Case: 17-40582 Document: 00514457066 Page: 1 Date Filed: 05/03/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 3, 2018
No. 17-40582
Lyle W. Cayce
Clerk
DIAMOND CONSORTIUM, INCORPORATED, doing business as Diamond
Doctor; DAVID BLANK,
Plaintiffs – Appellees,
v.
MARK HAMMERVOLD; HAMMERVOLD, P.L.C.,
Defendants - Appellants
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:16-CV-94
Before STEWART, Chief Judge, and CLEMENT and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
This interlocutory appeal reaches this court after attorney Mark
Hammervold and his law firm Hammervold PLC (collectively, “Hammervold”)
unsuccessfully sought to dismiss a Texas civil conspiracy claim in federal court.
Hammervold argues that the claim, in violation of Texas’s Citizens’
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 17-40582 Document: 00514457066 Page: 2 Date Filed: 05/03/2018
No. 17-40582
Participation Act (“TCPA”), 1 is based on, relates to, or in response to the
exercise of the right to petition, specifically Hammervold’s communication in
or pertaining to a judicial proceeding. Because we conclude that the civil
conspiracy claim is not based on, related to, or in response to Hammervold’s
communications in or pertaining to a judicial proceeding, we AFFIRM.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case revolves around an alleged scheme undertaken by Nashville-
based lawyers and their law firms to defraud diamond retailers across the
country. The lawyers and law firms involved in the purported scheme are Mark
Hammervold, his law firm Hammervold PLC, Brian Manookian
(“Manookian”), Brian Cummings (“Cummings”), and their law firm Cummings
Manookian PLC. 2 The diamond retailer and wholesaler is Dallas-based
Diamond Consortium, Inc. and its owner David Blank (“Blank”) (collectively,
“Diamond Consortium”).
Diamond Consortium alleges that Manookian, capitalizing on the varied
systems of grading diamonds, undertook a “nationwide, sophisticated,
multipronged shakedown operation,” targeting retail jewelers. Manookian
associated with others, including Hammervold, to promote and perpetrate this
extortion scheme across the jewelry industry. To do so, Hammervold, at the
outset, agreed to accept any referrals of consumer clients from Manookian
when Manookian sought to engage the defamed jewelers thereby allowing
1The TCPA is Texas’s anti-SLAPP statute. SLAPP stands for strategic lawsuit
against public participation. See George W. Pring and Penelope Canan, “Strategic Lawsuits
Against Public Participation” (“SLAPPs”): An Introduction for Bench, Bar, and Bystanders,
12 BRIDGEPORT L. REV. 937 (1992). Statutes like the TCPA, as the acronym indicates, seek
to protect citizens from retaliatory lawsuits based on their exercise of fundamental
constitutional rights. Id. at 938–40.
2 On August 16, 2017, Manookian, his partner Brian Cummings, and Cummings
Manookian PLC entered into a confidential settlement agreement with Diamond
Consortium.
2
Case: 17-40582 Document: 00514457066 Page: 3 Date Filed: 05/03/2018
No. 17-40582
Manookian to avoid an appearance of conflict when Manookian entered into
extortionate retainer agreements with jewelers.
The scheme, according to the Consolidated Complaint, was executed
through the use of internet, social media, and door hanger smear campaigns,
all of which attacked jewelers as criminals and fraudsters. Manookian
allegedly undertook the operation to contrive a legal dispute with the sole goal
of extorting millions of dollars from Diamond Consortium and other jewelers.
After feeling that their businesses were in jeopardy, the jewelers, with the
encouragement of Manookian client Boaz Ramon (“Ramon”), sought to buy
peace through engagement agreements with Manookian. Each time, prior to
the commencement of a campaign, Ramon would reach out to jewelers warning
them to get on board with Manookian before it was too late.
In the fall of 2015, Manookian, Cummings Manookian, Hammervold,
and Hammervold PLC purportedly targeted Diamond Consortium. Using two
websites, door hangers, Youtube videos, and Facebook posts, Manookian,
among other things: (1) accused Diamond Consortium of having committed
“diamond fraud” and “cheat[ing]” customers through the sale of “overgraded”
diamonds; (2) asked Diamond Consortium employees, “[d]o you work here? Ask
David Blank if you could be personally liable for the fraudulent sale [of
diamonds]?”; (3) posted a Youtube video with the title “Diamond [Consortium]
Scam: 3 Reasons Why Diamond [Consortium] Are Frauds”; and (4) distributed
door hangers reading, “Diamond [Consortium] has been ripping off
unsuspecting customers with . . . overgraded diamonds.”
Listening to the stories of other jewelers about their experience with the
potentially business-crippling campaign and believing he had no other options,
Blank eventually engaged Manookian about the idea of Cummings Manookian
serving as Diamond Consortium’s legal counsel. Manookian stated that
Diamond Consortium would need to pay $5 million, not to compensate his
3
Case: 17-40582 Document: 00514457066 Page: 4 Date Filed: 05/03/2018
No. 17-40582
supposed clients’ claims, but instead to end the negative publicity campaign.
After Blank balked at the idea of $5 million, Manookian asserted he was not
interested in representing Diamond Consortium. Manookian eventually re-
engaged, offering to take $25,000 monthly retainers over ten years—in total,
$3 million. Manookian agreed to represent Diamond Consortium on or about
November 13, 2015. With respect to potential conflicts, Manookian stated that
he and Cummings Manookian would represent Diamond Consortium without
issue because“[a]s long as [he] . . . [did not] sign[] . . . an engagement agreement
with [consumers], then there’s no issue there.”
The agreement eventually fell apart because Blank would be required to
pay the full $3 million if Cummings Manookian was terminated. After the deal
fell apart, Manookian reignited the campaign against Diamond Consortium in
January 2016. This iteration of the campaign included attempts to buy radio
ads, Youtube videos, and fliers. It resulted in the loss of several customers; one
customer, after hearing about the campaign, stated that she decided against
even considering purchasing a $50,000 diamond from Diamond Consortium
despite her sister’s recommendation to do so.
Diamond Consortium filed this suit in February 2016 against
Manookian. In October 2016, Diamond Consortium filed the Consolidated
Complaint adding Hammervold as a party and alleging that Hammervold
violated the RICO statue and engaged in a civil conspiracy under Texas law.
Diamond Consortium’s civil conspiracy allegations against Hammervold
alleges that “[t]he extortion scheme and false attack campaign perpetrated by
Manookian . . . Hammervold . . . [and] Hammervold, PLC . . . constitute[d] a
civil conspiracy under Texas law.” The claim goes on to contend that
“Manookian . . . Hammervold . . . and Hammervold, PLC . . . agreed and
conspired to smear the business names and ownership of various jewelry
retailers across the country.”
4
Case: 17-40582 Document: 00514457066 Page: 5 Date Filed: 05/03/2018
No. 17-40582
Several weeks later, Hammervold moved to dismiss the claim, arguing
that the civil conspiracy claim ran afoul of the TCPA and the allegations failed
to state a plausible claim for both civil conspiracy and RICO violations. On
April 26, 2017, the district court denied Hammervold’s motion to dismiss in
part, finding that the TCPA did not protect Hammervold against suit because
the allegations that “form the basis of . . . [the] civil action” center around
“[t]his scheme, and not the judicial proceedings themselves.” The district court
similarly denied Hammervold’s request to dismiss Diamond Consortium’s
RICO claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Hammervold
timely appealed, asserting that the district court erred in concluding that the
TCPA did not apply to Diamond Consortium’s allegations and requesting that
this court exercise pendent appellate jurisdiction over the district court’s
denial of his motion to dismiss the RICO claim.
II. DISCUSSION
A. Jurisdiction
Pursuant to the collateral order doctrine, this court has jurisdiction over
an interlocutory appeal of an order denying a TCPA motion to dismiss. See
NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 747–48 (5th Cir.
2014).
B. Standard of Review
This court reviews the district court’s interpretation of the TCPA, a state
statute, de novo and interprets the statute in a manner consistent with Texas
Supreme Court precedent. 3 See id. at 753; Weiser-Brown Operating Co. v. St.
3 Although the issue remains unresolved, neither party disputed below nor raised here
the appropriateness of applying the TCPA in federal court in light of Erie R.R. Co. v.
Tompkins, 304 U.S. 64 (1938). Cf. Block v. Tanenhaus, 867 F.3d 585, 589 (5th Cir. 2017) (“The
applicability of state anti-SLAPP statutes, such as the TCPA, in federal court is an important
and unresolved issue in this circuit.”). Because we conclude that the TCPA does not apply to
the civil conspiracy claim against Hammervold, we follow previous panels in assuming
5
Case: 17-40582 Document: 00514457066 Page: 6 Date Filed: 05/03/2018
No. 17-40582
Paul Surplus Lines Ins. Co., 801 F.3d 512, 517–18 (5th Cir. 2015). “When the
highest state court is silent on an issue we must make an Erie guess, using the
sources of law that the state’s highest court would look to.” Weiser-Brown, 801
F.3d at 518. “In making an Erie guess, [federal courts] defer to intermediate
state appellate court decisions, unless convinced by other persuasive data that
the highest court of the state would decide otherwise.” Temple v. McCall, 720
F.3d 301, 307 (5th Cir. 2013).
C. TCPA Burden-Shifting Framework
The TCPA “encourage[s] and safeguard[s] the constitutional rights of
persons to petition, speak freely, [and] associate freely” while still “protect[ing]
the rights of a person to file meritorious lawsuits for demonstrable injury.”
TEX. CIV. PRAC. & REM. CODE. ANN. § 27.002 (West 2017). In doing so, the
TCPA provides a burden-shifting dismissal mechanism at the pleading stage
of cases implicating such constitutional rights. Id. § 27.005(b)–(d). The party
asserting that the TCPA applies carries the initial burden to demonstrate by a
preponderance of the evidence that the “legal action . . . is based on, relate[d]
to, or . . . in response to a party’s exercise of the . . . right to petition.” Id. §§
27.003(a), 27.005(b). If the moving party fails to carry its burden, the inquiry
ends—the TCPA does not apply. If, however, the moving party meets its initial
burden, the burden then shifts to the nonmoving party to “establish[] by clear
and specific evidence a prima facie case for each essential element of the claim
in question.” Id. § 27.005(c). Clear and specific evidence, “more like a pleading
requirement than a summary-judgment standard,” is satisfied “by either
detailed pleading or supporting affidavits.” Cuba v. Pylant, 814 F.3d 701, 711
without deciding that Texas’s anti-SLAPP statute applies in federal court. See Culbertson v.
Lykos, 790 F.3d 608, 631 (5th Cir. 2015) (“Because we determine that the TCPA by its own
terms has not been shown to apply, we again pretermit the fundamental issue of its
applicability in federal court.”).
6
Case: 17-40582 Document: 00514457066 Page: 7 Date Filed: 05/03/2018
No. 17-40582
(5th Cir. 2016). “A party need not provide ‘evidence’ in the traditional sense if
the pleadings are sufficiently clear.” Id.
Even where the nonmoving party clears this clear and specific evidence
hurdle, the nonmoving party’s case must nevertheless be dismissed where the
“moving party establishes by a preponderance of the evidence each essential
element of a valid defense to the nonmovant’s claim.” TEX. CIV. PRAC. & REM.
CODE. ANN. § 27.005(d). Courts construe the pleadings and evidence in favor
of the plaintiff. See Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d. 781, 800–
01 (Tex. App.–Austin 2017, no pet.).
This statutory framework sets forth a three-step inquiry, looking first to
whether the moving party has demonstrated, by a preponderance of the
evidence, that “the suit arises from the movant’s exercise of his right to . . .
petition.” Pylant, 814 F.3d at 711. Then, if so demonstrated, whether the
nonmoving party has presented “clear and specific evidence” establishing a
prima facie case for each essential element of the claim in question. Id. The
second step of the inquiry is essentially rendered nugatory by the third step
which requires dismissal if the moving party demonstrates by a preponderance
of the evidence each essential element of a valid defense. See TEX. CIV. PRAC.
& REM. CODE. ANN. § 27.005(d).
D. Applicability of the TCPA
We conclude that Hammervold’s case fails at the first step of the
inquiry—the TCPA does not apply to the civil conspiracy allegations in the
Consolidated Complaint.
Before reaching the statutory language, we address Hammervold’s
reliance upon a particular definition of the exercise of the right to petition.
Although the TCPA’s “right to petition” refers to a wide range of
7
Case: 17-40582 Document: 00514457066 Page: 8 Date Filed: 05/03/2018
No. 17-40582
communications, 4 Hammervold, when addressing the statute’s applicability
at the district court, relied exclusively on a theory that the exercise of the right
to petition was implicated in this case because the claims were based on,
related to, or in response to a communication in or pertaining to a judicial
proceeding. 5 Accordingly, we conclude that Hammervold may only rely on the
theory that the TCPA applies because the claims are based on, related to, or in
response to a communication in or pertaining to a judicial proceeding. Cf.
NCDR, 745 F.3d at 753 (concluding that failure to raise specific argument
concerning applicability of TCPA before the district court rendered the
argument waived on appeal). Hammervold conceded at oral argument that he
has waived arguing an alternate theory of the exercise of the right to petition
before this court. In his Federal Rule of Appellate Procedure 28(j) letter dated
April 22, 2018, Hammervold points to the Texas Supreme Court’s discussion of
waiver in Adams v. Starside Custom Builders, LLC, No. 16–0786, — S.W.3d —
, 2018 WL 1883075 (Tex. Apr. 20, 2018) to maintain that, despite the foregoing,
he is not confined to the arguments presented to the district court. In Adams,
the Texas Supreme Court observed that the petitioner’s failure to rely on a
4 The exercise of the right to petition also includes “a communication that is
reasonably likely to encourage consideration or review of an issue by a legislative, executive,
judicial, or other governmental body or in another governmental or official proceeding.” TEX.
CIV. PRAC. & REM. CODE ANN. § 27.001(4)(C). Subsection (E) provides somewhat of a
constitutional catchall, defining the “exercise of the right to petition” as “any other
communication that falls within the protection of the right to petition government under the
Constitution of the United States or the constitution of this state.” Id. § 27.001(4)(E).
5 Every specific citation to the definition of the exercise of the right to petition before
the district court relied on the only definition considered in the district court’s ruling: a
communication in or pertaining to a judicial proceeding. Indeed, following Hammervold’s
argument in the district court that the “sole basis” of Diamond Consortium’s Consolidated
Complaint was that “Hammervold accepted client referrals from Manookian,” Hammervold
cited the provision defining the exercise of the right to petition as “a communication in or
pertaining to . . . a judicial proceeding.” The only case law relied upon by Hammervold
exclusively addresses Texas Civil Practice and Remedies Code § 27.001(4)(A)(i). See Watson
v. Hardman, 497 S.W.3d 601, 605–06 (Tex. App.–Dallas 2016, no pet.).
8
Case: 17-40582 Document: 00514457066 Page: 9 Date Filed: 05/03/2018
No. 17-40582
specific definition in the TCPA before the trial court did not restrict his reliance
on that definition on appeal because: (1) the petitioner “expressly mentioned
the[] concerns [relevant to that definition] at the hearing on the motion to
dismiss;” and (2) the “TCPA directs courts to decide its applicability based on
a holistic review of the pleadings.” Id. at *5. The first basis is of no benefit to
Hammervold, as he does not contend nor does the record support that he ever
expressly mentioned or relied on any other definition of the exercise of the right
to petition. The latter point, at its core, is the Texas Supreme Court’s
application of that court’s argument waiver principles. Because this court
consistently applies its waiver precedent in diversity jurisdiction cases, we will
do so here. See, e.g., SCA Promotions, Inc. v. Yahoo!, Inc., 868 F.3d 378, 384
(5th Cir. 2017); Dejoria v. Maghreb Petroleum Expl., S.A., 804 F.3d 373, 384
n.12 (5th Cir. 2015); Learmonth v. Sears, Roebuck and Co., 710 F.3d 249, 256–
57, 266–67 (5th Cir. 2013).
Moving to the applicability of the TCPA to Diamond Consortium’s civil
conspiracy claim, Hammervold fails to carry his burden. “The basis of a legal
action is not determined by the defendant’s admissions or denials but by the
plaintiff’s allegations. . . . When it is clear from the plaintiff’s pleadings that
the action is covered by the Act, the defendant need show no more.” Hersh v.
Tatum, 526 S.W.3d 462, 467 (Tex. 2017).
As with any case turning on statutory interpretation, the plain language
of the statute guides the inquiry. See ExxonMobil Pipeline Co. v. Coleman, 512
S.W.3d 895, 899 (Tex. 2017) (per curiam). The statutory language that is the
focus of this case is “a communication in or pertaining to . . . a judicial
proceeding.” TEX. CIV. PRAC. & REM. CODE. ANN. § 27.001(4)(A)(i). The TCPA
does not provide a definition of judicial proceeding. A “[c]ommunication
includes the making or submitting of a statement or document in any form or
9
Case: 17-40582 Document: 00514457066 Page: 10 Date Filed: 05/03/2018
No. 17-40582
medium, including oral, visual, written, audiovisual, or electronic.” Id. §
27.001(1).
Hammervold’s argument distills to the contention that the TCPA
protects him from liability because the civil conspiracy claim is based on,
related to, or in response to actions he took as a lawyer on behalf of clients.
First, Hammervold argues that Diamond Consortium’s conspiracy claim is
precluded by the TCPA because the allegedly wrongful conduct—accepting
referrals to represent a client—is an exercise of the right to petition.
Hammervold underscores the Consolidated Complaint’s inclusion of
allegations that the “prosecuti[on] [of] claims” against the targeted jewelers
was his association-in-fact involvement in the RICO conspiracy. 6 Continuing
with this line of argument, Hammervold contends that the allegations of
Hammervold’s willingness and availability to represent plaintiffs against
Diamond Consortium were still at least related to or in response to protected
petitioning activity. Hammervold argues that the report and recommendation
in Walker v. Beaumount Indep. Sch. Dist., No. 1:15-CV-379, 2016 WL 3456983
(E.D. Tex. Jan. 22, 2016), adopted by 2016 WL 3672224 (E.D. Tex. Feb. 11,
2016), which Hammervold contends held that mere legal representation was
protected by the TCPA, is on all fours with this case.
6 Notably, Hammervold on one hand appropriately acknowledges that the TCPA’s
application is limited to state law claims, see Hillsborough Cty., Fla. v. Auto. Med. Labs., Inc.,
471 U.S. 707, 712–13 (1985), but relies on this RICO claim-specific allegation to bring the
civil conspiracy claim under the protection of the TCPA. Regardless, this passing mention of
prosecution of claims should not be given talismanic value and does not turn generally
unprotected activity to protected activity. In the same vein, we reject Hammervold’s reliance
on the appellate court decision in Lona Hills Ranch, LLC v. Creative Oil & Gas, No. 03-17-
00743-CV, — S.W.3d —, 2018 WL 1868054 (Tex. App.–Austin Apr. 19, 2018) in his April 22,
2018 Rule 28(j) letter. The decision did not rely on Cavin v. Abbott, ––– S.W.3d –––, No. 03-
16-00395-CV, 2017 WL 3044583, at *10–11 (Tex. App.—Austin July 14, 2017, no pet.), as
Hammervold contends, when rejecting the argument that counterclaims were not related to
the exercise of the right of free speech. More importantly, Hammervold does not contend that
Lona Hills’s discussion of the exercise of the right to petition benefits his case.
10
Case: 17-40582 Document: 00514457066 Page: 11 Date Filed: 05/03/2018
No. 17-40582
Diamond Consortium counters by arguing that Hammervold is not being
sued for an exercise of the right to petition as defined in the TCPA. To the
contrary, the allegations are extraneous to any judicial proceeding focusing
instead on Hammervold’s agreement to extort money from various jewelers
outside of actually filing any case. Diamond Consortium explains that the
Consolidated Complaint does not concern itself with Hammervold’s role as
opposing counsel because it focuses on their actions in orchestrating the
scheme notwithstanding any judicial proceedings.
Diamond Consortium presents a more persuasive argument. The civil
conspiracy claim is not based on, related to, or in response to a communication
in or pertaining to a judicial proceeding.
Critical to this conclusion is the ordinary meaning of “a judicial
proceeding.” Judicial proceeding is not statutorily defined, but numerous
decisions from Texas courts of appeals have compellingly explained that the
“ordinary meaning” of that phrase is “an actual, pending judicial proceeding.”
Cashion, 517 S.W.3d at 220. Accordingly, pre-suit demand letters were not
“pertaining to a judicial proceeding.” Id.; see also Levatino v. Apple Tree Café
Touring, Inc., 486 S.W.3d 724, 728–29 (Tex. App.–Dallas 2016, pet. denied)
(recognizing that the ordinary meaning of “a judicial proceeding is ‘any
proceeding initiated to procure an order or decree, whether in law or in
equity’”) (quoting Judicial Proceeding, BLACK’S LAW DICTIONARY (10th ed.
2014)). This court in Pylant, addressing a university proceeding, clarified that
the statute does not require a “live proceeding.” We concluded that the TCPA
was implicated where there was still availability to make “a request to reverse
a decision rendered in the [university] proceeding.” 814 F.3d at 712. Taken
together, these cases demonstrate that the ordinary meaning of judicial
proceeding, as envisioned by the TCPA, invokes a filed, and generally ongoing,
proceeding.
11
Case: 17-40582 Document: 00514457066 Page: 12 Date Filed: 05/03/2018
No. 17-40582
This reading does not, as the Texas Supreme Court warned against in
Coleman, seek to add limiting language to the statute in contravention of its
intended meaning. 512 S.W.3d at 900 (warning that courts may not by judicial
fiat add words to a statute). Rather, the plain language of the statute’s terms
are vindicated by this interpretation. The broad language preceding “a judicial
proceeding,” namely “pertaining to,” does not negate the important,
independent meaning of “judicial proceeding.” “In” or “pertaining to” simply
modifies what communications fall within the ambit of a judicial proceeding
for purposes of protection under the TCPA. In other words, the term judicial
proceeding must have its own, ordinary meaning, and, once given that ordinary
meaning, serves as the focus of what the purported communication is made in
or pertains to. See, e.g., Levinson Alcoser Assocs., LP v. El Pistolon II, Ltd., 513
S.W.3d 487, 493 (Tex. 2017) (“We endeavor to interpret each word, phrase, and
clause in a manner that gives meaning to them all.”). Before determining
whether a communication is in or pertains to a judicial proceeding, then, it is
appropriate to independently define “a judicial proceeding.”
The ordinary meaning of judicial proceeding requires an actual, pending
proceeding. See Cashion, 517 S.W.3d at 220 (“The ordinary meaning of the
phrase ‘judicial proceeding’—versus, e.g., ‘future,’ ‘potential,’ or ‘threatened’
judicial proceeding—is an actual, pending judicial proceeding.”); Levatino, 486
S.W.3d at 729 (same); QTAT BPO Sols. v. Lee & Murphy Law Firm, 524 S.W.3d
770, 777–78 (Tex. App.–Houston [14th Dist.] Mar. 7, 2017, pet. filed) (same).
This circuit’s holding in Pylant fits firmly within the scope of this conclusion.
The proceeding in that case remained an “actual, pending” proceeding
notwithstanding the initial judgment because an appeal was permitted and
the letter requesting reversal of the initial judgment pertained to that
proceeding. See 814 F.3d at 712.
12
Case: 17-40582 Document: 00514457066 Page: 13 Date Filed: 05/03/2018
No. 17-40582
The allegations against Hammervold are not based on, related to, or in
response to a communication in a filed proceeding. Rather, the scheme alleges
that separate and apart from a communication in or about a judicial
proceeding, Hammervold entered into an agreement with Manookian to
defame and defraud Diamond Consortium. The allegations concern
Hammervold’s agreement to assist in targeting Diamond Consortium in the
fall of 2015, long before any inkling of a judicial proceeding. Hammervold does
not point this court’s attention to TCPA-related precedent interpreting a
communication in or pertaining to a judicial proceeding to protect a party from
suit based upon such allegations.
We decline to adopt Hammervold’s interpretation of the outlier holding
set forth in Quintanilla v. West, 534 S.W.3d 34, 46 (Tex. App.–San Antonio
2017), where that court concluded it was sufficient that the communicative
activity that formed the basis for the plaintiff’s claims—the filing of financing
statements in public records—were made in “in anticipation of imminent
litigation.” Reading the statutory provision in this manner runs contrary to the
Texas Supreme Court’s admonishment that lower courts not modify the plain
meaning of a statute by “adding words that are not contained in the language
of the statute.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015) (per
curiam). Moreover, that decision did not engage in an independent analysis of
the ordinary meaning of the term “a judicial proceeding.” Quintanilla, 534
S.W.3d at 46–47.
Importantly, each case relied upon by the panel in Quintanilla to reach
its conclusion involved suits based on, related to, or in response to filings in
pending lawsuits, actual prosecution of claims, or filing of lis pendens. See id.
(citing Martin v. Bravenec, No. 04-14-00483-CV, 2015 WL 2255139, at *6 (Tex.
App.–San Antonio May 13, 2015, pet. denied) (noting that subsequent action
“relate to [moving party’s] pending claim in the underlying lawsuit”); James v.
13
Case: 17-40582 Document: 00514457066 Page: 14 Date Filed: 05/03/2018
No. 17-40582
Calkins, 446 S.W.3d 135, 147–48 (Tex. App.–Houston [1st Dist.] 2014, pet.
denied) (noting that claims were “based on, relate[d] to, or in response to”
claims the nonmoving party made in pleadings filed in various lawsuits and
the lis pendens filed to give notice of claims in another lawsuit); Serafine v.
Blunt, 466 S.W.3d 352, 359–60 (Tex. App.–Austin 2015, no pet.) (noting that
counterclaims by the nonmoving party in part based on, related to, or in
response to filing of lawsuit and lis pendens). Quintanilla’s reliance on these
cases casts doubt on its holding and, more notably, makes clear that
Hammervold’s reliance on the case is unavailing. More specifically,
Quintanilla is not convincing because: (1) there was no imminent litigation
principle announced in any of the aforementioned cases upon which
Quintanilla relies; (2) the plain language of the statute does not support its
holding; and (3) the Texas Supreme Court’s instructions that courts not make
additions to the statute in contravention of the plain meaning is not given
effect.
Even accepting the Quintanilla court’s explanation, Hammervold still
does not carry his burden. Hammervold does not contend that he has
undertaken anything akin to the filing of a financing statement to perfect
security interests in leases and mineral interests as the moving party did in
Quintanilla. The core of Hammervold’s actions underlying the civil conspiracy
claim simply do no implicate a communication in or pertaining to a judicial
proceeding. Cashion, 517 S.W.3d at 219 (holding that pre-suit demand letters
were not communications “pertaining to a judicial proceeding”). To the
contrary, the gravamen of Diamond Consortium’s civil conspiracy allegations
against Hammervold concern “[t]he extortion scheme and false attack
campaign perpetrated by Manookian . . . Hammervold . . . [and] Hammervold,
PLC . . . [which] constitute[d] a civil conspiracy under Texas law.” The claim
goes on to contend that “Manookian . . . Hammervold . . . and Hammervold,
14
Case: 17-40582 Document: 00514457066 Page: 15 Date Filed: 05/03/2018
No. 17-40582
PLC . . . agreed and conspired to smear the business names and ownership of
various jewelry retailers across the country.”
Hammervold’s contention that a magistrate judge’s later-adopted report
and recommendation in Walker counsels a different conclusion is misplaced.
From an analytical perspective, in Walker “all parties agree[d] that the TCPA
applie[d] to the plaintiffs’ claims.” 2016 WL 3456983, at *5. The court
nevertheless addressed the TCPA’s applicability and, citing to a California
Supreme Court decision Briggs v. Eden Council for Hope and Opportunity, 969
P.2d 564, 569–70 (Cal. 1999), summarily concluded that the TCPA was
implicated because the plaintiffs sought to use defendants’ lawyer’s
“attendance at the [moving party’s] criminal trial and legal representation of
IBEW as evidence of RICO conspiracy and racketeering, and thus her claims
relate to Defendants’ rights of association and petition.” Id. at *6. The
magistrate judge’s reliance on Briggs exemplifies the futility of Hammervold’s
reliance upon it in this case. At issue in Briggs was whether a lawsuit
triggering the TCPA had to be about a matter of public concern or public
interest. 969 P.2d at 565 (addressing whether “a defendant, moving . . . to
strike a cause of action [under an anti-SLAPP statute] arising from a
statement made before, or in connection with an issue under consideration by,
a legally authorized official proceeding, demonstrate separately that the
statement concerned an issue of public significance?”).
Briggs did not hold that a retainer agreement or ability to hold oneself
out as the lawyer of a potential litigant was protected under California’s anti-
SLAPP statute. See, e.g., Serafine, 466 S.W.3d at 386–88 (Pemberton, J.,
concurring) (discussing Briggs and noting that whether the right to petition
only protects against lawsuits based on matters of public interest was at the
heart of Briggs). Neither Walker nor Briggs reaches the issue of whether
15
Case: 17-40582 Document: 00514457066 Page: 16 Date Filed: 05/03/2018
No. 17-40582
accepting a client referral, by itself, is sufficient to satisfy the TCPA’s definition
of a communication in or pertaining to a judicial proceeding.
In sum, the plain language of the TCPA definition that Hammervold
relies upon does not immunize him from suit.
III. CONCLUSION
For the foregoing reasons, the district court’s conclusion that the TCPA
does not protect Hammervold’s alleged actions is AFFIRMED. We decline to
exercise pendent appellate jurisdiction over the district court’s denial of
Hammervold’s motion to dismiss Diamond Consortium’s RICO claim.
16