- 20 - pleadings or elsewhere in the record of the underlying litigation did petitioner claim such damage as a result of Lindsey’s actions. Based on the foregoing, we find that the allocation in the Lindsey settlement agreement was not the product of adversarial negotiation, and thus we disregard it. b. Nature of the Underlying Claim Having disregarded the express allocation, we must examine the facts and circumstances surrounding the settlement to determine “In lieu of what” the damages were paid. Robinson v. Commissioner, 102 T.C. at 126. Petitioners contend that Mr. Burditt had a mental anguish claim against Lindsey, which Lindsey paid to settle. The record does not support this contention. Mr. Burditt did not assert any claims in his individual capacity against Lindsey in the original and first amended petitions. The intent of the second and third amended petitions with respect to any individual claims by Mr. Burditt for mental anguish was ambiguous. The second and third amended petitions assert a claim under the Texas Deceptive Trade Practice Act - Consumer Protection Act (DTPA), and petitioners argue that recoveries for mental anguish claims are permitted under the DTPA. However, it is not clear from the language in the pleadings whether Mr. Burditt or CRI is asserting the DTPAPage: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
Last modified: May 25, 2011