IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40582

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.

United States Court of Appeals

Fifth Circuit

FILED

May 3, 2018

Lyle W. Cayce

Clerk

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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 Nashvillebased 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 

 

1 The 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.

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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 

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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 reengaged, 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.”

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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

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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.”).

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(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 

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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.).

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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 

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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.

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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. 

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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. 

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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. 

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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, 

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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 antiSLAPP 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 

 Case: 17-40582 Document: 00514457066 Page: 15 Date Filed: 05/03/2018
No. 17-40582

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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.

 Case: 17-40582 Document: 00514457066 Page: 16 Date Filed: 05/03/2018