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personal claim under the DTPA against Lindsey because the Lindsey
tools were sold to CRI, not to petitioner.6
Further, in a motion for summary judgment, Lindsey contended
that petitioner had no individual claims against it. In the
response to this motion, CRI and petitioner made several
arguments, but did not dispute the contention that petitioner had
no individual claims. In its trial brief, Lindsey did not
address any claim by petitioner for mental anguish or any variant
of emotional distress. Lindsey's attorney testified that he did
not depose Mr. Burditt in preparation for trial, although he
would have done so if he believed Mr. Burditt was pursuing
personal injury claims. Similarly, in reports filed for purposes
of mediation, in which the parties were required to state the
disputed issues of fact and law, neither party mentioned mental
anguish claims by Mr. Burditt; instead, the parties focused on
CRI's economic claims.
Based on the facts and circumstances surrounding the
settlement, giving particular emphasis to the intent of the
payor, we do not believe that the amounts paid pursuant to the
Lindsey settlement were received “on account of personal injuries
or sickness” within the meaning of section 104(a)(2). To the
6 CRI's and Mr. Burditt's own attorney in the lawsuit also
testified that he did not believe that Mr. Burditt had any claim
in his individual capacity against Lindsey. However, we give
little weight to this testimony because at the time of trial the
attorney had been sued by Mr. Burditt.
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