Musser v. Apple Valley

2025 UT App 197

THE UTAH COURT OF APPEALS

DANIEL N. MUSSER,
Appellant,
v.
TOWN OF APPLE VALLEY, DINA MASON WALTERS, AND KEVIN SAIR,
Appellees.

Opinion
No. 20241334-CA
Filed December 26, 2025

Fifth District Court, St. George Department
The Honorable Eric Gentry
No. 220500229

Justin D. Heideman and Norman W. Peat, Jr.,
Attorneys for Appellant
Roger H. Hoole, Attorney for Appellees

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

OLIVER, Judge:

¶1 Daniel N. Musser was hired by the mayor pro tem of the
Town of Apple Valley (Apple Valley) to serve as the chief of its
fire and police departments. Musser entered into an employment
contract (the Contract), which the mayor pro tem signed on Apple
Valley’s behalf. But the Apple Valley Town Council (Council) did
not approve the Contract. When Dina Mason Walters took office
as mayor one month later, she and the Council terminated
Musser’s employment. Musser filed suit against Apple Valley,
Walters, and Council member Kevin Sair (collectively, the Town)
alleging breach of the Contract. The Town moved for summary
judgment on the ground that the Contract was invalid, which the
district court granted. We affirm the district court’s grant of
summary judgment.
Musser v. Apple Valley

BACKGROUND 1

Musser’s Employment

¶2 On November 2, 2021, Walters was elected mayor of Apple
Valley, with her term beginning in January 2022. Two days later,
on November 4, 2021, Musser entered into the Contract with
Apple Valley to employ him as the chief of its fire and police
departments. 2 The mayor pro tem signed on behalf of Apple
Valley. Musser began his employment on November 11, 2021.

¶3 In response to concerns about the validity of the Contract
and Musser’s employment, the mayor pro tem presented the
Council with a resolution (the Appointment Resolution) on
December 2, 2021, to confirm Musser’s appointment as the police
and fire chief. Of the five Council members, only three voted on
the Appointment Resolution, with two in favor and one against.
The other two Council members were absent from the vote.

¶4 A decade prior to the vote on the Appointment Resolution,
the Council had passed a resolution establishing rules for voting
on motions before it (the Voting Resolution), which states,

The majority of the public body constitutes a
quorum for the public body and all motions of the
public body shall be approved by a majority of the

1. “In reviewing the district court’s grant of summary judgment,
we view the facts in the light most favorable to [Musser], as the
nonmoving party.” Dierl v. Birkin, 2023 UT App 6, n.1, 525 P.3d
127. We present contrary facts only when necessary to understand
the issues raised on appeal.

2. Although various signed and unsigned versions of the Contract
were presented to the district court, we need not decide which
version controls because the particulars of the Contract are not at
issue on appeal.

20241334-CA 2 2025 UT App 197
Musser v. Apple Valley

public body (not just a majority of the quorum in
attendance) . . . . There must be a minimum of a
majority of the entire public body of affirmative
votes for adoption of a motion.

(Emphasis added.) Thus, the required majority of the Council did
not vote to approve the Contract. Despite this, Musser continued
to work as the police and fire chief.

¶5 Walters took office on January 3, 2022. A week later, she
and a majority of the Council sent Musser a letter terminating his
employment, which gave several reasons for Musser’s
termination. As relevant to this appeal, the letter explained that
Musser’s termination was necessary because the Council “never
approved or ratified” the Contract.

The Lawsuit

¶6 In response to his termination, Musser filed a complaint
against the Town alleging breach of the Contract because he was
terminated “without notice” and was not given the severance he
was entitled to under the Contract. The Contract described
reasonable and sufficient notice as “the greater of four (4) weeks
or any minimum notice required by law” and provided, “Upon
any termination, by [Apple Valley], the employee will be entitled
to one full year of compensation paid within 14 days of
termination.”

¶7 The Town moved for summary judgment, arguing that the
Contract was invalid. The Town also argued that because Apple
Valley was operating under a council-mayor form of government,
Utah law required the advice and consent of the Council when
appointing a department head. See Utah Code § 10-3b-
202(1)(d)(ii). And the Town pointed out that the Appointment
Resolution failed to pass because only a majority of the Council
members present voted in favor, rather than a majority of the
Council as required by the Voting Resolution. In response, Musser

20241334-CA 3 2025 UT App 197
Musser v. Apple Valley

argued the Contract was valid and he was entitled to the benefits
of the Contract under several different theories, including that the
mayor pro tem had authority to hire him and that Apple Valley
ratified the Contract.

¶8 The district court granted the Town’s motion for summary
judgment. For purposes of the motion, the court assumed the
existence of the Contract but noted its existence was “not material
to the [c]ourt’s analysis.” The court then considered whether the
Contract was entered into without the advice and consent of the
Council. The court reiterated that the Appointment Resolution’s
“effort to seek the advice and consent of the . . . Council after the
Contract had already gone into effect proved ineffective” and
there was “no genuine issue of material fact that [Musser’s]
appointment was not approved by the . . . Council pursuant to
Apple Valley’s” policies and procedures because “less than a
majority of the entire governing body voted in the affirmative.”
The court also concluded that because the Council did not give its
advice or consent, the Contract “was a violation of Utah law” and
of Apple Valley’s policies and procedures.

¶9 The district court then turned to whether the Contract was
void as an ultra vires act 3 if it was entered into without the advice
and consent of the Council and, if invalid, whether it would still
be enforceable. Quoting Weese v. Davis County Commission, 834
P.2d 1 (Utah 1992), the court explained that “[a]n employee’s
contract with a public employer that was executed in violation of
statute is ‘null and void as an ultra vires act.’” Id. at 3. Then
quoting Knight v. Salt Lake County, 2002 UT App 100, 46 P.3d 247,
the court stated that “a public employee’s rights are ‘statutory
rather than contractual.’” Id. ¶ 8. Based on Weese and Knight, the
district court concluded,

3. An ultra vires act is one which is “[u]nauthorized” and “beyond
the scope of power allowed or granted . . . by law.” Ultra Vires,
Black’s Law Dictionary (12th ed. 2024).

20241334-CA 4 2025 UT App 197
Musser v. Apple Valley

[P]ublic employment is a bundle of sticks and the
bundle cannot be formed without constitutional and
statutory authorization, but once formed, the public
employer and employee may make incidental
changes, consistent with or in furtherance of the
authorizing statute, by adding or subtracting sticks
to the bundle through express or implied
agreement.

The . . . [C]ontract claimed by Musser,
however, was never authorized and his bundle of
sticks never legally existed.

¶10 The court also concluded that “[t]he authorizing statute
allowed [Musser] to be hired as the head of the Apple Valley
police and fire departments only with the advice and consent of
the . . . Council.” And because the Council did not give its advice
and consent and there “was simply no other statutory authority
to hire . . . Musser,” “any employment relationship between him
and Apple Valley was unlawful” and thus “was ‘null and void as
an ultra vires act.’” (Quoting Weese, 834 P.2d at 3.)

ISSUE AND STANDARD OF REVIEW

¶11 Musser argues the district court erred in granting the
Town’s motion for summary judgment. “We review the district
court’s decision on summary judgment de novo.” Potter v. South
Salt Lake City, 2018 UT 21, ¶ 16, 422 P.3d 803.

ANALYSIS

I. Validity of the Contract

¶12 The district court concluded that the Contract was null and
void as an ultra vires act because Musser was hired without the
advice and consent of the Council. Specifically, the district court

20241334-CA 5 2025 UT App 197
Musser v. Apple Valley

concluded that the council-mayor form of government “allowed
[Musser] to be hired as the head of [Apple Valley’s] police and fire
departments only with the advice and consent of the . . . Council”
pursuant to Utah law. Because the Contract was “executed in
violation of . . . statute,” it was “null and void as an ultra vires
act.”

¶13 Musser does not challenge this conclusion by the district
court. Rather, he asserts a number of arguments as to why the
Contract is nonetheless enforceable, including that he had no
knowledge of the relevant statutes and ordinances and that Apple
Valley ratified the Contract by acquiescence. We find neither
argument persuasive.

A. Lack of Knowledge

¶14 Musser argues that the mayor pro tem had apparent
authority to enter into the Contract and that, as a third party,
Musser acted in good faith in entering into the Contract. He
further argues he was unaware that the Contract would not be
effective until the Council gave its advice and consent and that the
majority of the sitting Council was required to approve the
Contract under the Voting Resolution. But our supreme court has
made clear that such knowledge is not required when engaging
in transactions with a municipality. “One who deals with a
municipal corporation does so at his peril. He is presumed to
know the municipal ordinances controlling the administration of
public business and the limitations on the powers and authority
of the [municipality] officers he is dealing with.” Thatcher Chem.
Co. v. Salt Lake City Corp., 445 P.2d 769, 771 (Utah 1968) (cleaned
up). Simply put, “[e]very person contracting with a municipal
corporation, or one who proposes to enter into a contract with
such corporation, is bound to take notice of the provisions of the
city ordinances and any limitations therein contained.” Id.

¶15 So even if we assume that Musser had no knowledge of the
controlling statutes or the Voting Resolution—indeed, even if he
had been “misled into thinking that [he] had entered into a

20241334-CA 6 2025 UT App 197
Musser v. Apple Valley

contract with” Apple Valley—he “was nevertheless charged with
knowledge that the . . . [C]ontract was without binding effect until
it was approved by” a three-vote majority of the Council. Id. at
771–72. Thus, the mayor pro tem’s apparent authority and
Musser’s lack of knowledge are irrelevant and cannot overcome
the fact that the Contract was never approved by Apple Valley.

B. Ratification by Acquiescence

¶16 Musser next argues that Apple Valley’s conduct after the
Council’s vote demonstrated an intent to ratify the Contract by
acquiescence. Specifically, Musser points to Apple Valley’s five-
week delay, after the vote, in firing him and the continued
payment for his services during this time. “A principal may
impliedly or expressly ratify an agreement made by an
unauthorized agent.” Bradshaw v. McBride, 649 P.2d 74, 78 (Utah
1982). And a “principal’s intent to ratify may be found under
circumstances of acquiescence . . . . In other words, an intent to
ratify may be implied where the principal knows that another has
purported to act as its agent and the principal fails to object within
a reasonable time.” Zions Gate R.V. Resort, LLC v. Oliphant, 2014
UT App 98, ¶ 17, 326 P.3d 118 (cleaned up).

¶17 But here, ratification by acquiescence is not available as a
means for approving the Contract because the statute provides
the only permissible method: advice and consent by the Council.
See Utah Code § 10-3b-202(1)(d)(ii). As explained in Weese v. Davis
County Comm’n, 834 P.2d 1 (Utah 1992),

Any contract, express or implied, between [one or
more parties] and [a municipality] is subject to the
statutory and constitutional limitations on the
[municipality] as a governing body. [A
municipality] only has those rights and powers
granted it by the Utah Constitution and statutes or
those implied as a necessary means to accomplish
them. Any act by [a municipality] in excess of this

20241334-CA 7 2025 UT App 197
Musser v. Apple Valley

authority or forbidden by the Utah Constitution is
null and void as an ultra vires act.

Id. at 3 (cleaned up). Because Utah law requires the Council’s
advice and consent for the appointment of department heads, see
Utah Code § 10-3b-202, that was the only process by which Apple
Valley could enter into a valid contract with Musser. Any other
theory of enforcing a contract does not apply because it would
exceed the authority given to Apple Valley by statute. Cf. Weese,
834 P.2d at 4–5 (recognizing the “general rule that estoppel may
not be asserted against a governmental entity”).

¶18 Moreover, even if ratification by acquiescence was possible
here, Apple Valley did object and did so in a reasonable time. The
Council voted on the Appointment Resolution on December 2,
2021—approximately three weeks after Musser began working—
and did not approve the Contract. Thus, the vote constituted an
“objection” by Apple Valley to the formation of the Contract. But
because Musser nonetheless continued to work even after the
Council’s vote, Apple Valley was forced to “object” once again,
and it did so through Walters and a majority of the Council
sending Musser the termination letter on January 10, 2022, only
one week after Walters took office as the new mayor. Such actions
constitute objections to the Contract that were made within a
reasonable time.

¶19 In sum, ratification by acquiescence is not available where
the statute provides the exclusive method for contracting with a
municipality. And even if ratification by acquiescence were
available to enforce the Contract, Musser would not be able to
demonstrate the required elements. 4

4. Musser also argues he is entitled to attorney fees in connection
with this appeal. Because Musser does not prevail, we do not
award him attorney fees.

20241334-CA 8 2025 UT App 197
Musser v. Apple Valley

CONCLUSION

¶20 The district court did not err in concluding that the
Contract was invalid, because the Council never gave its advice
and consent as required by statute. Musser’s arguments to the
contrary are unavailing. Accordingly, we affirm the district
court’s grant of summary judgment in favor of the Town.

20241334-CA 9 2025 UT App 197