National Geographic Society v. Joseph Grieshop ( 2016 )


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  •          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    NOT TO BE PUBLISHED OPINION
    THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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),
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    RENDERED: MARCH 17, 2016
    NOT TO BE PUBLISHED
    ,Suptrutr Court of 4 rufuritv
    2015-SC-000569-I
    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."
    2
    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,
    3
    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
    5
    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.
    6
    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 contract-
    formation 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
    7
    

Document Info

Docket Number: 2015 SC 000569

Filed Date: 3/14/2016

Precedential Status: Precedential

Modified Date: 3/24/2016