Mitchell v. Brennan


Filed 3/9/11 Mitchell v. Brennan CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

MARK MITCHELL, Plaintiff and Respondent, v. DAVID BRENNAN, Defendant and Appellant.

G042296 (Super. Ct. No. 07CC04909) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.
Richard A. Higbie for Defendant and Appellant.
No appearance for Plaintiff and Respondent.

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Defendant David Brennan appeals from a judgment in an action for breach of contract and quantum meruit brought by plaintiff Mark Mitchell. The trial court conducted a bench trial and awarded judgment in Mitchell's favor on the quantum meruit claim. Brennan contends on appeal the trial court lacked jurisdiction to adjudicate Mitchell's claim because the contract required binding arbitration. For the reasons expressed below, we conclude the trial court did not err in finding Brennan waived the right to arbitrate and therefore affirm the judgment.
I
Factual and Procedural Background
Brennan has elected to appeal with an appellant's appendix (Cal. Rules of Court, rule 8.124) and no reporter's transcript.[1] The limited record reflects that in April 2007, Mitchell filed a verified complaint for breach of contract and other claims against Brennan.[2] Mitchell, a licensed contractor, alleged that in June 2005, he contracted with Brennan to remodel Brennan's Newport Beach residence. Subsequently, Brennan breached the agreement by failing to pay Mitchell $90,000 for supervising the work. Mitchell attached only three pages of the contract to his complaint (numbered 1, 3, and 5); none contains an arbitration clause.
Brennan answered the complaint in June 2007. His sixth affirmative defense alleged the contract contained an arbitration clause. He filed several versions of a cross-complaint for breach of contract and other claims. The cross-complaint in appellant's appendix does not include the contract or any other attachments.
The court conducted a trial in January 2009 and filed a statement of decision in May 2009. The court found the parties' written contract contained an arbitration clause, but Brennan had waived the right to demand arbitration.
On the merits, the court found the parties entered into a contract to remodel Brennan's condominium. The contract required completion of the project in three months, at cost not to exceed $130,000, including a monthly $10,000 supervision fee ($30,000 maximum) for Mitchell. The scope of the project expanded dramatically, however, after the parties signed the initial agreement. The project, started in June 2005, was not completed until October 21, 2006. The court found both parties responsible for delays. The court concluded the parties had compromised Mitchell's claim to fees for work performed through May 2006, but Brennan owed Mitchell the reasonable value of his time between June and October 2006. The court determined Mitchell spent 225 hours supervising during this period, and determined an hourly rate of $85, for a total of $19,125 on Mitchell's quantum meruit claim.
The court also found Mitchell breached the contract in a few particulars. It found Mitchell owed Brennan for the cost of repairing various â€