Julianne Foster v. Airbnb, Inc.

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Julianne Foster, Respondent,

v.

Rhett Riviere, Katherine A. Thomas, Chase Enterprises,
LLC of South Carolina, and Airbnb, Inc., Defendants,

of which Airbnb, Inc., is the Appellant and Rhett Riviere
is a Respondent.

Appellate Case No. 2023-001479

Appeal From Aiken County
J. Cordell Maddox, Jr., Circuit Court Judge

Unpublished Opinion No. 2025-UP-297
Heard February 6, 2025 – Filed August 20, 2025

AFFIRMED

Phillip Donald Barber and Richard A. Harpootlian, both
of Richard A. Harpootlian, P.A., of Columbia; C.
Mitchell Brown, Matthew A. Abee, and Blake Terence
Williams, all of Nelson Mullins Riley & Scarborough,
LLP, of Columbia; Beattie B. Ashmore, of Beattie B.
Ashmore, PA, of Greenville; Damali Taylor, of San
Francisco, California; and Dawn Sestito, of Santa
Monica, California, all for Appellant.
Joseph M. McCulloch, Jr. and Kathy R. Schillaci, both of
McCulloch and Schillaci, of Columbia; James Mixon
Griffin and Margaret Nicole Fox, both of Griffin
Humphries LLC, of Columbia; and John W. Harte, of
John W. Harte Attorney At Law, LLC, of Aiken, all for
Respondent Rhett Riviere.

Deborah B. Barbier, of Deborah B. Barbier, LLC, of
Columbia; Ryan Lewis Beasley, of Ryan L. Beasley,
Attorney at Law, PA, of Greenville; and Wesley D. Few,
of Wesley D. Few, LLC, of Greenville, all for
Respondent Julianne Foster.

PER CURIAM: In this appeal, Airbnb, Inc. argues the circuit court erred in
denying its motion to compel arbitration and in granting Julianne Foster's motion
for a rule to show cause against Airbnb.

We affirm the circuit court's denial of Airbnb's motion to compel arbitration
because Airbnb waived any rights it may have possessed against Foster.1 See 315
Corley CW LLC v. Palmetto Bluff Dev., LLC, 444 S.C. 521, 527–28, 908 S.E.2d
892, 895 (Ct. App. 2024) ("Appeal from the denial of a motion to compel
arbitration is subject to de novo review." (quoting Chassereau v. Global-Sun
Pools, Inc., 363 S.C. 628, 631, 611 S.E.2d 305, 307 (Ct. App. 2005))), cert granted
(June 25, 2025) Lampo v. Amedisys Holding, LLC, 437 S.C. 236, 242, 877 S.E.2d
486, 489 (Ct. App. 2022) ("Because the core of the [Federal Arbitration Act
(FAA)] is consent, arbitration may be compelled only when the parties have agreed
to it."); id. ("[I]t is always up to the court to determine if the parties have an
agreement to arbitrate."), rev'd on other grounds, 445 S.C. 305, 914 S.E.2d 139
(2025).

"It is generally held that the right to enforce an arbitration clause may be waived."
Liberty Builders, Inc. v. Horton, 336 S.C. 658, 665, 521 S.E.2d 749, 753 (Ct. App.
1999). "A party may waive the right to arbitration by being unjustifiably slow in
seeking arbitration." Evans v. Accent Manufactured Homes, Inc., 352 S.C. 544,

1
We make no finding as to whether Airbnb and Michelle Jain had an enforceable
arbitration agreement or whether Foster could be bound to such an agreement as a
nonsignatory.
550, 575 S.E.2d 74, 76 (Ct. App. 2003) (quoting 4 Am.Jur.2d Alternate Dispute
Resolution § 129 (1995)). "There is no set rule as to what constitutes a waiver of
the right to arbitrate; the question depends on the facts of each case." Id. at 550,
575 S.E.2d at 77 (quoting Hyload, Inc. v. Pre-Engineered Prods., Inc., 308 S.C.
277, 280, 417 S.E.2d 622, 624 (Ct. App. 1992)). However, the Supreme Court has
clarified that the party asserting waiver of a right to arbitration does not have to
show prejudice. Morgan v. Sundance, Inc., 596 U.S. 411, 417–19 (2022).

The record unequivocally demonstrates that Airbnb acted inconsistently with its
right to arbitrate and actively participated in discovery for a prolonged period of
time, including filing multiple answers, multiple motions to dismiss, taking
depositions, etc. Foster initially filed her complaint in April 2021 and filed her
amended complaint in November 2022. Despite stating its intention to file a
motion to compel arbitration in May 2021, Airbnb did not file its motion to compel
until May 2023. South Carolina courts have repeatedly held that such behavior
constitutes waiver because the pursuit of discovery allows a party to obtain
information from discovery before pursuing arbitration while forcing the opposing
party to incur discovery costs that would not arise in arbitration. See Johnson v.
Heritage Healthcare of Estill, LLC, 416 S.C. 508, 514–15, 788 S.E.2d 216, 219
(2016) (holding a party waived its right to arbitration when it participated in
discovery prior to filing its motion to compel arbitration despite having pled
arbitration as a defense in its pleadings); Liberty Builders, Inc., 336 S.C. at 668,
521 S.E.2d at 754 (holding a party waived its right to enforce an arbitration clause
"by submitting the dispute to the court and availing itself of that system for two
and one-half years" even though the arbitration agreement contained a no-waiver
provision); cf. Gen. Equip. & Supply Co. v. Keller Rigging & Constr., S.C., Inc.,
344 S.C. 553, 557, 544 S.E.2d 643, 645–46 (Ct. App. 2001) (finding no waiver
when the parties only appeared in front of the court twice in eight months to
substitute a defendant, and to refer the action to a master-in-equity, and that as
such, neither party had yet incurred substantial attorney's fees). Accordingly, we
hold the circuit court did not err in denying the motion to compel arbitration.2 See

2
Because our finding as to waiver is dispositive, we decline to address whether the
circuit court erred in finding Foster could not be bound to the arbitration agreement
via direct benefits estoppel or whether the court erred in finding South Carolina
declines to bind parties to arbitration agreements in cases involving outrageous acts
or unforeseeable torts. See Futch v. McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding an appellate court need not
review remaining issues when its determination of a prior issue is dispositive of the
appeal).
I'On, L.L.C. v. Town of Mount Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723
(2000) (holding that an appellate court may affirm the circuit court's ruling using
any additional reasons that are raised by the respondent's brief and found within the
record).

As to whether the circuit court erred in granting Foster's motion for a rule to show
a cause, we decline to address this issue because there is no effectual relief this
court can offer. See Wayne's Auto. Ctr., Inc. v. S.C. Dep't of Pub. Safety, 431 S.C.
465, 475, 848 S.E.2d 56, 62 (Ct. App. 2020) ("An appellate court will not pass
judgment on moot and academic questions; it will not adjudicate a matter when no
actual controversy capable of specific relief exists." (quoting Sloan v. Greenville
County, 380 S.C. 528, 535, 670 S.E.2d 663, 667 (Ct. App. 2009))). In May 2023,
the circuit court issued a discovery order against Airbnb, directing it to comply
with Foster's requests for discovery within sixty days. Airbnb filed a motion to
reconsider this order, which is still pending before the circuit court. Airbnb also
failed to comply with the order. Foster subsequently filed a rule to show cause
against Airbnb. Rather than issuing a rule to show cause and holding a contempt
hearing, the circuit court issued an order granting Foster's motion. Airbnb now
appeals, asserting the circuit court erred in finding it in contempt. However, we
find the rule to show cause order is not synonymous with a contempt order; the
court made no findings of contempt and issued no sanctions against Airbnb.
Instead, the court noted Airbnb's continued failure to comply with the prior
discovery order and directed it to comply with that order within forty-five days of
the rule to show cause order. Airbnb did not appeal the prior discovery order.
Thus, the order being appealed in this case essentially bears no effect other than
repeating a former directive of the court. Therefore, this court has no relief to
offer. See Davis v. Parkview Apartments, 409 S.C. 266, 280–81, 762 S.E.2d 535,
543 (2014) (providing that discovery orders are interlocutory and not immediately
appealable and holding the merits of the challenged discovery orders were not
properly before the court when the appellants "continued along in the litigation,
attempting to divert the implementation of the court's rulings by providing
incomplete responses and causing delay through other tactics while they decided
whether or not to surrender to the possibility of being held in contempt of court").

Based on the foregoing, the orders of the circuit court are

AFFIRMED.

WILLIAMS, C.J., and GEATHERS and TURNER, JJ., concur.