Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER

. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,

303 K Street, Anchorage, Alaska 99501, phone (907) 264

- 0608, fax (907) 264

- 0878, email

corrections@akcourts.gov

.

THE SUPREME COURT OF THE STATE OF ALASKA

SOCIETE FINANCIAL, LLC, d/b/a

Alaska ATM Service, and JAMES

DAINIS,

Appellants,

v.

MJ CORPORATION, d/b/a Shell and

15 th Grill,

Appellee. )

) Supreme Court No. S-18276

Superior Court No. 3AN- 20 -06869 CI

O P I N I O N

No. 7686

– February 16, 2024 )

)

)

)

)

)

)

)

)

)

)

Appeal from the Superior Court o f the State of Alaska, Third

Judicial District, Anchorage

, Andrew Guidi

, Judge.

A ppearances: A dam Gulkis

, North Star Law Group, LLC

, Anchorage

, for Appellants

. Stacey C. Stone

, Holmes

Weddle & Barcott, P.C.

, Anchorage

, for Appellee

.

Before: Maassen , Chief Justice, and Carney, Borghesan,

Henderson, and Pate, Justices.

PATE , Justice

.

INTRODUCTION

The owner of an automated teller machine (ATM) sued an ATM processor

for breach of contract and conversion and also sought to pierce the corporate veil. The

superior court granted summary judgment for the owner.We reverse summary judgment as to the breach of contract claim and

piercing the corporate veil because the processor raises genuine issues of material fact

pertaining to those claims. W e affirm the superior court’s decision to grant summary

judgment on the conversion claim.

FACTS AND PROCEEDINGS

A. Facts

MJ Corp. owns an ATM as part of its gas station and convenience store

business. MJ Corp. supplied the ATM with the vault cash 1 dispensed to customers and

charged customers a fee for each ATM transaction.

Societe Financial, LLC (Societe) provid es ATM processing services

under the name “Alaska ATM Service

. ” James Dainis is the organizer, owner, sole

member, and manager of Societe. Societe has processed transactions on MJ Corp.’s

ATM since at least November 2014. 2 The parties agreed Societe would receive a minor

portion of each transaction fee and MJ Corp. would receive the remaining portion of

each transaction fee and reimbursement for the vault cash it had dispensed to customers.

The parties received the agreed-upon amounts by way of electronic deposits made to

their respective bank accounts through third-party processors.

In October 2019 MJ Corp. discovered that it had not been receiving

electronic deposits for its full share of transaction fees and reimbursement for vault

cash. MJ Corp.’s owner, Mag Choi, informed James Dainis about the missing deposits.

Dainis blamed the third-party processors for the errors.

Societe then made two deposits into MJ Corp.’s bank account, totaling

$5,837.60. Believing it was owed a substantially greater amount, MJ Corp. retained an

1 The parties use “vault cash” to describe the money that the ATM dispenses

to customers.

2 It is not clear from the record whether MJ Corp. owned more than one

ATM that was serviced by Societe. The distinction does not affect our decision. We

will refer to the ATM in the singular.

- 2

- 7686attorney to investigate the remaining disputed deposits. The attorney requested an

account history from Dainis for MJ Corp.’s ATM transactions . Societe provided MJ

Corp. with an account history

, b ut MJ Corp. claimed that the account history was

incomplete because it omitted information for certain dates. MJ Corp.’s attorney

requested a n unredacted ac count history, but Dainis never answered the request.

B. Proceedings

MJ Corp. sued Societe and Dainis for breach of contract and conversion.

MJ Corp. also sought to pierce Societe’s corporate veil and recover damages from

Dainis in his personal capacity.

In its answer Societe admitted the following: I t had done business with

MJ Corp. “for a number of years”; its “ agreement ” with MJ Corp. provided Societe

with “a minor portion” of each transaction fee while MJ Corp. retained “the major

portion”; MJ Corp. “fur nished the vault cash that was dispensed by the ATM

machines”; Societe received it s share of transaction fees via electronic deposits to one

or more of its bank account s; and MJ Corp. received repayment for the vault cash it had

dispensed to customers and its share of transaction fees via electronic deposits to its

bank account

.

MJ Corp. obtained complete

, unredacted account histories for its ATM

from the third

- party processors that made the electronic deposits . The account histories

showed t hat the deposits disputed by MJ Corp. had been made into bank accounts

variously owned by Societe

, Dainis

, and two other companies also owned by or

associated with Societe or Dainis. 3 Based on the account histories, MJ Corp.

3 Societe owned Commercial ATM Services of Alaska, LLC, which was

dissolved on December 20, 2017. Dainis owned Commercial ATM Services, LLC,

which was dissolved on May 6, 2020.

- 3

- 7686propounded discovery request s to Societe that included 69 requests for admission under

Alaska Civil Rule 36. 4

Sixty

- six of the request s sought admissions

— by date, amount, and

account number

— that the disputed deposits had been made into bank accounts that

were owned or controlled by Societe or Da i nis or their associated companies

.

Specifically, t he requests asked Societe and Dainis to admit that they had received

electronic deposits into their accounts in a total amount of $ 58,339 between

December 31, 2014 and November 18, 2019

.

Societe did not respond to MJ Corp.’s requests for admission . By

operation of Civil Rule 36, Societe’s failure to respond resulted in the requests for

admission being deemed admitted. 5 Societe did not move to withdraw the admissions. 6

MJ Corp. moved for summary judgment on its breach of contract and

conversion claims

, relying on Societe’s admissions and the accompanying affidavits

from Choi and MJ Corp.’s attorney

. I n opposition Societe and Dainis relied on a single

page affidavit from Dainis. Neither party produced a written contract.

Dainis ’s a ffidavit contained four sworn statements:

1. I am over 18 years of age and make the following

statements based on my personal knowledge,

information, and belief.

- 4

- 7686 4 Alaska R. Civ. P. 36(a)-(b) (providing that party may serve requests for

admissions and that matters admitted are “conclusively established” for purposes of

pending actions).

5 Alaska R. Civ. P. 36(a) (providing that requests for admission are deemed

admitted unless responded or objected to in writing within 30 days).

6 Alaska R. Civ. P. 36(b) (providing that court may permit withdrawal or

amendment of admission “ when the presentation of the merits of the action will be

subserved thereby and the party who obtained the admission fails to satisfy the court

that withdrawal or amendment will prejudice the party in maintaining the action or

defense on the merits ”).2. Plaintiff’s contract with either Societe or a payment

processor requires Plaintiff to assert disputes related

to ATM funds within 30 days of the disputed transfer

or lack thereof.

3. Societe has not intentionally prevented Plaintiff from

receiving ATM funds to which Plaintiff is entitled.

4. Plaintiff’s calculation of damages is incorrect.

Societe and Dainis argued they had raised a genuine issue of material fact

that preclud ed MJ Corp.’s ability to recover damages for breach of contract, pointing to

the al leged term of the agreement requiring MJ Corp. to assert any dispute related to

ATM funds within 30 days. Societe and Dainis also argued they had raised a genuine

issue of material fact that precluded summary judgment on the conversion claim,

relying on Dainis ’ s sworn statement that Societe had not intentionally prevented MJ

Corp. from receiving ATM funds to which it was entitled.

The superior court granted MJ Corp.’s motion for summary judgment

without specifying the claims to which it applied, stating only that “it is hereby ordered

that the motion is GRANTED, there are no genuine issues of material fact and plaintiff

is entitled to judgment as a matter of law.” The court also awarded MJ Corp. damages

and interest in the amount of $59,274.40. Societe and Dainis sought reconsideration,

which was denied. The court entered its final judgment against Societe and Dainis,

awarding MJ Corp. $71,976.54 in damages, interest, attorney’s fees, and costs.

Societe and Dainis appeal.

- 5

- 7686STANDARD OF REVIEW

We review appeals from summary judgment de novo. 7 Contract

interpretation is a question of law that is also subject to de novo review. 8 Under de

novo review, we apply our independent judgment, “ adopting the rule of law most

persuasive in light of prece dent, reason, and policy.” 9

DISCUSSION

In granting summary judgment the superior court did not specify the

claims it was resolving or explain its reasoning. If a trial court grants summary

judgment “without stating its reasons,” then we “presume that the court ruled in the

movant’s favor on all of the grounds stated.” 10 Under these circumstances we will

consider the court’s order to have resolved all claims in MJ Corp.’s favor, including

breach of contract, conversion, and piercing the corporate veil.

A. Summary Judgment Standard

Alaska’s summary judgment standard is well established. 11 “ A party is

entitled to summary judgment only if there is no genuine issue of material fact and if

the party is entitled to judgment as a matter of law. ” 12 “[S]ummary judgment is

appropriate only when no reasonable person could discern a genuine factual dispute on

7 Christensen v. Alaska Sales & Serv., Inc. , 335 P.3d 514, 516 (Alaska

2014).

8 Hahn v. GEICO Choice Ins. Co. , 420 P.3d 1160, 1166 (Alaska 2018).

9 Kimp v. Fire Lake Plaza II, LLC , 484 P.3d 80, 86 (Alaska 2021) (quoting

Hahn , 420 P.3d at 1166 ).

10 Windel v. Matanuska-Susitna Borough , 496 P.3d 392, 398 n.23 (Alaska

2021) (quoting Guerrero ex rel. Guerrero v. Alaska Hous. Fin. Corp. , 123 P.3d 966,

974 (Alaska 2005) ).

11 Christensen , 335 P.3d at 517 (clarifying and reaffirming elements of

“ Alaska ’ s longstanding summary judgment standard ”).

12 ConocoPhillips Alaska, Inc. v. Williams Alaska Petrol., Inc. , 322 P.3d

114, 122 (Alaska 2014).

- 6

- 7686a material issue” 13 when “ reading the record in the light most favorable to the nonmoving party and making all reasonable inferences in its favor. ” 14

A material fact “is one upon which resolution of an issue turns.” 15 But

“[a] non-moving party cannot create a genuine issue of material fact merely by offering

admissible evidence [ 16 ]

— the offered evidence must not be too conclusory, too

speculative, or too incredible to be believed, and it must directly contradict the moving

party ’ s evidence. ” 17 The summary judgment standard does not permit us, “on the

limited evidence presented at the summary judgment stage, to make trial-like credibility

determinations, [or] conduct trial- like evidence weighing.” 18 We may assess whether

the evidence is reasonable, but we do not “apply substantive evidentiary standards.” 19

We evaluate motions for summary judgment by following a burdenshifting procedure. The movant “has the initial burden of proving, through admissible

evidence, that there are no [genuine] disputed issues of material fact and that the moving

party is entitled to judgment as a matter of law.” 20 If the movant is successful, then “the

13 Christensen , 335 P.3d at 520.

14 Id. (quoting Witt v. State, Dep ’ t of Corr. , 75 P.3d 1030, 1033 (Alaska

2003) ).

15 Id. at 519.

16 The admissible evidence we consider for purposes of a motion for

summary judgment includes “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits.” Alaska R. Civ. P. 56(c) . “ Supporting

and opposing affidavits shall be made on personal knowledge, shall set forth such facts

as would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein. ” Alaska R. Civ. P. 56(e).

17 Christensen , 335 P.3d at 516.

18 Id. at 520

.

19 Id. at 519 (declining to follow federal practice incorporating substantive

evidentiary standards of proof into summary judgment).

20 Id. at 517 (alteration in original) (quoting Mitchell v. Teck Cominco Alaska

Inc. , 193 P.3d 751, 760 n. 25 (Alaska 2008)).

- 7

- 7686burden shifts to the non

- moving party ‘ to set forth specific facts showing that he could

produce evidence rea sonably tending to dispute or contradict the movant’s evidence

and thus demonstrate that a material issue of fact exists. ’ ” 21 Although Alaska has a

“lenient standard for withstanding summary judgment

, ” 22 the non

- moving party “ may

not rest upon

. . . mere allegations or denials ” and instead “must set forth specific facts

showing that there is a genuine issue for trial.” 23

B. A Genuine I ssue O f Material Fact Preclude s Summary Judgment F or

Breach O f Contract

.

Construing the evidence in the light most favorable to Societe and Dainis

and making all reasonable factual inferences in their favor, we conclude that there is a

genuine issue of material fact with respect to the breach of contract claim

.

To carry its initial burden

, MJ Corp. was required to submit admissi ble

evidence establish ing a prima facie claim for breach of contract. 24 Establishing breach

of contract requires “proof of the existence of a contract, breach, and damages.” 25 In

the absence of an express contract, an implied contract may still exist “ wh ere the court

finds from the surrounding facts and circumstances that the parties intended to make a

contract but failed to articulate their promises. ” 26 For either an express or implied

21 Id. (quoting State, Dep’t of Highways v. Green , 586 P.2d 595, 606 n.32

(Alaska 1978) ).

22 Id. at 520 (quoting Shaffer v. Bellows , 260 P.3d 1064, 1069 (Alaska

2011) ).

23 Alaska R. Civ. P. 56( e )

.

24 See Himschoot v. Dushi , 953 P.2d 507, 5 09

- 10 (Alaska 1998)

.

25 Brooks Range Petrol

. Corp. v. Shearer , 425 P.3d 65, 79 (Alaska 2018).

26 Labrenz v. Burnett , 218 P.3d 993, 998 (Alaska 2009) (quoting Martens v.

Metzgar , 524 P.2d 666, 672 (Alaska 1974) ).

- 8

- 7686contract, “[a]n agreement is unenforceable if its terms are not reasonably certain.” 27 A

contract’s terms are reasonably certain “if they provide a basis for determining the

existence of a breach and for giving an appropriate remedy.” 28 “The contract amount,

in particular, must be definite and specific.” 29

MJ Corp. produced undisputed adm issible evidence of an implied contract

with Societe. Societe admitted in its a nswer that it “did business” with MJ Corp. “for

a number of years under an agreement.” 30 Societe admitted that it “processed the ATM

transactions for [MJ Corp.’s] business in exchange for payment of a minor portion of

the transaction fee, which was paid by the ATM customer ” and that MJ Corp. “ received

the major portion of the transaction fee and furnished the vault cash that was dispensed

by the ATM machines.” Furthermore, Dai nis ’s a ffidavit confirmed the existence of

“ [MJ Corp.’s] contract with

. . . Societe .” (Emphasis added.)

Societe thus admitted to the contract’s relevant provisions, including

(1) the services to be performed; (2) the form of compensation; and (3) an amou nt of

compensation. 31

Societe argues that MJ Corp. ’s failure to establish the precise percentage

split of ATM transaction fees ma kes the agreed

- upon amount uncertain

, and thus

27 See Davis v. Dykman , 938 P.2d 1002, 1006 (Alaska 1997) (finding

settlement offer’s method of calculating attorney’s fees was too indefinite to constitute

valid offer).

28 Young v. Kelly , 334 P.3d 153, 157 (Alaska 2014) (quoting Hall v. AddVentures, Ltd. , 695 P.2d 1081, 1087 (Alaska 198 5) ).

29 Id. (quoting Magill v. Nelbro Packing Co.

, 43 P.3d 140, 142 (Alaska

2001) ).

30 The admissions made in the answer only applied to Societe. Dainis denied

any involvement in the contract with MJ Corp.

31 “ Generally ‘ admissions made in the pleadings are conclusively

established. ’ ” Fletcher v. Fletcher , 433 P.3d 1148, 1152 (Alaska 2018) (quoting

Darnall Kemna & Co. v. Heppinstall , 851 P.2d 73, 76 (Alaska 1993)).

- 9

- 7686preclud es the existence of an implied contract. But the third

- party processor account

histories , which MJ Corp. subpoenaed from the processors, appear to establish that

,

over a five

- year period involving hundreds of transactions

, there was a consistent

percentage split of the minor portion of each transaction f ee deposited into accounts

owned by Societe and the major portion of each transaction fee deposited into the

account owned by MJ Corp. T he account histories thus evince a standard course of

dealing between the parties that is sufficiently definite and spe cific to support the

existence of an implied contract. 32

MJ Corp

. also made a prima facie showing of breach. Whether a material

breach of contract has occurred “ is a question ‘ of degree, centering on the reasonable

expectations of the parties

, . . . resul t [ing] in the other party not receiving substantially

what that party bargained for. ’ ” 33 “ [O] rdinarily the question of materiality must be left

to the factfinder . But in some cases the breached provision is so obviously central to

the purpose of the contract that materiality can be determined as a matter of law .” 34

The third

- party processor account histories clearly demonstrate a violation

of the parties’ agreement : A t various points in time

, Societe received deposits for

reimbursement of vault cash and/or the major portions of transaction fees that the

agreement specified should have been deposited in MJ Corp.’s bank account

. 35 Societe

32 See Reeves v. Alyeska Pipeline Serv. Co.

, 56 P.3d 660, 666 (Alaska 2002)

(upholding implied- in

- fact disclosure contract because promise was “sufficiently

definite as a matter of law to establish an enforceable disclosure agreement”).

33 State, Dep ’ t of Nat. Res. v. Alaskan Crude Corp. , 441 P.3d 393, 401

(Alaska 2018) (quoting R ESTATEMENT (S ECOND ) OF C ONTRACTS § 241 (A M

. L. I NST

. 1981) ).

34 Alaskan Crude Corp. , 441 P.3d at 401.

35 MJ Corp. obtained the third-party account histories pursuant to a

subpoena. The account histories are record depositions certified by records custodians.

They are thus admissible evidence for the purposes of Alaska Civil Rule 56. Alaska R.

- 10

- 7686admitted in its answer that MJ Corp. provided cash for its ATM, and thus the cash

settlements were supposed to be d eposited with MJ Corp. as reimbursement for cash

withdrawals from its ATM. By failing to respond to MJ Corp.’s requests for admission,

Societe is deemed to have admitted to receiving the full amount of the disputed deposits

,

or $58,339

. Based on these admissions, w e conclude that MJ Corp. pointed to

undisputed evidence establishing breach of an implied contract with Societe

. Even

though the account histories provide only circumstantial evidence of breach, a movant

may make out a prima facie showi ng of entitlement to summary judgment if “the record

contain[s] enough circumstantial evidence” to satisfy the initial burden. 36

But as to the third and final element of breach of contract, we conclude

Societe and Dainis presented admissible evidence raisi ng a genuine dispute of material

fact. Dainis swore that “[MJ Corp.’s] contract with either Societe or a payment

processor require s [MJ Corp.] to assert disputes related to ATM funds within 30 days

of the disputed transfer or lack thereof.” MJ Corp.’s br each of contract claim thus turns

on whether the evidenc e Societe submit ted on this point is too conclusory, speculative,

or incredible to be believed

. 37 We determine that a reasonable person could believe

Dainis’s assertion and conclude it created a genu ine dispute as to a material fact

.

Civ. P. 56(c) (“Judgment shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admiss ions on file, together with the affidavits show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law. ”).

36 See Waldroup v. Lindman , 28 P.3d 293, 300 (Alaska 2001) ( holding that

movant offered sufficient circumstantial evidence to make out prima facie case for

summary judgment on contractual interference claim because, although party provided

no sworn affidavit, party acted in good faith according to its direct financial interest)

.

37 See C hristensen v. Alaska Sales & Serv., Inc. , 335 P.3d 514, 520 (Alaska

2014) (“[T] he only questions to be answered at the summary judgment stage are

whether a reasonable person could believe the non

- moving party's assertions and

whether a reasonable person could conclude those assertions create a genuine dispute

as to a material fact

. ”)

- 11

- 7686Dainis swore the statements in his affidavit were based on his personal

knowledge. 38 Dainis then affirmed the existence of a specific contract provision that

required MJ Corp. to raise any dispute within 30 days of the contested transaction.

Drawing all reasonable inferences in favor of Societe and Dainis, a contract provision

of this sort would limit the time period for MJ Corp. to recover damages. 39 Dainis ’s

affidavit contains evidence of a material fact because the provision cited therein affects

damages, an essential element of breach of contract.

But to create a genuine issue of material fact, Dainis ’s affidavit must also

not be “ too conclusory, too speculative, or too incredible to be believed, and it must

directly contradict the moving party’s evidence.” 40 “ There is no principled reason why

the parties to a contract may not promise to perform only if an action is brought within

a specified time.” 41 Dainis ’s affidavit provides evidence of such a provision, one

38 Hoendermis v. Advanced Physical Therapy, Inc. , 251 P.3d 346, 352

(Alaska 2011) ( stating that parties can submit affidavits supporting or opposing motion

for summary judgment provided they are “based upon personal knowledge” (quoting

Broderick v. King’s Way Assembly of God Church , 808 P.2d 1211, 1215 (Alaska

1991) )).

39 See Christensen , 335 P.3d at 519 (“[A] material fact is one upon which

resolution of an issue turns

. ” ).

40 Id. at 516; see also Israel v. State, Dep ’ t of Corr. , 460 P.3d 777, 785

(Alaska 2020) ( holding that inmate’s claim that he could see poltergeists was “ too

incredible to be believed ” and was “ insufficient to defeat motion for summary

judgment ” (quoting Christensen , 335 P.3d at 516) ).

41 14 R ICHARD A. L ORD

, W ILLISTON ON C ONTRACTS § 42:12 ( West 4th ed.

2023 ) (“Bringing the suit within this time, when not contrary to public policy, is then a

condition of the plaintiff’s right to recover. The plaint iff has a cause of action as soon

as the necessary facts, enabling it to bring suit, occur, but in order to enforce its claim,

it is also necessary that the contractually agreed time limit has not expired.”) ; see also

McDonnell v. State Farm Mut. Auto. Ins. Co.

, 299 P.3d 715, 728 (Alaska 2013) (“Courts

have generally held that parties may contractually agree to a shorter limitations period

if the contractual limitations provision is unambiguous, reasonable, and does not violate

statutes or public p olicy .

. . .”).

- 12

- 7686designed to limit Societe’s liability by requiring MJ Corp. to raise any disputes within

30 days of the transaction . That such a term could have existed in MJ Corp.’s contract

with Societe is not “too incredible to be believed by reasonable minds.” 42

MJ Corp. argues that Societe and Dainis “failed to provide any evidence

of any such contract term beyond a self

- serving affidavit,” thus making the evidence

“too conclusory.” 43 Dainis ’s a ffidavit is brief and to the point, but because it put s forth

admissible evidence of a specific material fact, it is not too conclusory. 44 A single

genuine issue of material fact bars summary judgment. 45 Because Dainis’s affidavit

directly contra dicts MJ Corp.’s allegation that Societe owes MJ Corp. damages under

the contract

, it raises a genuine issue of material fact regarding the essential element of

damages

. 46 Because of this genuine issue of material fact, it was error to grant summary

judgment on the contract claim.

C. No Genuine Issues O f Material Fact R emain A s T o T he Conversion

Claim

, A nd The Court Did Not Err In Granting Summary Judgment.

“ Conversion is an intentional exercise of dominion or control over a

chattel which so seriously interferes with the right of another to control it that the act or

may justly be required to pay the other the full value of the chattel.” 47 A plaintiff

42 See Christensen , 335 P.3d at 5 20 (quoting Wilson v. Pollet , 416 P.2d 381,

384 (Alaska 1966) ).

43 Id. at 516

.

44 Alaska R. Civ. P. 56(e) (“[T]he adverse party’s response [to a motion for

summary judgment], by affidavits or as otherwise prov ided in this rule, must set forth

specific facts showing that there is a genuine issue for trial.” ( e mphasis added)).

45 See Airline Support, Inc. v. ASM Cap. II, L.P. , 279 P.3d 599, 611 (Alaska

2012) (Stowers, J., concurring) (“ If there is a single genuine issue of material fact,

summary judgment is precluded. ”).

46 See Christensen , 335 P.3d at 5 16.

47 Silvers v. Silvers , 999 P.2d 786, 793 (Alaska 2000) (quoting Alaska

Cont ’ l, Inc. v. Trickey , 933 P.2d 528, 536 (Alaska 1997) ); see also Alaska Pattern Jury

Instructions

– Civ. 18.02.

- 13

- 7686seeking to establish a conversion claim must first make out a prima facie claim :

“(1) that she had a possessory interest in the property; (2) that the defendant interf ered

with the plaintiff’s right to possess the property; (3) that the defendant intended to

interfere with plaintiff’s possession; and (4) that the defendant’s act was the legal cause

of the plaintiff’s loss of the property.” 48

With regard to the first ele ment of conversion

, MJ Corp. needed to

establish a possessory interest in its disputed deposits. 49 Choi affirmed that MJ Corp.

had a possessory interest in the “major portion of the transaction fee[s] and

. . . the vault

cash that MJ Corp. supplied.” Cho i’s statement repeat ed these factual allegation s from

MJ Corp.’s complaint, which Societe admitted in its answer. 50 Societe thus admitted

that MJ Corp. had a possessory interest in all the vault cash it had supplied and a “major

portion” of each transaction fee. Based on Societe ’s admissions we conclude that MJ

Corp. established admissible evidence of a possessory interest in the vault cash and

transaction fees constituting the disputed deposits in an amount of $ 58,3 39

.

Societe argues that the evidence before the superior court was in sufficient

to create an inference that the disputed deposits were owed to MJ Corp. But Societe’s

argument ignores the third

- party processor account histories. 51 As explained above, th e

histories clearly demonstrate that, contrary to the parties’ agreement, Societe received

deposits for reimbursement of vault cash and the major portions of transaction fees that

should have been deposited in MJ Corp.’s bank account.

48 Silvers , 999 P.2d at 793.

49 See McKibben v. Mohawk Oil Co. , 667 P.2d 1223, 1229 (Alaska 1983)

(adopting view that immediate or future possessory interests are sufficient to establish

possession element of claim for conversion), abrogated on other grounds by Wien Air

Alaska v. Bubbel , 723 P.2d 627, 631 n.4 (Alaska 1986).

50 These admissions applied only to Societe. See supra note 31.

51 Supra note 35.

- 14

- 7686Under the second elemen t of conversion, MJ Corp. needed t o show that

Societe interfered with MJ Corp.’s possessory interest. We have recognized that money

as well as personal property can be the object of conversion. 52 R eceiving property is

sufficient to establish interference

. 53 We thus consider whether MJ Corp. can point to

admissible evidence establishing that Societe received money belonging to MJ Corp.

Societe and Dainis point out that the account histories do not show who

“conducted” the disputed deposits, arguably raisi ng a genuine dispute as to interference

.

Societe and Dainis argue that the disputed deposits could have been caused by “cyber

theft,” “software malfunctions,” or mistakes by other ATM processors. B ut b y failing

to respond to MJ Corp.’s request s for admission , Societe admitted to receiving the

disputed deposits listed on the account histor ies

.

Furthermore, except for the $ 5,837.60 that Societe returned in November

2019

, neither Societe n or Dainis returne d any money to MJ Corp. MJ Corp. does not

have access to the disputed deposits made to bank accounts owned by Societe and

Dainis . Under these circumstances, e ven assuming that Societe did not direct the

disputed deposits to its own accounts , MJ Corp. can still make out the element of

interference by pointing to the request s for admission , which conclusively show that

Societe received the disputed deposits

. Because it is undisputed that Societe received

52 See Dressel v. Weeks , 779 P.2d 324, 328 (Alaska 1989) (considering and

affirming claim for conversion of cash money).

53 See R ESTATEMENT (S ECOND ) OF T ORTS § 223 ( A M

. L

. I NST

. 1965)

(providing that “conversion may be committed by intentionally

. . . (d) receiving a chattel” (em phasis added)); R ESTATEMENT (S ECOND ) OF T ORTS § 229 ( A M

. L

. I NST

. 1965 ) (providing that “one who receives possession of a chattel from another with the

intent to acquire for himself .

. . a proprietary interest in the chattel which the other has

not the po wer to transfer is subject to liability for conversion to a third person then

entitled to the immediate possession of the chattel” (emphasis added)); see also Alaska

Pattern Jury Instructions

– Civ. 18.02 (citing R ESTATEMENT (S ECOND ) OF T ORTS § 223

( A M

. L

. I NST

. 1965)).

- 15

- 7686the disputed deposits and kept them to the exclusion of MJ Corp.

, there is admissible

evidence that Societe interfere d with MJ Corp.’s possessory interest in funds in the

amount of $ 58,339

. 54

The third element of conversion requires a showing of intent. 55 MJ Corp.

must present admissible evidence that Societe’s interference was an intentional act

. In

describ ing the requisite intent for conversion we have referen ced the civil pattern jury

instructions

, which define an “ ‘intentional act’ as encompassing either an intent ‘ to

interfere with the property’ or knowledge on the part of the defendant to a substantial

certainty ‘that the act or omission would result in such interference.’ ” 56 A person who

receives property “ with the intent to acquire

. . . a proprietary interest” is liable for

conversion if a third party was then entitled to immediate possession of the property. 57

54 See R ESTATEMENT (S ECOND ) OF T ORTS § 222A (2) ( A M

. L

. I NST

. 1965)

(providing that the seriousness of the interference depends on “(a) the extent and

duration of the actor’s exercise of dominion or control; (b) the actor’s intent to assert a

right in fact inconsistent with the other’s right of control; (c) the actor’s good faith; (d)

the extent and duration of the resulting interference with the ot her’s right of control; (e)

the harm done to the chattel; (f) the inconvenience and expense caused to the other”).

55 90 C.J.S. Trover and Conversion § 8 ( West 202 3 ) (citing Silvers v. Silvers

, 999 P.2d 786 (Alaska 20 0 0) ) ( statin g that third element requires “an intent to do some act amounting to a conversion” ).

56 Shields v. Cape Fox Corp. , 42 P.3d 1083, 1088 n.12 (Alaska 2002)

(quoting Alaska Pattern Jury Instructions

– Civ. 18.03).

57 R ESTATEMENT (S ECOND ) OF T ORTS § 229 ( A M

. L. I NST

. 1965) ; see also

id. § 229 cmt. a (defining “proprietary interest” as denoting “any right of ownership of

an interest in relation to the chattel which would entitle the actor to retain its possession

permanently, indefinitely, or for a period of time”).

- 16

- 7686Conversion does not require fault

. 58 I t does not require knowledge of a

superior possessory interest

, 59 and “ a mistaken belief on the part of a defendant that [the

defendant] had a right to interfere with the property does not negate intentionality .” 60

For the purposes of conversion, “[t]he intention required is an intention merely to

exercise a dominion or cont rol over the chattel which in fact seriously interferes with

the right of another to control it

. ” 61

I t is clear from Societe’s admissions that its receipt of the disputed

deposits was accompanied by an intent to obtain a proprietary interest. 62 Put another

58 18 A M

. J UR

. 2 D Conversion § 3 ( West 2023 ) (providing that although

“[t]he act constituting ‘conversion’ must be an intentional act, .

. . it does not require

wrongful intent” ); see Rollins v. Leibold , 512 P.2d 937, 945 (Alaska 1973) (finding that

bona fide purchas er of mechanical crane was liable for conversion as “an innocent

converter,” but holding that amount of damages was limited to value of crane plus

interest and did not include lost profits).

59 R ESTATEMENT (S ECOND ) OF T ORTS § 229 cmt. e. ( A M

. L

. I NST

. 1965)

(“ [O] ne receiving a chattel from a third person with intent to acquire a proprietary

interest in it is liable without a demand for its return by the person entitled to possession,

although he takes possession of the chattel without knowledge or reaso n to know that

the third person has no power to transfer the proprietary interest. The mere receipt of

the possession of the goods under such circumstances is a conversion.” ( e mphasis

added)).

60 Shields

, 42 P.3d at 1088 n.12.

61 R ESTATEMENT (S ECOND ) OF T OR TS § 224 cmt. c ( A M

. L

. I NST

. 1965) ; id

(“ It is not an intention to interfere with the rights of the other; and the defendant may

be liable for conversion where he has in fact exercised dominion or control, although

he may be quite unaware of the existence of the rights with which he interferes. ”).

62 Summary judgment can be based on Societe’s receipt of the disputed

deposits alone or on its refusal of MJ Corp.’s subsequent demand that it return them

. See, e.g.

, R ESTATEMENT (S ECOND ) OF T ORTS § 229 cmt. e ( A M

. L

. I NST

. 1965)

(explaining that “ one receiving a chattel from a third person with intent to acquire a

proprietary interest in it is liable without a demand for its return by the person entitled

to possession ” and that “[a] subsequent refusal to surrend er the chattel on demand may

constitute a separate act of conversion and make the actor liable under the rule stated in

- 17

- 7686way, Societe receiv ed the disputed deposits in a manner that denote d a n obvious intent

to obtain a permanent “right of ownership.” 63 W hether the disputed deposits were

initiated by mistak e through a third

- party processor is irrelevant. When Societe became

aware it received the disputed deposits and kept them , it received possession “pursuant

to a transaction by which [one] intends to acquire for himself

. . . a proprietary

interest

, ” 64 r egardless of whether it knew of MJ Corp.’s possessory interest. 65 Recei pt

of deposits in a bank account owned by a defendant is not “so temporary, trivial, or

unimportant as not to amount to a conversion.” 66 Simply put, the electronic transactions

through which Societe admitted it received the $ 58,339 indicate to us a clear intent to

obtain a proprietary interest in those funds , thus satisfying the third element of a claim

for conversion.

The fourth element require s that “the defendant’s act was the legal cause

of the plaintiff’s loss.” 67 Societe and Dainis repeatedly argue that they did not control

the disputed deposits being made into their own bank accounts. But as explained above,

a defendant who receives money is liable for conversion if it causes in terference with a

superior possessory interest

. 68 We again refer to the pattern jury instruction for

§ 237 ”) ; c ompare id. § 229

, with id. § 237 (“One in possession of a chattel as bailee or

otherwise who, on demand, refuses without prope r qualification to surrender it to

another entitled to its immediate possession, is subject to liability for its conversion.”).

63 Id. § 229 cmt. a.

64 Id. § 229 cmt. b.

65 Id. § 229 cmt. c.

66 Id. § 229 cmt. b ; see also id. § 222A cmt. a (explaining that conversion

originated as remedy against finders of lost goods who refused to return them to owner).

67 Silvers v. Silvers , 999 P.2d 786, 793 (Alaska 2000).

68 Supra note 61

.

- 18

- 7686conversion : T he defendant ’ s conduct must be a “substantial factor” in causing the

plaintiff ’ s loss. 69 This requirement is akin to causation in the context of negligence. 70

Societe’s admission s are admissible evidence showing that Societe

received the disputed deposits and kept them in bank accounts to the exclusion of MJ

Corp, thus substantially causing MJ Corp. to suffer a loss . Having esta blished the fourth

and final element of conversion , MJ Corp. satisfied its burden as the moving party by

making out its prima facie claim for conversion.

The burden then shift ed to Societe to put forth admissible evidence raising

a genuine dispute of mater ial fact. 71 T he only evidence submitted by Societe was

Dainis ’s a ffidavit. The a ffidavit is admissible evidence, but it is “too conclusory” to

present a genuine dispute of material fact regarding MJ Corp.’s claim for conversion

. 72

Dainis ’s a ffidavit state s that “Societe has not intentionally prevented

Plaintiff from receiving ATM funds to which Plaintiff is entitled.” But the question is

not whether Societe intentionally prevented MJ Corp. from receiving ATM funds; the

relevant inquiry is wh ether Societe intended to exercise dominion and control over the

69 Alaska Pattern Jury Instructions

– Civ. 18.02 ; Burton v. Fountain head

Dev., Inc. , 393 P.3d 387, 399 (Alaska 2017) (describing substantial factor test)

, as

amended on reconsideration (May 9, 2017)

.

70 See Vincent ex rel. Staton v. Fairbanks Mem ’ l Hosp. , 862 P.2d 847, 851

(Alaska 1993 ) (“ As a general rule, Alaska follows the ‘ substantial factor test ’ of

causation

. . . derived from the Restatement (Second) of Torts § 431 (1965)

. . . .”); but

see 90 C.J.S. Trover and Conversion § 4 ( West 2023 ) (explaining that “[n]either

proximate causatio n nor benefit to a party converting property is an element of

conversion”).

71 West v. City of St. Paul , 936 P.2d 136, 140 (Alaska 1997) (“To avoid

summary judgment once a movant has made out a prima facie case, the non

- movant

must set forth specific facts reasonably tending to dispute or contradict the movant’s

evidence and demonstrating the existence of a material issue of fact.”).

72 See Christensen v. Alaska Sales & Serv., Inc. , 335 P.3d 514, 516 (Alaska

2014)

.

- 19

- 7686disputed deposits. 73 The a ffidavit is devoid of specific facts in this regard. Dainis d oes

not allege that he reviewed the account histories and discovered that the deposits in

excess of th e agreement were not in fact diverted to accounts within Societe’s control

.

Dainis does not dispute that he knew of the transactions. And Dainis does not dispute

that Societe intended to keep the money once it was deposited. Nor does Dainis ’s

a ffidavit allege any specific facts to support the inference that Societe or Dainis w ere

entitled to any portion of the disputed deposits. Critically, nothing in the record

supports the inference that Societe possessed an ownership interest in the disputed

deposits establishing an entitlement to their possession. As to these points, we will not

read more into the a ffidavit than what i t plainly states. 74

Dainis ’s a ffidavit is insufficient to defeat a summary judgment motion

.

The affidavit does not create a genuine issue of material fact regarding conversion

because it does not “directly contradict” MJ Corp.’s admissible evidence showing that

Societe intended to exercise dominion and control over the disputed deposits to which

MJ Corp had a possessor y interest. 75 It i s simply too conclusory and devoid of specific

facts

. MJ Corp. s atisfied its prima facie burden for summary judgment , which Societe

did not successfully rebut. There is no genuine issue of material fact regarding MJ

Corp.’s claim for c onversion and thus it was proper for the superior court to grant

summary judgment.

73 Supra note 55

.

74 See Christensen , 335 P.3d at 517 (“Once the moving party has made that

showing [of no genuine dispute of material fact], the burden shifts to the non-moving

party ‘to set forth specific facts showing that he could produce evidence reasonably

tending to dispute or contradict the movant ’ s evidence and thus demonstrate that a

material issue of fact exists.’ ” (quoting State, Dep’t of Highways v. Green , 586 P.2d

595, 606 n.32 (Alaska 1978)) ).

75 Id. at 516.

- 20

- 7686D. I t W as Error T o Grant Summary Judgment As To Pierc ing T he

Corporate Veil

.

MJ Corp. sought to recover the disputed deposits from Dainis personally,

by pierc ing the corporate veil of Societe and other entities owned by Dainis. T he

superior court granted summary judgment without specifying the claims or providing

any reasonin g for its decision. W e thus presume the court rule d in MJ Corp.’s favor on

all grounds stated

, 76 including piercing the corporate veil. 77 Because t he final judgment

effectively provide s that MJ Corp. may recover from Dainis personally

, the court mus t

necessarily have granted summary judgment with respect to piercing Societe’s

corporate veil and the other entities owned by Dainis

.

Absent “exceptional circumstances” we “recognize and uphold ‘the

principles that the corporation exists as a separate legal entity and t hat owner liability

for the debts of the corporation is limited.’ ” 78 We have identified two situations in

which the veil

- p ie rcing doctrine may apply. 79

76 Windel v. Matanuska-Susitna Borough , 496 P.3d 392, 398 n.23 (Alaska

2021).

77 We are aware of only one case, an unpublished federal decision, applying

our veil-piercing doctrine to an LLC. Ryll Int ’ l, LLC. v. Drake Bros. Trucking, Inc.

, No. 8- CV -0060, 2010 WL 11619558, at *8 -10 (D. Alaska Aug. 6, 2010). Given that

the doctrine was litigated by the parties and we presume the superior court ruled in MJ

Corp. ’s favor, we assume that our veil-piercing doctrine and existing caselaw apply to

LLCs for purposes of this appeal only.

78 L.D.G., Inc. v. Brown , 211 P.3d 1110, 1125 (Alaska 2009) (quoting

Pyramid Printing Co. v. Alaska State Comm ’ n for Hum. Rts. , 153 P.3d 994, 1000

(Alaska 2007) ).

79 Brown v. Knowles , 307 P.3d 915, 929 (Alaska 2013) (providing “that there

are two alternate tests for piercing the corporate veil in Alaska, one dealing with mere instrumentality and the other with misconduct”).

- 21

- 7686First, veil piercing may be appropriate “ if the corporate form is used to

defeat public convenience, j ustify wrong, commit fraud, or defend crime.” 80 Th is

“misconduct standard of veil piercing ‘ exists to prevent a party from obtaining an

advantage through deceptive or manipulative conduct. ’ ” 81 The “misconduct standard”

is inapposite to this case. No admissible evidence in the record suggests that Dainis

manipulated Societe’s corporate form to “justify wrong, commit fraud, or defend

crime.” 82

Second, we have recognized that the corporate veil may be pierced if a

shareholder uses the corporate form as an “alter ego” or “mere instrumentality.” 83 In

Uchitel Co. v. Telephone Co. we laid out six factors for evaluating whether to impose

personal liability on a shareholder under the alter ego/mere instrumentality standard:

(a) whether the shareholder sought to be charged owns all or

most of the stock of the corporation; (b) whether the

shareholder has subscribed to all of the capital stock of the

corporation or otherwise caused its incorporation;

(c) whether the corporation has grossly inadequate capital;

(d) whether the shareholder uses the property of the

corporation as his own; (e) whether the directors or

executives of the corporation act independently in the

80 Id. (quoting L.D.G. , 211 P.3d at 1125 ).

81 Pister v. State, Dep ’ t of Revenue , 354 P.3d 357, 364 (Alaska 2015)

(quoting Elliott v. Brown , 569 P.2d 1323, 1326 (Alaska 1977)).

82 See Pister , 354 P.3d at 364 (applying misconduct standard when evidence

support ed finding that shareholder exploited corporation’s balance sheet to camouflage

ta x evasion).

83 Brown v. Knowles , 307 P.3d at 929. We are mindful that LLCs have

members who hold ownership interests rather than shareholders who hold stock, s ee

Duffus v. Baker , 513 P.3d 264, 266-67 (Alaska 2022), and that different factors may

justify piercing an LLC’s veil as opposed to a corporation’s veil

. See Kaycee Land &

Livestock v. Flahi ve , 46 P.3d 323, 328 (Wyo. 2002) (explaining that “many of the

organizational formalities applicable to corporations do not apply to LLCs,” counseling

in favor of a different test). As explained in footnote 77 above, we apply our veilpiercing caselaw to MJ Corp.’s claims against Societe for purposes of this appeal only

.

- 22

- 7686interest of the corporation or simply take their orders from

the shareholder in the latter ’ s interest; (f) whether the formal

legal requirements of the corporation are observed. [ 84 ]

“ ‘ It is not necessary for all six factors to be satisfied before instrumentality can be

found,’ but the factors help the fact -finder to decide whether the evidence favors

piercing the veil.” 85 We have also explained that “specific findings under the mere

instrumentality test are needed to pierce the corporate veil.” 86

Dainis admitted that he was “100% owner, manager, organizer and agent”

of Societe. Yet on the facts as asserted on summary judgment, the mere presence of the

first and second Uchitel factors is inadequate evidence to support piercing Societe’s

corporate veil. 87 MJ Corp. pointed to no admissible evidence showing the presence of

the other Uchitel factors. Because there is insufficient evidence on summary judgment

to pierce Societe’s corporate veil

, it was error to summarily hold Dainis personally

liable.

MJ Corp. also sought to recover a portion of the disputed deposits from

bank accounts associated with a subsidiary company of Societe, Commercial ATM

Services of Alaska, LLC, and a separate company owned by Dainis, Commercial ATM

- 23

- 7686 84 646 P.2d 229, 235 (Alaska 1982).

85 L.D.G. , 211 P.3d at 1126 (quoting Nerox Power Sys., Inc. v. M-B

Contracting Co. , 54 P.3d 791, 802 (Alaska 2002)).

86 Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co. , 299 P.3d 148, 169

(Alaska 2012) (reversing award and remanding for specific findings under mere

instrumentality test).

87 See Murat v. F/V Shelikof Strait , 793 P.2d 69, 77 (Alaska 1990)

(explaining that because second factor “ is likely to be present in almost all ‘ piercing ’

cases involving small corporations, we do not find it so persuasive as to justify judgment

against a shareholder/defendant as a matter of law ”) ; cf. Uchitel , 646 P.2d at 235

(denying piecing claim when evidence supported presence of only first factor).Services, LLC. There is insufficient evidence on summary judgment to pierce the

corporate veils of these entities as well. 88

Finally, MJ Corp. sought to recover a portion of the disputed deposits

($28,465.40) from bank accounts associated with Societe and Alaska ATM Service.

Because Societe, a party to this case, admitted it does business under the name Alaska

ATM Service, MJ Corp. may recover the disputed deposits made into these bank

accounts.

CONCLUSION

We REVERSE the order granting summary judgment on MJ Corp. ’s

breach of contract claim. We also REVERSE the order piercing Societe’s corporate

veil. We AFFIRM the superior court’s order granting summary judgment on MJ

Corp.’s claim for conversion. We REMAND for further proceedings consistent with

this opinion.

88 Commercial ATM Services of Alaska, LLC and Commercial ATM

Services, LLC were dissolved before MJ Corp. initiated this case. MJ Corp. did not

name these entities in its complaint. If, on remand, MJ Corp. still seeks to recover from

these entities, then MJ Corp. should move to amend its complaint to include these

entities as defendants. See G ossman v. Greatland Directional Drilling, Inc. , 973 P.2d

93, 98

- 99 (Alaska 1999) (finding that plaintiff may sue dissolved corporation on cause

of action that arises a fter dissolution and that statute providing for such suits does not

impose statute of limitations).

- 24

- 7686