IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

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ACTION. 
RENDERED: MARCH 17, 2016 

NOT TO BE PUBLISHED 

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NATIONAL GEOGRAPHIC SOCIETY; 

NGC NETWORK, LLC APPELLANTS 

ON APPEAL FROM COURT OF APPEALS 

V. CASE NO. 2015-CA-000648-I 

HARLAN CIRCUIT COURT NO. 15-CI-00012 

JOSEPH GRIESHOP; MARVIN J. LIPFIRD APPELLEES 

MEMORANDUM OPINION OF THE COURT 

VACATING AND REMANDING 

In defending against a defamation claim, the National Geographic Society 

sought to enforce the terms of an arbitration agreement that it claimed 

governed the claim. The trial court refused to compel arbitration on the ground 

that no valid contract had been formed. The Court of Appeals denied 

interlocutory relief without addressing the contract-formation question on the 

ground that National Geographic had failed to allege, much less prove, 

irreparable injury. May an appellate court refuse to grant interlocutory relief in 

such circumstances without examining the trial court's conclusion that there 

was no valid contract? It may not. Our authorities are clear that irreparable 

injury is proven if the trial court erred in finding no valid contract. For that 
reason, the Court of Appeals' order is vacated and this matter is remanded for 

further proceedings. 

I. Background 

In 2013, National Geographic was filming a "reality" television show titled 

Kentucky Justice about law-enforcement in Harlan County, Kentucky. At the 

time, Joseph Grieshop was the Harlan County Judge/Executive. On April 18, 

2013, he signed a document titled "Location and Personal Release" allowing 

National Geographic to film at the "courtroom at the Harlan County 

Courthouse to include the roof." 

Although Grieshop claims he informed National Geographic's agent at 

that time that he did not want to be filmed, the release also grants National 

Geographic permission to "photograph and record [his] likeness and activities" 

and "to use and re-use, publish and re-publish, and modify or alter the 

Image(s) taken during the Shoot in the Assignment." Among other things, 

Grieshop agreed to "waive [his] right to inspect or approve any editorial text or 

advertising that is used in connection with the Images," and to "release and 

discharge [National Geographic] ... from any and all claims arising out of use of 

the Images for the purposes described above, including any claims for 

misappropriation of property, libel, invasion of property, or other tortious act." 

The release also stated: "In addition, neither I nor any other party having an 

interest in the Location or Shoot shall have any claim or right of action for 

injunctive relief and/or money damages against [National Geographic] or 

[National Geographic's] agent arising out of the use of the Images." 

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Although National Geographic did not sign the release, at least two 

provisions placed obligations on it. Specifically, National Geographic "agree[d] 

that it will not use the Images to defame or show the Location in a false light." 

It also agreed to "use reasonable care to prevent damage to the Location and ... 

[to] indemnify [Grieshop] should any damage be caused to the Location by the 

negligent act or omission of [National Geographic] or its agents, employees or 

invitees." 

Some time after the release was executed, then-Harlan County Sheriff 

Marvin Lipfird executed an arrest warrant, signed by a trial commissioner, on 

Grieshop at his office in the basement of the courthouse. The arrest was filmed 

by National Geographic. The charges against Grieshop were later dismissed for 

lack of probable cause. Grieshop claims that National Geographic was given 

notice of this fact. Nevertheless, footage of the arrest was used in an episode of 

Kentucky Justice that first aired on January 24, 2014. The episode was 

originally titled "Law Gone Bad" and, after Grieshop complained, was re-titled 

"Arresting the Law." 

On February 15, 2015, Grieshop filed a defamation action against 

National Geographic and Lipfird. National Geographic moved to compel 

arbitration under an arbitration clause in the release. That clause reads as 

follows: 

The parties agree that they will attempt in good faith to settle any 

and all disputes arising out of, under, or in connection with this 

Agreement, including without limitation the validity, interpretation, 

performance and breach hereof, through a process of mediation in 

Washington, D.0 under the supervision of a mutually agreed upon 

mediator. In the event that mediation fails to settle such a dispute, 

the parties agree to proceed to binding arbitration in Washington, 

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D.C. pursuant to the then existing rules of the American 

Arbitration Association. Judgment upon the award rendered may 

be entered in any court having jurisdiction thereof. In the event of 

arbitration, the non-prevailing party will be responsible to pay all 

costs, the prevailing party's attorney's fees, costs and other 

disbursements, plus legal interest on the award. 

The trial court denied the motion, concluding that there was no valid 

underlying agreement to which the arbitration agreement could apply and thus 

no valid arbitration agreement. The court stated that "an arbitration agreement 

presupposes the existence of another agreement," and that the release, the 

purported other agreement, was "not a contract, for the basic reason that it 

lacks mutuality; stated differently, it is devoid of any consideration whatsoever 

passing to Grieshop." The court further stated that the release contained only 

unilateral promises by Grieshop "without as much as a recital of 

consideration," and that the promises by National Geographic only ran to the 

"Location," namely, "the old Harlan County Court House, which Grieshop does 

not own." 

National Geographic then moved the Court of Appeals for interlocutory 

relief under Civil Rule 65.07 and North Fork Collieries, LLC v. Hall, 322 S.W.3d 

98 (Ky. 2010). The Court of Appeals denied the motion, noting that relief under 

those authorities is essentially injunctive and requires proof of irreparable 

injury, and concluding that National Geographic "has not asserted, much less 

proven, any irreparable injury resulting from the trial court." 

National Geographic appealed to this Court under Civil Rule 65.09. 
II. Analysis 

As this Court has stated several times in the past, an order denying a 

motion to compel arbitration based on an arbitration agreement is one of the 

few interlocutory trial orders that may be reviewed immediately by an appellate 

court. If the arbitration agreement in question is governed by the Kentucky 

Uniform Arbitration Act, interlocutory review is provided by statute. See KRS 

417.220(1)(a) ("An appeal may be taken from ... [a]n order denying an 

application to compel arbitration made under KRS 417.060...."). If that act does 

not apply and the agreement is governed by other law, such as the Federal 

Arbitration Act, "CR 65.07 and CR 65.09 [are] appropriate avenues for the 

review of trial court orders denying motions to compel arbitration." North Fork 

Collieries, 322 S.W.3d at 101. Those rules, of course, allow interlocutory review 

of orders granting or denying injunctive relief. 

The rationale behind this is not that motions to compel arbitration are 

precisely motions for injunctive relief but because they "are in some ways akin 

to motions for injunctions under CR 65.04." Id. at 102. We have also noted that 

"they are significantly different as well." Id. Unlike a traditional request for an 

injunction, which would require the trial court "to weigh the equities of the 

situation, to assess the merits of the underlying controversy, [and] to determine 

whether litigation would or would not 'irreparably harm' the movant," a motion 

to compel arbitration seeks only "specific performance of the asserted 

contractual right," and the trial court's "task ... is simply to decide under 

ordinary contract law whether the asserted arbitration agreement actually 

exists between the parties and, if so, whether it applies to the claim raised in 

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the complaint." Id. And whereas an ordinary request for "injunctive relief is 

said to be within the sound discretion of the trial court, in this context that 

discretion extends no further than the correct application of the law, and 

accordingly we have held that the improper denial of a motion to compel 

arbitration warrants relief under CR 65.09." Id. "The trial court's factual 

findings, if any, are reviewed for clear error, but its construction of the 

contract, a purely legal determination, is reviewed de novo." Id. 

Despite the differences between an ordinary injunction action and 

interlocutory review of the denial of a motion to compel arbitration, both 

require a showing that "the movant will suffer irreparable injury or the final 

judgment will be rendered ineffectual." Id. The Court of Appeals reached its 

decision by applying this point of law to National Geographic's claim and 

concluding that it had neither alleged nor proven irreparable injury. 

That approach, however, ignored that North Fork Collieries went on to 

hold expressly that "in this context irreparable injury arises from an improper 

denial of a motion to compel arbitration and that the principal question on 

review is simply whether the trial court correctly decided the contract issue." 

Id. at 103. In other words, irreparable injury is proven by showing that the trial 

court erred in denying the motion to compel arbitration. 

The Court of Appeals simply failed to engage in the required analysis, 

namely, whether the trial court correctly decided the contract-formation 

question. That error alone satisfies the requirement that the movant show 

extraordinary cause as required by Civil Rule 65.09(1) and requires that the 

Court of Appeals' order be vacated. 

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III. Conclusion 

Because the Court of Appeals failed to apply North Forth Collieries in its 

entirety and denied National Geographic's request for interlocutory relief 

without examining whether the trial court correctly determined there was no 

contract, the Court of Appeals' order denying interlocutory relief is vacated. 

This matter is remanded to that court for determination of the contractformation question. 

All sitting. All concur. 

COUNSEL FOR APPELLANTS: 

Susan Grogan Faller 

Frost Brown Todd, LLC 

3300 Great American Tower 

301 East Fourth Street 

Cincinnati, Ohio 45202 

Barry Douglas Hunter 

Frost Brown Todd, LLC 

250 West Main Street, Suite 2800 

Lexington, Kentucky 40507-1749 

COUNSEL FOR APPELLEE, JOSEPH GRIESHOP: 

Russell Darren Alred 

PO Box 288 

Harlan, Kentucky 40831 

COUNSEL FOR APPELLEE, MARVIN J. LIPFIRD: 

Jonathan C. Shaw 

Porter, Schmitt, Banks & Baldwin 

327 Main Street 

PO Drawer 1767 

Paintsville, Kentucky 41240-1767 

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