Lone Star, Limited Partnership, N/K/A Samson Lone Star Llc
Tex. · 2015 · confidence medium
Co., 749 S.W.2d 762, 766 (Tex.1987) (”[W]e agree that whether the plaintiffs knew or should have known of the fraud ... raises a fact issue....”); Borderlon, 661 S.W.2d at 909 ("A fact issue exists whether, in the exercise of reasonable diligence, Borderlon knew, or should have known ..., that the presence of the foreign object in her abdomen gave rise to a cause of action against Dr. Peck.”); Cherry v. Victoria Equip. & Supply, Inc., 645 S.W.2d 781, 782 (Tex.1983) ("The ultimate duty to weigh the evidence, determine credibility and decide if fraudulent concealment actually existed rests…
discussed Cited as authority (rule) De Shazo v. Nations Engy Co Ltd
5th Cir. · 2008 · confidence medium
Therefore, the Alberta court’s determination that DeShazo knew or should have known of his injury in February 2000 would render DeShazo’s fraudulent concealment claims meritless under federal and state law. *117 DeShazo relies on Cherry v. Victoria Equipment and Supply, Inc., 645 S.W.2d 781, 782 (Tex.1983), for the proposition that despite his knowledge of facts giving rise to his claim, “a defendant’s affirmative denial of such facts will toll limitations if the potential plaintiff has reason to rely on defendant’s (mis)representations.” However, the rule in Cherry does not overri…
cited Cited as authority (rule) Bryan Barnhill v. Integrated Health Services, Inc.
Tex. App. · 1999 · confidence medium
Cherry v. Victoria Equipment & Supply, Inc. , 645 S.W.2d 781, 782 (Tex. 1983); Dougherty v. Gifford , 826 S.W.2d 668, 674 (Tex. App.--Texarkana 1992, no writ).
discussed Cited as authority (rule) Barnhill v. Integrated Health Services, Inc. (2×) also: Cited "see"
Tex. App. · 1999 · confidence medium
Cherry v. Victoria Equipment & Supply, Inc., 645 S.W.2d 781, 782 (Tex.1983); Dougherty v. Gifford, 826 S.W.2d 668, 674 (Tex.App.—Texarkana 1992, no writ).
discussed Cited as authority (rule) DiGrazia v. Old
Tex. App. · 1995 · signal: cf. · confidence medium
Cf. Cherry v. Victoria Equip. & Supply, Inc., 645 S.W.2d 781, 782 (Tex. 1983) (finding defendant’s previous denials of participation in incident created fact issue as to fraudulent concealment).
discussed Cited as authority (rule) Dougherty v. Gifford (2×)
Tex. App. · 1992 · confidence medium
Fraudulent concealment may be shown where a party affirmatively conceals the responsible party’s identity, Cherry v. Victoria Equipment & Supply, Inc., 645 S.W.2d 781, 782 (Tex.1983), if there is a duty to disclose one’s identity.
discussed Cited "see" Kanon v. Methodist Hospital (2×)
Tex. App. · 1999 · signal: see · confidence high
See Cherry, 645 S.W.2d at 782 ; Santanna Nat.
discussed Cited "see" Santanna Natural Gas Corp. and Women's Natural Gas Corp. v. Hamon Operating Co.
Tex. App. · 1997 · signal: see · confidence high
See Cherry v. Victoria Equip. & Supply, Inc., 645 S.W.2d 781, 782 (Tex.1983) (ultimate duty to weigh evidence, determine credibility and decide if fraudulent concealment actually exists rests upon trier of fact).
discussed Cited "see" Santanna Natural Gas Corporation and Women's Natural Gas Corporation v. Hamon Operating Company
Tex. App. · 1997 · signal: see · confidence high
See Cherry v. Victoria Equip. & Supply, Inc. , 645 S.W.2d 781, 782 (Tex. 1983) (ultimate duty to weigh evidence, determine credibility and decide if fraudulent concealment actually exists rests upon trier of fact).
Retrieving the full opinion text from the archive…
Abraham CHERRY and Albert Allison, Petitioners,
v.
VICTORIA EQUIPMENT AND SUPPLY, INC. Et Al., Respondents
C-1573.
Texas Supreme Court.
Feb 2, 1983.
645 S.W.2d 781
1983 Tex. LEXIS 267
Doherty & Williamson, Jimmy Williamson and Larry J. Doherty, Hughes, Watters, Askanase & Redford, David C. Redford, Houston, for petitioners., Funderburk & Funderburk, Larry Fun-derburk, Houston, for respondents.
Robertson.
Cited by 19 opinions  |  Published
ROBERTSON, Justice.

Petitioners, Abraham Cherry and Albert Allison, were injured when a gas holding tank on a well they were cleaning ignited. Their injuries occurred in October 1976 and suits were filed by each in July, 1977 and August, 1978, respectively. Neither Cherry nor Allison named Respondents, Victoria Equipment and Supply, Inc., et al., as defendants until March 1980; Cherry and Allison were unaware of Victoria Equipment’s involvement with the well in question because a co-owner of Victoria Equipment testified by deposition that his company C^'had nothing to do with the well.” The trial court granted summary judgment for Victoria Equipment based upon the two year statute of limitations. Tex.Rev.Civ. StatAnn. art. 5526 (Vernon Supp.1983). Cherry and Allison argued that the doctrine of fraudulent concealment of a cause of action suspended the running of limitations. The court of appeals affirmed the judgment of the trial court. 640 S.W.2d 685. We reverse the judgments of the courts below and remand to the trial court.

Melvin Klotzman is a 50 per cent owner of Victoria Equipment. After the fire occurred, and before the statute of limitations expired, Klotzman’s deposition was taken by Cherry’s attorney concerning the circumstances of the explosion at the well. Klotz-man testified repeatedly that Victoria Equipment had not been hired to do any work on the well, and the company was not working on the well. It was not until the deposition of an employee of Victoria Equipment was taken in March 1980 that Cherry and Allison discovered that Victoria Equipment did in fact do work on the well in question. Victoria Equipment was joined as a defendant at that time.

We hold that the deposition testimony of Klotzman raised an issue of fact as to fraudulent concealment which defeats Victoria Equipment’s summary judgment based upon the statute of limitations. Nichols v. Smith, 507 S.W.2d 518 (Tex.1974). The court of appeals erred in holding as a matter of law that Cherry and Allison did not exercise reasonable diligence in discovering the true involvement of Victoria Equipment. In this instance, Cherry and Allison could have reasonably relied on the repeated assertions of a 50 per cent owner of Victoria Equipment that his company was not involved with the well. The ultimate duty to weigh the evidence, determine credibility and decide if fraudulent concealment actually existed rests upon the trier of fact. Therefore, summary judgment for Victoria Equipment was improper since a fact question has been presented as to fraudulent concealment. We reverse the judgments of the courts below and remand the cause to the trial court.