RENDERED: SEPTEMBER 4, 2026; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2025-CA-0040-MR
O’BRYAN GRAIN FARMS, INC. APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 24-CI-00325
DONALD PETERS; CAPPAD, INC.;
GEORGE SCHADLER; AND RICK
MURPHY APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, A. JONES, AND MOYNAHAN, JUDGES.
JONES, A., JUDGE: O’Bryan Grain Farms, Inc. (“O’Bryan”) appeals from orders
of the Daviess Circuit Court (“trial court”) denying its request to conduct limited
discovery, granting expedited relief in favor of Donald Peters (“Peters”), George
Schadler (“Schadler”), Rick Murphy (“Murphy”), and CAPPAD, Inc. (collectively,
“Appellees”) pursuant to Kentucky’s Uniform Public Expression Protection Act (“KUPEPA”),1 Kentucky Revised Statute (“KRS”) 454.460 through KRS 454.478,
and awarding attorney’s fees and costs. O’Bryan contends that the trial court
improperly denied its request for limited discovery under KRS 454.466(4),
erroneously concluded that its defamation action was subject to dismissal under the
KUPEPA, and abused its discretion in awarding attorney’s fees. Having carefully
reviewed the record, the parties’ arguments, and the applicable law, we affirm.
I. BACKGROUND
O’Bryan owns and operates swine farming operations and related
waste-handling facilities in Daviess County, Kentucky. Peters, Murphy, and
Schadler reside in close proximity to certain of O’Bryan’s operations. Peters and
Murphy are members of CAPPAD, Inc. (“Community Against Pig Pollution and
Disease”), a nonprofit organization formed to address concerns regarding the
environmental impacts of concentrated animal feeding operations in Daviess
County. Schadler is not a member of CAPPAD but shares similar concerns
regarding O’Bryan’s operations.
1
Kentucky’s Act is modeled after the Uniform Public Expression Protection Act promulgated by the Uniform Law Commission in 2020. UNIF. L. COMM’N, The Uniform Public Expression Protection Act (2020) (hereinafter cited as “Uniform Act (2020)”). Because Kentucky’s enactment differs in several important respects from the model act, and because this Opinion interprets Kentucky’s statutory text rather than the model legislation itself, we refer throughout this opinion to Kentucky’s enactment as the “Kentucky Uniform Public Expression Protection Act” or “KUPEPA” for short.
-2-Beginning around 2014, the Kentucky Energy and Environment
Cabinet (“Cabinet”) investigated O’Bryan’s operations for alleged violations of
Kentucky’s environmental laws. On May 11, 2021, the Cabinet initiated an
administrative enforcement action before the Office of Administrative Hearings
seeking civil penalties, revocation of O’Bryan’s operational permit, and other
remedial relief. The Cabinet later amended its administrative complaint to include
additional alleged violations. In December 2021, Peters moved to intervene in the
administrative proceeding, and the hearing officer granted the motion in part on
May 27, 2022. At the time the trial court ruled in this case, the administrative
proceeding remained pending.2
On February 9, 2024, O’Bryan sent Peters, Schadler, Murphy, and
CAPPAD a cease-and-desist letter asserting that they had made “numerous false
statements regarding the business operations and environmental compliance of
O’Bryan Grain Farms and its entities, not only to the community but repeatedly to
environmental cabinets,” and demanding that they cease making “false statements,
falsely reporting environmental violations, and the overall harassment of O’Bryan
2
We take judicial notice that, following the trial court’s rulings, a final agreed order was entered in Energy and Environment Cabinet v. Jerry Wayne O’Bryan d/b/a Jerry O’Bryan Hog Farm, No. DOW-20-3-0035 (Ky. Energy & Env’t Cabinet, Off. of Admin. Hearings Mar. 25, 2026). Under the agreed order, O’Bryan agreed to undertake specified remedial measures and to pay a stipulated civil penalty of $45,000 in settlement of the administrative enforcement action. See Polley v. Allen, 132 S.W.3d 223, 226 (Ky. App. 2004) (“A court may properly take judicial notice of public records and government documents, including public records and government documents available from reliable sources on the internet.”).
-3-Grain Farms and/or its related entities.” Record (“R.”) at 311-12. The letter
further advised that if the alleged conduct continued, O’Bryan would pursue “all
legal remedies to eliminate the defamation and recoup all available monetary
damages.” Id.
Approximately one month later, on March 18, 2024, O’Bryan filed the
underlying action asserting a single claim for defamation. The complaint alleged,
in relevant part:
From 2022 to 2023, and prior to, Defendants spoke and
published of and concerning this Plaintiff, certain
slanderous, false, malicious, and defamatory words
alleging misconduct in the operation of their pig farms to
the community, other businesses and to various
governmental regulatory agencies with the specific
intention of causing it harm.
R. at 1-3. The complaint further alleged that Appellees knew their statements were
false or acted recklessly or negligently in making them. Id.
O’Bryan simultaneously served written discovery on the Appellees.
On April 19, 2024, Appellees moved for expedited relief pursuant to KUPEPA,
asserting that O’Bryan’s complaint was based on communications protected by the
statute. The trial court entered an agreed order establishing a briefing schedule for
Appellees’ KUPEPA motion. As part of that order, the “parties expressly
acknowledge[d] and agree[d] that [O’Bryan’s] pending discovery [was to be]
stayed by operation of statute. KRS 454.466(4).”
-4-Thereafter, O’Bryan moved for leave to conduct limited discovery
pursuant to KRS 454.466(4), arguing that additional discovery was necessary to
respond to the motion for expedited relief. The trial court denied the motion, and
O’Bryan filed its response to the KUPEPA motion.
O’Bryan later sought leave to supplement its response to the motion
for expedited relief with additional materials obtained through public-records
requests, which the trial court likewise denied. Following a hearing, the trial court
granted Appellees’ motion for KUPEPA expedited relief. The court concluded
that the challenged claims arose from communications protected by KUPEPA and
that O’Bryan had failed to establish a prima facie case sufficient to overcome the
statute’s burden-shifting framework. The court therefore dismissed O’Bryan’s
complaint with prejudice and subsequently awarded Appellees’ attorney’s fees and
expenses in the amount of $46,998.60 pursuant to KRS 454.478. This appeal
followed.
II. ANALYSIS
A. The History, Purpose, and Enactment of the KUPEPA.
To place the issues before us in the proper context, it is helpful to
begin with a brief review of the history of legislation designed to protect public
-5-participation and Kentucky’s adoption of its own version of the Uniform Public
Expression Protection Act.
The KUPEPA and similar legislation arose primarily to combat
SLAPP suits. The acronym “SLAPP” refers to a Strategic Lawsuit Against Public
Participation, a term coined by Professors George W. Pring and Penelope Canan to
describe lawsuits brought, not principally to obtain relief on the merits, but to
discourage, intimidate, or punish individuals for exercising their constitutional
rights to speak, petition the government, associate with others, or otherwise
participate in matters of public concern. George W. Pring, SLAPPs: Strategic
Lawsuits Against Public Participation, 7 PACE ENVTL. L. REV. 3, 1-6 (1989);
Penelope Canan & George W. Pring, Strategic Lawsuits Against Public
Participation, 35 SOC. PROBS. 506, 506-07 (1988). The defining characteristic of
such actions is the use of litigation as a means of suppressing constitutionally
protected participation. Penelope Canan, George W. Pring, Studying Strategic
Lawsuits Against Public Participation: Mixing Quantitative and Qualitative
Approaches, 22 LAW & SOC’Y REV. 385, 387 (1988); Gordon v. Marrone, 155
Misc. 2d 726, 736, 590 N.Y.S.2d 649, 656 (Sup. Ct. 1992), aff’d, 202 A.D.2d 104,
616 N.Y.S.2d 98 (1994).
The concern giving rise to anti-SLAPP legislation, like KUPEPA, was
not merely that some lawsuits ultimately lacked merit. Rather, legislatures
-6-recognized that the litigation process itself could chill the exercise of fundamental
constitutional rights. Hamilton v. Prewett, 860 N.E.2d 1234, 1242 (Ind. Ct. App.
2007). Even where a defendant ultimately prevails, the costs of discovery, motion
practice, trial preparation, and prolonged litigation may discourage citizens from
speaking publicly, participating in governmental proceedings, petitioning public
officials, or otherwise engaging in civic affairs. As a result, beginning with
Washington in 1989, state lawmakers across the country began enacting antiSLAPP statutes. Uniform Act, Prefatory Note, 1-3 (2020). These anti-SLAPP
laws were far from uniform, varying dramatically in both procedure and substance.
In response to the patchwork of state anti-SLAPP statutes, in 2020,
the Uniform Law Commission approved the Uniform Public Expression Protection
Act. Id. In doing so, the model drafters sought to establish “a clear process
through which SLAPPs can be challenged and their merits fairly evaluated in an
expedited manner,” while simultaneously preserving the ability of persons
possessing meritorious claims to obtain meaningful judicial relief. Id. The
Uniform Act therefore reflects an effort to balance two equally important
principles: protecting the constitutional freedoms of speech, press, petition, and
association while preserving legitimate civil actions seeking redress for actionable
conduct. Id.
-7-In 2022, Kentucky became only the second state to adopt legislation
based upon the Uniform Act.3 KUPEPA, which took effect on July 14, 2022, is
codified at KRS 454.460 through KRS 454.478. It is important to recognize,
however, that Kentucky did not adopt the Uniform Act verbatim. Instead, the
General Assembly made several significant modifications before enactment,
including, for example, materially expanding the categories of actions excluded
from KUPEPA’s coverage. Compare Uniform Act § 3 (2020) with KRS
454.462(2). Consequently, while decisions construing the Uniform Act and other
states’ enactments may provide persuasive guidance, the text adopted by the
Kentucky General Assembly necessarily controls our analysis.
B. KUPEPA’s Framework.
KUPEPA establishes an expedited procedural framework through
which courts determine, at an early stage of the litigation, whether claims arising
from specified communications should proceed through the ordinary course of
civil litigation or must be dismissed with prejudice. Davenport Extreme Pools &
Spas, Inc. v. Mulflur, 698 S.W.3d 140, 155 (Ky. App. 2024). Of course, not all
civil actions fall within the scope of KUPEPA. It only comes into play where a
3
UNIF. L. COMM’N, LEGISLATIVE BILL TRACKING, UNIFORM PUBLIC EXPRESSION PROTECTION ACT, UNIFORM LAW COMMISSION, https://www.uniformlaws.org/committees/communityhome?CommunityKey=4f486460-199c-49d7-9fac-05570be1e7b1#LegBillTrackingAnchor (last visited Jul. 15, 2026).
-8-pleading4 is filed “that asserts a cause of action to which KRS 454.460 to 454.478
applies[.]” KRS 454.464. Such a cause of action is one that is being asserted
against another party based on either a:
(a.) Communication in a legislative, executive, judicial,
administrative, or other governmental proceeding;
(b.) Communication on an issue under consideration or
review in a legislative, executive, judicial,
administrative, or other governmental proceeding; or
(c.) Exercise of the right of freedom of speech or of the
press, the right to assemble or petition, or the right of
association, as guaranteed by the United States
Constitution or Kentucky Constitution, on a matter of
public concern.
KRS 454.462(1), and that does not fall within one of the ten exceptions set forth in
KRS 454.462(2)(a).5
Upon review, if the defending party believes that the initiating
pleading includes a covered claim, it may file “a special motion for expedited relief
to dismiss the cause of action in whole or in part.”6 KRS 454.464. The motion
4
We refer to this filing as the “initial pleading.” The initial pleading may be “a complaint, crossclaim, counterclaim, third-party claim, or other pleading.” Id.
5
Hereinafter, we shall refer to a “cause[] of action to which KRS 454.460 to 454.478 applies” as a “covered claim.”
6
Hereinafter, we shall refer to this motion as an “anti-SLAPP motion.”
-9-must be filed within sixty days of service of the initiating pleading on the moving
party.7
A party’s filing of an anti-SLAPP motion fundamentally alters the
trajectory of the underlying litigation. Pursuant to KRS 454.466(1)(a), when an
anti-SLAPP motion is filed “[a]ll other proceedings between the moving party and
responding party, including discovery and any pending hearing or motion, shall be
stayed[.]”8 As the Uniform Law Commission observed, the automatic stay is one
of the Act’s central procedural protections because, absent such a provision, the
protections afforded by the statute could largely be defeated simply by requiring a
defendant to endure the burdens and expense of full discovery before the court
determines whether the action should proceed. Uniform Act, § 4 cmt. 1 (2020).
The General Assembly nevertheless recognized that limited discovery
may occasionally be necessary to permit meaningful resolution of an expedited
motion. Accordingly, KRS 454.466(4) creates a narrow exception to the automatic
stay, requiring the trial court to permit limited discovery upon a showing that
7
The trial court may permit an anti-SLAPP motion to be filed later than sixty days “on a showing of good cause[.]” KRS 454.464.
8
KRS 454.466(1)(a)’s mandatory stay shall remain in effect until a final order on the antiSLAPP motion is entered and the time to appeal that order pursuant to KRS 454.476 has expired. KRS 454.466(2). Notwithstanding that stay, the trial court may, for good cause shown, hear and rule on motions unrelated to the pending anti-SLAPP motion, including motions seeking special or preliminary injunctions to “protect against an imminent threat to public health or safety.” KRS 454.466(7). During the stay, the trial court may also rule on motions seeking to voluntarily dismiss a claim or part of a claim or to sever a claim. KRS 454.466(6).
-10-specific information is necessary to establish whether a party has satisfied—or
failed to satisfy—a burden imposed by KRS 454.472 and that such information is
not reasonably available absent discovery. KUPEPA therefore authorizes only the
discovery necessary to resolve the expedited motion itself; it does not permit
general merits discovery while the anti-SLAPP motion remains pending.
Following any authorized discovery, the trial court must promptly
hear the anti-SLAPP motion.9 KRS 454.468. In ruling on the anti-SLAPP motion,
the trial court must “consider the pleadings, the [anti-SLAPP] motion, any reply or
response to the motion, and any evidence that could be considered in ruling on a
motion for summary judgment.”10 The trial court must grant the anti-SLAPP
motion if:
(a) The moving party establishes under KRS 454.462(1)
that KRS 454.460 to 454.478 applies;
(b) The responding party fails to establish under KRS
454.462(2) that KRS 454.460 to 454.478 does not apply;
and
(c) Either:
9
Ordinarily, the motion must be heard within sixty days after it is filed. The court may extend that deadline only to permit limited discovery authorized by KRS 454.466 or for good cause shown, and any hearing delayed for good cause must nevertheless be scheduled on an expedited basis. Id.
10
Under Kentucky Rule of Civil Procedure (“CR”) 56.03 this includes pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with any affidavits. CR 56.03.
-11-1. The responding party fails to establish a prima
facie case as to each essential element of the cause of
action; or
2. The moving party establishes that:
a. The responding party failed to state a cause of
action upon which relief can be granted; or
b. There is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter
of law on the cause of action or part of the action.
KRS 454.472(1).
Thus, KUPEPA requires the trial court to undertake a three-part,
burden-shifting analysis. In the first phase, the trial court effectively decides
whether KUPEPA applies. It does so by first determining whether the responding
party’s cause of action is based on communications and/or rights protected by
KUPEPA. The burden is on the moving party to make the initial showing that
KUPEPA applies. If the trial court holds that the moving party has not carried that
burden, then the anti-SLAPP motion is denied, the stay of proceedings is lifted,
and the parties proceed to litigate the merits of the case.11 If the trial court
determines that the moving party has carried its initial burden, the burden then
shifts to the responding party to show its cause of action fits within one or more of
KUPEPA’s ten enumerated exceptions. KRS 454.462(2)(a). If the responding
11
The moving party, however, has a right to an interlocutory appeal of the denial of its antiSLAPP motion. KRS 454.476.
-12-party meets this burden—for example, by showing that its cause of action is based
on the Kentucky Consumer Protection Act—then KUPEPA does not apply, and the
motion is denied.12 If the responding party fails to establish an exception applies,
then the trial court proceeds to the second step of the analysis.
In the second phase, the trial court determines if the responding party
has established a prima facie case as to each essential element of its cause of
action. KRS 454.472(1)(c)1. In this phase, the burden is on the responding party.
If the trial court determines that the responding party has not carried its burden to
establish a prima facie case, the anti-SLAPP motion is granted, the responding
party’s cause of action is terminated with prejudice, and then the moving party
may seek its “court costs, reasonable attorney’s fees, and reasonable expenses
related to the [anti-SLAPP] motion.” KRS 454.478. If the trial court determines
that the responding party has carried its burden, then the court proceeds to the third
and final step of the analysis.
In the third phase, the trial court determines if the responding party
has a legally viable cause of action. In this phase the burden shifts back to the
moving party to show either that the responding party failed to state a cause of
action upon which relief can be granted or there is no genuine issue as to any
12
The responding party may be entitled to court costs, attorney’s fees, and litigation expenses related to the motion, if the court determines that the anti-SLAPP motion was brought without good cause. KRS 454.478(2).
-13-material fact and the moving party is entitled to judgment as a matter of law. KRS
454.472(1)(c)2. If the moving party makes such a showing, the anti-SLAPP
motion is granted; if it fails to make such a showing, the motion is denied.
C. O’Bryan’s Motion for Discovery Under KRS 454.466(4).
On June 5, 2024, just two days before its response to Appellees’ antiSLAPP motion was due under the parties’ agreed scheduling order, O’Bryan
moved for leave to conduct limited discovery pursuant to KRS 454.466(4).
Specifically, O’Bryan sought an order requiring Appellees to answer a series of
interrogatories principally requesting that they identify the communications they
contended were protected under KUPEPA, the statements they maintained were
true, and the communications upon which they relied in asserting the various
statutory protections set forth in their motion for expedited relief. Appellees
objected, arguing that the requested discovery was unnecessary to permit O’Bryan
to respond to the anti-SLAPP motion and, given the complaint’s generalized
allegations of defamation, improperly sought to require Appellees to identify every
communication they had made concerning O’Bryan without first identifying the
allegedly defamatory statements forming the basis of the action.
The trial court denied the motion. In doing so, it concluded that
O’Bryan failed to establish that the requested information was “not reasonably
available unless discovery [was] allowed,” as required by KRS 454.466(4). The
-14-court relied, in part, upon O’Bryan’s February 9, 2024 cease-and-desist letter,
which asserted that Appellees had made “numerous false statements regarding the
business operations and environmental compliance of O’Bryan Grain Farms,” as
well as representations made by O’Bryan’s counsel during the July 3, 2024 hearing
demonstrating that O’Bryan was already aware of the communications it believed
to be defamatory. Consequently, the court concluded that O’Bryan had failed to
satisfy the statutory prerequisites necessary to obtain limited discovery.
On appeal, O’Bryan argues that the trial court misconstrued KRS
454.466(4) and improperly denied discovery necessary to permit it to respond
meaningfully to Appellees’ anti-SLAPP motion. It maintains that, without
discovery, it could not determine which communications Appellees contended
were protected under KUPEPA, which statements Appellees asserted were true, or
which communications formed the basis of the statutory defenses advanced in their
motion for expedited relief.
As discussed above, the filing of an anti-SLAPP motion automatically
stays all proceedings between the parties, including discovery. KRS
454.466(1)(a). That stay reflects one of KUPEPA’s principal procedural
protections by preventing the responding party from defeating the purpose of the
Act simply by subjecting the moving party to the burdens and expense of discovery
before the trial court determines whether the action may proceed. At the same
-15-time, the General Assembly recognized that, in limited circumstances, some
discovery may be necessary to permit a fair determination of the expedited motion
itself. Accordingly, KRS 454.466(4) provides that a trial court shall permit limited
discovery if the responding party demonstrates both (1) that specific information is
necessary to establish whether a party has satisfied or failed to satisfy a burden
imposed by KRS 454.472 and (2) that the information is not reasonably available
unless discovery is allowed. KRS 454.466(4).
Thus, while KUPEPA employs mandatory language, that mandate is
not self-executing. A responding party is not entitled to discovery merely because
it requests it. Rather, the responding party bears the burden of establishing each of
the statutory prerequisites before the trial court’s duty to authorize limited
discovery arises. KUPEPA therefore contemplates a focused evidentiary showing,
not a generalized assertion that additional discovery would be helpful.
Although Kentucky’s appellate courts have not previously addressed
the standard governing review of a trial court’s determination under KRS
454.466(4), we perceive no reason to depart from the settled principles governing
discovery rulings generally. Trial courts possess broad discretion in supervising
discovery, resolving discovery disputes, and determining the proper scope of
discovery. Southern Financial Life Insurance Co. v. Combs, 413 S.W.3d 921, 932
(Ky. 2013); Blue Movies, Inc. v. Louisville/Jefferson County Metro Government,
-16-317 S.W.3d 23, 39 (Ky. 2010). That discretion necessarily includes determining
whether a party has satisfied the statutory prerequisites for limited discovery under
KRS 454.466(4), as well as defining the scope of any authorized discovery. See
Richmond Health Facilities-Madison, LP v. Clouse, 473 S.W.3d 79, 83 (Ky. 2015).
Accordingly, we review the trial court’s determination under KRS 454.466(4) for
an abuse of discretion. A trial court abuses its discretion only when its decision is
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Applying those principles, we cannot conclude that the trial court
abused its discretion. Although O’Bryan’s interrogatories requested specific
information, the trial court reasonably concluded that O’Bryan failed to satisfy the
second statutory prerequisite by demonstrating that the requested information was
unavailable absent discovery. Long before filing suit, O’Bryan had already
asserted in its cease-and-desist letter that Appellees had made “numerous false
statements” concerning its farming operations and environmental compliance.
Likewise, during the hearing on its discovery motion, O’Bryan acknowledged that
it was aware of the communications it believed were defamatory. These
circumstances reasonably supported the trial court’s determination that O’Bryan
already possessed sufficient knowledge of the allegedly actionable statements to
formulate its response to the anti-SLAPP motion.
-17-Moreover, the discovery O’Bryan sought exceeded the limited
purpose contemplated by KRS 454.466(4). Rather than seeking information
unavailable from any other source and necessary to resolve a burden imposed by
KRS 454.472, O’Bryan sought to require Appellees to catalogue the universe of
communications they contended were protected under KUPEPA and to identify
every communication they maintained was truthful or otherwise privileged.
KUPEPA’s limited-discovery provision is not intended to permit a responding
party to require the moving party to identify every potentially protected
communication before the responding party identifies the communications forming
the basis of its own cause of action. Instead, the statute authorizes only that
discovery necessary to resolve the expedited motion itself.
Because the record supports the trial court’s determination that
O’Bryan failed to establish the statutory prerequisites set forth in KRS 454.466(4),
we find no abuse of discretion in its denial of limited discovery.
D. O’Bryan’s Motion to Supplement Its Response.
Following the denial of its request for limited discovery, O’Bryan
sought leave to supplement its response to Appellees’ anti-SLAPP motion with
documents it obtained through open-records requests directed to the Kentucky
Energy and Environment Cabinet. O’Bryan argued that the materials demonstrated
Appellees’ allegations regarding environmental violations were false and therefore
-18-were relevant to the issues presented by the anti-SLAPP motion. The trial court
denied the motion.
Trial courts possess broad discretion to manage their dockets,
including establishing and enforcing filing deadlines and determining whether to
permit supplemental filings. Nebraska Alliance Realty Co. v. Brewer, 529 S.W.3d
307, 315 (Ky. App. 2017). Accordingly, we review the trial court’s decision
declining to permit O’Bryan’s supplemental filing for an abuse of discretion. Id.
As previously noted, a trial court abuses its discretion only when its decision is
arbitrary, unreasonable, unfair, or unsupported by sound legal principles. English,
993 S.W.2d at 945.
We discern no abuse of discretion here. KUPEPA contemplates the
prompt resolution of anti-SLAPP motions. See KRS 454.468. Although the
statute authorizes the trial court to consider evidence that would be admissible in
ruling on a motion for summary judgment, nothing in KUPEPA requires a trial
court to permit a responding party to supplement the record after briefing has
concluded with materials obtained through subsequent open-records requests. Nor
has O’Bryan demonstrated that the proffered materials were necessary to respond
to the anti-SLAPP motion or that the denial of its motion prejudiced its ability to
oppose expedited relief. Under these circumstances, the trial court acted well
-19-within its discretion in declining to reopen the briefing and delay resolution of the
pending motion.
Having concluded that the trial court committed no abuse of discretion
in its discovery-related rulings, we turn to the merits of its order granting expedited
relief under KUPEPA. Unlike the discovery rulings discussed above, the trial
court’s determinations regarding the applicability of KUPEPA and the parties’
respective burdens under KRS 454.472 present questions of law. Accordingly, our
review of those determinations is de novo. Davenport, 698 S.W.3d at 150.
E. Appellees Established that KUPEPA Applies.
Under KRS 454.472(1)(a), the moving party bears the burden of
establishing that the responding party’s cause of action is one “to which KRS
454.460 to 454.478 applies.” More specifically, Appellees were required to
demonstrate that O’Bryan’s defamation claim is based upon one or more of the
categories of communications protected by KRS 454.462(1).
As an initial matter, we observe that neither O’Bryan’s complaint nor
its subsequent filings identify with any specificity the allegedly defamatory
statements giving rise to this litigation or which Appellee made them. Instead, the
complaint broadly alleges that, “[f]rom 2022 to 2023, and prior to, Defendants
spoke and published . . . certain slanderous, false, malicious, and defamatory words
alleging misconduct in the operation of their pig farms to the community, other
-20-businesses and to various governmental regulatory agencies . . . .” Likewise,
O’Bryan’s February 9, 2024 cease-and-desist letter asserts only that Appellees
made “numerous false statements regarding the business operations and
environmental compliance of O’Bryan Grain Farms and its entities, not only to the
community but repeatedly to environmental cabinets.” Consequently, the precise
communications underlying O’Bryan’s claim cannot be identified from the
pleadings alone, a situation O’Bryan could have remedied but chose not to do so.
Nevertheless, the record sufficiently establishes the nature of the
communications upon which O’Bryan bases its action. By O’Bryan’s own
description, the allegedly defamatory statements consist of communications
concerning the environmental compliance of its swine farming operations that
were directed to the Cabinet, made in connection with the Cabinet’s ongoing
administrative enforcement proceeding, or communicated to members of the
community regarding the environmental impacts of O’Bryan’s operations. Those
are precisely the types of communications contemplated by KRS 454.462(1).
First, to the extent the alleged statements were made to the Cabinet or
during the pending administrative enforcement action, they constitute
communications made in a governmental proceeding. KRS 454.462(1)(a).
Likewise, statements concerning issues under consideration in that proceeding fall
squarely within KRS 454.462(1)(b), which protects communications relating to
-21-matters under review in governmental proceedings. The administrative record
establishes that the Cabinet’s enforcement action concerned the environmental
compliance of O’Bryan’s concentrated animal feeding operations, the very subject
matter identified in O’Bryan’s complaint and cease-and-desist letter.
Moreover, the remaining communications alleged by O’Bryan
likewise concern matters of public concern within the meaning of KUPEPA. The
General Assembly intentionally drafted the Act to apply broadly to speech
concerning “matter[s] of political, social, or other interest to the community” and
“subject[s] of concern to the public[.]” KRS 454.460(4). As this Court has
recently recognized, KUPEPA’s protections are to be construed broadly.
Davenport, 698 S.W.3d at 155. Matters of public concern are not limited to
governmental affairs or political discourse. Andes Roofing, LLC v. Rusnak, 726
S.W.3d 13, 19 (Ky. App. 2025). “Speech deals with matters of public concern
when it can be fairly considered as relating to any matter of political, social, or
other concern to the community or when it is a subject of legitimate news interest;
that is, a subject of general interest and of value and concern to the public[.]”
Snyder v. Phelps, 562 U.S. 443, 453, 131 S. Ct. 1207, 1216, 179 L. Ed. 2d 172
(2011) (internal quotation marks and citations omitted).
Certainly, statements concerning the environmental impact and
regulatory compliance of large-scale swine farming operations located within a
-22-local community qualify as matters of social and community interest under KRS
454.460(4). Indeed, O’Bryan’s own pleadings allege that Appellees
communicated with governmental regulators and members of the community
concerning those very subjects. Whether those statements ultimately prove
actionable is a separate question addressed under the remaining steps of
KUPEPA’s burden-shifting framework. For purposes of KRS 454.472(1)(a),
however, Appellees established that O’Bryan’s defamation action is based upon
communications falling within KRS 454.462(1).
F. O’Bryan Failed to Establish that KUPEPA Does Not Apply.
Having concluded that Appellees satisfied their burden under KRS
454.472(1)(a), the burden shifted to O’Bryan to establish that KUPEPA
nevertheless did not apply because its cause of action fell within one of the
statutory exclusions set forth in KRS 454.462(2). The General Assembly has
identified ten categories of actions that are excluded from KUPEPA’s coverage.
KRS 454.462(2). Under the burden-shifting framework established by KRS
454.472(1), however, it is the responding party’s burden to demonstrate that one or
more of those exclusions applies.
Here, although O’Bryan vigorously argued that Appellees failed to
satisfy their initial burden under KRS 454.462(1), it did not separately argue before
the trial court that its defamation action fell within any of the exclusions
-23-enumerated in KRS 454.462(2). Nor does O’Bryan identify any applicable
statutory exclusion on appeal.
Accordingly, because O’Bryan failed to establish that KUPEPA does
not apply under KRS 454.462(2), the trial court properly proceeded to the second
phase of the statutory analysis to determine whether O’Bryan established a prima
facie case as to each essential element of its defamation claim.
G. O’Bryan Failed to Establish a Prima Facie Case of Defamation.
Having concluded that Appellees established that KUPEPA applies
and that O’Bryan failed to establish the applicability of any statutory exclusion, we
proceed to the second phase of KUPEPA’s burden-shifting framework. Under
KRS 454.472(1)(c)1., the responding party bears the burden of establishing a
prima facie case as to each essential element of its cause of action. We review the
trial court’s determination de novo. Davenport, 698 S.W.3d at 150.
A prima facie case is one that, if unrebutted or unexplained, is
sufficient to support the proposition for which it is offered. Davenport, 698
S.W.3d at 146. At this stage, the responding party must come forward with
evidence establishing each essential element of its cause of action. Id.; KRS
454.472(1)(c)1. To prevail on a claim of defamation, a plaintiff must establish:
(1) defamatory language; (2) about the plaintiff; (3) which is published; and (4)
which causes injury to reputation. Toler v. Süd-Chemie, Inc., 458 S.W.3d 276, 282
-24-(Ky. 2014). Additionally, because truth is an absolute defense, the allegedly
defamatory statement must be capable of being proven false. Cromity v. Meiners,
494 S.W.3d 499, 503 (Ky. App. 2015). Whether a statement is actionable likewise
depends upon its context, including whether it constitutes an assertion of provable
fact or a constitutionally protected expression of opinion. Id. at 502-04.
The trial court concluded that O’Bryan failed to satisfy its burden
because it never identified any specific statement constituting actionable
defamation. We agree. Although O’Bryan repeatedly alleged that Appellees made
“numerous false statements” regarding its farming operations and environmental
compliance, neither its complaint, its response to the anti-SLAPP motion, nor the
evidence submitted in opposition to that motion identified a single allegedly
defamatory statement attributable to any particular Appellee. Nor did O’Bryan
identify when the statements were made, to whom they were published, the context
in which they were communicated, or explain why the statements were false.
Instead, O’Bryan relied almost exclusively upon generalized assertions that
Appellees had made false accusations concerning its environmental practices.
That showing falls short of KRS 454.472(1)(c)1.’s requirement that
the responding party establish a prima facie case as to each essential element of its
cause of action. At this stage of the KUPEPA analysis, it was not sufficient for
O’Bryan merely to allege that Appellees made false statements. Rather, it was
-25-required to come forward with at least minimal evidence identifying the allegedly
defamatory communications with sufficient specificity to permit the trial court to
evaluate whether the statements were capable of a defamatory meaning, whether
they constituted assertions of fact or protected opinion, whether they were
susceptible of being proven false, whether they were published, and whether any
privilege or other defense applied. Without knowing what statements were
allegedly defamatory, the trial court could not undertake the legal analysis
Kentucky defamation law requires. Mackey v. Krause, 575 P.3d 1162, 1179 (Utah
2025) (“[I]t would undermine [UPEPA’s] purpose if a plaintiff did not have to
point to evidence that demonstrates a prima facie case that the statements are nonprivileged to survive a special motion premised on privilege.”); Anderson v.
Anderson, 36 N.W.3d 811, 821 (Minn. Ct. App. 2026) (holding that general and
conclusory allegations in the plaintiff’s complaint standing alone were insufficient
to establish prima facie defamation under UPEPA).
O’Bryan’s position throughout the litigation illustrates the deficiency
in its proof. As discussed above, O’Bryan sought limited discovery requiring
Appellees to identify the communications they contended were protected under
KUPEPA and those they maintained were truthful. But KUPEPA places the
burden upon the responding party—not the moving party—to establish a prima
facie case. KRS 454.472(1)(c)1. That burden necessarily includes identifying the
-26-allegedly defamatory statements forming the basis of the plaintiff’s claim.
Although limited discovery may occasionally be necessary to establish certain
elements of a cause of action, such as a party’s state of mind, see Uniform Act § 4
cmt. 4 (2020), a plaintiff should ordinarily be able to identify the allegedly
defamatory statements without resorting to discovery. A plaintiff cannot satisfy its
burden by requiring the defendants, through discovery, to identify the statements
the plaintiff itself contends are actionable.
The only communications appearing in the record with any degree of
specificity consist primarily of correspondence between Appellees and
governmental officials concerning O’Bryan’s environmental practices and the
pending administrative enforcement proceeding. However, O’Bryan never argued
that those communications comprised the entirety of its defamation claim. Instead,
it continued to rely upon broad allegations that Appellees made “numerous false
statements” regarding its operations. Consequently, we need not decide whether
any particular communication constituted protected opinion, petitioning activity, or
otherwise privileged speech. O’Bryan never identified even one of the allegedly
defamatory statements with sufficient specificity to require the trial court to
undertake that analysis.
Because O’Bryan failed to establish a prima facie case as to each
essential element of defamation, the trial court properly granted Appellees’ motion
-27-for expedited relief under KRS 454.472(1)(c)1. Having reached that conclusion,
we need not address the trial court’s alternative analysis under KRS
454.472(1)(c)2.
H. Attorney’s Fees.
Finally, O’Bryan challenges the trial court’s award of attorney’s fees.
It does not seriously dispute that, if Appellees properly prevailed on their KUPEPA
motion, KRS 454.478 authorizes an award of attorney’s fees. Rather, O’Bryan
principally argues that the amount awarded was unreasonable.
Because we have concluded that the trial court properly granted
Appellees’ motion for expedited relief under KUPEPA, Appellees were entitled to
recover their reasonable attorney’s fees, court costs, and litigation expenses related
to the motion. KRS 454.478(1). The statute provides that the trial court “shall
award” such fees and expenses to the prevailing moving party. As our Court has
recently recognized, this language is mandatory. Johnson v. Kearney, 716 S.W.3d
227, 231-33 (Ky. App. 2025). Thus, once Appellees prevailed on their KUPEPA
motion, the trial court was required to award reasonable attorney’s fees and
litigation expenses related to that motion.
The remaining question concerns the reasonableness of the amount
awarded. “When attorney’s fees are authorized by statute, the amount of the fee
award rests within the sound discretion of the trial court.” Mid South Capital
-28-Partners, LP v. Adkins, 626 S.W.3d 688, 691 (Ky. App. 2020). In determining the
reasonableness of an attorney’s fee, the trial court may rely upon its own
knowledge, experience, and common sense in evaluating the services rendered. Id.
Consequently, we review the amount of a statutory attorney’s fee award for abuse
of discretion.
Here, the trial court conducted a hearing on Appellees’ fee request,
reviewed detailed billing records and supporting affidavits, considered O’Bryan’s
objections, and reduced certain requested amounts before awarding $46,998.60 in
attorney’s fees and litigation expenses. Having reviewed the record, we cannot
conclude that the trial court’s determination was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles. English, 993 S.W.2d at 945. Rather, the
court carefully evaluated the evidence before it and awarded only those fees and
expenses it determined were reasonable and related to the KUPEPA motion as
required by KRS 454.478(1). Accordingly, we discern no abuse of discretion in
the trial court’s award of attorney’s fees and litigation expenses.
III. CONCLUSION
For the foregoing reasons, the orders of the Daviess Circuit Court are
AFFIRMED.
ALL CONCUR.
-29-BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Karey L. Cain Randal A. Strobo
Clifford R. Whitehead, pro hac vice David E. Spenard
Evansville, Indiana Timothy J. Mayer
Julia D. Taylor
Louisville, Kentucky
-30-