Allen Burditt II and Sarah Maunee S. Burditt - Page 22




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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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