Bergdorf v. Salmon Electrical

2019 UT App 128
THE UTAH COURT OF APPEALS
M ARIETTA BERGDORF , MEMB VENTURES LLC, AND M ODERN
HEALTH C LINIC FOR A DVANCED M EDICINE LLC,
Appellants,
v.
S ALMON ELECTRICAL C ONTRACTORS I NC .,
Appellee.
Opinion
No. 20171024-CA
Filed July 26, 2019
Second District Court, Farmington Department
The Honorable Thomas L. Kay
No. 150700260
Troy L. Booher, Beth E. Kennedy, and Maurice R.
Mitts, Attorneys for Appellants
Joseph E. Minnock, Attorney for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGE JILL M. POHLMAN concurred. JUDGE R YAN M. HARRIS
dissented, with opinion.
MORTENSEN, Judge:
¶1 	Appellant Marietta Bergdorf appeals the district court’s
grant 	of 	summary 	judgment 	in 	favor 	of 	Salmon 	Electrical
Contractors Inc. (Salmon) in which the court concluded that no
reasonable jury could find the existence of a valid contractual
relationship between Bergdorf and Salmon. We affirm.

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BACKGROUND1
¶2 	Bergdorf 	is 	a 	healthcare 	professional 	who, 	in 	2012,
purchased a building for use as a medical clinic. Although the
building was move-in ready, Bergdorf wanted to remodel some
areas of the building to better suit her needs (Project). Bergdorf
reached out to Randy Krantz and asked if he was able to help
her with both the financing and the construction work associated
with the Project. Krantz had been involved in many construction
projects as a general contractor, and he expressed a willingness
to become involved with the Project, even taking Bergdorf to
look at two other medical clinics he had constructed in the past.
Bergdorf eventually became “comfortable” with Krantz “doing
the construction” on the Project.
¶3 	Bergdorf’s initial plan was to finance the Project through a
loan (Loan) with U.S. Bank (Bank). To secure the Loan, the Bank
required Bergdorf and Krantz to submit, among other things, a
building permit (Permit) and a contract outlining the work to be
performed. But there was a problem: Krantz’s contractor license
was expired and he was therefore unable to obtain the Permit.
So, Krantz arranged for Salmon—whom Krantz had worked
with in the past, and who had a valid license—to be the general
contractor.
¶4 	Krantz 	thereafter 	acted 	as 	an 	intermediary 	between
Bergdorf and Salmon, and he even visited the Project with
Bergdorf and Salmon, but not with the two together, to discuss
the budget and scope of the Project. Krantz testified that he
“made a list of things that were going to be done in the contract .
1. When reviewing a district court’s grant of summary judgment,
we view the facts in the light most favorable to Bergdorf, the
non-moving party. See Raab v. Utah Ry. Co., 2009 UT 61, ¶ 3, 221
P.3d 219.

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20171024-CA 	3 	2019 UT App 128
. . that identified the costs for each of the items that [Bergdorf]
wanted done and the amount of . . . overhead that [Salmon]
needed in the contract to do the job.”
¶5 	Krantz 	then 	prepared 	a 	proposed 	contract 	detailing
Bergdorf’s wishes for the property and the budget for each area
of the remodel (Proposed Contract). The Proposed Contract
recited that Bergdorf was the owner and that Salmon was the
general contractor. Importantly, the parties never signed the
Proposed Contract. Indeed, Bergdorf indicated at her deposition
that she had never actually seen the Proposed Contract:
[Attorney]: Let me show you . . . the proposed
contract that was prepared by Randy Krantz. I
think he indicated he prepared it and he submitted
it 	to 	you 	and 	[Salmon], 	and 	I’m 	wondering
whether or not you remember ever seeing this?
[Bergdorf]: I’ve never seen this. I don’t need to
look. I have never seen it.
[Attorney]: You have not seen it?
[Bergdorf]: No.
¶6 	Krantz also set about obtaining and gathering the other
documents necessary to secure the Loan. Krantz asked Salmon to
prepare certain documents, including a builder’s statement, a
W-9 form, and a credit authorization, that Salmon had filled out
and signed in July 2012. Later that month, Krantz submitted the
documents and unsigned Proposed Contract to the Bank as part
of the Loan application.
¶7 	In 	September 	2012, 	while 	the 	Loan 	application 	was
pending, Salmon obtained the Permit from Bountiful City for the
Project. The Permit listed Bergdorf as the owner and Salmon as
the general contractor. When the Permit was issued, Salmon’s

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secretary emailed Krantz a copy of the Permit. Bergdorf never
saw the Permit or the Permit application, and understood that it
had been procured under Salmon’s name only because Krantz
told her so. The Permit expressly stated, “This [P]ermit becomes
null 	and 	void 	if 	work 	or 	construction 	authorized 	is 	not
commenced within 180 days, or if construction or work is
suspended or abandoned for a period of 180 days at any time
after work is commenced.”
¶8 	Sometime in the fall of 2012, while the Loan application
was still pending, Krantz hired a subcontractor to perform
demolition work for the Project. The subcontractor removed
some carpet from the building and demolished an interior wall.
Importantly, Krantz did not inform Salmon or Bergdorf that he
had arranged for this work to be completed. And when Krantz
was asked at his deposition about Salmon’s involvement with
the demolition, he indicated that Salmon had none:
[Attorney]: Okay. Because that contract was not
signed, you undertook to hire [a subcontractor] to
perform that work . . . ?
[Krantz]: Right. . . .
[Attorney]: Okay. So Salmon, to your knowledge,
had 	no 	involvement 	with 	hiring 	[the
subcontractor]?
[Krantz]: No.
[Attorney]: Is that correct, [Salmon] didn’t have
any involvement?
[Krantz]: None.

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Krantz also stated that Salmon’s Permit was not used for this
demolition work or any work that was done on the Project, at
any time:
[Attorney]: 	Did 	[Salmon] 	hire 	any 	general
contractors?
[Krantz]: I—I don’t think so.
[Attorney]: Any subcontractors?
[Krantz]: There was never—the [P]ermit was never
used. There was never any work done on this
[Permit]. There was a contract—a building contract
was drawn up that was—[Bergdorf] had a copy,
the [B]ank had a copy that has never been signed.
So if the—there was never anything done because
the [P]ermit—or the [Loan] had never been closed.
Upon learning that the wall had been demolished, Bergdorf was
unhappy with Krantz. Though she had spoken with Krantz
about the possibility of removing the wall, she did not consider
the plan finalized. After this episode, Bergdorf told Krantz to
stop construction because funds were not yet available from the
Loan.
¶9 	After the demolition was performed in the fall of 2012, no
additional work was completed on the Project for the next two
years. Bergdorf testified that although the Loan was eventually
approved, she “was very busy” and decided to “[give] up” on
closing the Loan and starting work on the Project. Because
construction did not commence on the Project, Salmon’s Permit
self-terminated.
¶10 	In September 2013, about one year after the unauthorized
demolition, 	Bergdorf 	contacted 	Bountiful 	City 	and, 	without
Salmon’s 	knowledge 	or 	consent, 	somehow 	“renewed” 	the

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Permit.2 	Neither 	Bergdorf 	nor 	Bountiful 	City 	contacted 	or
otherwise notified Salmon about the renewal.
¶11 	With a renewed Permit in hand, Bergdorf independently
obtained bids from several contractors, and because Krantz
submitted the low bid, Bergdorf entered into a new contract with
him to act as the general contractor. Salmon was not invited to
bid, nor did Krantz or Bergdorf contact Salmon about serving as
the general contractor. Indeed, Bergdorf testified that when the
Project resumed in 2014, she had no general contractor in place:
[Attorney]: [L]et me ask you this: Who did you
view as the general contractor for that work in
2014?
[Bergdorf]: I didn’t have anyone.
Further, Bergdorf plainly stated that she never had any kind of
contractual relationship with Salmon, at any time:
[Attorney]: And you, yourself, never entered into
any contractual relationship with Salmon to do
either any subcontract work or general contracting
work?
[Bergdorf]: No.
[Attorney]: Is that correct?
2. In ruling on the summary judgment motion, the district court
expressly determined that the Permit expired and that certain
steps were required to renew it. The court ruled, “These steps
were not taken and, therefore, as a matter of law, the [P]ermit
could 	not 	be 	extended.” 	Bergdorf 	has 	not 	challenged 	this
determination.

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[Bergdorf]: Yes. Correct.
Later in her deposition, Bergdorf was asked to explain why
Krantz was not listed on the Permit when it was renewed.
Bergdorf testified as follows:
[Bergdorf]: In the beginning as we restarted or
rekindled that working relationship, I said don’t
you want to change [the Permit] with the City,
because it was due for renewal. I said don’t you
want to change it under your name. [Krantz] said,
no, 	it 	doesn’t 	matter. 	We’ll 	continue 	under
[Salmon].
[Attorney]: In terms of who the [P]ermit would be
under?
[Bergdorf]: Yes. As a general contractor.
[Attorney]: But all of your contractual relationships
were directly with [Krantz]?
[Bergdorf]: Yes.
[Attorney]: Okay.
[Bergdorf]: 	I 	don’t 	know 	contract. 	All 	my
relationships were with [Krantz].
¶12 	Bergdorf and Krantz entered into a contract under the
newly submitted Krantz bid—which Krantz did not purport to
be on behalf of Salmon—and resumed work on the Project in
2014. At this time, Bergdorf viewed Krantz, and only Krantz, as
the 	general 	contractor. 	Accordingly, 	Krantz 	hired
subcontractors, obtained materials, and performed labor. In turn,
Bergdorf issued payments to Krantz and his company, Eastwind.
Bergdorf testified that she believed use of Salmon’s Permit was

Bergdorf v. Salmon Electrical
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proper, despite the fact that she issued payments only to Krantz,
because Krantz told her, “[Salmon] is [my] friend and partner
and [I] work[] with [Salmon, so] it doesn’t really matter.” In
January 2015, Bergdorf’s lawyer wrote Krantz to terminate him
from the Project.
¶13 	Later, an allegedly unpaid subcontractor sued Bergdorf
and sought to foreclose a mechanic’s lien on the Project. In
response, Bergdorf filed a third-party complaint against Krantz
seeking damages for the $130,000 she had paid Krantz and for
physical damage to the building that left the building unsafe and
unusable. 	Only 	later 	did 	Bergdorf 	recall 	that 	Salmon 	was
identified as the general contractor on the Permit obtained in
2012 	in 	connection 	with 	the 	abandoned 	Loan. 	Based 	upon
Salmon’s name being on the Permit, Bergdorf sued Salmon.
¶14 	Salmon filed a motion for summary judgment, arguing
that it had never consummated a contractual relationship with
Bergdorf, that Bergdorf’s only true contractual relationship was
with Krantz, and that Krantz was not Salmon’s agent. Salmon
also pointed to Bergdorf’s deposition testimony that “all of
[Bergdorf’s] 	contractual 	relationships 	were 	directly 	with
[Krantz]” 	and 	“[a]ll 	[Bergdorf’s] 	relationships 	were 	with
[Krantz].” After briefing and oral argument, the district court
granted Salmon’s motion.
¶15 	Bergdorf appeals.
ISSUE AND STANDARD OF REVIEW
¶16 	Bergdorf argues that the district court erred in granting
summary judgment, because there is sufficient evidence that a
contractual relationship between her and Salmon exists and
therefore Salmon is not entitled to judgment as a matter of law.
We review a “grant of summary judgment for correctness,
granting no deference to the district court’s legal conclusions.”

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20171024-CA 	9 	2019 UT App 128
Salt Lake City Mission v. Salt Lake City, 2008 UT 31, ¶ 5, 184 P.3d
599.
ANALYSIS
¶17 	Bergdorf argues that the evidence in this case is sufficient
to show that a contractual relationship between her and Salmon
exists either directly or through Krantz acting as Salmon’s agent.
We will first address the issue of agency and thereafter the
existence, or nonexistence, of a contract.
I. Apparent Authority to Enter a Contract
¶18 	Bergdorf 	does 	not 	contend 	that 	Krantz 	had 	“actual
authority” to act on behalf of Salmon. See Grazer v. Jones, 2012 UT
58, ¶ 10, 289 P.3d 437 (discussing that a principal may provide
an agent with “actual authority” to perform certain actions on its
behalf). Bergdorf does argue, however, that Salmon cloaked
Krantz with “apparent authority” to act as its agent. See id. ¶ 11
(discussing that a principal may create an agency relationship by
taking actions that “support a third party’s reasonable belief that
the agent has the authority to act”). We conclude that Salmon
did not undertake actions, or remain silent, in such a way that a
jury could find that Bergdorf reasonably believed that Salmon
had clothed Krantz with apparent authority to enter into a
contract with her on Salmon’s behalf.
¶19 	Our supreme court has articulated a three-part test to
determine whether an agent has apparent authority to perform
certain acts on behalf of a principal:
(1) that the principal has manifested his or her
consent to the exercise of such authority or has
knowingly 	permitted 	the 	agent 	to 	assume 	the
exercise of such authority;

Bergdorf v. Salmon Electrical
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(2) that the third person knew of the facts and,
acting in good faith, had reason to believe, and did
actually 	believe, 	that 	the 	agent 	possessed 	such
authority; and
(3) 	that 	the 	third 	person, 	relying 	on 	such
appearance of authority, has changed his or her
position and will be injured or suffer loss if the act
done or transaction executed by the agent does not
bind the principal.
Burdick v. Horner Townsend & Kent, Inc., 2015 UT 8, ¶ 23, 345 P.3d
531 (cleaned up).
¶20 	“Where corporate liability is sought for acts of its agent
under 	apparent 	authority, 	liability 	is 	premised 	upon 	the
corporation’s knowledge of and acquiescence in the conduct of
its agent which has led third parties to rely upon the agent’s
actions.” City Elec. v. Dean Evans Chrysler-Plymouth, 672 P.2d 89,
90 (Utah 1983) (cleaned up). “Nor is the authority of the agent
apparent merely because it looks so to the person with whom he
deals.” 	Id. 	(cleaned 	up). 	“It 	follows 	that 	one 	who 	deals
exclusively with an agent has the responsibility to ascertain that
agent’s 	authority 	despite 	the 	agent’s 	representations.” 	Id.
(cleaned up); see also Sutton v. Byer Excavating, Inc., 2012 UT App
28, ¶ 12, 271 P.3d 169; Bodell Constr. Co. v. Stewart Title Guar. Co.,
945 P.2d 119, 124 (Utah Ct. App. 1997). Accordingly, apparent
authority 	cannot 	be 	premised 	on 	the 	manifestations 	of 	the
purported agent. City Elec., 672 P.2d at 90; see also Zions First
Nat’l Bank v. Clark Clinic Corp., 762 P.2d 1090, 1095 (Utah 1988).
¶21 	Here, 	Bergdorf 	did 	nothing 	to 	ascertain 	Krantz’s
authority, nor does she claim that she did. And now, on appeal,
Bergdorf attempts to look at the totality of the circumstances to
find 	apparent 	authority 	instead 	of 	focusing 	on 	Salmon’s
manifestations to her. Applying the facts of this case to the
controlling law—particularly the analysis outlined in Burdick—

Bergdorf v. Salmon Electrical
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leads to a conclusion that apparent authority cannot be found
here. Under Burdick, all three factors must be shown. 2015 UT 8,
¶ 23; accord Luddington v. Bodenvest Ltd., 855 P.2d 204, 209 (Utah
1993); 3 Am. Jur. 2d Agency § 80 (2019). We address each of the
Burdick factors in turn.
A. 	Whether Salmon manifested its consent for Krantz to
enter into a contract with Bergdorf on Salmon’s behalf
¶22 	The first Burdick factor is whether “the principal has
manifested his or her consent to the exercise of such authority or
has knowingly permitted the agent to assume the exercise of
such authority.” 2015 UT 8, ¶ 23 (cleaned up). To be clear, the
law 	focuses 	not 	on 	just 	any 	manifestation, 	but 	only 	on
manifestations of the principal (i.e., Salmon) to the third party
(i.e., Bergdorf). See id. ¶ 22. There is simply no evidence in the
record that Salmon manifested its consent to Krantz to contract
with Bergdorf on Salmon’s behalf. Bergdorf points to three facts
she claims meets this factor: (1) Salmon’s secretary signed and
paid for the Permit for the Project, (2) Salmon filled out and
allowed to be submitted a number of documents connected with
the Loan application,3 and (3) Krantz had been telling Bergdorf
all along that he was acting through Salmon. These facts do not
constitute 	manifestations 	of 	consent 	to 	Krantz’s 	exercise 	of
authority.4 	First, 	representations 	by 	Krantz 	are 	not
3. Bergdorf notes that in July 2013, Krantz sent some documents
to 	Salmon 	to 	review. 	Among 	those 	documents 	was 	an
assignment document that references a contract. There is no
evidence 	in 	the 	record 	that 	Bergdorf 	ever 	knew 	of 	the
assignment document, nor is there any evidence that Salmon
signed the assignment.
4. In addition to the three facts identified by Bergdorf, the
dissent relies on additional facts to find support for Bergdorf’s
(continued…)

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manifestations of the principal—Salmon. Second, Bergdorf’s two
remaining alleged manifestations of consent go only to whether
Salmon agreed to act as a general contractor in connection with
the 	Loan 	that 	never 	closed. 	These 	were 	not 	manifestations
endowing Krantz with apparent authority to bind Salmon to a
contract. Thus, manifestations of “such authority”—in this case,
the authority to enter into a contract—are simply missing as a
matter of law.
(…continued)
position that Salmon clothed Krantz with authority to enter into
a contract on Salmon’s behalf. Infra ¶ 48. First, the dissent argues
that Salmon conferred authority on Krantz because Salmon had
worked with Krantz on over one hundred construction projects
and they were business partners on another. These facts do not
demonstrate 	a 	manifestation 	of 	Salmon’s 	consent 	to 	Krantz
entering into a contract on its behalf. As an initial matter, there is
no indication in the record that Bergdorf was ever aware of these
facts, let alone during the relevant time period (2012–2014).
Further, the fact alone that Krantz and Salmon had worked
together in the past does not show or even imply that Krantz
was authorized to enter into contracts for Salmon.
Second, the dissent relies on the fact that Krantz listed
himself 	as 	a 	project 	manager 	for 	Salmon 	in 	a 	2013 	email
concerning 	renewal 	of 	the 	Permit. 	Infra 	¶ 	48. 	This 	email,
however, is the manifestation of Krantz, not Salmon—and was
sent in an effort to renew Salmon’s Permit without Salmon
knowing. Further, Krantz sent this email in May 2013 after the
Permit had self-terminated and after Bergdorf had solicited new
bids for the Project. In other words, Salmon was no longer
involved in the Project at the time this email was sent. Thus, this
2013 email cannot lend support to the dissent’s conclusion that a
reasonable jury could find apparent authority “at least during
the 2012 part of the project’s timeframe.” Infra ¶ 55.

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B. 	Whether Bergdorf knew of the manifestations, had reason
to believe, and did 	actually believe, that Krantz had
authority to bind Salmon
¶23 	The second Burdick factor is whether the “third person
knew of the facts and, acting in good faith, had reason to believe,
and 	did 	actually 	believe, 	that 	the 	agent 	possessed 	such
authority.” 2015 UT 8, ¶ 23 (emphasis added) (cleaned up). As
stated above, all three Burdick factors must be shown to establish
apparent authority. Id. Likewise, all three discrete components of
the second Burdick factor must be shown. See id. Thus, to satisfy
the second Burdick factor, Bergdorf must have (1) known of the
“facts” (manifestations of authority), (2) had reason to believe,
and (3) actually believed that Krantz had authority to bind
Salmon contractually. See id. But because Bergdorf did not know
of the facts now claimed in support of a finding of apparent
authority, none of these assumed facts can establish a reasonable
belief of apparent authority under the law.
¶24 	Specifically, 	there 	is 	no 	evidence 	in 	the 	record 	that
Bergdorf had any knowledge—at the relevant time—of Salmon
applying for or paying for the Permit. The record actually
establishes that Bergdorf first learned of Salmon’s obtaining the
Permit when the construction recommenced in 2014. Likewise,
there is no evidence that Bergdorf was aware of any of the
documents that Salmon allegedly filled out in connection with
the Loan application. Whether others may have known of these
facts is immaterial. To rely on a theory of apparent authority to
bind Salmon, it is Bergdorf who must have known of these facts.
¶25 	Perhaps even more importantly, there is no evidence in
the record that Bergdorf actually believed that Krantz was acting
as Salmon’s agent for the purpose of entering into a contract.
Indeed, 	when 	deposed, 	Bergdorf 	testified 	that 	all 	of 	her
contractual relationships were directly with Krantz. Granted,
Bergdorf’s testimony was inconsistent as to whom she thought

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was acting as the general contractor. But Bergdorf did not claim
that she thought she had a contract with Salmon. Nor does
Bergdorf’s testimony establish that she believed Krantz was
Salmon’s agent.5 At most, a jury could reasonably infer only that
Bergdorf believed Salmon had agreed to serve as the general
contractor for the Project if the Loan closed—but it never did.
¶26 	At oral argument on appeal, Bergdorf relied heavily on an
email sent by the Bank confirming that Salmon was approved as
the 	general 	contractor. 	This 	email 	confirmed 	only 	the
understanding 	that 	Salmon 	agreed 	to 	act 	as 	the 	general
contractor if the Loan was approved. But it does not support a
finding that Bergdorf reasonably believed that Krantz had the
authority to agree to the terms of a contract with Bergdorf on
Salmon’s behalf. Similarly, Salmon’s silence at that time signifies
5. The dissent argues that a jury could reasonably infer such
belief from Bergdorf’s statement, “I don’t know contract.” We
disagree. On summary judgment all reasonable inferences are
made in the non-moving party’s favor, Heslop v. Bear River
Mutual Ins. Co., 2017 UT 5, ¶ 21, 390 P.3d 314, but the non-
moving party is not entitled to unreasonable inferences, id.
(“[T]o be reasonable, the inference must present something more
than pure speculation.”). Here, Bergdorf’s testimony can be
construed as a representation either that she did not hold such a
belief or that she had no belief one way or the other. To construe
Bergdorf’s statements as expressing an actual belief that Krantz
had authority to bind Salmon stretches the permissible inference
beyond reasonableness to speculation. Under oath, Bergdorf
testified that she did not enter into a contract with Salmon. And
later in her deposition when she stated, “I don’t know contract,”
she then broadly testified, “All my relationships were with
[Krantz].” The only reasonable inference—in context—is that
Bergdorf’s 	actual 	belief 	was 	that 	all 	of 	her 	relationships—
contractual or otherwise—were with Krantz.

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little as to the apparent authority of Krantz to contract on
Salmon’s behalf. Since no contract had been entered into, and no
funding had yet been obtained, Salmon had no reason to object
to the Bank’s email. It was true that should the Bank actually
close the Loan, and should the parties agree on the terms of a
contract, 	Salmon 	was 	agreeable 	to 	serving 	as 	the 	general
contractor. But this email, which was not even copied to Krantz,
did not manifest Salmon’s intent that Krantz act as Salmon’s
agent.
C. 	Whether Bergdorf changed her position in reliance on
Salmon’s manifestations
¶27 	The third Burdick factor is whether Bergdorf, “relying on
such appearance of authority, has changed [her] position and
will be injured or suffer loss if the act done or the transaction
executed by [Krantz] does not bind [Salmon].” See 2015 UT 8,
¶ 23 (cleaned up). In this case, the record reflects no change of
position 	or 	injury 	suffered 	by 	Bergdorf 	flowing 	from 	any
reliance on Krantz’s apparent authority. Initially, this third factor
must still be connected to the manifestations, or “the facts,”
identified 	in 	the 	first 	two 	factors. 	In 	this 	case, 	the 	record
establishes that at no relevant time did Bergdorf even know of
“the facts”—that the Loan documents signed by Salmon had
been submitted to the Bank or that Salmon had submitted an
application and paid for the Permit. In short, Bergdorf cannot
rely on knowledge she did not have. See Luddington v. Bodenvest
Ltd., 855 P.2d 204, 210–11 (Utah 1993).
¶28 	Further, Bergdorf cannot show a change of position or
injury stemming from reliance on Krantz’s alleged apparent
authority 	in 	connection 	with 	the 	2012 	demolition 	work
because 	Bergdorf 	did 	not 	authorize 	that 	work. 	The 	record
exhibits that Krantz undertook—and paid for—the demolition
without informing Salmon or Bergdorf. Indeed, “upon learning
that 	the 	interior 	wall 	had 	been 	demolished, 	Bergdorf 	was

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unhappy, stating that she had only wanted the carpet to be
removed at the time. Though she had spoken with Krantz about
the possibility of removing the wall, she did not consider the
plan finalized.”6 One can hardly claim that Bergdorf acted in
reliance on Salmon’s alleged manifestation of Krantz’s authority
when she only found out about this activity after the fact,
claimed to have not wanted it to happen, and did not consider
the plans finalized.
¶29 	The only thing Bergdorf apparently did—based upon
Salmon’s agreement to serve as the general contractor—was
apply for the Loan, which never closed. Because the Loan
never closed, no work was done pursuant to that financing.
Further, 	Salmon 	did 	not 	engage 	any 	subcontractors 	to 	do
anything. 	The 	fact 	that 	Krantz, 	unbeknownst 	to 	both
Bergdorf 	and 	Salmon, 	hired 	a 	subcontractor 	to 	perform
demolition work that was not approved by Bergdorf or Salmon,
cannot 	be 	considered 	reliance 	by 	Bergdorf 	on 	Salmon’s
manifestations. In other words, the record does not support the
assertion 	that 	Bergdorf 	initiated 	any 	work 	based 	upon 	the
belief that she had a contract with Salmon to be her general
contractor.
¶30 	When work recommenced in 2014, Bergdorf testified that
she viewed Krantz, not Salmon, as her general contractor—and
6. Indeed, this testimony is consistent with Bergdorf’s third-
party 	complaint 	which 	alleges: 	“Krantz, before 	approval 	to
proceed with work and approval of plans and the scope of work,
entered the Property and removed carpet, demolished walls, and
removed other property leaving the Property in an unsafe and
unusable state resulting in more expense for [Bergdorf].” We
find no support in the record, and indeed Bergdorf did not
allege below, that she authorized Krantz to begin work on the
Project as stated in the dissent. See infra ¶ 54.

Bergdorf v. Salmon Electrical
20171024-CA 	17 	2019 UT App 128
Bergdorf viewed Krantz as such for the remainder of 2014.7
Accordingly, neither the work in 2012 (the demolition that
Bergdorf was unaware of) nor the work in 2014 (where Bergdorf
believed 	Krantz 	was 	the 	general 	contractor) 	meets 	the
requirement of reliance.8
¶31 	Under these facts, reasonable minds could not differ in
concluding that apparent authority did not exist. Penunuri v.
Sundance Partners, Ltd., 2017 UT 54, ¶ 33, 423 P.3d 1150 (holding
that summary judgment should be granted when reasonable
minds could not differ). Accordingly, to the extent the district
court’s ruling depends on the existence of apparent authority, it
was correct in granting summary judgment.
II. Contract
¶32 	Because 	Bergdorf 	cannot 	show 	that 	Salmon 	cloaked
Krantz with apparent authority, it follows that a jury could not
7. The payments Bergdorf made all occurred in 2014 or later
when Bergdorf considered Krantz to be the general contractor
and 	when 	Bergdorf 	and 	Krantz 	had 	completely 	bypassed
Salmon and engaged subcontractors on their own. Accordingly,
such payments cannot constitute reliance on apparent authority.
8. Bergdorf also notes that Krantz told her that Salmon was his
“partner” and was going to act as the general contractor. See infra
¶¶ 53–54. But this testimony from Bergdorf was referring to a
conversation in 2014, after Bergdorf had solicited new bids for
the Project, and when Krantz was explaining how they (Bergdorf
and Krantz) could renew the building Permit using Salmon’s
name. However, even at that time, Bergdorf testified that she
believed Krantz, not Salmon, to be the general contractor under
the newly accepted bid. And in any event, the representations of
Krantz are not manifestations of Salmon.

Bergdorf v. Salmon Electrical
20171024-CA 	18 	2019 UT App 128
find that Krantz entered into a contractual relationship with
Bergdorf on Salmon’s behalf. If anything, the only agreement
between Salmon and Bergdorf (via Krantz) was for Salmon to act
as a general contractor for the Project funded by a Loan from the
Bank. Since the Loan never closed, no contractual obligations
attached to Salmon. Indeed, it would likely come as a shock to
many contractors that a preliminary agreement to act as a
general contractor contractually obligates them to be answerable
in damages for any work done on that project when they never
agreed to terms, did not oversee the work, and were not paid for
doing the job. Thus, we agree with the district court’s conclusion
that there was never mutual assent sufficient to form a contract.
¶33 	On 	summary 	judgment, 	Bergdorf 	is 	entitled 	to 	have
factual inferences construed in her favor. Heslop v. Bear River
Mutual Ins. Co., 2017 UT 5, ¶ 15, 390 P.3d 314. However, the
court is not required to draw every possible inference of fact, no
matter how remote or improbable, in her favor. See id. ¶ 21.
Rather, Bergdorf is only entitled to reasonable inferences. See id.
(“[T]o be reasonable, the inference must present something more
than pure speculation.”).
¶34 	Bergdorf concedes that there was neither a signed offer
nor 	an 	acceptance 	as 	between 	Bergdorf 	and 	Salmon.
Nevertheless, Bergdorf urges us to hold that issues of fact exist
whereupon a jury could conclude that the parties mutually
assented 	through 	conduct. 	Again, 	Bergdorf 	focuses 	on 	the
representations of Krantz and thus is dependent on apparent
authority and the specific representation of Krantz that Salmon
was his friend 	and 	partner. In our view, 	this contorts the
evidence 	beyond 	any 	reasonable 	inference. 	As 	previously
pointed 	out, 	the 	conversation 	about 	Salmon 	being 	Krantz’s
“partner” took place in 2014, after the Permit had expired and
after Bergdorf had abandoned the Loan. At best, Krantz was
representing—without Salmon’s knowledge—that he could use
his “partner’s” contractor’s license to renew the Permit.

Bergdorf v. Salmon Electrical
20171024-CA 	19 	2019 UT App 128
¶35 	Bergdorf places great significance on the fact that Salmon
agreed to act as a general contractor if and when Bergdorf’s
Project moved forward with Bank financing. But that Loan never
closed. The record in this case demonstrates that Bergdorf did
not think she had a contract with Salmon. At most, there was an
agreement to act as a general contractor on a remodeling project
that was not defined or funded. A preliminary agreement to act
as a general contractor on an undefined project, contingent on
financing, neither establishes a basis for finding that a contract
exists or otherwise concluding that an implied contract resulted.
Similarly, 	while 	Bergdorf 	argues 	that 	Salmon’s 	silence 	in
response to a single email from the Bank—approving Salmon as
a general contractor—ratified something, we are hard pressed to
see how that silence ratified anything other than the same
agreement 	to 	serve 	as 	a 	general 	contractor 	if 	the 	Project
proceeded and if the Project was funded.9
¶36 	Further, 	as 	highlighted 	by 	the 	district 	court, 	it 	is
undisputed that the Permit obtained by Salmon self-terminated
when work was not commenced within, or ceased for a period
of, 180 days. The demolition work was not completed by Salmon
or at the direction of Salmon. And except for the demolition, no
work was done for more than 180 days after the Permit was
issued. Therefore, the Permit expired. Although the Permit was
renewed, it is undisputed that it was renewed without the
consent or knowledge of Salmon. And similarly, in 2014, when
work was performed under the Permit, Salmon was not notified.
¶37 	In any event, an implied contract based on mutual assent
does not obtain under these facts. Bergdorf looks to Ellsworth v.
American Arbitration Ass’n, 2006 UT 77, 148 P.3d 983, for the
proposition that mutual assent can be evidenced by things other
9. We note that the theory of ratification by silence was not
argued to the district court.

Bergdorf v. Salmon Electrical
20171024-CA 	20 	2019 UT App 128
than a signed contract. This is a correct but incomplete statement
of the law. First, the ultimate holding in Ellsworth was that a
person’s name appearing on an unsigned contract as a party—as
is the case here—is not direct evidence of assent. Id. ¶ 18. This is
especially true here, where there is no evidence that Salmon (or
Bergdorf) participated in any way in negotiating or drafting
Krantz’s Proposed Contract. Second, when mutual assent is
based on conduct or performance, the law requires that words or
actions 	of 	a 	party 	must 	be 	reasonably 	“‘interpretable 	as
indicating an intention to make a bargain with certain terms or
terms 	which 	reasonably 	may 	be 	made 	certain.’” 	Heideman 	v.
Washington City, 2007 UT App 11, ¶ 25, 155 P.3d 900 (emphasis
added) (quoting Rapp v. Salt Lake City, 527 P.2d 651, 654 (Utah
1974)). In Heideman, this court affirmed a grant of summary
judgment and concluded that no mutual assent could be shown
as a matter of law even though one of the parties had accepted
payment. Id. ¶¶ 24, 27. The plaintiff in Heideman, a developer,
argued that because Washington City accepted payment for
sixty-six water impact fees at a lower rate, even though the rate
had been raised effective the day the plaintiff paid, a contract
had been formed and the higher rate could no longer be sought.
Id. ¶¶ 2, 3, 9. This court determined that a contract could not be
found 	because 	there 	was 	“no 	communication 	that 	would
indicate any type of meeting of the minds.” Id. ¶ 25. In short, the
acceptance of payment without other terms was insufficient.
¶38 	The 	same 	can 	be 	said 	here. 	There 	was 	simply 	no
communication between Bergdorf and Salmon that exhibits a
meeting 	of 	the 	minds 	on 	any 	certain 	terms. 	Indeed, 	it 	is
undisputed that Bergdorf never saw, much less signed, the
Proposed Contract. Bergdorf never met Salmon. Bergdorf and
Salmon never agreed on a definite price. And Bergdorf testified
that there was not a definite plan when Krantz ordered the
demolition work to be completed in 2012. Likewise, there is no
evidence Salmon agreed to perform any certain scope of the
work for the Project. Therefore, we conclude that Salmon’s

Bergdorf v. Salmon Electrical
20171024-CA 	21 	2019 UT App 128
agreement to be listed as a general contractor and apply for the
Permit in 2012, without more, did not indicate assent to a
contract with certain terms sufficient to be binding. See id. (“‘The
application 	for 	an 	issuance 	of 	a 	building 	permit 	does 	not
constitute a voluntary agreement between the parties to enter
into binding contract.’” (quoting Trevino & Gonzales Co. v. R.F.
Muller Co., 949 S.W.2d 39, 42 (Tex. Ct. App. 1997))).
¶39 	Bergdorf, as in her agency analysis, grounds her position
on the activities of Salmon in supplying documents for the Loan.
Again, the most that Salmon thereby assented to was to act as
the general contractor if and when the Loan closed. It is an
undisputed fact in this case that the Loan never closed. It is also
undisputed that Bergdorf abandoned the Loan. The record is
devoid of any evidence that Salmon agreed to do any work for
any price to be paid directly by Bergdorf. Therefore, an implied
contract simply does not exist.
¶40 	Bergdorf also places weight on payments made during
the Project. However, these payments were not made to Salmon;
instead they were made to Krantz or entities owned by Krantz.
Indeed, at any time that Bergdorf made payments related to the
Project, she unequivocally testified that she thought Krantz, not
Salmon, 	was 	her 	general 	contractor. 	These 	payments 	are
therefore only possibly evidence of performance if Krantz is
considered the agent of Salmon. Because 	we conclude that
apparent authority cannot be found here, these payments are
evidence that Bergdorf’s contract, if it existed, was with Krantz
and not Salmon.
¶41 	Bergdorf also places significance upon the fact that, until
December 2014, Salmon did not take any steps to remove its
name from the Permit. But since the Permit had expired by its
own terms and the Loan had never closed, there was no reason
for Salmon to anticipate that Krantz would—without Salmon’s
knowledge—renew its expired Permit. Bergdorf and Krantz’s

Bergdorf v. Salmon Electrical
20171024-CA 	22 	2019 UT App 128
unauthorized renewal of the Permit cannot constitute assent by
Salmon.10
¶42 	For these reasons, we conclude that no contract between
Bergdorf and Salmon was formed as a matter of law and that the
district court therefore properly granted summary judgment in
favor of Salmon.
CONCLUSION
¶43 	Bergdorf’s position rests primarily on her reliance on
Krantz’s 	apparent 	authority 	to 	contract 	with 	Bergdorf 	on
Salmon’s behalf—with which we do not agree. Independently,
the record does not support a conclusion that the parties entered
into a contract as a matter of law. Because reasonable minds
could not differ that the parties did not mutually assent, and no
contract was formed as a matter of law, Salmon was entitled to
summary judgment.
¶44 	Affirmed.
HARRIS, Judge (dissenting):
¶45 	I would not characterize Bergdorf’s claim against Salmon
as a strong one. Odds are, she would not prevail at a trial on the
merits against Salmon if she were ever afforded one. But our
task in reviewing this appeal is not to assess who has the better
10. Bergdorf also suggests that a walkthrough of the Project is
evidence of assent. A walkthrough of a remodel project is part
and parcel of any bid process and is hardly indicative of assent
to contractual terms. Instead, a walkthrough is simply pre-
contract due diligence.

Bergdorf v. Salmon Electrical
20171024-CA 	23 	2019 UT App 128
claim, or predict who is most likely to prevail at trial. Rather, our
task is to determine if “a reasonable jury” could find in favor of
Bergdorf on her claim against Salmon, see Helf v. Chevron U.S.A.
Inc., 	2015 	UT 	81, 	¶ 	4, 	361 	P.3d 	63, 	and 	in 	making 	this
determination, we must view the record evidence “in the light
most favorable” to Bergdorf, the party who is resisting summary
judgment, see Raab v. Utah Ry., 2009 UT 61, ¶ 3, 221 P.3d 219.
¶46 	The majority correctly recites this standard, see supra note
1, but I disagree that it has appropriately applied it. In my view,
the 	majority 	emphasizes 	the 	(ample) 	evidence 	supporting
Salmon’s position, while minimizing some of the (less copious)
evidence supporting Bergdorf’s position. Certainly, the question
about whether “a reasonable jury” could possibly find in favor
of a party on a specific claim is the type of inquiry upon which
reasonable minds might reasonably differ, and on the record
presented here I respectfully disagree with the majority’s general
conclusion 	that 	no 	reasonable 	jury 	could 	possibly 	find 	for
Bergdorf.
¶47 	Chiefly, I disagree with the majority’s conclusion that no
reasonable jury could find that Krantz had apparent authority to
act as Salmon’s agent. The majority correctly recites the elements
of 	apparent 	authority: 	(1) 	that 	the 	principal 	has 	either
“manifested” consent to the agent’s exercise of authority or at
least “knowingly permitted the agent” to exercise authority; (2)
that 	the 	third 	person, 	based 	on 	actions 	of 	the 	principal,
reasonably believed that the agent had apparent authority; and
(3) that the third person has relied to her detriment on the
appearance of authority. See Burdick v. Horner Townsend & Kent,
Inc., 2015 UT 8, ¶ 23, 345 P.3d 531 (quotation simplified). But I
disagree with the majority’s application of those elements to the
facts of this case.
¶48 	The 	first 	Burdick 	factor 	is 	satisfied 	simply 	by 	the
principal’s manifestation of consent to the agent’s exercise of

Bergdorf v. Salmon Electrical
20171024-CA 	24 	2019 UT App 128
authority, 	or 	even 	by 	the 	principal’s 	knowing 	decision 	to
“permit[] the agent to assume the exercise of such authority.” Id.
(quotation 	simplified). 	And 	in 	this 	case 	there 	exists 	ample
evidence to support a finding that Salmon took actions intended
to clothe Krantz with authority to act as its agent on Bergdorf’s
Project. 	At 	trial, 	the 	jury 	would 	have 	learned, 	by 	way 	of
background, that Salmon and Krantz had worked together on
over 	a 	hundred 	construction 	projects, 	and 	that 	they 	were
business partners in a commercial development project. Indeed,
Krantz was familiar enough to Salmon’s employees that he had
the power to tell them to carry out tasks—like apply for and pay
for the Permit—and they would follow Krantz’s orders. On this
particular Project, Salmon agreed—at Krantz’s request—to act as
the 	general 	contractor 	on 	Bergdorf’s 	Project, 	and 	Salmon
provided 	information 	to 	Krantz 	to 	assist 	him 	in 	drafting
the 	written 	(but 	ultimately 	unsigned) 	Contract 	that 	listed
Salmon as the contractor and Bergdorf as the client/owner.
Salmon filled out a set of documents—including a W-9 form, a
credit 	authorization, 	and 	a 	“builders 	statement” 	that
listed Salmon as the “contractor” on the Project—for submission
to the Bank in connection with the Loan, and then Krantz
submitted 	those 	documents to 	the Bank. And 	according 	to
Salmon’s principal Chad Salmon, Krantz walked into Salmon’s
offices and asked the secretary there to submit an application for
the Permit on Bergdorf’s Project that listed Salmon as the general
contractor on the Project, and the secretary complied, including
paying 	the 	four-figure 	permit 	fee 	out 	of 	Salmon’s 	funds.
Moreover, in later communications, Krantz listed himself as
“Randy Krantz, Project Manager, Salmon Electrical Contractors.”
In my view, there is no question that sufficient evidence exists,
viewed in the light most favorable to Bergdorf, to satisfy the first
Burdick factor.
¶49 	Salmon’s best 	argument 	lies 	with 	the 	second 	Burdick
factor, which is where Bergdorf’s knowledge of these events
becomes relevant. See id.(describing the second factor as whether

Bergdorf v. Salmon Electrical
20171024-CA 	25 	2019 UT App 128
“the third person knew of the facts and, acting in good faith, had
reason 	to 	believe, 	and 	did 	actually 	believe, 	that 	the 	agent
possessed 	such 	authority” 	(quotation 	simplified)). 	I
acknowledge that this is the closest question presented, and that
the 	evidence 	of 	Bergdorf’s 	knowledge 	is 	thinner 	than 	the
evidence of Salmon’s assent to Krantz’s agency or of Bergdorf’s
reliance. But even here, I think there is enough to support a
finding by a reasonable jury that Bergdorf reasonably believed
that Krantz was acting as Salmon’s agent.
¶50 	Certainly, there is evidence that Krantz told Bergdorf that
he and Salmon were “partners” and that Salmon would be the
general contractor for the Project. But the majority correctly
notes that Bergdorf’s reasonable belief needs to be based, at least
in 	part, 	on 	some 	action 	of 	the 	principal; 	an 	agent’s
representations are not enough. See supra ¶ 20. However, a
principal’s action endorsing the act of the agent can occur even
after the agent’s act has taken place, if the principal acts to ratify
the previous act of the agent. See Bradshaw v. McBride, 649 P.2d
74, 78 (Utah 1982). Ratification “need not be express,” and
“silence 	with 	full 	knowledge 	of 	the 	facts 	may 	manifest
affirmance and thus operate as a ratification.” Id. (quotation
simplified). A principal may not “escape ratification” through
being “wilfully ignorant, nor may he purposely shut his eyes to
means of information within his possession and control.” Id.
(quotation simplified).
¶51 	In 	this 	case, 	Salmon 	filled 	out 	the 	Loan 	application
paperwork, and allowed Krantz to submit it to the Bank; that
documentation 	listed 	Salmon 	as 	the 	general 	contractor 	on
Bergdorf’s Project. While there is no evidence that Bergdorf
knew about the loan documentation when it was submitted, she
certainly 	learned 	later—when 	the 	Bank 	sent 	a 	confirmation
email, copied to both Bergdorf and Chad Salmon, notifying them
that Salmon “has been accepted as the General Contractor” on
the 	Project—that 	Salmon 	had 	submitted 	some 	form 	of

Bergdorf v. Salmon Electrical
20171024-CA 	26 	2019 UT App 128
application to the Bank seeking to be treated as the contractor on
her Project. After receiving this email, Salmon took no action to
disabuse anyone, including Bergdorf, of the notion that it was
the general contractor on the Project. A reasonable jury could
conclude 	that 	this 	email—and 	Salmon’s 	decision 	not 	to
contradict it—confirmed, in Bergdorf’s mind, all of the things
Krantz had been telling her about his relationship with Salmon,
and could infer from this evidence that Bergdorf reasonably
believed, based in part on Salmon’s actions, that Salmon had
authorized Krantz to act as its agent.
¶52 	The majority believes that, because the Loan never closed,
the 	documents 	related 	to 	the 	Loan—including 	the 	email—
somehow lose their relevance. I simply disagree. Whether the
Loan ever closed does not necessarily have anything to do with
whether Salmon agreed to act as the general contractor on the
Project or with whether Salmon agreed to allow Krantz to act as
its agent. Bergdorf correctly points out that a contract to build a
structure, 	and 	the 	financing 	for 	that 	contract, 	are 	entirely
different 	conceptually, 	and 	that 	“the 	fact 	that 	[Bergdorf’s]
construction loan was not approved means she needed to get
funding elsewhere, not that she needed a new construction
contract.” I therefore disagree with the majority’s contention that
“a 	jury 	could 	reasonably 	infer 	only 	that 	Bergdorf 	believed
Salmon had agreed to serve as the general contractor for the
Project if the Loan closed.” See supra ¶ 25. Contractors generally
do not care where the money that pays them comes from, as long
as they get paid. There is a reasonable inference to be drawn—
certainly “more than pure speculation,” Heslop v. Bear River
Mutual Ins. Co., 2017 UT 5, ¶ 21, 390 P.3d 314—that Salmon’s
agreement to act as the general contractor on Bergdorf’s Project
was not conditional on the Loan closing, but instead was only
conditional on it getting paid from some source.
¶53 	I acknowledge that some of Bergdorf’s own deposition
statements are harmful to her cause regarding the second Burdick

Bergdorf v. Salmon Electrical
20171024-CA 	27 	2019 UT App 128
factor. As the majority notes, at one point during her deposition
Bergdorf stated that she did not believe she had entered into any
contractual relationship with Salmon. See supra ¶ 11. But at other
points in Bergdorf’s deposition, she testified that she believed
that Salmon was the general contractor on the Project, and that
Salmon and Krantz were “partners” on the Project. And she
clarified that, while she believed that “all [her] relationships
were with” Krantz, she does not understand the legal niceties of
contractual 	relationships. 	Bergdorf’s 	seemingly 	contradictory
deposition 	testimony 	is 	admittedly 	confusing, 	and 	would
require some explanation at trial, but in my view a reasonable
jury could view that testimony as consistent with the notion that,
while all of her person-to-person relationships were with Krantz,
he was acting as Salmon’s agent.
¶54 	Moving now to the third Burdick factor, in my view there
exists sufficient evidence that Bergdorf took action in reliance on
her belief that Krantz was acting as Salmon’s agent. See Burdick,
2015 UT 8, ¶ 23. Bergdorf submitted a Loan application to the
Bank seeking financing for the Project on which Salmon was to
be the general contractor. Bergdorf knew that Krantz did not
have a valid contractor’s license at the time, and Krantz told her
that his “partner” Salmon was going to be acting as the general
contractor on the Project. Bergdorf hired Krantz to perform work
on the Project, and Krantz—with or without her knowledge—
hired 	a 	demolition 	subcontractor 	who 	removed 	one 	of 	the
building’s interior walls, an act that Bergdorf alleges led to
damages. 	Moreover, 	Bergdorf 	began 	the 	building 	process
pursuant to the Permit listing Salmon as her general contractor,
thereby believing that she had a licensed general contractor on
her Project.11
11. Having a licensed general contractor on a project is important
for several reasons, not the least of which is that licensed general
(continued…)

Bergdorf v. Salmon Electrical
20171024-CA 	28 	2019 UT App 128
¶55 	In short, I think there is enough evidence on all three of
the Burdick factors to permit a reasonable jury to conclude that—
at least during the 2012 part of the Project’s timeframe—Krantz
had apparent authority to act as Salmon’s agent. And once that
conclusion is drawn, it necessarily follows that a jury could also
reasonably find in Bergdorf’s favor on the question of whether a
valid 	contract 	ever 	existed 	between 	her 	and 	Salmon. 	It 	is
undisputed that Bergdorf asked Krantz to work on her Project,
and that Krantz did so. To the extent that Krantz was taking
those actions in the capacity as Salmon’s agent, Salmon and
Bergdorf had a contractual relationship.
¶56 	As 	noted, 	merely 	because 	I 	believe 	that 	summary
judgment was improvidently granted here does not mean that I
believe that Bergdorf has a fantastic case against Salmon. In the
end, the factfinder might find this evidence unpersuasive, or at
least less persuasive than the evidence that unquestionably exists
on the other side of the ledger. But that should be the jury’s
choice to make, and I cannot say that a determination in favor of
Bergdorf on the contractual question would be unreasonable.
For these reasons, I would reverse and remand for further
proceedings.
(…continued)
contractors are required to have liability insurance. See Utah
Admin. Code R156-55a-302d.