Background
Louis Benjamin Galynsky filed suit in the 457th District Court of Montgomery County against Janeice Thomas, alleging she maliciously called 911 to retaliate against him and that she had no genuine emergency, and that she then engaged in a defamatory campaign against him by posting false and damaging information on Facebook and other social media platforms. Liberally construed, Galynsky’s pro se petition asserted claims for defamation and malicious prosecution, plus several additional theories including intentional infliction of emotional distress and civil rights violations.
Thomas filed both a Rule 91a motion to dismiss and a motion to dismiss under the Texas Citizens Participation Act (TCPA)—Texas’s anti-SLAPP statute. She argued that her 911 call was an exercise of the right to petition the government, and that her social media posts were an exercise of the right of free speech, both categories of conduct protected under the TCPA. Thomas also sought sanctions. Galynsky filed a response asserting that Thomas had lied under oath in a prior proceeding and that her conduct had damaged his reputation, but he attached no evidence to his response. The trial court granted Thomas’s motions, dismissed Galynsky’s claims with prejudice, and awarded Thomas $2,500 in sanctions and $4,295 in attorney fees, with additional escalating fees conditioned on an unsuccessful appeal by Galynsky.
The Court’s Holding
The Court of Appeals affirmed, holding that Galynsky failed to carry his burden at step two of the TCPA’s three-step analysis. The TCPA framework works as follows: (1) the moving party demonstrates that the challenged legal action is based on or in response to the party’s exercise of the right of free speech, the right to petition, or the right of association; (2) if that showing is made, the burden shifts to the non-movant to establish a prima facie case—meaning “clear and specific evidence”—of each essential element of each challenged claim; (3) if the non-movant meets that burden, the movant may still obtain dismissal by establishing a defense entitling it to judgment as a matter of law. All three steps are reviewed de novo.
Because Galynsky never contested—either in the trial court or on appeal—that Thomas’s 911 call and social media posts were protected activity, the court bypassed step one and moved directly to step two. There, the record was bare: no testimony, no affidavits, no documents were attached to Galynsky’s response. His assertions on appeal that he had “provided substantial evidence, including affidavits” demonstrating reputational harm and financial loss were flatly contradicted by the record. Without clear and specific evidence of each element of defamation and malicious prosecution, the burden never shifted back to Thomas, and step three never came into play. The dismissal was affirmed on that basis alone.
Key Takeaways
- Under the TCPA, a plaintiff’s failure to attach evidence to its response to an anti-SLAPP motion is fatal: attorney argument alone does not constitute “clear and specific evidence” of a prima facie case under Tex. Civ. Prac. & Rem. Code § 27.005(c).
- A plaintiff who never challenges whether the defendant’s conduct was protected activity effectively concedes step one of the TCPA analysis, accelerating the inquiry directly to the plaintiff’s evidential burden.
- The TCPA applies to 911 calls as exercises of the right to petition the government, and to social media posts as exercises of the right of free speech—two frequently encountered categories in defamation and reputational-harm suits.
- The TCPA’s fee-shifting operates automatically upon dismissal; sanctions are also available, and the trial court may condition additional appellate-stage fees on an unsuccessful appeal—raising the stakes of a meritless TCPA appeal.
Why It Matters
The Texas Citizens Participation Act is one of the most potent pretrial dismissal tools in Texas civil litigation. Any defendant sued over constitutionally protected speech or petitioning activity can file a TCPA motion on an accelerated timeline, triggering mandatory fee-shifting and an immediate right of interlocutory appeal if the motion is denied. Galynsky v. Thomas is a clean illustration of how quickly the statute can end a case: when a plaintiff files suit over a 911 call and social media posts, then offers no evidence whatsoever in response to the dismissal motion, the analysis stops at step two.
For plaintiffs’ counsel, the lesson is clear: the TCPA requires actual evidence, not just a well-pleaded petition or argument in a brief. When a TCPA motion is filed, the plaintiff must produce clear and specific evidence of each element of each claim before the hearing—or the case will be dismissed with fees. For defendants, this case reinforces the value of filing a TCPA motion early whenever the underlying suit is based on protected activity such as a government complaint or social media commentary: if the plaintiff cannot produce evidence at the hearing, the statute compels dismissal.