Marietta Bergdorf, MEMB Ventures LLC, and Modern Health Clinic for Advanced Medicine LLC, Appellants,
Salmon Electrical Contractors Inc., Appellee.
District Court, Farmington Department The Honorable Thomas L.
Kay No. 150700260
L. Booher, Beth E. Kennedy, and Maurice R. Mitts, Attorneys
E. Minnock, Attorney for Appellee.
DAVID N. MORTENSEN authored this Opinion, in which JUDGE JILL
M. POHLMAN concurred. JUDGE RYAN M. HARRIS dissented, with
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
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.
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.
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 .
. . 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."
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
[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
[Bergdorf]: I've never seen this. I don't need to
look. I have never seen it.
[Attorney]: You have not seen it?
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.
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 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."
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
[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]?
[Attorney]: Is that correct, [Salmon] didn't have any
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.
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.
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.
In September 2013, about one year after the unauthorized
demolition, Bergdorf contacted Bountiful City and, without
Salmon's knowledge or consent, somehow
"renewed" the Permit. Neither Bergdorf nor Bountiful
City contacted or otherwise notified Salmon about the
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.
Bergdorf plainly stated that she never had any kind of