Schindler v. Milliron

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY COURT

DISTRICT OF ALASKA

In re: Bankruptcy Case No. 18-00357-GS

Chapter 7

GARTH and KIMBERLY MILLIRON,

Debtors.

_____________________________________

JAY SCHINDLER and JEANNE Adversary Proceeding No. 19-90001-GS

SCHINDLER,

Plaintiffs,

vs.

GARTH MILLIRON and KIMBERLY

MILLIRON,

Defendants.

In re: Bankruptcy Case No. 18-00358-GS

Chapter 7

JARRED and JENNIFER MILLIRON,

Debtors.

JAY SCHINDLER and JEANNE Adversary Proceeding No. 19-90002-GS

SCHINDLER,

Plaintiffs,

vs.

JARRED MILLIRON and JENNIFER

MILLIRON,

Defendants.

1

MEMORANDUM DECISION RE: § 523 ACTION AND RELATED CLAIMS

Plaintiffs Jay and Jeanne Schindler (Schindlers) hired Dry Creek Construction, LLC

(DCC) to build their farm house and barn in Delta Junction, Alaska. Defendants Garth Milliron

and his son Jarred Milliron own DCC and ran the project. It did not go well. The Millirons and

DCC subsequently filed bankruptcy after the Schindlers sued them in state court. The

Schindlers now sue the Millirons under 11 U.S.C. § 523(a)(2)(A) for fraud and claim that the

resulting damages are nondischargeable. The Millirons do not deny liability for the costs the

Schindlers have incurred to redo much of their construction, but they deny committing fraud.

A. BACKGROUND

Prior to relocating to Alaska, the Schindlers lived on a farm in South Dakota with hay

fields, pasture land, and a farmstead.1 The Schindlers enjoyed farm life, having moved from a

smaller farm in Minnesota.2 Dr. Schindler worked as a neurosurgeon until he was diagnosed

with a degenerative neurological condition in 2010.3 Due to complications from his condition,

the Schindlers sought to relocate to a colder climate than that provided by their location in

South Dakota.4

In 2011, the Schindlers began looking for property in Alaska to approximate their South

Dakota farm. They focused their search in the Delta Junction area because of its agricultural

opportunities.5 The Schindlers purchased a parcel of raw land in Delta Junction (the Property)

1 Trial Audio Recording, Jeanne Schindler Testimony (Schindler Testimony), Adv. ECF No. 54 at 15:47-16:18.

2 Id. at 16:22-16:30.

3 Id. at 18:09-18:30.

4 Id. at 19:06-19:16.

5 Id. at 19:56-20:12.

2

in January 2012, with the intent to build a farm with structures to house and support their

livestock and other animals.6 Though they had no prior experience constructing a new

farmstead “from scratch,” the Schindlers decided to hire a local contractor to develop the

Property.7 Realizing that construction would take a considerable amount of time, the

Schindlers had decided to stay in South Dakota until the Property was developed, while visiting

Delta Junction as needed.

In February 2012, Ms. Schindler spoke to a realtor who gave her a list of potential

contractors to contact to erect a farmstead on the Property.8 Ms. Schindler contacted a number

of local contractors including Garth Milliron and his company, DCC.9 Ms. Schindler testified

that she selected DCC to do the job because Garth was responsive in his correspondence and

assured the Schindlers that he could build the type of barn the Schindlers wanted built.10

1. Negotiations Between the Schindlers and Dry Creek Construction.

Ms. Schindler and Garth spoke over the telephone on February 2, 2012, and Ms.

Schindler sent him a confirmation email the following day.11 In that email, Ms. Schindler

6 Id. at 20:17-21:48.

7 Id. at 29:15-32.

8 Id. at 22:03-22:18.

9 Other contractors contacted by the Schindlers included Ron Enderle of RE Builders (Defendants’ Trial Exhibit

AI, p. 3), Sergey Gayvoronskiy of Grizzly Construction (Id. at p. 1), Joel Wiggins of J&J Specialties, LLC (Id. at

p. 2), and Heritage Homes (Schindler Testimony, Adv. ECF No. 54 at 22:14-22:31).

10 Schindler Testimony, Adv. ECF No. 54 at 25:47-26:08; see also Defendants’ Trial Exhibit AK, p. 1 (Garth

Milliron email to Ms. Schindler: “I grew up in Pennsylvania in an area covered with old fashioned post and beam

barns…If you are interested in building a traditional barn we can do one but the cost will definitely be more than

newer construction methods.”).

11 Plaintiffs’ Trial Exhibit 2, p. 1.

3

confirmed that the Schindlers wanted a garage/shop, barn and livestock shed built in 2012, with

a home and other structures to be built “in a subsequent year.”12 In reply, Garth requested that

Ms. Schindler forward to him any drawings or plans she had for the structures. He further

stated that if no plans had been made, he “would be happy to help” with drafting such plans,

requesting “basic idea of size, shape and proximity” of the structures to each other as well as

the Schindlers’ preferred building materials.13

After receiving photos from Ms. Schindler of the structures on the Schindlers’ South

Dakota farm, in a February 10, 2012 email, Garth represented that DCC could “install the

pump, pitless and plumping [sic]” for the Property once a well site was determined.14 In her

February 13, 2012 response she stated that “[a]t this point, it is likely premature for formal

bids.” Still, Ms. Schindler asked for DCC’s “ability/willingness to take on our project,” and

expressed a desire to “‘be up and running’ when the building season begins.”15

Garth responded to Ms. Schindler that same day:

We are a licensed general contractor here in the State of Alaska

and I also have a residential endorsement from the state for

building custom homes. The residential license is something the

state requires for contractors building homes… We are qualified to

do any of the construction you are requesting… If you would like

any references or copies of our licenses I would be happy to send

them to you. We live and have been building in the Delta area

since 1976.16

12 Id.

13 Id.

14 Id. at p. 2.

15 Id.

16 Id. at p. 3.

4

On March 7, 2012, Garth sent Ms. Schindler a list of three references. Ms. Schindler

testified that she contacted two of the three references provided, and was given favorable

reviews of Garth’s work.17 Garth also forwarded a list of cost comparisons, representing “costs

for materials and labor at current prices.”18 In the comparison, Garth asserted that his

estimates took “into account building codes and procedures we are required by state law [sic]

even though we have no local enforcement.”19 The comparison concluded with a

recommendation that “[a] total property plan should be done so the well and septic can be

placed to accommodate all future building that will be connected.”20 Ms. Schindler testified

that Garth informed them that no inspector was available, but she admitted that Garth’s

assurances regarding building to code gave her comfort that things were going to be built “to a

certain standard.”21 She also testified, however, that the Schindlers “knew that there was some

type of code because we’d been in areas where people were coming in and inspecting and

making sure it was meeting up to the code, but we didn’t understand…how codes worked in

Alaska. We knew that there was HUD, we knew that there was some kind of international

code, but we didn’t know exactly how everything applied in Alaska with the codes.”22

17 Schindler Testimony, Adv. ECF No. 54 at 30:35-30:54.

18 Plaintiffs’ Trial Exhibit 2, pp. 4-5.

19 Id. at p. 5.

20 Id.

21 Schindler Testimony, Adv. ECF No. 54 at 33:09-33:46.

22 Id. at 42:45-43:10.

5

On March 11, 2012, Ms. Schindler sent an email to Garth confirming his engagement as

the contractor in charge of establishing the farmstead on the Property.23 Her list of

requirements for the 2012 construction on the Property expanded to include road work, a well,

and septic in addition to the three structures previously referenced.24 She confirmed that she

and her family would be making multiple trips to and from South Dakota during the summer

months, with the final trip with livestock anticipated in September 2012.25 Ms. Schindler

anticipated that she and her husband would be “routinely present to answer any questions or

give any direction that is needed in person.”26

On March 18, 2012, Garth and Ms. Schindler exchanged a number of emails to detail

the project and the Schindlers’ requirements. Garth again represented that his company could

“do the roadwork,” “handle all the hookups” for the well, and “handle the septic and all the

building tie-ins.”27 Garth also confirmed DCC’s desire to do the work, claiming that his

company was “planning on this project being our main focus for the summer season.”28

Negotiations continued into late March 2012, with Ms. Schindler saying in a March 23, 2012

email that “we are getting very close to having you make a formal bid on this.”29

23 Plaintiffs’ Trial Exhibit 2, p. 6.

24 Id.

25 Id.

26 Id.

27 Id. at p. 7.

28 Id. at p. 10.

29 Id. at p. 11.

6

On March 26, 2012, Garth sent Ms. Schindler an email inquiring about the possibility of

his son, Jarred, visiting the Schindlers’ South Dakota farm in April to see the buildings the

Schindlers were planning to dismantle to bring up to Delta Junction.30 During Jarred’s South

Dakota visit in April 2012, he walked around the farmstead with the Schindlers and viewed the

various structures they had erected there.31 He discussed the Schindlers’ expectations with

regard to the construction to be done on the Property, and also viewed plans and diagrams they

presented to him.32

On or about April 6, 2012, there was another lengthy email exchange between Ms.

Schindler and Garth regarding additional construction details. In that exchange, Garth

discussed the garage/shop walls and the need for sheeting, which he described as “what gives a

building its sheer [sic] strength during high wind and in the event of an earthquake.”33 He

informed Ms. Schindler that:

If you were building in an area where codes are required by local

government fireguard sheetrock would probably be required on the

interior walls or metal… I just want to give you the best structure I

can for what you are doing. Whatever you decide on I will make

work as long as it is not dangerous or will weaken the structure. In

a pole structure like your out buildings [sic] the poles themselves

would provide the shear strength. In the barn the post and beam

structure is the strength and if done properly sheeting is not

needed.34

30 Defendants’ Trial Exhibit AN, p. 2.

31 Plaintiffs’ Trial Exhibit 26, pp. 2-3.

32 Id. at pp. 4-5.

33 Plaintiffs’ Trial Exhibit 2, p. 15.

34 Id.

7

With regard to the recommendations he made in the April 6, 2012 exchange, Garth

explained that “[s]ome of these are personal preferences as a builder and others are because

there is no engineered plan which makes us the engineers as well as the builders and we want to

be sure your buildings will be as structurally sound as possible. We try to be as reasonable as

possible with our customers while maintaining a reputation of quality that will pass inspection

even if there is no inspector.”35 Later, in an email on November 9, 2012, Jarred assured Ms.

Schindler that “[a]s far as a guarantee we are always willing to stand behind our workmanship.

Our license also requires us to cover our work for a couple of years.”36

Ms. Schindler testified that no engineer was employed because Garth told them that

DCC could take an existing published structural plan and modify it into what the Schindlers

wanted.37 Ms. Schindler further testified that the Schindlers never hired an inspector to

examine the work done by DCC because Garth told them there was no inspector available.38

In May 2012, DCC began working on the Property. Rather than enter into a single

contract for the entire build, the Schindlers hired DCC for discrete, individual projects subject

to separate contracts. DCC’s compensation for each project was typically broken down into

multiple payments, an initial down payment followed by one or more payments made after

completion of a given project’s “phases.”39

35 Id. at p. 13.

36 Id. at p. 19.

37 Schindler Testimony, Adv. ECF No. 54 at 39:58-40:07.

38 Id. at 33:08-33:16.

39 See generally Plaintiffs’ Trial Exhibit 1.

8

DCC began with the gravel project to construct a road on the Property, and executed the

contract to construct the barn at roughly the same time. The parties entered into a contract for

the construction of the garage/shop on May 16, 2012. Around the same time, DCC agreed to

create an off-grid electrical system for the Schindlers,40 though it did not transmit the proposal

for the electrical system until 2013. In 2014 the parties agreed on a contract for plumbing a

basement, bathroom and a connection to a septic system for a house. Additionally, the parties

agreed to septic and spray foam contracts.41 The documents comprising these contracts are

rudimentary, bare bones documents providing little more than a list of materials, costs, and

some notes rather than a commercial contract.

DCC performed work on the first gravel contract, the barn42 and the shop/garage43 in

2012. The first gravel contract, including construction of the road onto the Property, was

completed on or around June 20, 2012.44 The first gravel contract was the only contract

completed in 2012.

In 2013, DCC continued work on the barn, and completed the shop/garage that spring.45

DCC also took on and completed additional gravel and concrete contracts.46 In late 2013,

Jarred presented the Schindlers with the proposal for the electrical grid system.47

40 See Plaintiffs’ Trial Exhibit 2, p. 1.

41 See generally Plaintiffs’ Trial Exhibit 1.

42 See Plaintiffs’ Trial Exhibit 5, pp. 16-17.

43 See Plaintiffs’ Trial Exhibit 6, pp. 1-2.

44 Plaintiffs’ Trial Exhibit 3, p. 2.

45 Schindler Testimony, Adv. ECF No. 54 at 1:35:40-1:35:45.

46 See generally Plaintiffs’ Trial Exhibit 4.

9

In 2014, DCC finished the barn48 and began construction of the septic system49 and the

house basement.50 Jarred completed the electrical contract in late 2014.51 The contract for the

remainder of the home was signed in July of 2014, and work commenced on that portion of the

home that same year.52 DCC also undertook additional gravel work surrounding the home

site.53 By the fall of 2014 the relationship between the Schindlers and Garth Milliron had

soured, and Garth was asked not to return to the Property via a letter from the Schindlers’

attorney dated August 28, 2014.54

In 2015, DCC was still working on construction of the Schindlers’ residence.55 The

home was never completed.

2. Construction Problems

In 2015, the Schindlers began to notice problems with the structures built by DCC.

When they arrived from South Dakota in May of 2015, they found the basement of the house

was wet.56 By autumn 2015, problems were becoming apparent in the barn: doors and gates

47 Plaintiffs’ Trial Exhibit 7, pp. 2-3.

48 Plaintiffs’ Trial Exhibit 1, p. 3.

49 Plaintiffs’ Trial Exhibit 7, pp. 5-6.

50 Plaintiffs’ Trial Exhibit 8, pp. 4, 18.

51 Plaintiffs’ Trial Exhibit 7, p. 6; see also Schindler Testimony, Adv. ECF No. 54 at 2:14:08-2:14:15.

52 Plaintiffs’ Trial Exhibit 8, pp. 18-19.

53 Id. at p. 18.

54 See Defendants’ Trial Exhibit AU.

55 Schindler Testimony, Adv. ECF No. 55 at 5:02-5:21.

56 Id. at 4:20-4:47.

10

that were installed square no longer aligned, and beams appeared to be spreading.57 When

these problems were brought to Jarred’s attention, he assured the Schindlers that the moisture

in the basement was normal,58 and that the barn was structurally sound.59 He explained that no

fasteners had been used in the barn because he did not want to detract from the barn’s natural

beauty, but offered to add fasteners if the Schindlers wanted to purchase them.60

In May of 2016, the Schindlers gave the Millirons61 notice of a litany of problems with

the work performed by DCC.62 In the process of ascertaining the extent of the problems and

how to remedy them, numerous professionals were brought in to examine the project.

In the fall of 2015, Ms. Schindler contacted Delta Junction contractor Ron Enderle and

asked him to evaluate the home to determine what needed to be done to get it move-in ready.63

Enderle owns RE Builders in Delta Junction and has worked in the building trades since

1994.64 Enderle came to the Schindlers’ property in November 2015.65 In April 2016, Enderle

provided the Schindlers with a report outlining the differences between the blueprints for the

house and the actual construction that was done by DCC.66 Enderle has expressed his “shock”

57 Id. at 5:27-6:21.

58 Id. at 4:30-4:40.

59 Id. at 9:40-9:47.

60 Id. at 8:04-8:24.

61 Unless otherwise noted, references to “the Millirons” refer only to Garth and Jarred.

62 Plaintiffs’ Trial Exhibit 22, pp. 5-15.

63 Schindler Testimony, Adv. ECF No. 55 at 10:40-11:05.

64 Plaintiffs’ Trial Exhibit 18, p. 1, ¶ 1.

65 Schindler Testimony, Adv. ECF No. 55 at 11:04-11:11.

66 Id. at 11:47-12:01; see also Plaintiffs’ Trial Exhibit 18, pp. 7-8.

11

that “no progress inspections were being done and that there was no plan for an evaluation of

the home or to provide an energy audit.”67 In connection with his observations, Enderle asked

if he could bring in an engineer to look at the house.68 The Schindlers retained Enderle to

facilitate the engineering inspection of the house and other buildings, and then later hired him

to conduct some of the necessary repairs.69 In the course of his work for the Schindlers, he

recommended they hire “every trade” to evaluate DCC’s work at the Property.70

In April 2016, Delta Junction civil engineer Stephen Hammond of M2C1 Construction

and Engineering was brought in to evaluate the home, barn and shop.71 Hammond has been a

licensed civil engineer in Alaska since 2001.72 After a site visit, he sent a letter to Enderle

recommending a structural engineer be brought in: “It is noted here that it is the inspectors’

recommendation to have a structural analysis and retrofit design provided to upgrade the

building system of the Barn and Garage as soon as possible.”73 In accordance with that

recommendation, Hammond consulted with structural engineer Dave Kennedy.74

67 Plaintiffs’ Trial Exhibit 18, p. 2, ¶ 3.

68 Id.; see also Schindler Testimony, ECF No. 55 at 13:13-13:41.

69 See Plaintiff’s Trial Exhibit 18.

70 Enderle Testimony, Adv. ECF No. 57 at 53:01-53:22.

71 Id. at 13:44-13:57; see also Plaintiffs’ Trial Exhibit 20, p. 2, ¶ 3.

72 Plaintiffs’ Trial Exhibit 20, p. 1, ¶ 1.

73 Id. at p. 6.

74 Hammond Testimony, Adv. ECF No. 58 at 47:25-48:00.

12

In the summer of 2016, Darrel Greenstreet of Palmer was brought in to discuss the

possibility of lifting the home due to problems involving the water table.75 Greenstreet is a

general contractor who specializes in structure moving,76 with over 35 years of experience

moving structures.77 Greenstreet visited the property a second time in 2017 to evaluate lifting

the barn and did lift the barn in August 2017 to permit the foundation to be repaired.78

Meanwhile, the Schindlers’ neighbor, retired engineer Steve Sorenson, visited the

property and provided an additional evaluation of the home.79 Sorenson arranged for DOWL

Engineering to assess the amount of rebar in the home’s basement concrete.80 DOWL

evaluated the walls and floor of the home’s basement in February 2017.81

As the dispute between the Schindlers and the Millirons escalated, the Millirons sought

an inspection of their own. Accordingly, Fairbanks general contractor Richard Tilly visited the

Property on January 26, 2017 to assess the structures on the Property and record his

observations.82 Tilly has worked in the construction trade in Alaska since 1974.83

75 Schindler Testimony, Adv. ECF No. 55 at 23:58-24:18; see also Plaintiffs’ Trial Exhibit 14, pp. 2-3.

76 Plaintiffs’ Trial Exhibit 14, p. 8, Transcript pp. 27:25-28:2.

77 Id. at Transcript p. 6:7-6:10.

78 Schindler Testimony, Adv. ECF No. 55 at 39:50-40:2; see also Plaintiffs’ Trial Exhibit 14, p. 4.

79 Schindler Testimony, Adv. ECF No. 55 at 27:40-27:54.

80 Id. at 28:23-28:29.

81 Id. at 34:50-35:24; see also Plaintiffs’ Trial Exhibit 19, pp. 36-48.

82 Tilly Testimony, Adv. ECF No. 60 at 19:36-19:55.

83 Id. at 2:00-5:14.

13

Structural engineer Michael Anderson also came to the Schindlers’ property in February

2017 on the recommendation of DOWL.84 Anderson has worked as a senior structural engineer

since 1995.85 Ms. Schindler testified that she asked Anderson to figure out how to fix and

stabilize the barn.86 Ultimately Anderson evaluated the barn, home and garage/shop in 2017.87

Meanwhile in June of 2016, Jarred Milliron alerted the Schindlers that one of the

batteries in the electrical system was not holding a charge.88 When Jarred did not fix the

problem, in January 2017 the Schindlers hired electrical administrator Jarrett Humphreys with

Wolf Solar Electric, LLC in Tok to examine the electrical system.89 Humphreys has worked in

the electrical trade since the early 1990s.90 After evaluating the system, Humphreys advised

the Schindlers to contact the state electrical administrator, Daniel Greiner.91 Greiner worked

for the state of Alaska as an electrical inspector for over thirteen and a half years.92 Greiner

provided a report to the Schindlers recommending the electrical system be totally replaced.93

Finally, with regard to the gravel work on the property, in May of 2017 the Schindlers

hired Stephen Mack to determine what DCC had actually done with regard to the gravel work

84 Id. at 35:25-40; see also Plaintiffs’ Trial Exhibit 19, p. 2, ¶ 2.

85 Plaintiffs’ Trial Exhibit 19, p. 1, ¶ 1.

86 Schindler Testimony, Adv. ECF No. 55 at 37:43-37:55.

87 Plaintiffs’ Trial Exhibit 19, pp. 2-3.

88 Schindler Testimony, Adv. ECF No. 55 at 48:22-48:39.

89 Id. at 48:52-49:09; see also Plaintiffs’ Trial Exhibit 17, p. 3, Transcript pp. 7:18-9:13.

90 Plaintiffs’ Trial Exhibit 17, p. 3, Transcript p. 7:23-7:25.

91 Schindler Testimony, Adv. ECF No. 55 at 54:35-54:44.

92 Plaintiffs’ Trial Exhibit 16, Transcript pp. 4:24-5:3.

93 Id. at Transcript pp. 49:16-25.

14

on the property.94 Potholes were dug in various places around the Schindlers’ property, and

Mack issued a report of his findings to the Schindlers in August of 2019.95 The report

concluded that DCC routinely did not excavate and import gravel to the required depths under

the relevant contracts.

3. The Schindlers Sue the Millirons in State Court

The Schindlers sued the Millirons in state court on March 1, 2017 (State Court

Action).96 The Schindlers asserted causes of action for breach of contract, negligence,

misrepresentation, fraud and unfair trade practices among others.97 The Millirons filed for

bankruptcy on October 22, 2018, the day the State Court Action was scheduled to begin trial.98

4. DCC and Milliron Bankruptcies and the Adversaries

DCC, Garth and Kimberly Milliron, and Jarred and Jennifer Milliron filed chapter 7

bankruptcy cases. All are represented in their bankruptcy proceedings by attorney Jason

Gazewood. Each of them scheduled the Schindlers as unsecured creditors holding a claim of

$800,000.00.99

94 Schindler Testimony, Adv. ECF No. 55 at 59:01-1:00:10.

95 See Plaintiffs’ Trial Exhibit 21, pp. 5-10.

96 Schindler Testimony, Adv. ECF No. 62 at 45:53-46:00.

97 See Adv. ECF No. 20-2, p. 2. “Courts routinely take judicial notice of their own court records.” Dunlap v.

Neven, 2014 WL 3000133, at *5 (D. Nev. June 30, 2014) (citing Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442

F.3d 741, 746 n. 6 (9th Cir. 2006)).

98 See Adv. ECF No. 1, p. 18, ¶ 88; see also Adv. ECF No. 14, p. 6, ¶ 88 (admitting the allegation in the

complaint).

99 See Plaintiffs’ Trial Exhibits 38, p. 12; 39, p. 30; and 40, p. 23.

15

On January 23, 2019, the Schindlers commenced adversary proceedings against Garth

and Kimberly Milliron100 and Jarred and Jennifer Milliron,101 seeking rulings that the debts

owed to the Schindlers by the Millirons are nondischargeable under 11 U.S.C. §§ 523 and 727.

After the court denied the parties’ cross motions for summary judgment, trial was held on

March 9-12, 2020. The parties’ filed their post-trial briefs on March 30, 2020, and the court

heard closing arguments on May 12, 2020. Significantly, the Schindlers waived their causes of

action for contractual breach, negligence, and piercing the shell of the limited liability company

against all defendants and all claims for nondischargeability under § 523 against Kimberly

Milliron and Jennifer Milliron.102

The court took the matters under submission at the end of closing arguments. The court

entered its decision on the cause of action under § 727 on March 31, 2021, finding that Jarred

Milliron’s discharge should be barred based on his actions in his bankruptcy case. The court

held that the Schindlers had not proven a basis to deny entry of discharge against Garth

Milliron.

B. ANALYSIS

The Schindlers claim that they have been damaged by fraudulent misrepresentations,

fraudulent pretenses, and actual fraud related to their construction projects. They contend that

those damages are nondischargeable under § 523(a)(2)(A), which excepts from discharge those

debts obtained by “false pretenses, a false representation, or actual fraud, other than a statement

100 Adversary Proceeding No. 19-90001-GS.

101 Adversary Proceeding No. 19-90002-GS.

102 Plaintiffs’ Closing Brief, Adv. ECF No. 66 at p. 54.

16

respecting the debtor’s or an insider’s financial condition.” The Schindlers charge the Millirons

with misrepresenting their competency to properly construct their farm.103 They also generally

contend that the Millirons told them they were going to do one thing but did another in their

construction projects. The Schindlers point to a laundry list of problems resulting from DCC’s

construction efforts which range from a road/driveway that they say was not built in the right

location to their house that has never been completed.

The Millirons do not deny that DCC breached most, if not all, of the contracts in some

manner. In fact, in their individual bankruptcy cases both Garth and Jarred listed personal

debts owing to the Schindlers. But they dispute that they engaged in any fraud during the

projects. This is the fulcrum for all of the Schindlers’ claims: did the Millirons defraud them

on all, or some, of the construction contracts or did DCC simply breach those contracts? As the

court in Strominger v. Giquinto (In re Giquinto) stated, “[i]t is a matter of well-entrenched

jurisprudence that a contractor’s failure to perform as promised, standing alone, gives rise to a

case for breach of contract, not actionable fraud, misrepresentation or false pretenses under

§ 523(a)(2)(A).”104 It is equally well recognized, however, that entering into a contract or

103 Though the Schindlers contracted with DCC, they have sued the Millirons individually for fraud. Courts have

consistently recognized that “[y]ou don’t buy immunity from suits for torts by being a member of a business

corporation.” Hoagland ex rel. Midwest Transit, Inc. v. Sandberg, Phoenix & von Gontard, P.C., 385 F.3d 737, 743 (7th

Cir. 2004). Where a plaintiff establishes that an individual personally authorized, directed, or participated in the fraud,

he or she is personally liable for those torts. See Coastal Abstract Service, Inc. v. First American Title Ins. Co., 173 F.3d

725, 734 (9th Cir. 1999). The fact that a limited liability company was involved rather than a corporation will not shield

an individual from liability for his or her own actions. 3685 San Fernando Lenders, LLC v. Compass USA SPE, LLC (In

re USA Commercial Mortgage Co.), 802 F. Supp. 2d 1147, 1165 (D. Nev. 2011) (“As managing members of Compass,

Piskun and Blatt are personally liable for engaging in the conversion that plaintiffs proved was committed by

Compass.”); see also Daggett v. Feeney, 397 P.3d 297, 311 (Alaska 2017) (“Where a limited liability company

member’s liability arises from the member’s own actions, the statute provides no protection.”).

104 388 B.R. 152, 166 (Bankr. E.D. Pa. 2008). See also Signal Asset Management, LLC v. Rodriguez (Matter of

Rodriguez), 2021 WL 1219512, at *10 (Bankr. N.D. Ala. Mar. 30, 2021) (quoting Coluccio v. Sevastakis (In re

Sevastakis), 591 B.R. 197, 205 (Bankr. D. N.J. 2018)); Lobdell v. Rodruck (In re Rodruck), 2010 WL 1740792 at

*2 (Bankr. S.D. Iowa Apr. 28, 2010) (“Various courts have found that debts arising from faulty construction arise

under a breach of contract theory and are not excepted from discharge for fraud….”) [citing cases]; Ward v Decret

17

promising an act with no intention of performing will support nondischargeability for fraud.105

For each contract, DCC put in substantial work and provided the Schindlers with a product.

Indeed, all but the house were deemed to be completed. But each of the major projects had

significant problems.

The Schindlers’ claims for fraud are loosely defined and interconnected. Though the

court must ultimately determine whether the debts are dischargeable under § 523(a)(2)(A), it

must first adjudicate the Millirons’ fraud claims under Alaska law to establish the underlying

debt. Fortunately, the elements of fraud under Alaska law and for nondischargeability under

§ 523(a)(2)(A) are functionally the same.106 Generally, in Alaska “[c]ommon law fraud claims

require a showing of (1) a false representation of fact; (2) knowledge of the falsity of the

representation; (3) intention to induce reliance; (4) justifiable reliance; and (5) damages.”107

Such misrepresentations may be affirmative statements of fact or by omission.108

(In re Decret), 2017 WL 4097813 at *2 (Bankr. C.D. Cal. Sept. 13, 2017) (quoting Rezin v. Barr (In re Barr), 194

B.R. 1009, 1017 (Bankr. N.D. Ill. 1996)) (“With respect to construction contracts, the ‘[f]ailure to fulfill a

contractual obligation by itself does not establish a misrepresentation for purposes of § 523(a)(2)(A).’”).

105 Shelby Store Drugs, Inc. v. Sielschott (In re Sielschott), 332 B.R. 570, 572 (Bankr. C.D. Ill. 2005); Giquinto,

388 B.R. at 166.

106 Deloycheet, Inc. v. Beach (In re Beach), 570 B.R. 300, 325 n.162 (Bankr. D. Alaska 2017) (citing Jarvis v.

Ensminger, 134 P.3d 353, 363 (Alaska 2006)). See also Turtle Rock Meadows Homeowners Ass’n v. Slyman (In

re Slyman), 234 F.3d 1081, 1085 (9th Cir. 2000) ( listing the elements for a claim under § 523(a)(2)(A) as: (1) the

debtor made a false statement or engaged in deceptive conduct; (2) the debtor knew the representation to be false;

(3) the debtor made the representation with the intent to deceive the creditor; (4) the creditor justifiably relied on

the representation; and (5) the creditor sustained damage from its reliance.).

107 Nicdao v. Chase Home Finance, 839 F.Supp.2d 1051, 1073 (D. Alaska 2012) (quoting Shehata v. Salvation

Army, 225 P.3d 1106, 1114 (Alaska 2010) (citation omitted)).

108 U.S. ex rel. North Star Terminal & Stevedore Co. v. Nugget Const., Inc., 445 F.Supp.2d 1063, 1074 (D. Alaska

2006); Barber v. National Bank of Alaska, 815 P.2d 857, 862 (Alaska 1991) (fraudulent misrepresentation);

Hagans, Brown & Gibbs v. First Nat. Bank of Anchorage, 810 P.2d 1015, 1019 (Alaska 1991) (fraudulent

omission).

18

Liability for omission depends on a duty to disclose based upon the relationship of the

parties or arising from prior statements that would be misleading if uncorrected.109 Section

551(1) of the Restatement (Second) of Torts details when one may be held liable for

nondisclosure:

One who fails to disclose to another a fact that he knows may

justifiably induce the other to act or refrain from acting in a

business transaction is subject to the same liability to the other as

though he had represented the nonexistence of the matter that he

has failed to disclose, if, but only if, he is under a duty to the other

to exercise reasonable care to disclose the matter in question.110

The Restatement further provides that in business transactions, to exercise reasonable

care one is under a duty to disclose certain information before the transaction is consummated,

including “subsequently acquired information that he knows will make untrue or misleading a

previous representation that when made was true or believed to be so.”111

Similar to fraud by omission, a claim may arise from “an implied misrepresentation or

conduct intended to create and foster a false impression.” 112 Often the differences between

these claims are minimal. As one court has observed, “[t]here is no significant difference,

however, between the terms ‘false pretenses,’ ‘false representation,’ and ‘actual fraud.’ Fraud

includes false pretenses and false representation for dischargeability purposes.”113

109 Restatement (Second) of Torts § 551(2) (listing instances when a duty to disclose may arise).

110 Restatement (Second) of Torts § 551(1).

111 Restatement (Second) of Torts § 551(2)(c).

112 Reingold v. Shaffer (In re Reingold), 2013 WL 1136546, at *3 n.4 (B.A.P. 9th Cir. Mar. 19, 2013); see also

Mandalay Resort Grp. v. Miller (In re Miller), 310 B.R. 185, 201-02 & n.28 (Bankr. C.D. Cal. 2004).

113 Fain v. Webb (In re Webb), 349 B.R. 711, 716 (Bankr. D. Or. 2006).

19

The Schindlers’ fraud claims turn on whether the Millirons knew they were making

false representations and whether they intended to deceive the Schindlers to rely on those

representations. The elements of justifiable reliance and damages are not seriously disputed.

“Both the knowledge and intent elements under § 523(a)(2)(A) may be established by

circumstantial evidence and inferences drawn from a course of conduct.”114 Moreover,

“[w]hen analyzing knowledge and intent, reckless disregard for the truth of the representation

or reckless indifference to the debtor’s actual circumstances may support a § 523(a)(2)(A)

claim.”115

Courts have generally accepted the Restatement’s definition as to what suffices for

knowledge of the false representation:

[a] misrepresentation is fraudulent if the maker (a) knows or

believes that the matter is not as he represents it to be, (b) does not

have the confidence in the accuracy of his representation that he

states or implies, or (c) knows that he does not have the basis for

his representation that he states or implies.116

One may, therefore, knowingly make a fraudulent representation “without knowledge of its

falsity, if the person making it ‘is conscious that he has merely a belief in its existence and

recognizes that there is a chance, more or less great, that the fact may not be as it is

represented.’”117

114 Hirth v. Donovan (In re Hirth), 2014 WL 7048395, at *10 (B.A.P. 9th Cir. Dec. 11, 2014) (citing Tallant v.

Kaufman (In re Tallant), 218 B.R. 58, 66 (B.A.P. 9th Cir. 1998)).

115 Hirth, 2014 WL 7048395, at *10 (citing Arm v. A. Lindsay Morrison, M.D., Inc. (In re Arm), 175 B.R. 349, 354

(B.A.P. 9th Cir. 1994)).

116 Restatement (Second) of Torts § 526 (Am. Law Inst. 1977); see also Gertsch v. Johnson & Johnson, Fin. Corp.

(In re Gertsch), 237 B.R. 160, 168 (B.A.P. 9th Cir. 1999).

117 Gertsch, 237 B.R at 168 (quoting Restatement (Second) of Torts § 526, cmt. e).

20

Recklessness may also be probative of an intent to deceive.118 However, “recklessness

alone does not equate to fraudulent intent.”119 Rather, it must be viewed within the totality of

the relevant circumstances.120 “The essential point is that there must be something about the

adduced facts and circumstances which suggests that the debtor intended to defraud creditors of

the estate.”121 Ultimately, the court must determine whether the totality of the circumstances

demonstrates an “‘overall impression of a deceitful debtor.’”122

It bears repeating that negligence in making a misrepresentation will support liability,

but it does not suffice to except the debt under § 523(a)(2)(A).123

1. General Misrepresentations of Skill and Building Practices.

The Schindlers argue that their damages can be traced back to general representations

made in the parties’ initial negotiations. At the beginning of DCC’s discussions with the

Schindlers, Garth made several general representations in a series of emails with Ms. Schindler:

a. “[w]e are qualified to do any of the construction you are requesting;”

b. that they had “taken into account building codes and procedures...even

though we have no local enforcement;”

118 Khalil v. Developers Sur. & Indem. Co. (In re Khalil), 379 B.R. 163, 174 (B.A.P. 9th Cir. 2007).

119 Hirth, 2014 WL 7048395, at *11.

120 Gertsch, 237 B.R. at 167–68; see also Gotcher v. Duffie (In re Duffie), 531 B.R. 847, 858 (Bankr. D. Mont.

2015), aff’d, 2017 WL 5473879 (D. Mont. Nov. 14, 2017).

121 Khalil, 379 B.R. at 175.

122 Skinner v. Huggins (In re Skinner), 2014 WL 6981949, at *8 (B.A.P. 9th Cir. 2014) (quoting Nwas Oklahoma,

Inc. v. Kraemer (In re Kraemer), 2011 WL 3300360, at *6 (B.A.P. 9th Cir. Apr. 21, 2011)).

123 Mortg. Guar. Ins. Corp. v. Pascucci (In re Pascucci), 90 B.R. 438, 444 (Bankr. C.D. Cal. 1988) (“Negligent

misrepresentation does not support a dischargeability claim.”); Ries v. Sukut (In re Sukut), 357 B.R. 834, 840

(Bankr. D. Colo. 2006) (“A negligent misrepresentation claim would not satisfy either subsection of Section

523(a)(2).”).

21

c. that because “there is no engineered plan” they would perform as “the

engineers as well as the builders,” to “be sure your buildings will be as

structurally sound as possible,” and

d. the quality of the work “will pass inspection even if there is no

inspector.”124

Based upon the multitude of problems with the construction projects, the Schindlers

contend that the Millirons affirmatively misrepresented their abilities to do the construction

work DCC ultimately agreed to do. Viewed in retrospect after 2016, it is easy to say that Garth

misrepresented DCC’s ability, the use of building codes, the structural soundness of several of

the buildings and the ability to pass inspections. But these representations were not fraudulent

when Garth made them.

Garth and Jarred testified about their experience as general contractors in Delta

Junction, and in agricultural construction in particular. Similarly, Garth represented that they

were licensed general contractors with a residential endorsement. The evidence established

that they had been doing construction in Delta Junction for years. This evidence is unrefuted.

Additionally, Ms. Schindler testified that the references she contacted had positive experiences

using DCC for construction.

Importantly, when Garth made the statements at issue the parties had yet to discuss the

details for the construction projects or what would be required. Rather, they were made as part

of the introduction to the Schindlers. This makes the specific misrepresentation regarding

competency difficult to measure for purposes of determining whether it was even false. This is

exactly why “[c]ourts have held that ‘general representations about expected work performance

124 Plaintiffs’ Closing Brief, Adv. ECF No. 66, p. 37.

22

or poor quality of work (without something more) merely give rise to a breach of contract

action and will not suffice to constitute misrepresentation under § 523(a)(2)(A).’”125

The Schindlers point to the litany of problems with each of the major contracts taken by

DCC as evidence that the Millirons were not competent or qualified to do the work they

undertook. Cases considering similar claims arising from faulty construction demonstrate the

significance of the unique factual context of each case when examining whether the debtor

knowingly intended to defraud a client. Thus, in Fortman v. Crowe (In re Crowe),126 the

bankruptcy court found that a contractor with a couple of years of experience did not

knowingly misrepresent his qualifications with an intent to deceive when he told his client that

he could do the work, though it also concluded that the debtor lacked the experience for a job

of that magnitude. The debtor’s clients had to repair a number problems with his construction.

But the court accepted the debtor’s belief that he could do the job as honest and corroborated

by other work he completed in a workmanlike manner and his explanations for the problems

that arose. Based on this, the court concluded “that Defendant did not consciously disregard a

substantial and unjustifiable risk known to him regarding his ability to complete the Project.”127

On the other hand, in Williams v. Sato (In re Sato),128 the debtor induced his creditor to

invest in the development of real property while representing that he was an experienced real

125 Sevastakis, 591 B.R. at 205.

126 2014 WL 4723084, at *8 (Bankr. N.D. Ohio Sept. 22, 2014).

127 Id. at *9. See also Taylor v. Allen (In re Allen), 2011 WL 1048241, at *5 (Bankr. E.D. Tenn. Mar. 18, 2011)

(denying claims for nondischargeable damages under § 523(a)(2)(A) for unworkmanlike construction based on

temporary expiration of contractor’s license where there was no evidence that the debtor “concealed the fact that

his license expired with the subjective intent to deceive the plaintiff….”).

128 512 B.R. 241 (Bankr. N.D. Cal. 2014).

23

estate developer with a history of successful real estate deals. The debtor showed the investor

his house as an example of his work, as well as large parcels of undeveloped land he said he

was going to develop and notebooks of his projects.129 The short-term investment extended for

years and ultimately resulted in another creditor’s foreclosure of the property. The court

reasoned that the debtor knowingly misrepresented his experience and credentials with the

intent to deceive the investors, noting that the debtor “had little, if any, experience as a real

estate developer when he met” the investor, and had only received his contractor’s license the

year prior.130 The court concluded that these actions were taken to present a false impression to

get the investment. Holding that the debt was nondischargeable under § 523(a)(2)(A), the court

was unpersuaded by the debtor’s initial partial payment of interest and conveyance of an

interest in the real property.131

In this instance, Garth and Jarred’s general, initial statements regarding their

qualifications and competency are more in line with Crowe than Sato. Assuming that the

Millirons did misrepresent their competency and skill to perform the construction required by

the Schindlers, the court accepts that the Millirons believed they were competent and skilled

enough to handle the Schindlers’ construction projects. That belief was founded upon their

status as a general contractor with years of experience in the area. In short, there was a valid

129 Id. at 245.

130 Id. at 248.

131 Id. at 249. See also Vinson v. Cozart (In re Cozart), 417 B.R. 116 (Bankr. W.D. Ark. 2009) (debtor contractor

was liable for nondischargeable damages under § 523(a)(2)(A) for recklessly misrepresenting his qualifications as

a great builder with a lot of experience where debtor’s experience was limited to management of projects rather

than actual construction).

24

basis for their belief that they could competently provide the construction services the

Schindlers required.

There is an argument that the Millirons were reckless when representing their skill and

experience to the Schindlers. In similar cases, the Ninth Circuit Bankruptcy Appellate Panel

has observed: “Deciding when misrepresentations cross the line from negligence to reckless

disregard is an inherently subjective process.”132 On the record presented the court is not

comfortable finding that the sheer number of problems that resulted, even though very

significant, establishes that the Millirons knew that they were not qualified for the contracts.

Moreover, the timing of these representations weighs against such a conclusion as the parties

had yet to discuss the specifics of the multiple contracts that would unfold over the next several

years. As such, the court concludes that the Millirons did not misrepresent their general skills

and competency either knowingly or recklessly.

Even if the court accepted the Millirons recklessly oversold their competency for the

project without fully understanding what was required of them for the purposes of establishing

a knowing misrepresentation, there was no intent to deceive. While recklessness may be

probative of a fraudulent intent under § 523(a)(2)(A), there was no evidence of an intent to

deceive by misrepresenting their qualifications.133 The Millirons provided the contracted

construction services; they built the road and the buildings. But they did so poorly. Even then,

they remained on the project and attempted to address the problems with the experts the

132 Kraemer, 2011 WL 3300360, at *6 (citing Wolf v. McGuire (In re McGuire), 284 B.R. 481, 493 (Bankr. D.

Colo. 2002)).

133 The contract to provide the Schindlers with a power supply requires an additional discussion addressed later in

the decision. Unlike the construction projects for the road and buildings for which they had experience, Jarred was

not a licensed electrician and had questionable experience when he undertook installation of the off grid power

system.

25

Schindlers retained. The failure to understand, or carefully evaluate, their qualifications before

making such statements rises only to some level of negligence in this instance.

To be clear, the Millirons have admitted liability for breach of contract and negligence

arising from their construction errors. And the sheer amount of damage done in the

performance of the contracts suggests a brazen arrogance concerning DCC’s abilities. Yet

based on the totality of the circumstances this does not equate to a knowing attempt to deceive

the Schindlers. They have not, therefore, proven all the elements for a fraudulent

misrepresentation of the Millirons’ skill and competency. The court turns to the Schindlers’

claims of fraudulent misrepresentation on the specific contracts.

2. Specific Instances of Fraud by Contract.134

a. Gravel and Concrete Contracts

DCC entered into several contracts to provide gravel to the Schindlers.135 Initially, the

gravel was to be used for construction of a driveway across the Property. Gravel was also

needed to prepare areas throughout the Property for concrete slabs to serve as foundations for

the various buildings. In preparation for the construction of the driveway and the pads for the

barn, shop and machine shed, holes were dug during the Schindlers’ initial visit to the Property

with Garth and Jarred in May of 2012 to determine how far down native rock was located on

134 Although a spray foam contract was referenced in the trial exhibit summarizing their alleged damages (see

Plaintiffs’ Trial Exhibit 1, pp. 9-10), the Schindlers did not develop their argument regarding that contract at trial

and thus the court lacks an adequate basis to rule on whether the Millirons committed fraud in connection with that

contract. Moreover, it appears that the damages associated with that contract have been incorporated into the

contracts addressed herein. Accordingly, the court has not addressed the spray foam contract in this decision.

135 The complete nature of these contracts is unclear as they clearly contemplated using gravel from the

Schindlers’ own gravel pit.

26

the Property.136 Ms. Schindler testified that to support the road, and eventually the structures to

be built, DCC would need to excavate down to the native rock layer and fill the areas with

gravel to be taken from the Schindlers’ gravel pit.137 Based on the test holes, the Millirons

determined that the native rock began approximately 1.5-2 feet below the ground surface.138

The parties entered into the original gravel contract between DCC and the Schindlers on

May 17, 2012.139 Garth drafted the contract, though the evidence at trial was that both he and

Jarred were involved in the contract.140 Garth signed the contract for DCC.141 Jarred testified

that the driveway contract was “extremely rushed” and was drafted the day after the trajectory

of the driveway was plotted with the Schindlers.142 The gravel contract was little more than a

billing statement detailing the amount of gravel to be used within the total construction project,

related equipment time, and other charges for both the driveway and the gravel pads for the

future structures. It committed DCC “to do the following gravel work” for the Property and

136 Schindler Testimony, Adv. ECF No. 54 at 49:36-50:50. Both Garth and Jarred testified that they were present

with the Schindlers when holes were dug on the Property to determine the appropriate depth of the gravel to be

used on the Property. Garth Milliron Testimony, Adv. ECF No. 61 at 2:47-6:07; Jarred Milliron Testimony, Adv.

ECF No. 59 at 1:31:03-1:31:45. Jarred testified that “we” (himself, Garth and the Schindlers) drove and walked

the proposed road trajectory and staked out the road. Jarred Milliron Testimony, Adv. ECF No. 59 at 1:31:04-

1:31:43. He also explained that “we” calculated the length of the road for purposes of the contract by driving the

proposed trajectory and using the odometer on the truck he was driving. Id. at 1:33:55-1:34:12. Similarly Garth

testified that “we actually went out there and dug down” to native gravel. Garth Milliron Testimony, Adv. ECF

No. 61 at 5:28-5:30. Jarred did the calculations for the amounts of gravel needed to complete the road, and

estimated the cost of completing the initial gravel contract. Jarred Milliron Testimony, Adv. ECF No. 59 at

1:38:19-1:38:53.

137 Schindler Testimony, Adv. ECF No. 54 at 51:03-58.

138 Id. at 50:09-50:19.

139 See Plaintiffs’ Trial Exhibit 3.

140 Schindler Testimony, Adv. ECF No. 54 at 1:38:54-1:38:55.

141 See Plaintiffs’ Trial Exhibit 3.

27

details the dimensions of the gravel pads. The contract represented that DCC would apply 1.5

feet of gravel for all of the pads covered under the contract including the driveway. The

contract further described the driveway as 5,000 feet long and 10 feet wide.143 It also provided

for the construction of four gravel pads for the barn, shop/garage, machine shed and equipment

shed. As with the driveway, the contract specifies the dimensions of the pad. Each included a

depth of 18 inches. Jarred also acknowledged at trial that it was agreed that each pad would be

excavated and filled with 18 inches of gravel from the Schindlers’ gravel pit.144

Ms. Schindler made the initial payment for the gravel contract in the amount of

$11,469.00 to DCC the same day she signed the contract. After the gravel contract was signed,

the Schindlers returned to South Dakota. On June 19, 2012, Garth sent Ms. Schindler an email

stating that the gravel work would be completed the following day, with an amount owing on

that completed contract of $48,000.00. Ms. Schindler issued a check to DCC for the amount

owed the following day believing that this contract had been completed. The check cleared on

July 3, 2012.

As construction on the Property progressed, more gravel work was required: an August

19, 2013 contract provided for gravel pads and concrete for the sheep barn, stud barns and

horse barns;145 an August 28, 2013 contract provided for an extension to the hay barn and an

142 Jarred Milliron Testimony, Adv. ECF No. 59 at 1:28:10-1:28:16 (“The process start to finish was…[a] super

rushed process….”); 1:30:04-1:30:06 (“We basically had one day to come up with a gravel contract.”).

143 Plaintiffs’ Trial Exhibit 3, p. 1.

144 Jarred Milliron Testimony, Adv. ECF No. 59 at 1:42:42-1:42:55.

145 See Plaintiffs’ Trial Exhibit 4, p. 2.

28

additional foot of excavation and fill for the sheep barn;146 the 2014 contract for the house

included a 60-foot gravel fill radius around the home for the Schindlers’ dogs as well as

basement excavation and gravel fill.147 With the exception of the lambing barn and the gravel

work related to the house, the later contracts specified that all pads were to be excavated to

three feet and filled with gravel.

The Schindlers ultimately discovered significant problems with the gravel work

performed by DCC. In August of 2017, Darrel Greenstreet was hired to raise the barn to enable

the foundation to be repaired. Upon raising the barn, it was discovered that the concrete at the

base of the posts was poured on top of silt, not gravel.148 It was later discovered that the

garage/shop had also been constructed on just ten inches of imported gravel over seven inches

of silt, instead of the 18-inch gravel pad as originally contracted.149

The Schindlers later retained Stefan Mack of Mappa, Inc. to conduct a soil condition

evaluation of the build sites on the Property. Mappa conducted its site visit on June 22,

2019.150 The geotechnical evaluation of the Property revealed that none of the gravel work

done by DCC was consistent with the contractual provisions agreed upon by the Schindlers.

When Mappa conducted its study of the gravel use on the Property, it concluded that instead of

the 18 inches of imported gravel DCC agreed to under the May 17, 2012 contract, it only used a

146 See id. at p. 3.

147 See Plaintiffs’ Trial Exhibit 8, p. 18.

148 Schindler Testimony, Adv. ECF No. 55 at 41:30-41:58; see also Plaintiffs’ Trial Exhibit 14, p. 5, Greenstreet

Transcript, p. 17:9-10.

149 Schindler Testimony, Adv. ECF No. 55 at 43:05-44:42; see also Plaintiffs’ Trial Exhibit 21, p. 8.

150 Plaintiffs’ Trial Exhibit 21, p. 5.

29

“skim” amount of approximately one to two inches of gravel on the driveway. This left a

deficiency of approximately 16 inches of imported gravel.151 The Mappa geotechnical report

from June 22, 2019 further revealed that almost none of the gravel pads constructed by DCC

satisfied the obligations set forth under the contracts:

• The stud barn did not have adequate existing soils removed before gravel was

laid, and only 27.5 of the contracted-for 36 inches of gravel was laid.

• The lambing barn, which under the contract was to have four feet of imported

gravel, had just fifteen inches of imported gravel laid on top of eight inches of

silt.

• For the horse shed, none of the existing soils were removed, and none of the

contracted-for three feet of imported gravel was laid.

• The hay barn extension was constructed on four inches of imported gravel laid

on top of 15 inches of existing soils instead of on existing gravel, leaving a

deficit of 32 inches of imported gravel.

• At the house, the compaction of the existing native gravel under the foundation

was insufficient at 89.3% (six inches) and 89.2% (twelve inches), instead of the

recommended 95%.

• Much like the horse shed, none of the existing soils were removed for the dog

yard adjacent to the house, and only a skim amount of imported gravel was laid

instead of the three feet provided for under the contract.

• The loading ramp was constructed on seven inches of imported gravel instead of

three feet, and under that gravel was a foot of silt and nearly two feet of silty

gravel that were not removed.

The Schindlers contend that Garth and Jarred misrepresented the amount of gravel that

DCC would use for the foundations and the driveway. As for the driveway, Garth and Jarred

denied that they ever committed DCC to use 1.5 feet of gravel or dig the driveway to native

151 Id. at p. 6.

30

gravel.152 But Garth testified in his 2018 deposition that the agreement with the Schindlers was

to excavate the road and fill it with 18 inches of gravel from the Schindlers’ gravel pit.153 Still,

at trial Jarred testified that he excavated six to eight inches of overburden and the silt layer for

the shop pad down to native gravel.154 He further testified that the concrete footers in the hay

barn were adequate to support the load of the structure “based on our barn and structure

engineering that we pulled out of our barn books,”155 and provided extensive explanation in

defense of his calculations regarding the size of the building footers.156 In hindsight, Jarred

admitted that he would have made the barn footers larger after seeing the engineering reports

addressing their adequacy. But “at the time” they were constructed, he testified that he

believed they were sufficient.157 Regarding the amount of gravel under the barn, he testified

that it was his opinion the barn was built on good gravel that went 30 feet down as far as he

knew based on the well reports.158

The original gravel contract is sparse, but it is clear: DCC was to construct the driveway

and structure pads with a depth of 18 inches of filled gravel after excavation. The other gravel

contracts were equally specific about the amount of gravel to be used. The purpose of this was

equally clear: the overburden and silt had to be removed, and according to the test holes native

152 Garth Milliron Testimony, Adv. ECF No. 61 at 3:13-3:34; Jarred Milliron Testimony, Adv. ECF No. 59 at

1:42:17-1:42:47.

153 Plaintiffs’ Trial Exhibit 27, p. 1.

154 Jarred Milliron Testimony, Adv. ECF No. 59 at 1:46:39-1:46:56.

155 Id. at 2:24:58-2:25:16.

156 Jarred Milliron Testimony, Adv. ECF No. 60 at 2:09:00-2:12:04; 3:07:54-3:17:04.

157 Id. at 3:16:54-3:16:58.

158 Jarred Milliron Testimony, Adv. ECF No. 59 at 2:23:54-2:24:11.

31

rock was not found until 18 inches deep. There is nothing within the documents to suggest that

gravel depth was an estimate. Nor do the actual billings and payments suggest that they were an

estimate. Ms. Schindler paid for the gravel as calculated using those specifications.

The court finds that the Millirons specifically represented the amount of gravel to be

used in their clearing and construction of the gravel pads. The Greenstreet testimony and

Mappa report establish that the Millirons consistently failed to provide the required 18-36 inch

deep gravel pads. The number of times the Millirons failed to import the contracted amount of

gravel supports a finding that they knowingly misrepresented the amount of gravel with an

intention not to perform the terms of the contract.159 This equates to a knowing intent to

deceive the Schindlers as to the gravel. Moreover, there was only a brief period between the

time the parties entered into the first gravel contract and when the Millirons started their work.

This further supports a finding that the Millirons did not intend to use the amount of gravel

required by the contracts when they entered into the contracts.

The court is utterly unconvinced by Garth’s and Jarred’s explanations for not providing

the construction pads at the stated depth. Accordingly, the court finds that Garth and Jarred

knowingly misrepresented the gravel pads would be constructed to a depth of 18-36 inches with

the requisite intent to deceive the Schindlers. The court further finds that the Schindlers

justifiably relied upon the representations for the amount of gravel required for the road and

gravel pads as a necessary component for the sound foundations for the road and their

buildings.

159 Skinner, 2014 WL 6981949, at *7; Khalil, 379 B.R. at 175.

32

It is also clear that the Schindlers were damaged by the misrepresentations. The record

is replete with evidence that the Schindlers need to redig and complete the excavations to

ensure that the proper amount of gravel is used for the roads and buildings to provide stable

foundations. Ms. Schindler stated in her trial affidavit that the owner of Delta Concrete

Projects estimated that it will cost $168,000.00 to remedy the gravel deficiencies. This

testimony is undisputed and unchallenged by the Millirons. Accordingly, the court accepts that

the Schindlers were damaged by Garth’s and Jarred’s fraudulent gravel misrepresentations in

the amount of $168,000.00.

b. The Septic System and House

Much of the trial focused upon DCC’s failure to complete the Schindlers’ house on the

Property. It was not for a lack of effort. DCC put in a foundation and worked on the house

between 2014 and 2016. Unfortunately for all, DCC constructed the house foundation in the

water table. This created continuous problems that remained unresolved as of the trial. The

Schindlers presented unrebutted testimony at trial that the prudent course of action is to

demolish the current structure and build a house anew. Ms. Schindler has testified that they

paid DCC a total of $398,176.00 for work constructing the house and paid an additional

$44,505.00 to others attempting to solve the problems with the house.160

The Schindlers assert that the Millirons generally defrauded them in the construction of

their house though the specifics of the fraud are difficult to pin down. The work for the septic

system and house were done under separate contracts.161 The Schindlers claim that the

160 Plaintiffs’ Trial Exhibit 1, pp. 7-8.

161 Plaintiffs’ Trial Exhibit 7, pp. 3-4 (septic system); and 8, pp. 18-19 (house contracts).

33

Millirons defrauded them on both projects. Regardless of the exact claim for fraud considered,

each claim related to the house is ultimately based on DCC’s placement of the septic system

and house foundation in the water table. In this regard, each project provides important context

for the fraud claims and are examined together.

The parties discussed the initial phase for the foundation of the Schindlers’ house and

the septic system in the spring of 2014. Garth actually presented Ms. Schindler with an

estimate for the septic system as early as March 7, 2012, but work did not begin until 2014. On

May 24, 2014, Jarred sent Ms. Schindler an email promising to have the septic system finished

before the Schindlers returned to Alaska from South Dakota later that summer.162 Ms.

Schindler accepted DCC’s bid to construct the basement portion of the house, and was advised

that the work should be finished and connected to an existing septic system by July 7, 2014.163

There is some confusion regarding the order of events for the two projects. Jarred

repeatedly testified at trial that he dug the house foundation and septic system prior to the house

well being dug on June 4, 2014.164 But Ms. Schindler testified that when they returned to Delta

Junction on June 7, 2014, there was a hole for the house foundation but DCC had not yet

installed the septic system.165 Jarred testified at trial that he dug a test hole for the septic

system before digging out the larger hole to install that system.166 Ms. Schindler believed that

162 Plaintiffs’ Trial Exhibit 8, p. 3.

163 Id. at pp. 4, 18.

164 Jarred Milliron Testimony, Adv. ECF No. 59 at 2:16:58-2:17:10; Adv. ECF No. 60 at 3:21:03-3:21:29.

165 Schindler Testimony, Adv. ECF No. 54 at 1:52:30-39; Adv. ECF No. 62 at 47:51-48:27.

166 Jarred Milliron Testimony, Adv. ECF No. 59 at 2:10:04-2:10:14. It remains unclear to the court how a “test

hole” might differ from a “test pit” as mandated by the state of Alaska.

34

construction on the septic system began sometime between June 16 and June 20, 2014.167 The

court received no evidence regarding the depth of the test hole or at what depth water was

present.

At trial Jarred insisted that water was fifteen feet below the surface notwithstanding the

well log for the house well dug on June 4, 2014, which placed static water at only ten feet.168

He also testified that he checked the shop well 300 feet away multiple times with his tape

measure and consistently obtained a measurement of water depth at 25 feet. When pressed at

trial, Jarred admitted he could not explain the significant discrepancy.169 Jarred did admit that

he struck water when he was digging the septic system.170 According to his testimony he dug

the septic system simultaneously with the foundation for the home.171

Again, Jarred said that the septic system was dug out mere days before the house well

was dug.172 The wells for the house and barn were drilled on June 4, 2014.173 They revealed

static water present at 10 feet for the house well and 12 feet for the barn well.174 Jarred did not

share the reports with the Schindlers at that time. Ms. Schindler testified that she did not

167 Schindler Testimony, Adv. ECF No. 62 at 49:39-50:41.

168 Jarred Milliron Testimony, Adv. ECF No. 60 at 3:25:12-3:25:20.

169 Jarred Milliron Testimony, Adv. ECF No. 59 at 2:12:32-2:14:23.

170 Id. at 2:12:24-2:12:29.

171 Id. at 2:10:22-2:10:38.

172 Id. at 3:26:18-3:26:27.

173 Schindler Testimony, Adv. ECF No. 62 at 47:29-47:43; see also Plaintiffs’ Trial Exhibit 24, pp. 2-3. These

wells were not the first dug in connection with the project: a sixty-foot well was dug on the Property on June 3,

2012, revealing static water present at 23 feet below the ground surface. Plaintiffs’ Trial Exhibit 24, p. 1. The

location of that well was described as “on Barley Way off Sawmill Creek.” Id.

174 Plaintiffs’ Trial Exhibit 24, pp. 2-3.

35

receive the 2014 well logs until 2016, well after construction of the septic system was

completed and the problems had manifested.175

In short, Jarred never told the Schindlers how close water was to the surface of where

they had decided to locate their septic system and house. Still, the issue arose after the

Schindlers returned to Delta Junction on June 20, 2014. They left for South Dakota on June 23,

2014, but sometime in between, the Schindlers had a conversation with Jarred regarding the

septic system.176 Ms. Schindler testified that she and Mr. Schindler expressed their concerns

regarding how shallow the septic system appeared to be. She testified that Jarred responded

that he had hit water and could not dig any deeper because he was concerned the system would

float.177 Nonetheless, Jarred pressed on with the construction of the house and never raised a

concern about its foundation.

On July 2, 2014, Ms. Schindler emailed Jarred asking if the concrete pad for the house

foundation had been poured that day.178 The following day, Jarred replied that the pad had

been poured and he was working on the basement walls.179 Ms. Schindler testified that later

that same day, the Schindlers received a phone call from Jarred who informed them that they

175 Schindler Testimony, Adv. ECF No. 56 at 1:54-2:01. Ms. Schindler received them only after she requested

them from Jarred on the recommendation of Hammond. Id. at 2:01-2:23. The court notes, however, that Jarred did

notify the Schindlers that the wells were scheduled to be dug at the end of May 2014. See Plaintiffs’ Trial Exhibit

8, p. 1.

176 Schindler Testimony, Adv. ECF No. 56 at 51:05-51:15.

177 Id. at 51:16-51:30.

178 Plaintiffs’ Trial Exhibit 8, p. 7.

179 Id.

36

needed to install a lift in the basement.180 When the Schindlers asked what a lift was, Jarred

explained that a lift station was needed to lift the waste from the basement bathroom up into the

septic system.181 Ms. Schindler testified that Jarrred required an answer immediately and told

them there was no time for the Schindlers to consult their house plans because the concrete

trucks were arriving to pour the walls of the basement. Pressed for an immediate answer, the

Schindlers agreed to Jarred’s recommendation for the lift station.182

Upon their return to Alaska on July 21, 2014, the Schindlers noticed that the septic line

in the basement was coming through the wall.183 The line was placed four feet up the wall

from the floor. Ms. Schindler testified that at the time they did not understand why a lift station

was needed or why the septic line was coming in through the wall. Ms. Schindler further said

that they received no explanation from Garth or Jarred why a system requiring a lift had been

constructed or the implications for the placement of their foundation.184

The Schindlers then signed a second contract on July 26, 2014 for framing and roofing

the house in the amount of $188,900.00.185 The single page document stated that “[t]his is to

provide a sealed water proof home that is ready to be insilated [sic] and heated for winter.

180 Schindler Testimony, Adv. ECF No. 54 at 1:56:14-1:56:20.

181 Id. at 1:56:21-1:56:32.

182 Id. at 1:56:33-1:56:54. The court notes that Jarred’s trial testimony regarding the telephone conversation with

the Schindlers about the lift station differs significantly from Ms. Schindler’s. The court finds Ms. Schindler’s

testimony regarding the timing and content of the call more persuasive than Jarred’s testimony based on the detail

of Ms. Schindler’s recollections as compared to Jarred’s vague recollections presented at trial. See Jarred Milliron

Testimony, Adv. ECF No. 59 at 2:15:01-2:15:08; Adv. ECF No. 60 at 3:23:40-3:24:44.

183 Schindler Testimony, Adv. ECF No. 54 at 1:57:11-1:57:26.

184 Id. at 1:57:34-1:58:04.

185 Plaintiffs’ Trial Exhibit 8, p. 19.

37

Expected completion date will be September 9th [sic].”186 The Schindlers made it clear that

they were hoping to move into the basement of the house by September 2014, so they could

work on the interior of the home during the 2014 winter.187 That did not happen. The house

was not sealed, waterproofed, or roofed prior to the snowfall in the winter of 2014.188 The roof

was nearly finished in or around November 2014,189 though no metal was on the roof as of

early 2015, nor were the windows installed.190

It is unclear when the parties realized the severity of the water problems with the house.

Emails introduced into evidence include a partial email chain dated July 11, 2016, with the

subject, “water in the house basement.”191 In one of the emails in that chain from Jarred to Ms.

Schindler he tells her: “At this point, you need to decide whether your [sic] going to lift the

house so that you can move forward.”192 By this time it is clear that the water was a major issue

though the email focused upon runoff resulting from the grading around the Property.193

Sometime in late 2015 or early 2016, the Schindlers asked Ronald Enderle, a local

contractor in Delta Junction, to look at their house to see if he could help get the project

completed. After his first look at the house, Enderle raised serious concerns “both as to the

186 Id.

187 Schindler Testimony, Adv. ECF No. 54 at 1:48:42-57.

188 Id. at 2:04:31-2:04:51.

189 Id. at 2:17:25-2:17:34.

190 Schindler Testimony, Adv. ECF No. 55 at 3:13-3:18.

191 Plaintiffs’ Trial Exhibit 8, p. 13.

192 Id. at p. 13.

193 Id. (“The grade around the windows needs to be raised. It looks like water is coming directly into the basement

windows.”).

38

material used and as to the building methods used with the construction.”194 Enderle eventually

addressed the house foundation:

Most glaring, the Schindlers’ residence had been constructed in the water

table. The foundation floor has cracked. Redoing that foundation is required for

it to avoid continuing defects that enable water migration and settlement. A

cracked foundation and building in the water table are signs of defective

construction. The basement was placed beneath the level of the septic system

enabling backflows through the septic holding tank into the basement when the

water table rises with the spring thaw. The placement of the septic system is

also problematic for freezing. The Schindlers were advised to suspend work on

the residence as other problems became more glaring and more immediately

pressing. 195

This leads the court to agree with Anderson and his conclusion that Jarred had to know

that the septic system was being constructed within the water table as soon as they realized they

needed to install a lift station for the septic line coming in approximately four feet above the

basement floor.196 As Anderson explained, “[t]he residence sewer system was constructed

within the water table, with resulting back flooding through the septic holding tank into the

house basement.”197 This is because, as Enderle explained, the basement was placed beneath

the level of the septic system.198

As the Schindlers pointed out in their closing brief, “[a]t this point Millirons still could

have filled in the basement excavation to above the level of the septic line. Instead, without

194 Plaintiffs’ Trial Exhibit 18, p.2.

195 Id. at p. 3, ¶ 7; see also Enderle Testimony, Adv. ECF No. 57 at 58:05-58:37; Anderson Testimony, Adv. ECF

No. 58. at 1:06:50-1:08:08; see also Plaintiffs’ Trial Exhibit 19, p. 36.

196 Anderson Testimony, Adv. ECF No. 58 at 2:17:44-2:19:28.

197 Plaintiffs’ Trial Exhibit 19, p. 2, ¶ 3.

198 Plaintiffs’ Trial Exhibit 18, p. 3, ¶ 7.

39

disclosing to Schindlers the potential problems of a high water table and a low basement pour,

the Millirons poured a basement four feet below the level of the septic.”199 This is exactly what

happened. The Schindlers’ witnesses at trial all agreed that the basement foundation was placed

at the top of the water table. Even the Millirons’ own expert Richard Tilly stated that the water

issues presented would “raise some red flags” and give him cause for concern if he were

building that foundation.200 This ensured significant and ongoing problems with the

construction of the house that have not been solved.

The Schindlers again argue that the Millirons fraudulently misrepresented their abilities

to construct their house. The court agrees that in retrospect, the Millirons did misrepresent

their capabilities and competence. The results of the project overall, and with the house in

particular, speak to this point. DCC was never able to complete the Schindlers’ house due to

the problems they encountered. But the same concern remains: the Millirons believed they

were capable and competent enough to perform the work. They did not abandon the job or

simply run with the money. They stayed on the job and attempted to address the problems as

they arose. This demonstrates negligence of some degree but not knowing deceit as to the

representation of their credentials and abilities.

The Schindlers also argue that the Millirons defrauded them by failing to disclose the

water problems with the house construction. Whether viewed as false pretenses or a failure to

disclose, the Schindlers contend that the Millirons knowingly mislead them or failed to disclose

that the foundation was placed in the water table. There is no question that the water level was,

199 Plaintiffs’ Closing Brief, Adv. ECF No. 66, p. 25.

200 Tilly Testimony, Adv. ECF No. 60 at 1:16:43-1:16:55; 1:18:25-1:18:40.

40

and remains, a material fact in the construction of the house. And there is evidence that Jarred

knew that he placed the house foundation in, or at, the water table. He hit water when digging

the septic system and even admitted to Ms. Schindler that he could not put it any deeper due to

the water concerns. Then, according to his testimony, he was told that there was static water

only 10 feet below the surface of the hole dug for the house well. Both of these events

occurred before Jarred poured the house foundation.201

The court must also consider the lift station as well. Septic systems are generally

supposed to be lower than the basement foundation and work on gravity. But Jarred realized

that a lift station was needed to lift waste from the basement because the Schindlers’ septic

system was higher than the basement foundation. If Jarred could not dig the septic system

deeper due to water concerns and poured the house foundation lower than the septic system, it

follows that he placed it within the water table, especially since the hole for the house well

found static water at only 10 feet. Yet he proceeded to pour the house foundation, install the

lift station, enter the contract to frame and roof the house, and generally continued to construct

the house. These actions all represented and gave the impression that the foundation was

sufficiently deep to warrant further construction of the house at that location. It was not.

Either Jarred knew that he was placing the foundation in the water table, or he did so

recklessly. Unlike the general qualifications, there were numerous red flags within his actual

knowledge that either proved or strongly suggested that the house foundation was being placed

201 Jarred testified at trial that the house foundation was poured prior to the wells being dug on June 4, 2014.

Jarred Milliron Testimony, Adv. ECF No. 59 at 2:16:57-2:17:05 (“We even put two other wells in, after the

concrete foundation of the house was in.”). Jarred also admitted at trial, however, that he previously testified that

the foundation was poured after the wells were dug. Jarred Milliron Testimony, Adv. ECF No. 60 at 3:21:59-

3:22:09. The court has concluded that Ms. Schindler’s testimony, which reflected that the house foundation was

poured after the wells were dug on June 4, 2014, is more persuasive than Jarred’s conflicting testimony regarding

the timing of the concrete foundation being poured.

41

too deep given the surrounding water table. The court finds that Jarred knowingly intended to

deceive the Schindlers to continue with the house construction. The evidence in this instance is

simply overwhelming that Jarred knew that the foundation was being poured into the water

table and failed to inform the Schindlers of this fact or the significance of what he was doing.

There is no other explanation for his insistence on the lift station without explaining to the

Schindlers that the septic system was higher than the basement floor.

Even if Jarred did not subjectively appreciate this fact, the circumstances surrounding

the septic system, the hole for the house well, and the need for the lift station convincingly

demonstrate that he was reckless as to both the knowledge and intent elements. At the very

minimum, Jarred knew there was “a chance, more or less great, that the fact may not be as

represented.”202 Here, the misrepresented fact was the suitability of a foundation placed within

a water table that was lower than the connected septic system. The court appreciates that

recklessness does not equate to fraudulent intent, but the totality of circumstances here “tends

to establish” that Jarred must have actually known that laying the house foundation at that

depth was putting it into the water table and ensuring that the Schindlers could not build a

structurally safe and sound house.203 The need to immediately decide on the lift station plays

into this equation given the significance of what was at stake – the foundation of the house.

That Jarred did not explain the significance of the lift station, or the option to raise the

foundation of the house in light of the water concerns, provides additional evidence of deceit.

202 Gertsch, 237 B.R at 168 (quoting Restatement (Second) of Torts § 526, cmt. e).

203 See Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1106 (9th Cir. 2005) (quoting Carillo v. Su (In re Su), 290 F.3d

1140, 1146 n.6 (9th Cir. 2002)).

42

By immediately pouring the foundation, Jarred and DCC were able to convince the Schindlers

to continue with the first house contract and enter into the second contract to continue to build

the house. For these reasons, the court finds that the Schindlers have proven that Jarred

knowingly mislead the Schindlers into believing that their house was being properly

constructed and failed to disclose that the foundation was set in the water table with the intent

to deceive.

The remaining elements are not seriously disputed. The Schindlers clearly relied on

Jarred when entering into both house contracts. They relied on his explanations as to the depth

of the septic system and the need for the lift station, and the implied representation that neither

represented any reason to stop the construction of the house. Their reliance was justifiable and

they were damaged as a result of the false pretense and failure to disclose the issue with the

water table. Jarred does not contest the calculation of the damages related to house contract.

The court, therefore, holds that Jarred is liable for damages for his fraudulent false

pretense and failure to disclose that the foundation was sitting in the water table, and such

damages are nondischargeable under § 523(a)(2)(A). Ms. Schindler stated in her trial affidavit

that Anderson estimates it will cost $394,650.00 to tear down the existing structure and rebuild

the residence to the current level of completion.204 The Schindlers also incurred $44,505.00 in

costs attempting to solve the problems with the existing structure.205 This testimony is

undisputed and unchallenged by the Millirons. Accordingly, the court accepts that the

Schindlers were damaged by Jarred’s fraudulent false pretenses and omissions in the amount of

204 Plaintiffs’ Trial Exhibit 1, p. 8.

205 Id.

43

$439,155.00. However, the Schindlers have not established that Garth made similar false

pretenses or failed to disclose the information regarding the foundation. Rather, all the

evidence suggests that that the Schindlers’ interactions with DCC regarding the foundation

were with Jarred. Accordingly, the court finds that they have failed to prove any fraud as to

Garth arising from the house contracts.

Finally, the court also holds that the Schindlers have failed to prove any fraud as to the

work related to the septic system itself. The Schindlers have not established any

misrepresentations. Indeed, it appears that Jarred readily admitted that he had hit water when

working on the septic system and that he could not place the system any deeper. As developed

at trial, the problem was with the house not the septic system. All parties seem to agree that the

house should have been raised to account for the shallow water table. But this does not

translate to fraud for the work performed and billed on the septic system.

c. Barn Contract

Garth and Ms. Schindler began discussing construction of the Schindlers’ barn as early

as March 1, 2012, well before DCC began any construction. On that date, Garth assured Ms.

Schindler in an email that he “grew up in Pennsylvania in an area covered with old fashioned

post and beam barns” and that if she wanted “a traditional barn we can do one but the cost will

definitely be more than newer construction methods.”206 Nine days later, Garth emailed Ms.

Schindler a drawing of the proposed barn, with 8” x 8” beams making up the “main structure

on the bottom” and the upper floor “balloon framed between the beams on the long walls and

206 Plaintiffs’ Trial Exhibit 5, p. 1.

44

standard framing on the end walls.”207 According to Garth, “the beams would provide support

for the long wall without all the extra bracing.”208

On April 6, 2012, Garth and Ms. Schindler exchanged emails detailing numerous

aspects of the barn and garage/shop the Schindlers wanted built. In his responding email, Garth

stated that some of his answers to the Schindlers’ questions were based on his “personal

preferences as a builder,” with others “because there is no engineered plan which makes us the

engineers as well as the builders and we want to be sure your buildings will be as structurally

sound as possible.”209 He further assured Ms. Schindler that “[w]e try to be as reasonable as

possible with our customers while maintaining a reputation of quality that will pass inspection

even if there is no inspector.”210

Garth sent additional drawings on April 7, 2012 seeking clarification from Ms.

Schindler regarding gates and stalls in the barn, noting that “[w]e can easily add the extra posts

just want to make sure it is necessary or possibly change the post arrangement to avoid

unneeded posts.”211

On April 18, 2012, Garth Milliron sent the Schindlers what he referred to as a “sample

contract” for the barn containing estimated costs and a timeline.212 His email accompanying

the sample contract provided that “[i]f we during the construction of the building we [sic] find

207 Id. at p. 2.

208 Id.

209 Plaintiffs’ Trial Exhibit 2, p. 13.

210 Id.

211 Id. at p. 3.

212 Plaintiffs’ Trial Exhibit 2, p. 18; see also Defendants’ Trial Exhibit A (contract).

45

we have overcharged for any area of labor or materials we will include a credit in the billing of

the next phase.”213 Construction of the barn was broken down into seven phases, with the

Schindlers paying Millirons upon completion of each phase.214

Among other things, the sample barn contract included a charge of $8,500.00 for

“Fasteners: Nails, screws, plates, brackets, bolts, hinges, latches etc.”215 On April 23, 2012, the

Schindlers emailed Garth with a number of questions about the barn contract. One question

pertained to the fasteners, to which Garth responded, “[t]he fasteners for the post and beam

section are quite extensive.”216

The Schindlers signed the contract with DCC for construction of a gambrel roof post

and beam barn on May 16, 2012.217 The contract provided that “DCC agrees to perform all

work in the time frame desired by owner.”218 The construction schedule provided for

completion of the barn by August 31, 2012.219 DCC completed the barn construction in

September 2014.220 The Schindlers paid DCC $228,612.00 for construction of the barn in a

series of payments stretching from April 16, 2012 to October 12, 2015.221

213 Plaintiffs’ Trial Exhibit 2, p. 18.

214 Defendants’ Trial Exhibit A, pp. 2, 5.

215 Id. at p. 1.

216 Plaintiffs’ Trial Exhibit 5, p. 11.

217 Defendants’ Trial Exhibit A.

218 Id. at p. 2.

219 Id.

220 Plaintiffs’ Trial Exhibit 1, p. 3.

221 Id.

46

When the Schindlers asked Enderle to review the construction project in late 2015 or

early 2016, his examination included the barn. The Schindlers began by asking him to examine

widening gaps they were noticing in the structure.222 His initial impression was that the

building was a total loss.223 He recommended to the Schindlers that the building needed to be

engineered because “the structure didn’t seem secure.”224

In April of 2016, the Schindlers hired civil engineer Stephen Hammond at Enderle’s

recommendation. Hammond inspected the structures on their property, including the barn.225

Hammond’s initial inspection revealed “multiple, notable construction deficiencies.”226

Though intending to only write a letter to the Schindlers regarding his findings, he composed a

12-page report accompanied by ten pages of photo documentation because he “thought it would

help [the Schindlers] see the magnitude of the problems.”227 He subsequently conducted a

preliminary “as-built” inspection of the barn, which uncovered additional major problems in

that structure.228 He concluded that “[i]n all my years of engineering and construction I have

not seen this level of error in a project.”229 Because he did not “see a successful outcome”

resulting from DCC’s construction work for the Schindlers, in July 2016 Hammond notified the

222 Plaintiffs’ Trial Exhibit 18, p. 2, ¶ 5.

223 Enderle Testimony, Adv. ECF No. 57 at 1:15:36-1:15:45.

224 Id. at 52:17-52:55.

225 Plaintiffs’ Trial Exhibit 20, p. 2, ¶ 3.

226 Id. at ¶ 4.

227 Id. at p. 19.

228 Id.

229 Id.

47

Schindlers that he would limit his company’s further involvement in the project.230 Hammond

did, however, offer to complete the retrofit design and structural analysis for the barn.231 In

August 2016, he sent the Schindlers a letter summarizing his telephone conversation with them

in which he discussed the following preliminary findings of the structural analysis of the barn:

• Undersized roof framing members, requiring full replacement;

• Undersized and inadequate foundation, requiring full replacement; and

• Inadequate framing member connections requiring additional hardware.232

Based on his assessment, Hammond opined that the building was “not worth the money to

retrofit” and should be considered condemned.233

Engineer Michael Anderson’s subsequent inspection of the barn in 2017 revealed

numerous problems that he concluded “posed a serious risk to the life-safety of any occupants

and/or farm animals.”234 Upon entering the building for his initial inspection with the

Schindlers, he described the problems with the barn as “atrocious… there were things that were

just so obvious and so blatant it was scary.”235 These problems included: the absence of a

lateral bracing system, which was causing the structure to lean; inadequate wind and seismic

bracing; concrete foundation footings of mere inches thick, with the requisite rebar

reinforcement laying in the gravel below the footings instead of being embedded in the

230 Id.

231 Id.

232 Id. at p. 20.

233 Id.

234 Plaintiffs’ Trial Exhibit 19, p. 24.

235 Anderson Testimony, Adv. ECF No. 58 at 1:33:44-1:33:58.

48

concrete; undersized roof framing for bearing snow and wind loads; inadequate wall framing

which could not withstand maximum expected wind pressures; and second floor beams which

were insufficient to bear the anticipated hay load.236 Anderson stated that these defects posed

“immediate and serious risk of catastrophic failure.”237

Instead of abandoning the barn, the Schindlers opted to repair it. Greenstreet was hired

to lift the barn so the foundation could be repaired.238 At his first visit to examine the barn,

Greenstreet noted that the barn was constructed below grade.239 When Greenstreet raised the

barn, one of the bolts in the posts was not removed as it should have been. Typically, such an

error should have resulted in the bolt tearing through the wood when the structure was raised.

In the case of the Schindlers’ barn, however, it caused the entire footing to be pulled out of the

ground when the barn was raised.240

Greenstreet explained that the rebar would typically be located at a mid-point in the

lifted footer, but here it was instead laying on the ground underneath the footer.241 In short, the

rebar was providing no structural support. Additionally, Greenstreet testified that when he

raised the barn initially, it was discovered that the foundation was laid on top of silt, not

gravel.242 Greenstreet charged the Schindlers an extra $2,000.00 for his services because the

236 Plaintiffs’ Trial Exhibit 19, pp. 24-25.

237 Id. at p. 2.

238 Plaintiffs’ Exhibit 14, p. 4, Transcript pp. 12:15-13:6; 16:13-16.

239 Id. at Transcript p. 13:4-8.

240 Id. at p. 5, Transcript pp. 14:9-15:22.

241 Id. at Transcript p. 16:3-12.

242 Id. at Transcript p. 17:9-10.

49

barn needed to be raised an extra twelve inches to allow equipment underneath to dig out and

fill in the ground below the barn with gravel.243 Complicating matters, Greenstreet determined

that the second story of the barn was not correctly supported against shear forces when

constructed, so it had to be bracketed and chained to avoid the roof toppling when it was

raised.244 Greenstreet charged the Schindlers $62,000.00 for his services.245

With Anderson as engineer, Enderle “made the prescribed repairs” to the barn,

including “redoing the foundation, above the known grade” and installing “major structural

reinforcement” in the entire barn.246 As of March 2018, the cost to repair the barn incurred by

Enderle alone was $239,311.00, with an additional $20,000.00 estimated to complete his

portion of the project.247 He testified that with the work completed, the barn is now structurally

sound.248

Garth testified at some length about features of the barn in Minnesota that the

Schindlers had requested. The Millirons attempted to replicate those features in their

construction.249 To prepare, Garth looked at books and other materials, and drew upon his

knowledge of the barns he grew up with in his youth in Pennsylvania.250 In his trial testimony,

243 Id. at Transcript pp. 16:22-17:8.

244 Id. at p. 9, Transcript pp. 30-24-31:17; pp. 12-13, Transcript pp. 45:18-46:16.

245 Id. at p. 5, Transcript p. 16:17-19.

246 Plaintiffs’ Exhibit 18, p. 4, ¶ 11.

247 Id. at ¶ 18.

248 Enderle Testimony, Adv. ECF No. 57 at 1:24:49-1:25:02.

249 Garth Milliron Testimony, Adv. ECF No. 61 at 1:03:04-1:08:49.

250 Id. at 1:08:51-1:09:35.

50

he detailed the aspects of the barn construction and explained why he and Jarred thought their

construction of the barn was adequate.251 In his view, he considered Anderson’s work to be

“way beyond excessive.”252 According to Garth, building standards in the agricultural context

were considered more relaxed than those in a residential or commercial context, so as to be

more affordable.253 This appears to be Garth’s opinion as no documentation or expert

testimony was provided to corroborate this. Despite the testimony and reports of several

engineers to the contrary, Garth firmly believed that the barn was “sound,” and said he would

have been willing to fix whatever problems may have been present.254

The court accepts the testimony of the Schindlers’ witnesses identifying numerous,

substantial problems with the barn. Their testimony is based on scientific and thorough

analysis and remains unrefuted except for the Millirons’ opinion that it was soundly built.

Again, the court concludes that the Millirons overestimated their expertise and competency.

They were negligent in the construction of the barn, and probably grossly negligent. And

again, the Millirons do not challenge that the Schindlers were damaged in the amount of

$364,085.00 from these misrepresentations.

But the court does not find that the Millirons knowingly and intentionally deceived the

Schindlers. The Millirons undertook the project and constructed the barn as requested by the

Schindlers. They explained their reasons for building the barn in the manner they did. Their

251 Id. at 1:17:48-1:25:47.

252 Id. at 1:31:47-1:32:07.

253 Id. at 1:32:08-1:33:04.

254 Id. at 1:56:21-1:57:17.

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conduct reveals no effort to profiteer by cutting corners on the materials used. They did not bill

for better quality materials while using inferior ones to skim money from the project. Most

significantly, they maintained a continuing dialogue with the Schindlers throughout the process

and well after problems emerged.255 They accepted responsibility for the problems and made

some effort to correct them until the Schindlers turned over the work to Enderle and others.256

Fundamentally, the Millirons promised to build the Schindlers a barn. They did so.

Unfortunately, it was not built well and has required significant repairs. This sounds in breach

of contract and negligence. It does not, however, prove fraud because there simply is

insufficient evidence to prove that the Millirons knowingly and intentionally attempted to

deceive the Schindlers. In this instance, the court does not find that the totality of

circumstances provides the additional indicia of an intent to deceive necessary to support a

finding of fraudulent intent based on recklessness.

d. Garage/Shop Contract

The contract for construction of the shop was also signed by the Schindlers on May 16,

2012.257 It provided for, among other things, a 4/12 pitched roof with trusses spaced four feet

apart.258 As with the barn, the gravel and foundation portion of the work to be performed was

incorporated into the 2012 gravel contract. The shop contract was also broken down into seven

phases, with the Schindlers paying Millirons upon completion of each phase.259

255 Id. at 1:56:25-1:58:06; Jarred Milliron Testimony, Adv. ECF No. 60 at 2:26:30-2:27:11.

256 Id.

257 Plaintiffs’ Trial Exhibit 6, p. 1.

258 Id. at p. 4.

259 Id. at p. 2.

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Unlike the barn, the shop contract was not accompanied by any drawings or plans

depicting how the building would be constructed. Instead, the Schindlers described their South

Dakota garage and shop building and asked DCC to duplicate that structure on the Property.260

They discussed installation of in-floor heating in the shop’s concrete pad.261 The parties also

contemplated that the Millirons would construct their own roof trusses. The Millirons testified

that they were comfortable building their own trusses and relied on a book on building

trusses.262 Construction of the shop was projected to be finished on September 28, 2012.263 It

was ultimately completed in the spring of 2013.264 Schindlers paid DCC a total of $221,013.00

for construction of the shop.265

After Enderle examined the Property, he recommended an engineer inspect the

garage/shop because he had “noted the garage/shop trusses being of concern given the nature of

visible structure and spacing…As constructed, the trusses are undersized, and over-spaced.”266

Hammond was the first engineer to inspect the garage/shop, in April 2016. He noted that the

trusses built on-site were inadequate, being too far apart with oversized span and “no allowance

for wind, seismic, or snow loads.”267 Hammond stated that he discussed the trusses with

260 Schindler Testimony, Adv. ECF No. 54 at 1:31:34-1:32:03.

261 Id. at 1:32:04-1:32:32.

262 Id. at 1:33:36-1:33:49.

263 Plaintiffs’ Trial Exhibit 6, p. 2.

264 Plaintiffs’ Trial Exhibit 1, p. 4.

265 Id.

266 Id. at pp. 3-4, ¶ 10.

267 Plaintiffs’ Trial Exhibit 20, p. 17.

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Jarred. In that discussion Hammond pointed out that Jarred had built the wrong trusses based

on the information in the truss book DCC used.268

On February 16, 2017, Anderson sent the Schindlers an email described as his “official

notice that the shop trusses are in danger of failure” and needed to be fixed “ASAP.”269 His

calculations attached to the email revealed that the bottom chord members were overstressed by

400%, and the bottom chord connections were overstressed by 1400%.270 His analysis was

followed by drawings for the proposed “shop truss bottom chord emergency repair” and

“emergency retrofit.”271 Subsequently, Anderson also noted that the wood used to build the

trusses was not the machine-stress-rated lumber typically used for truss construction, but rather

was non machine-stress-rated lumber.272 Anderson concluded that the trusses as constructed

were “grossly inadequate and in imminent danger of collapse”273 and “would not support any

amount of snow load.”274 He further recommended that “[a]fter seeing the roof truss short

comings [sic], it is clear the building needs a complete structural review/inspection when time

allows.”275

268 Id. p. 4.

269 Plaintiffs’ Trial Exhibit 19, p. 6.

270 Id. at p. 19.

271 Id. at pp. 20-21.

272 Id. at p. 25.

273 Id. at p. 3.

274 Id. at p. 6.

275 Id. at p. 25.

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The Schindlers’ fraud claims arising from the shop contract mirror the claims related to

the barn. In both instances the Schindlers argue that the Millirons misrepresented their

qualifications and competency. They did. But their misrepresentations sound in negligence,

not fraud. The Millirons believed they were qualified and experienced enough to design and

construct the necessary trusses and competently build the shop. They failed to do so. Once

again, the number of significant problems identified with the shop specifically, and with the

project generally, are problematic. But the Millirons did build the Schindlers a shop and made

some attempt to address the problems as they arose. There is no evidence that the Millirons

ever appreciated the problems with the construction of the shop as they were building it such

that they knowingly created a false pretense or failed to disclose the problems. As with the

barn, the court also finds that the totality of circumstances does not establish the underlying

intent to deceive necessary to conclude that any recklessness proves a fraudulent intent. In

sum, the Schindlers have not proven that the Millirons knowingly and intentionally deceived

them in constructing the shop.

e. Electrical Contract

In early March 2012, the Schindlers asked Garth Milliron about getting power to their

buildings on the Property. Garth responded by estimating the cost “per pole” at $80,000.00.

Garth also stated that “[w]e do understand and work with alternate systems including:

generators, inverters, battery pack backups, etc. I actually have battery backup with inverter in

my home.”276 During the Schindlers’ visit to Alaska in May 2012, the Millirons committed to

creating an off-grid electrical system for the Schindlers involving the construction of a

276 Plaintiffs’ Trial Exhibit 7, p. 1.

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generator shed and incorporation of electrical components into the barn and garage/shop

contracts.277 Jarred provided the Schindlers with a proposal for the electrical system in 2013,

together with additional proposals.278 The estimated cost for the power system as initially

proposed was $54,800.00.279

It was not until April 2014, that the Schindlers signed a contract for the electrical

system. Jarred designed the system and estimated the cost at $55,500.00, plus $37,600.00 for

creation of the power generation system and shed.280 The actual contract differed from the

proposal in that it provided for only one generator instead of two, with 10 kilowatts less power.

Jarred signed the contract as the contract performer.281 By the end of 2014, Jarred completed

the initial electrical contract.282 Additional costs were incurred in 2015 to run power to the

house, barn and machine shed.283 The Schindlers also added solar power to the system.284

According to Ms. Schindler, between July 25, 2012 and February 8, 2016, they paid DCC

277 Schindler Testimony, Adv. ECF No. 54 at 2:07:07-2:07:20.

278 Id. at 2:09:29-2:10:09; see also Plaintiffs’ Trial Exhibit 7, pp. 2-3.

279 Plaintiffs’ Trial Exhibit 7, p. 3.

280 Id. at p. 6. As noted in the Plaintiffs’ Trial Brief, the barn and shop contracts also contained electrical work.

Plaintiffs’ Trial Exhibit 6, p. 1 and Plaintiffs’ Trial Exhibit 5, p 17.

281 Plaintiffs’ Trial Exhibit 7, p. 6. Garth sent Ms. Schindler emails in 2012 referencing electricity and alternate

power systems. The court finds that those statements did not give rise to any actionable representations by Garth.

There are no specific allegations that Garth made any misrepresentations or false pretenses as to the electrical

contract. Rather, the actions at issue were taken by Jarred. Therefore, the court considers the claims for fraudulent

misrepresentation and false pretense to be directed against Jarred based upon his representations and actions.

282 Schindler Testimony, Adv. ECF No. 54 at 2:14:08-15.

283 Plaintiffs’ Trial Exhibit 7, pp. 7-9.

284 Id. at p. 9.

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$149,237.00 for a generator, battery bank, inverters, solar panels and construction of a

generator shed as part of their off-grid power system.285

There is a sharp dispute whether Jarred told the Schindlers that he was licensed to do

electrical work. Ms. Schindler testified that Jarred told her just that: that he was a licensed

electrician. In her testimony she said that both Jarred and Garth had told her that Garth worked

under an electrical administrator.286 According to Ms. Schindler, Jarred also told her that one

of his workers wanted to work on the Schindlers’ power system but would not do so unless

Jarred was there so he could work under his license.287 No time frame was provided for that

conversation. When asked, Ms. Schindler said that she believed Jarred was licensed to do

electrical work and would not have allowed him to work on the power system if she had known

otherwise.288

Jarred acknowledged at trial that he was not a licensed electrician.289 He was

unequivocal that he had told Ms. Schindler that he was not licensed to do the electrical work.290

Though he admitted that there was nothing in writing advising the Schindlers that he was not a

licensed electrician, he testified that he informed the Schindlers several times that he was not an

electrician.291 He believed that he could work on the Schindlers’ power system, however,

285 Plaintiffs’ Trial Exhibit 1, p. 5.

286 Schindler Testimony, Adv. ECF No. 55 at 1:07:52-1:08:02.

287 Id. at 1:08:03-1:08:38.

288 Id. at 1:07:29-1:07:41.

289 Jarred Milliron Testimony, Adv. ECF No. 59 at 1:14:56-1:14:59; Adv. ECF No. 60 at 2:12:34-2:12:36.

290 Jarred Milliron Testimony, Adv. ECF No. 59 at 1:15:39-1:15:45.

291 Id. at 1:15:46-1:16:21.

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because it was an off grid system.292 Jarred was ultimately informed by the State of Alaska that

this was wrong, but the court accepts that this was his subjective belief when he undertook the

electrical work. Jarred’s position is consistent with the Millirons’ overall view of construction

in Delta Junction, a lack of inspection, and the lack of enforcement in the area.

Jarred explained that he lived in a community that used off grid power and had worked

on that system and on his own property.293 He also testified that during the project he

contacted the two electrical administrators in Delta Junction about the project, but neither was

willing to work on the project.294 Jarred explained that he thought he could handle the creation

of the off grid electrical system with the assistance of Susitna Energy, the company from which

some of the components of the system were purchased.295 He stated that he contacted Susitna

and asked for support in building the system, but “when it came down to it, they did not support

it.”296 Jarred testified that he made “a lot of phone calls” to Schneider Electrical “on how to set

these things up and the transfer switch and all of that.”297 Nevertheless, he attested that he

never felt as though he was doing anything he couldn’t handle, despite his lack of a license to

292 Jarred Milliron Testimony, Adv. ECF No. 60 at 2:12:37-2:12:47.

293 Id. at 2:22:50-2:23:15.

294 Id. at 2:12:50-2:13:05.

295 Plaintiffs’ Trial Exhibit 26, p. 9, Transcript p. 212:15-18.

296 Id. at Transcript p. 212:18-20.

297 Id. at Transcript p. 212:23-10:3.

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perform electrical work.298 He also said that he had an electrician from Fairbanks come and

check the power system once it was completed.299

Sometime in 2016, the Schindlers began having problems with their power system not

charging. Ms. Schindler testified that she asked Jarred to address the problem.300 When the

problem persisted Ms. Schindler contacted Jarrett Humphreys, an electrician and licensed

electrical administrator in Tok, Alaska, to examine their power system.301 Humphreys visited

the Property in January 2017. Humphreys determined that the batteries were nearly dead.302

He concluded that the system had been set up improperly with too many battery banks and not

enough solar panels to generate sufficient power to keep the system charged.303 According to

Humphreys, “as a result of that, the batteries were never getting charging [sic] from day one.

And so gross undercharging over the months prior to my visit, it just simply contributed to their

death.”304 The design of the power system was the first and most immediate problem

Humphreys identified and addressed during his January 2017 visit. But Humphreys also

concluded that the system was never going to work because “there was [sic] too many other

things wrong at the same time.”305

298 Id. at p. 10, Transcript p. 213:3-5.

299 Jarred Milliron Testimony, Adv. ECF No. 60 at 2:25:12-2:25:45.

300 Schindler Testimony, Adv. ECF No. 55 at 48:40-48:52.

301 Id. at 48:53-49:09.

302 Plaintiffs’ Trial Exhibit 17, p. 4, Transcript p. 11:6-10.

303 Id. at Transcript pp. 12:24-13:1.

304 Id. at Transcript p. 13:2-5.

305 Id. at p. 5, Transcript p. 15:1-3.

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Humphreys suggested that the Schindlers contact the state about their power system. On

May 30, 2017, Daniel Greiner, Electrical Inspector for the State of Alaska, inspected the

Schindlers’ power system at the Property.306 Greiner detailed the results of his inspection in a

report provided to the Schindlers and Millirons. In it, he listed seven serious deficiencies that

lead him to conclude that “[t]his electrical installation is extremely unsafe and a hazard to any

person or animal that could come in contact with any part of it.”307 Greiner described the

system as “very substandard” and “obvious…that it was not done by anyone that…was

qualified to do that installation.”308 He determined that “the installation was so poor…that it

was beyond salvage, and it needed to be totally replaced.”309 After publishing his post-

inspection report, Greiner penned and sent both of the Millirons a cease and desist letter from

doing any further electrical work. Greiner informed them that their electrical work was illegal

since neither of them were licensed with the state of Alaska to do electrical work.310 In the

cease and desist letter, Greiner made clear that any electrical work required a proper license

whether it was off grid or not. The Schindlers have since paid $150,908.53 to replace the entire

electrical system and anticipate spending an additional $10,000.00 to replace the generator

shed.311

306 Plaintiffs’ Trial Exhibit 18, p. 117.

307 Plaintiffs’ Trial Exhibit 16, p. 112.

308 Plaintiffs’ Trial Exhibit 16, Transcript p. 12:19-22.

309 Id. at Transcript p. 49:13-19.

310 Id. at Transcript p. 50:3-8.

311 Plaintiffs’ Trial Exhibit 1, pp. 6-7, ¶¶ 30-31.

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The Schindlers’ fraud claim for the electrical contract rests upon Ms. Schindler’s belief

that Jarred was licensed to do electrical work. Misrepresentation of a contractor’s licensing

status can support a claim of fraudulent misrepresentation.312 The other elements for fraudulent

misrepresentation are present: Jarred knew he was not licensed to do electrical work. If there

was a misrepresentation, the Schindlers certainly relied upon it and sustained damages.

The question is whether Jarred misrepresented his qualifications. Ms. Schindler first

argues that Jarred affirmatively told her that he was a licensed electrician. Ms. Schindler’s

testimony, however, is not so clear. She did not testify that Jarred specifically misrepresented

he was a licensed electrician. Rather, she testified that both Garth and Jarred told her that

Garth had worked under electrical administrators, and that Jarred had mentioned that one of his

workers would not work on the power systems without him so he could work under Jarred’s

license. The court finds this testimony to be vague. While the court finds Ms. Schindler’s

testimony credible on the whole, her testimony is neither specific, nor direct, and is not

corroborated by any writings. The court is particularly troubled by the inability to provide

dates for the discussions or representations. It is impossible for the court to tell whether these

discussions took place before or after Ms. Schindler decided to use Jarred for the electrical

work or signed the contract.

Jarred denied making any affirmative statement that he was a licensed electrician. He

was clear that he thought he did not have to be licensed because the work was “off grid.”313

312 See Loughlin v. Rudnick (In re Rudnick), 2011 WL 3667639, at *4 (Bankr. D. Alaska Aug. 22, 2011); see also

Jones v. Hurtado (In re Hurtado), 2015 WL 2399665, at *12 (Bankr. E.D. Cal. May 18, 2015) (“It is well-settled

that misrepresentations regarding professional licenses may form the basis of fraud under 11 U.S.C. § 523(a)(2).”).

313 Jarred Milliron Testimony, Adv. ECF No. 60 at 2:12:37-2:12:47.

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This is exactly what he told Greiner after he inspected the power system.314 Given the totality

of the evidence and the context of Jarred’s actions, the Schindlers have not met their burden of

proving that it is more likely than not that Jarred affirmatively misrepresented that he was a

licensed electrician. The court cannot find that Jarred told the Schindlers that he was a licensed

electrician.

Ms. Schindler also stated she believed that Jarred was a licensed electrician. The court

does credit and accept this testimony. Given the parties’ continuing working relationship

between 2012 and 2014, the court finds this to be much more likely to have happened – Jarred

represented that he could do the job and Ms. Schindler came to believe that he was licensed as

a result of these conversations. While the Schindlers have not proven that Jarred affirmatively

misrepresented that he was a licensed electrician, Jarred created the appearance of being one.

Garth initially informed the Schindlers that DCC understood and worked with alternate power

systems. Jarred then presented himself as qualified and experienced enough to prepare and

develop an off grid power system. There is no evidence of any qualification of Jarred’s

abilities. This certainly created an impression that Jarred was a licensed electrician with the

qualifications to handle the job.

Jarred testified at trial that he informed the Schindlers he was not a licensed electrician.

This definitive statement, like Ms. Schindler’s testimony that Jarred did say he was a licensed

electrician, is unsupported with any details or context to corroborate what was said. Jarred

admits that no such disclaimer was sent in writing and it was not mentioned in the scant

contract entered into by the parties. And as with Ms. Schindler’s statement, the court has

trouble finding that Jarred expressly and directly told the Schindlers that he was not a licensed

314 Plaintiffs’ Trial Exhibit 16, Transcript p. 52:4-9. 62

electrician. Indeed, throughout the trial Jarred made a number of definitive statements that

were not supported or were contradicted by other evidence, such as the timing of the septic

system and foundation holes. The court does not find credible Jarred’s statement that he clearly

and repeatedly told the Schindlers he was not a licensed electrician.

Importantly, the electrical work differs from the rest of DCC’s work for the Schindlers.

With the other projects and contracts the Millirons were experienced licensed contractors. The

evidence shows that Garth and Jarred strongly believed that they were qualified to do the

construction and had some basis for those beliefs. In sharp contrast, Jarred knew he needed

help constructing the power supply. This is evidenced by his attempts to consult with the

electrical administrators and efforts to talk to vendors. But there is no evidence that Jarred

advised the Schindlers of this situation. Instead, he continued to create the impression that he

was a qualified licensed electrician that could professionally provide their power system.

Jarred undertook a job that required a licensed electrician. He erroneously believed that

he did not need to have an electrician’s license to do the work. The record is clear that Jarred

created the impression that Jarred was experienced and qualified to work on the Schindlers’

power system. It is not clear whether Jarred expressly stated that he was, or was not, a licensed

electrician (or even when such statements would have been made). The result is that even

though Jarred did not have the requisite license for the electrical work he conveyed the

impression he was similarly qualified and competent. He was not. This constitutes false

pretenses or, alternatively, a failure to disclose a material fact. The absence of an electrician’s

license was a material fact that should have been fully and completely disclosed to permit the

Schindlers to make an informed decision as to how they wanted to proceed. To the contrary,

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Jarred created the impression that he was a licensed electrician qualified to handle the design

and installation of the proper power system.

Ultimately, Jarred argues that he did not knowingly misrepresent his qualifications with

an intent to deceive the Schindlers. He argues that the Schindlers cannot prove these elements

because he honestly believed that he was qualified to do the electrical work, and that despite

not being licensed he did design and provide them with a power system. Yet, his actions belie

his confidence. Jarred’s testimony makes clear that he knew he needed help to develop the

power system. He needed that help precisely because he was unqualified in electrical work,

and especially the design of the system based upon the problems detailed in Humphreys’

testimony. Moreover, Humphreys’ and Greiner’s testimony established that there were

significant and numerous problems with the power system. The evidence shows that Jarred

knew he was not qualified to provide the required services. At the very minimum, it establishes

that he was reckless when representing and creating the impression that he was qualified to

perform electrical work.

Jarred’s recklessness is also probative of an intent to deceive. And the circumstances

surrounding the electrical contract demonstrate this intent. Unlike the work done on the barn

and shop, the electrical work was well outside what Jarred was licensed to do and his work

experience. He may have been familiar with off grid systems, but this testimony fails to

establish any meaningful basis to believe that he was qualified to design and develop an off

grid power system for the Schindlers. In this regard, Jarred’s representations concerning the

electrical contract are aligned with the misrepresentations of qualifications referenced in the

Sato and Cozart cases discussed above where the debtors’ actual experience was in areas other

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than what was represented. Jarred’s considerable construction experience does not translate to

experience in electrical projects. This weighs heavily against an innocent misrepresentation.

Rather, it strongly suggests an intent to procure the electrical contract. This is not to suggest

any malevolence or ill-will. Rather, Jarred recklessly represented that he was qualified to do

the electrical work with an intent to induce the Schindlers to let him develop the power system.

This is sufficient intent to deceive to support the false pretense or failure to disclose claim

given the totality of the circumstances.315

For these reasons, the court finds that Jarred knowingly misrepresented his

qualifications to do the electrical work with the intent to deceive the Schindlers. The court

further concludes that the Schindlers justifiably relied on Jarred’s misrepresentations and were

damaged by the misrepresentations. The undisputed evidence from Ms. Schindler shows that

they were damaged in the amount of $160,908.53 to replace the power system.316

3. Unfair Trade Practices Act

The Schindlers also assert that the Millirons have violated Alaska’s Unfair Trade

Practices and Consumer Protection Act (UTPA).317 Alaska’s UTPA “provides ‘a private right

of action by any ‘person who suffers an ascertainable loss of money ... as a result of another

person’s act or practice declared unlawful under [the Act].’”318 “A prima facie case of unfair or

deceptive acts or practices is established if the plaintiff shows: ‘(1) that the defendant is

315 Cozart, 417 B.R. at 127-28.

316 Plaintiffs’ Trial Exhibit 1, pp. 6-7.

317 See AS 45.50.471.

318 Beach, 570 B.R. at 332 (quoting Alaska Interstate Const., LLC v. Pacific Diversified Inv., Inc., 279 P.3d 1156,

1163 (Alaska 2012)).

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engaged in trade or commerce; and (2) that in the conduct of trade or commerce, an unfair act

or practice has occurred.’”319 There is no dispute that DCC and the Millirons were engaged in

commerce and that the fraudulent misrepresentation and false pretenses relating to the gravel,

house and electrical contracts qualify as “unlawful acts and practices” under Alaska’s UTPA.

AS 45.50.471(b)(12) specifically defines unlawful acts and practices to include:

(12) using or employing deception, fraud, false pretense, false promise,

misrepresentation, or knowingly concealing, suppressing, or omitting a material

fact with intent that others rely upon the concealment, suppression, or omission

in connection with the sale or advertisement of goods or services whether or not

a person has in fact been misled, deceived or damaged.

The Alaska UTPA provides that a prevailing party is entitled to treble their actual

damages.320 “The Alaska Supreme Court has indicated that, under the UTPA, ‘treble damages

are to be awarded as a matter of course.’”321 Additionally, prevailing parties are entitled to

recover their costs and actual, reasonable attorney fees.322 The court has found Garth and

Jarred liable for fraudulently misrepresenting the amount of gravel to be used in the gravel

contracts. Additionally, the court has found Jarred liable for fraudulent misrepresentations on

the house and electrical contracts. These findings of fraud establish the Schindlers’ claims

under the Alaska UTPA.

The court has awarded the Schindlers $168,000.00 in actual damages against Garth and

Jarred for fraudulently misrepresenting the amount of gravel to be used in the gravel contracts.

The court shall treble the actual damages under AS 45.50.531(a) to $504,000.00.

319 Id.

320 AS 45.50.531(a).

321 Beach, 570 B.R. at 332 (quoting Kenai Chrysler Center, Inc. v. Denison, 167 P.3d 1240, 1259 (Alaska 2007)).

322 AS 45.50.537(a).

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The court has awarded the Schindlers $439,155.00 in actual damages against Jarred

based on his false pretense and failure to disclose concerning the water table in the construction

of their residence. The court shall treble the actual damages under AS 45.50.531(a) to

$1,317,465.00.

The court has also awarded the Schindlers $160,908.53 in actual damages against Jarred

for his false pretenses in connection with the construction of the electrical system. The court

shall treble the actual damages under AS 45.50.531(a) to $482,725.59.

Similarly, the Schindlers are entitled to recover their reasonable attorneys’ fees and

costs under the Alaska UTPA. The court will enter a separate order requiring the Schindlers to

file their request for attorney fees and supporting billing statements.

C. CONCLUSION

The Millirons and DCC overextended themselves when they committed to the

construction of the Schindlers’ farm, causing damage to the Schindlers in the amount of

hundreds of thousands of dollars and years of unrecoverable time. The bulk of the damage was

the result of the Millirons’ overconfidence and resulting negligence. But having carefully

considered the evidence relevant to the specific contracts and the totality of the circumstances,

the court concludes that the damages suffered by Schindlers on the gravel, house, and electrical

contracts resulted from fraudulent misrepresentation, false pretenses, or nondisclosure such that

portions of the debt owed to the Schindlers should not be discharged under § 523(a)(2)(A).

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The court will enter a separate order consistent with this decision addressing the

calculation of prejudgment interest and the award of attorney fees.

DATE: September 30, 2021

_/s/ Gary Spraker_______________

GARY SPRAKER

United States Bankruptcy Judge

Serve: J. Gazewood, Esq.

E. LeRoy, Esq.

ECF Participants via NEF

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