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                                   MEMORANDUM OPINION

                                          No. 04-08-00438-CV

                           Ray K. HANSBERGER and Connie B. Hansberger,
                                          Appellants

                                                    v.

                                EMC MORTGAGE CORPORATION,
                                         Appellee

                        From the 57th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2005-CI-15378
                          Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: July 29, 2009

AFFIRMED

           In the underlying lawsuit, the trial court rendered a partial summary judgment in favor of

defendant, EMC Mortgage Corporation (“EMC”), on all but one of the claims asserted by the

plaintiffs, Ray K. Hansberger and Connie B. Hansberger. After the Hansbergers non-suited their

remaining claim, the trial court granted EMC’s motion to dismiss. This appeal followed. In three
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issues, the Hansbergers argue the trial court erred in granting EMC’s motion for partial summary

judgment and the trial court erred when it dismissed their suit because the summary judgment and

non-suit did not resolve all of their claims. We affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

       On September 26, 2005, the Hansbergers sued EMC alleging various causes of action

associated with the mortgage account on their home. In February 2006, before any deposition

discovery had been conducted, EMC moved for summary judgment, the Hansbergers responded, and

the trial court denied the motion on May 31, 2006. Following continuances and an attempt to

mediate, the case was set for trial to commence on February 11, 2008.

       In December 2007, seven weeks prior to trial and after depositions had been conducted, EMC

moved for a partial summary judgment. At that time, the Hansbergers’ live pleading specifically

identified the following substantive causes of action: (1) violations of the Deceptive Trade Practices

Act (“DTPA”); (2) common law fraud; (3) fraud in a real estate transaction under Texas Business

and Commerce Code section 27; (4) negligence; (5) negligent misrepresentation; (6) negligent hiring,

supervision, and management; and (7) breach of contract. EMC’s motion for partial summary

judgment addressed all of the Hansbergers’ causes of action except for breach of contract.

       Following a hearing, the trial court granted EMC’s motion for partial summary judgment in

its entirety. Subsequently, on the day of trial, the Hansbergers non-suited their claim for breach of

contract. EMC then moved for dismissal of the entire suit on the grounds that all of the Hansbergers’

causes of action were disposed of by either the granting of the partial summary judgment or the non-

suit. The court granted the motion to dismiss, and this appeal ensued.




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                         MOTION FOR PARTIAL SUMMARY JUDGMENT

         EMC moved for both a no-evidence and a traditional summary judgment on all of the

Hansbergers’ claims, except the breach of contract claim. The Hansbergers filed a response on the

day of the summary judgment hearing.1

A.       Cause of Action for Violations of the DTPA and Various “Tie-in” Statutes

         The Hansbergers alleged EMC violated the DTPA by engaging in various false, misleading,

and deceptive acts. They also alleged that, by virtue of the DTPA violations, EMC also violated the

various “tie-in” statutes. EMC moved for summary judgment on the DTPA claims on two grounds:

(1) the Hansbergers are not “consumers” under the DTPA and (2) EMC’s servicing of the loan does

not constitute a “good” or “service” for purposes of the DTPA. EMC also asserted that because the

Hansbergers’ DTPA claims failed as a matter of law, so too did their “tie-in” claims.

         To pursue a DTPA cause of action, a plaintiff must be a consumer. See TEX . BUS. & COM .

CODE ANN . § 17.50(a) (Vernon Supp. 2008). To qualify as a consumer under the DTPA, a plaintiff

must “seek or acquire goods or services by purchase or lease” and those goods or services must form

the basis of the complaint. Bohls v. Oakes, 75 S.W.3d 473, 479 (Tex. App.—San Antonio 2002, pet.

denied); see TEX . BUS. & COM . CODE ANN . § 17.45(4). Whether a plaintiff qualifies as a


         1
            … The summary judgment hearing was set to commence on January 8, 2008 at 8:30 a.m. The Hansbergers
were required to file a response at least seven days before the summary judgment hearing. T EX . R. C IV . P. 166a(c). The
Hansbergers filed their response on January 8 at 9:00 a.m. After this appeal was filed, EMC moved (1) to strike the
response from the appellate record on the grounds that it had been untimely filed without leave of court, or (2)
alternatively, that this court not consider the response on the grounds that it was not considered by the trial court. In
response to the motion to strike, the Hansbergers contend their response was timely because it had been on file since
2006, apparently in response to EMC’s 2006 motion for summary judgment. W e decline to hold that a response to an
earlier-filed motion for summary judgment constitutes a timely-filed response when the moving party, at a subsequent
point in time, later files another motion for summary judgment. A response to a motion for summary judgment may be
late-filed, but only with leave of court. Benchmark Bank v. Crowder, 919 S.W .2d 657, 663 (Tex. 1996). Because the
record on appeal here does not indicate the trial court granted leave for the Hansbergers’ response that was filed on the
day of the hearing, we presume the trial court did not consider the response. See Benchmark Bank, 919 S.W .2d at 663;
INA of Tex. v. Bryant, 686 S.W .2d 615 (Tex. 1985). Also, nothing in the record indicates the trial court considered the
response despite its untimely filing. Therefore, on appeal, we do not consider the response or attached evidence.

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“consumer” under the DTPA is a question of law for the trial court to decide. Bohls, 75 S.W.3d at

479. Here, there is no dispute EMC did no more than service the Hansbergers’ loan after the loan

was assigned to EMC.2 Therefore, the services provided by EMC served no purpose other than to

facilitate a mortgage loan acquired from another lender, and therefore, were not, as a matter of law,

a “good” or “service” contemplated by the DTPA. Maginn v. Norwest Mortgage, Inc., 919 S.W.2d

164, 167 (Tex. App.—Austin 1996, no pet.) (holding that because “Norwest’s ancillary services

served no purpose apart from facilitating a mortgage loan . . . any services provided by Norwest

were, as a matter of law, incidental to the contemplated mortgage loan; they were not an objective

of the transaction . . . [therefore] appellants were not consumers for purposes of the DTPA.”); see

also Allen v. Am. Gen. Fin., Inc., 251 S.W.3d 676, 694 (Tex. App.—San Antonio 2007, pet. granted)

(“A borrower whose sole objective is a loan does not become a consumer merely because the lender

provides services incidental to the loan that are not independent objectives of the transaction.”).

Accordingly, the Hansbergers were not, as a matter of law, “consumers” under the DTPA.

Therefore, the trial court did not err in rendering a traditional summary judgment in favor of EMC

on the Hansbergers’ DTPA claims.

         The DTPA allows a consumer to bring a cause of action under the DTPA if he is granted that

right by another law. TEX . BUS. & COM . CODE ANN . § 17.50(h). Certain statutes “tie in” to the

DTPA such that a violation of the former is also a violation of the latter. Each of the tie-in statutes

asserted in the Hansbergers’ petition provide that a violation of the statute is a deceptive trade

practice under the DTPA. See TEX . BUS. & COM . CODE ANN . § 20.12 (Vernon 2009) (violation of



         2
             …In September 1990, the Hansbergers obtained the mortgage loan from Texas Homestead Mortgage
Corporation. The loan was later transferred to Fleet Mortgage Corporation, and then transferred to the U.S. Department
of Housing and Development (“HUD”). HUD later assigned the loan to EMC.

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“Regulation of Consumer Credit Reporting Agencies” statute); TEX . BUS. & COM . CODE ANN .

§ 601.204 (violation of statute governing “Cancellation of Certain Consumer Transactions”); TEX .

PROP . CODE ANN . § 41.006(b) (Vernon 2000) (violation of statute governing “Certain Sales of

Homestead”); TEX . FIN . CODE ANN . § 392.404(a) (Vernon 2006) (violation of statute governing

“Debt Collection”); TEX . FIN . CODE ANN . § 393.504 (violation of statutes governing “Credit

Services Organizations”); former TEX . REV . CIV . STAT . ANN . art. 6573(b) (violation of “Residential

Service Company Act”). However, the party bringing a claim under the DTPA for a violation of a

tie-in statute must still satisfy the requirement of being a “consumer.” Because the Hansbergers are

not consumers under the DTPA, the trial court did not err in rendering a traditional summary

judgment in favor of EMC on the Hansbergers’ “tie-in” claims.

B.     Negligence and Common Law Fraud Claims

       The Hansbergers alleged EMC made material false representations and concealed or failed

to disclose material facts, including false claims about HUD forbearance provisions, false claims

regarding whether they had made their mortgage payments, and EMC communicated false

information regarding the status of their loan. EMC moved for summary judgment on the

negligence-based and fraud-based claims on the ground that any such claims arise from EMC’s

contractual obligation to service the Hansbergers’ loan, and not as an independent tort. On appeal,

the Hansbergers make a single argument: “Despite having been denied summary judgment on this

claim [in 2006], EMC simply asserted the same claim again [in 2007]. Accordingly, the Hansbergers

have already been found to have provided enough evidence to raise a genuine issue of material fact.”

       The Texas Rules of Civil Procedure do not limit the number of times a motion for summary

judgment may be filed. Anderson v. Bormann, 489 S.W.2d 945, 947 (Tex. Civ. App.—San Antonio



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1973, writ ref’d n.r.e.). Also, the denial of a motion for summary judgment is merely an

interlocutory order and is in no way final; therefore, such an order does not finally decide any

question before the trial court. Id. Thus, the denial of EMC’s 2006 motion for summary judgment

did not, in and of itself, prevent the trial court from granting EMC’s 2007 motion for partial

summary judgment. Therefore, we next consider whether EMC established its entitlement to

summary judgment as a matter of law.

       To determine whether the Hansbergers’ tort claims can be maintained, we look to the

substance of the causes of action rather than the manner in which they are pled. Jim Walter Homes,

Inc. v. Reed, 711 S.W.2d 617, 617-18 (Tex. 1986). Tort obligations are those imposed by law when

a person breaches a duty that is independent from promises made between the parties to a contract;

contractual obligations are those that result from an agreement between parties, which is breached.

Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991).

       We apply a two-part test to determine whether a claim based upon a contract may also give

rise to independent tort causes of action. First, we examine whether the liability asserted arose solely

as a result of a contractual duty or out of an independent obligation imposed by law. Id. at 494-95.

If the defendant’s conduct would give rise to liability independent of the fact that a contract exists

between the parties, the plaintiff’s claim may sound in both tort and contract, but if the defendant’s

conduct would give rise to liability only because it breaches the parties’ agreement, the plaintiff’s

claim ordinarily sounds only in contract. Id. Second, we examine whether the injury asserted is

other than an economic loss to the subject of the contract. Id. In determining whether there is a tort

action, a breach of contract action, or both, the nature of the injury most often determines which duty




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or duties are breached. Jim Walter Homes, 711 S.W.2d at 618. When the injury is only the

economic loss to the subject of a contract itself, the action sounds in contract alone. Id.

       With these guidelines in mind, we consider what conduct on EMC’s part the Hansbergers

alleged as the cause of their injury. All of the Hansbergers’ allegations are premised on their

contention that “EMC engaged in an intentional scheme to use deceit, deception, fraud,

misrepresentations, and coercion for the purpose of forcing the plaintiffs into default so that EMC

could obtain additional revenue to which EMC was not entitled, and so that EMC could ultimately

wrongfully take their home away from them.” The Hansbergers alleged they were repeatedly denied

timely credit for their payments, which in turn, served as EMC’s reason for applying additional fees

to their mortgage account.

       Under their negligence claim, the Hansbergers allege EMC owed them “a duty to perform

and/or provide services in a manner consistent with reason . . . [and] EMC failed to exercise ordinary

care in performing such duty.” Under their negligent misrepresentation claim, the Hansbergers

alleged EMC “supplied false information . . . [and] such information was supplied [to them by EMC]

for [their] guidance . . . [and EMC] failed to exercise reasonable care or competence in obtaining or

communicating such information.” As for their negligent hiring, supervision, and management

claim, the Hansbergers alleged EMC owed them a duty to perform and/or provide services in a

manner consistent with reason, and EMC owed them a duty “to exercise ordinary care in the hiring

of competent employees and in the supervision and management of [those] employees . . . [and

EMC] failed to use ordinary care in these respects . . . .” As recovery for these various claims, the

Hansbergers alleged they sustained damages for mental anguish, as well as economic and actual




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damages in the form of out-of-pocket expenses, loss of credit and damage to their credit reputation,

and damages in the form of interest and finance charges.

       We conclude EMC’s alleged conduct would give rise to liability only if such conduct

breached an obligation imposed by the contract to service their mortgage loan, rather than by

operation of law. Therefore, the trial court did not err in rendering a traditional summary judgment

in favor of EMC on the Hansbergers’ claims for fraud; negligence; negligent misrepresentation; and

negligent hiring, supervision, and management.

C.     Fraud in a Real Estate Transaction Claim

       The Hansbergers alleged EMC’s false representations and/or promises constituted fraud in

a real estate transaction. EMC moved for summary judgment on the grounds that the assignment of

the loan to EMC for servicing was not a “transaction involving real estate” because EMC played no

role in the Hansbergers’ acquisition of their residence. Texas Business and Commerce Code section

27.01 provides a statutory cause of action for fraud in real estate and stock transactions. TEX . BUS.

& COM . CODE ANN . § 27.01(a) (Vernon 2009). Section 27.01 applies only to misrepresentations of

material fact made to induce another to enter into a contract for the sale of land or stock. Burleson

State Bank v. Plunkett, 27 S.W.3d 605, 611 (Tex. App.—Waco 2000, pet. denied). A loan

transaction, even if secured by land, is not within the scope of the statute. Id.; cf. Greenway Bank

& Trust v. Smith, 679 S.W.2d 592, 596 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.)

(statute makes no mention of any application to guaranty agreements, secured by real estate, or to

a party who “merely” loaned money for the purchase of real estate). Because there was neither a

contract for, nor a sale of, land or stock between the parties involved in this case, section 27.01 does




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not apply. Therefore, the trial court did not err in rendering a traditional summary judgment in favor

of EMC on this claim.

                                     MOTION TO DISMISS

       In their first two issues, the Hansbergers argue that one of their causes of action, their claim

for unreasonable debt collection, was not resolved by the partial summary judgment or by the non-

suit of their breach of contract claim. Therefore, the Hansbergers argue the trial court erred when

it dismissed their entire suit before a trial on the merits. EMC responds the Hansbergers did not

sufficiently plead a cause of action for unreasonable debt collection.

       Ordinarily, we review a trial court’s ruling on a motion to dismiss for an abuse of discretion.

However, the characterization of a plaintiff’s claim is a question of law. See Murphy v. Gruber, 241

S.W.3d 689, 692 (Tex. App.—Dallas 2007, pet. denied) (“Whether allegations against a lawyer,

labeled as breach of fiduciary duty, fraud, or some other cause of action, are actually claims for

professional negligence or something else is a question of law to be determined by the court.”);

Greathouse v. McConnell, 982 S.W.2d 165, 172-73 (Tex. App.—Houston [1st Dist.] 1998, pet.

denied) (court had to decide precise nature of claims alleged before considering grounds asserted in

summary judgment motion). When the issue on appeal involves a question of law, such as here, we

review the trial court’s decision de novo. See Barber v. Colo. Indep. Sch. Dist., 901 S.W.2d 447,

450 (Tex. 1995); Murphy, 241 S.W.3d at 692.

       Any pleading that sets forth a claim for relief must contain a statement of the cause of action

sufficient to give the pleader’s adversary fair notice of the claim involved. TEX . R. CIV . P. 47(a).

Here, the Hansbergers’ first amended petition contains a section entitled “Facts,” under which they

list, in separate numbered paragraphs, eighteen factual allegations. One of the allegations is almost



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a page long and includes, in the middle of the paragraph, the following sentence: “Even more

disturbing, [EMC] repeatedly sought to take further unfair advantage of the Hansbergers by

repeatedly subjecting the Hansbergers to unjustifiable threats of foreclosure and abusive and

harassing measures of debt collection as a means toward ensuring the collection of all of the above

referenced fees/charges, when, in fact, said fees/charges were without basis.” Following the “Facts”

section are several sections each separately titled as a specific cause of action. Each section stating

a cause of action begins with the same sentence: “The plaintiffs replead all of the factual allegations

stated above . . . .” None of these paragraphs bear a title referencing an unreasonable debt collection

claim, nor does the substance of any of these paragraphs allege unreasonable debt collection as a

basis for relief. Therefore, we conclude, as a matter of law, that the Hansbergers did not plead

unreasonable debt collection as a cause of action.3 Accordingly, the trial court did not err in granting

EMC’s motion to dismiss.

                                                    CONCLUSION

         For the reasons stated above, we overrule the Hansbergers’ issues on appeal4 and we affirm

the trial court’s judgment.

                                                                    Phylis J. Speedlin, Justice




         3
           … On appeal, the Hansbergers contend EM C failed to file special exceptions. W hen a plaintiff’s petition
omits an element of a cause of action or fails to state it with sufficient clarity, a defendant must specifically except to the
pleading or it has waived its complaint. T EX . R. C IV . P. 90; Aquila Southwest Pipeline, Inc. v. Harmony Exploration,
Inc., 48 S.W .3d 225, 233 (Tex. App.— San Antonio 2001, pet. denied). However, when a plaintiff fails to plead a viable
cause of action, the defendant is not required to file special exceptions that would suggest to the plaintiff all possible
causes of action that could be filed against the defendant. Crabtree v. Ray Richey & Co., 682 S.W .2d 727, 728 (Tex.
App.— Fort W orth 1985, no writ).

         4
          … Because we affirm the traditional summary judgment rendered on the Hansbergers’ claims, we do not
address their issues as they relate to EMC’s motion for a no-evidence summary judgment on these same claims.



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