Noel v. Pathology Med. Servs.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
Scott M. Noel, appellant, v. Pathology Medical
Services, P.C., a Nebraska professional
corporation, et al., appellees.
___ N.W.3d ___
Filed October 10, 2025. 	No. S-24-679.
1. Summary Judgment: Appeal and Error. An appellate court reviews a
district court’s grant of summary judgment de novo.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Fraud: Judgments. The existence of a fiduciary duty and the scope of
that duty are questions of law for a court to decide.
4. Evidence: Appeal and Error. Generally, the control of discovery is a
matter for judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion.
5. Appeal and Error. Appellate review of a district court’s use of inherent
power is for an abuse of discretion.
6. Judgments: Motions for Continuance: Appeal and Error. A court’s
grant or denial of a continuance and other judicial action authorized by
Neb. Rev. Stat. § 25-1335 (Reissue 2016) are within the discretion of the
trial court, whose ruling will not be disturbed on appeal in the absence
of an abuse of discretion.
7. Torts: Equity. A breach of fiduciary duty is a tort claim that lies
in equity.
8. Corporations. Judicial dissolution as a remedy for shareholder oppres-
sion is governed by the Nebraska Model Business Corporation Act.
9. Corporations: Partnerships. Shareholders in a close corporation owe
one another the same fiduciary duty as that owed by one partner to
another in a partnership.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:42 AM CDT

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Nebraska Supreme Court Advance Sheets
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NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
10. Partnerships. Partners must exercise the utmost good faith in all
their dealings with the members of the firm and must always act for
the common benefit of all.
11. Summary Judgment: Proof. The party moving for summary judg-
ment must make a prima facie case by producing enough evidence to
show the movant would be entitled to judgment if the evidence were
uncontroverted at trial. If the moving party makes a prima facie case,
the burden shifts to the nonmovant to produce evidence showing the
existence of a material issue of fact that prevents judgment as a mat-
ter of law. If the burden of proof at trial would be on the nonmoving
party, then the party moving for summary judgment may satisfy its
prima facie burden either by citing to materials in the record that
affirmatively negate an essential element of the nonmoving party’s
claim or by citing to materials in the record demonstrating that the
nonmoving party’s evidence is insufficient to establish an essential
element of the nonmoving party’s claim.
12. Rules of the Supreme Court: Pretrial Procedure. Neb. Ct. R. Disc.
§ 6-326(a)(1) (rev. 2022) provides that parties may obtain discovery by
required disclosures, depositions, interrogatories, requests for produc-
tion, subpoenas of nonparties to produce, physical and mental examina-
tions, and requests for admission.
13. ____: ____. The scope of discovery is limited to nonprivileged matters
relevant to the subject matter involved in the pending action and reason-
ably calculated to lead to the discovery of admissible evidence.
14. ____: ____. Neb. Ct. R. Disc. § 6-334(c)(1)(A) (codified 2008) states
that any request within the scope of Neb. Ct. R. Disc. § 6-326(b) (rev.
2022) must describe with reasonable particularity each item or category
of items to be inspected.
15. ____: ____. Neb. Ct. R. Disc. § 6-337(a)(3)(B) (codified 2008) states
that a party seeking discovery may move for an order compelling
an answer, designation, production, or inspection. Section 6-337(a)(1)
requires that a movant include a certification that the movant has in
good faith conferred or attempted to confer with the person or party
failing to make disclosure or discovery in an effort to obtain it without
court action.
16. Summary Judgment: Motions for Continuance: Affidavits. The
purpose of Neb. Rev. Stat. § 25-1335 (Reissue 2016) is to provide
a safeguard against an improvident or premature grant of summary
judgment. An affidavit in support of relief under § 25-1335 need not
contain evidence going to the merits of the case, but it must contain a
reasonable excuse or good cause, explaining why a party is presently

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
unable to offer evidence essential to justify opposition to the motion
for summary judgment. The affidavit should specifically identify the
relevant information that will be obtained with additional time and
indicate some basis for the conclusion that the sought information
actually exists.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Michael S. Degan and Rachel A. Geelan, of Kutak Rock,
L.L.P., for appellant.
Harrison J. Kratochvil and Richard P. Jeffries, of Cline,
Williams, Wright, Johnson & Oldfather, L.L.P., for appellees.
Funke, C.J., Cassel, Stacy, Freudenberg, and Bergevin,
JJ.
Freudenberg, J.
I. INTRODUCTION
A pathologist, who was an officer, director, shareholder,
and employee of a closely held professional corporation,
appeals 	from 	an 	order 	of 	summary 	judgment 	dismiss-
ing his action against the professional corporation and its
directors. The action was based on the nonrenewal of the
pathologist’s employment contract and the redemption of
the pathologist’s shares at book value. The pathologist was
subject to the corporation’s bylaws and an annual shareholder
employment agreement. The bylaws required all pathologist
shareholders to be professional employees of the corporation;
otherwise they would lose shareholder status and be subject
to redemption of their shares at book value. The shareholder
employment agreement provided that “[t]his Agreement may
be terminated . . . for any reason or no reason.” At issue is
whether there was a genuine issue of material fact prevent-
ing summary judgment on the pathologist’s claims of breach
of fiduciary duty and oppressive conduct. Also, at issue is
whether the district court abused its discretion by denying a

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
motion to compel and not granting a motion to continue the
corporation’s motions for summary judgment to allow for
discovery. We affirm.
II. BACKGROUND
Dr. Scott M. Noel appeals from orders of summary judgment
in favor of Pathology Medical Services, P.C., and its directors,
Dr. Ryan DeHaan, Dr. Darrell Lester, Dr. Charles Reese, and
Dr. Brian Toalson (collectively Pathology Medical), which
ultimately dismissed Noel’s complaint with prejudice. Noel is a
board-certified pathologist. Pathology Medical is a closely held
professional corporation incorporated in Nebraska. Pathology
Medical was incorporated in 1973 and is composed of patholo-
gist shareholders.
Noel joined Pathology Medical in 1994 and became one of
the pathologist shareholders in 1996 by making a $65,365 cap-
ital contribution. For many years after that, Noel held a minor-
ity share of Pathology Medical and served in multiple roles in
the company, including medical director, compliance officer,
and corporate secretary. Noel, like the other pathologist share-
holders, was subject to annual shareholder employment agree-
ments. At the end of 2021, Noel’s employment agreement with
Pathology Medical expired without renewal. The directors
were pathologist shareholders of Pathology Medical, members
of Pathology Medical’s board of directors, and colleagues of
Noel during all relevant times.
1. Pathology Medical’s Bylaws
and Agreements
Under section 2.01 of Pathology Medical’s bylaws, patholo-
gist shareholders are required to be employed by Pathology
Medical to remain a shareholder:
Qualifications. Only those persons who are duly licensed
and otherwise legally qualified pursuant to the laws of
the State of Nebraska to render the same professional
service as that provided by the corporation’s Articles

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NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
of Incorporation and who are professional employees of
the corporation may be shareholders of this corporation.
If, at any time, an individual shall fail to meet any of the
qualifications herein set forth, then such individual shall
immediately cease to be a shareholder and such individ-
ual’s shares shall be redeemed as provided in Article V,
Section 5.07 hereof.
Section 5.07 of the bylaws provides, in turn, for purchase—
at a “[t]ermination [p]urchase [p]rice”—of a shareholder’s
shares in the event a shareholder ceases to be a party to an
employment agreement:
Termination Purchase Price. The price to be paid for
the Sellers’ shares under this Section 5.07 shall be an
amount equal to the Fair Market Value of such shares
on the first day of the month that coincides with or next
follows the date on which the Shareholder ceases to be
a party to an Employment Agreement for Shareholder
Employees (a “Determination Date”), as determined
pursuant 	to 	Section 	5.08 	below 	(the 	“Termination
Purchase Price”).
Under section 5.08 of the bylaws, the termination purchase
price is determined based on book value without any allowance
for goodwill, a calculation that is also considered the fair mar-
ket value of the shares:
(a) Step One: The accountant or accounting firm
shall determine the book value of the Company on an
accrual basis, in conformity with Generally Accepted
Accounting Principles . . . , subject to the follow-
ing: (i) for purposes of determining book value, the
Company’s 	assets 	and 	liabilities 	shall 	include 	all
amounts due from or payable to all related or affiliated
entities, including, without limitation, [various limited
liability companies]; and (ii) there shall be no allow-
ance of any kind for goodwill.
(b) Step Two: The Fair Market Value of the pur-
chased shares shall then be determined by dividing

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
the book value of the Company as determined in Step
One above by the total number of shares of stock of
the Company that are issued and outstanding as of the
applicable Determination Date, and then multiplying
the per Share value so determined by the number of
shares of stock which are being purchased. The amount
so determined without any further discount for lack
of control or lack of marketability shall be the “Fair
Market Value” of the shares.
Once determined, a true, correct and complete copy
of the accountant’s valuation shall be furnished to the
Seller or Sellers, the Company and each of the other
Shareholders and absent manifest error, this determina-
tion shall be binding on the parties.
Pathology Medical’s pathologist shareholders are also sub-
ject to written annual shareholder employment agreements.
These shareholder employment agreements, including Noel’s
2021 employment agreement, contained an employment ter-
mination provision that stated:
This Agreement may be terminated by either party as
of the expiration of its Initial Term or as of the expira-
tion of any Renewal Term, for any reason or no reason,
provided the party desiring to terminate the Agreement
shall have first notified the other party of their inten-
tion to terminate the Agreement, in writing, at least one
hundred eighty (180) days prior to the date on which the
termination will take effect; and provided in the case of
the Employer, that said action shall have been approved
by the affirmative vote of at least two-thirds (2/3) of the
Employer’s Board of Directors.
The 	governing 	shareholder 	employment 	agreements
also contained a restrictive noncompetition provision that
was effective for 2 years after termination of employment.
This noncompetition provision provided, among other things,
that an employee may not solicit business from any hospital,

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320 Nebraska Reports
NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
clinic, or client that the employee had personally provided
with services within the 12 months preceding termination
of 	employment. 	The 	shareholder 	employment 	agreement
contained a provision stating that “[t]his Agreement shall
supersede and replace all prior understandings or agreements
between the parties pertaining to the subject matter hereof.”
Pathologist shareholders were compensated by an annual base
salary and the possibility of bonuses.
Pathology Medical’s bylaws and shareholder employment
agreements were last updated in December 2016, which Noel
participated in and approved as a shareholder and director.
2. Noel’s Departure From
Pathology Medical
Over the course of Noel’s employment with Pathology
Medical, Noel was the subject of a handful of incidents,
including a formal written warning issued by Reese to Noel
in March 2013. This warning addressed Noel’s lack of “time-
liness” in handling cases and Noel’s “inappropriate” com-
munications with staff and clients. The warning informed
Noel that he was being placed on an improvement plan and
warned that if things did not progress in an acceptable man-
ner, Noel would be subject to disciplinary action, “up to and
including termination of [Noel’s] employment.” Noel was
also, in his own words, “at the center of yet another pathology
service controversy” stemming from a December 2020 mis-
management of a biopsy specimen. This incident, according
to DeHaan, led to Noel’s removal from a pathology services
rotation at a hospital.
On June 3, 2021, Pathology Medical informed Noel that it
intended to take action regarding his employment and offered
Noel continued employment on a part-time basis, provided
that Noel surrender his shares and resign from Pathology
Medical. According to Pathology Medical, this decision was
based on Noel’s being “‘difficult to work with’” and the

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
“‘tension’” Noel had created at Pathology Medical. Noel
declined this offer.
On June 24, 2021, Noel sent a text message to his colleagues
stating, in part:
I believe I fully understand the uncomfortable situation in
which I have put you over the years. I’m very sorry and
sincerely apologize. I think it would be best for everyone
if I moved on as soon as possible by having you vote not
to renew my contract for 2022.
A few days later, the Pathology Medical’s board of direc-
tors voted to not renew Noel’s employment agreement for
2022. 	On 	December 	31, 	2021, 	Noel’s 	employment 	with
Pathology Medical ended upon the expiration of his employ-
ment agreement.
As a result of the termination of Noel’s employment with
Pathology Medical, Noel ceased to be a shareholder pur-
suant to Pathology Medical’s bylaws. Pathology Medical
undertook to redeem Noel’s shares at book value as stated in
the bylaws.
Pathology Medical’s chief financial officer, Lisa Wood,
sought to determine the book value of Noel’s shares as of
December 31, 2021, according to the procedure set forth
in section 5.08 of Pathology Medical’s bylaws. Pathology
Medical hired an accounting firm to perform a review of
Pathology Medical’s financial statements for 2020 and 2021.
This review showed that the total yearend book value of
Pathology Medical in 2021 had been reduced by $337,725 as
a result of a distribution made in June 2021. The June 2021
midyear distribution was approved by Noel and the other
members of Pathology Medical’s board of directors, and Noel
received a dividend of $56,287.50 from the distribution. Based
on a review of the accounting report, Wood determined that
Pathology Medical’s book value as of December 31, 2021,
was $280,148.
Noel held 37.442 shares of Pathology Medical at the time
his employment ended. Pathology Medical’s book value

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
per share as of December 31, 2021, was calculated at
$1,247.03. Accordingly, on March 30, 2022, Wood sent to
Noel a copy of her calculations and a check for $46,691.30
as payment for redemption of his shares. Noel did not
deposit or cash the check and did not assign or transfer his
shares back to Pathology Medical.
3. Procedural History
(a) Complaint and Answer
Noel filed this action against Pathology Medical in February
2023. Noel asserted three counts: (1) breach of fiduciary duty,
(2) judicial dissolution due to oppressive conduct of Pathology
Medical under Neb. Rev. Stat. § 21-2,197 (Reissue 2022) of
the Nebraska Model Business Corporation Act, 1 and (3) declar-
atory relief as to the fair value of Noel’s shares of Pathology
Medical and the validity of the noncompetition provision of
Noel’s employment agreement.
In his complaint, Noel elaborated he made a substan-
tial cash contribution in consideration for his shares and
had 	substantially 	contributed 	to 	the 	growth 	and 	success
of Pathology Medical’s business and goodwill. He further
alleged it was understood by all the pathologist shareholders
that each shareholder would be allowed to continue working
at Pathology Medical for as long as each desired until reach-
ing the mandatory retirement age of 67. He alleged that being
deprived of his employment at Pathology Medical effectively
ended his career and caused financial harm, especially con-
sidering the noncompetition provision of the shareholder
employment agreement.
Noel asserted that, under these alleged facts, the direc-
tors breached their fiduciary duties of “utmost loyalty and
good faith” owed to Noel as a shareholder by (1) frustrating
Noel’s “reasonable expectation of continued employment”
by not renewing his employment agreement, (2) “acting in
1 Neb. Rev. Stat. § 21-201 to 21-2,232 (Reissue 2022).

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NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
concert to deprive [Noel] the opportunity to practice pathol-
ogy in the community in which he has practiced and resided
for more than 27 years,” and (3) depriving him of the “full
fair value” of his Pathology Medical shares.
Noel additionally asserted that the directors acted in an
oppressive 	manner, 	justifying 	statutory 	dissolution 	by 	not
renewing his employment and status as a shareholder and by
depriving him “of the realization of full value of his shares.”
Pathology Medical answered, denying the allegations and
defending against the judicial dissolution claim on the ground
that Noel lacked shareholder standing.
(b) First Motion for Summary Judgment
One month after answering, Pathology Medical filed its
first motion for summary judgment on each claim (First
Motion 	for 	Summary 	Judgment). 	Specifically, 	Pathology
Medical argued that Noel could not show wrongdoing on the
part of Pathology Medical, as is necessary to sustain a breach
of fiduciary duty claim; that Noel did not have shareholder
standing to bring a suit to dissolve Pathology Medical; and
Noel’s declaratory relief could not be granted because of the
plain language of the shareholder employment agreement and
Pathology Medical’s bylaws.
(c) First Discovery Requests, Motion for
Protective Order, and Motion to Compel
Noel thereafter served Pathology Medical with written dis-
covery requests to be due the day before the hearing on
the First Motion for Summary Judgment. As reflected in
Pathology Medical’s responses, in which it objected to the
requests, Noel made 16 requests that can be generally sum-
marized as seeking from Pathology Medical his personnel
file, all documents relating to the decision to not renew his
employment agreement, all stock ledgers and capital account
documents since 2016, all corporate minutes since 2016, and
all documents mentioning Noel since 2016.

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NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
Pathology Medical objected to the requests on the grounds
that they were too broad. Pathology Medical also moved for a
protective order staying discovery while their First Motion for
Summary Judgment was considered. Pathology Medical stated
that discovery was not necessary to determine the motion for
summary judgment and would only serve to unduly increase
the expense and burden of the litigation.
Noel 	moved 	to 	compel 	responses 	to 	the 	requests 	for
production.
(d) Evidence at Hearing on Motions
In June 2023, the district court heard arguments and received
evidence on Pathology Medical’s First Motion for Summary
Judgment, Pathology Medical’s motion for protective order
staying discovery, Noel’s motion to compel responses to his
requests for production, and Noel’s motion to continue. Among
the evidence received at the hearing was a copy of Pathology
Medical’s bylaws as amended in December 2016, Noel’s 2021
shareholder employment agreement, Noel’s June 2021 text
message to the other Pathology Medical shareholders, and
records relating to Noel’s job performance. Under the parties’
statements of undisputed facts in relation to the First Motion
for Summary Judgment, Noel’s participation in the execution
of the bylaws and employment agreement was undisputed, as
was the language of those documents. No evidence was prof-
fered showing that Pathology Medical had enforced the non-
competition provision.
(e) First Summary Judgment Order
The district court granted Pathology Medical’s First Motion
for Summary Judgment in part and denied it in part (First
Summary Judgment Order).
The district court granted Pathology Medical’s motion in
part, finding no genuine issue of material fact as to Noel’s
claims for (1) a declaratory judgment that the noncompeti-
tion provision was invalid and unenforceable, (2) breach

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Nebraska Supreme Court Advance Sheets
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NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
of fiduciary duty by terminating his employment, and (3) judi-
cial dissolution due to shareholder oppression by Pathology
Medical’s terminating Noel’s employment.
The district court found that the noncompetition provision
“only prevent[s]” Noel “from engaging in unfair competition
with [Pathology Medical] and [is] no greater than reasonably
necessary to protect [Pathology Medical’s] legitimate inter-
est.” Regarding the claim that Pathology Medical breached
fiduciary duties by terminating Noel’s employment, the dis-
trict court relied on other jurisdictions to conclude that “the
no-cause termination language in the Employment Agreement
negates any reasonable expectation of continued employment
as a matter of law.”
The district court denied the motion for summary judgment
as to the claims of (1) judicial dissolution due to shareholder
oppression by Pathology Medical’s depriving Noel of the full
value of his shares; (2) declaratory judgment determining the
fair value of Noel’s shares; and (3) breach of fiduciary duty by
Pathology Medical’s redeeming Noel’s shares at book value,
rather than market value.
The district court ruled that further discovery would be
allowed on the issues of value and redemption of Noel’s shares
as they related to Noel’s remaining claims. It stated, “The
Court is of the opinion that further discovery should be allowed
regarding the valuation and redemption of the shares.”
The court denied Noel’s motion to compel on the grounds
that most of Noel’s requests for production related to Noel’s
performance and termination of employment, which were no
longer at issue. However, it stated, “[D]iscovery is allowed to
continue on other issues pending in this case.”
The court denied as moot Noel’s motion to continue and the
motion by Pathology Medical for a protective order.
(f) Discovery Regarding Value and Redemption
Two months after the First Summary Judgment Order,
Pathology Medical, through counsel, sent a letter to Noel

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NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
that was accompanied by documents relating to the valuation
and redemption of Noel’s shares. These appear to have cor-
responded, in part, to request No. 15 of Noel’s first discovery
requests. Noel did not respond to this letter and did not serve
any further discovery requests.
(g) Second Motion for Summary Judgment
Approximately 3 months later, Pathology Medical filed its
second motion for summary judgment on Noel’s remaining
claims (Second Motion for Summary Judgment). Pathology
Medical argued that Noel had not provided any plausible alle-
gations to support the claim that Noel was deprived of the full
book value of his Pathology Medical shares and that contract
law principles made it clear that Noel had received what he
bargained for.
(h) Second Motions to Continue and to Compel
Noel moved to continue the hearing on Pathology Medical’s
Second Motion for Summary Judgment under § 25-1335, gen-
erally asserting that discovery had not been completed and that
he required more time.
In support of the motion to continue, Noel attached an affi-
davit of his counsel, which generally set forth the procedural
history of the parties’ motions and the court’s rulings. Counsel
also observed in the affidavit that the materials provided by
Pathology Medical since the court’s First Summary Judgment
Order produced only 11 pages of documentation that were not
already in his possession. Other than the general reference to
the original 16 requests, Noel did not specifically identify what
additional relevant information he sought to obtain if given
additional time.
Simultaneously with his second motion to continue, Noel
filed a second motion to compel. However, the second motion
to compel referred only to the original 16 requests for produc-
tion and alleged that none had been satisfied.

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NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
Attached to the second motion to compel was a letter from
Pathology Medical’s counsel explaining that, in the absence
of any specific requests from Noel and in an attempt to honor
the court’s order stating Noel could take discovery regarding
the valuation and redemption of his shares, Pathology Medical
would provide copies of the minutes in which Noel ratified
the book value formula, the audited 2021 financial statement,
Pathology Medical’s stock ownership tables, an accounting
memorandum, and a payment stub. Counsel for Pathology
Medical stated it would review any requests by Noel for any
other discrete information Noel believed to be relevant to the
valuation of Noel’s shares. It does not appear from the record
that Noel made any such requests.
At the hearing on the Second Motion for Summary Judgment,
the court stated that Noel had failed to comply with the local
rule requiring opposing counsel to meet and confer on discov-
ery matters before bringing a motion to compel. In its order,
the court overruled Noel’s motions to continue and to compel,
noting its earlier ruling on the first motion to compel for the
same discovery requests.
(i) Evidence at Summary Judgment Hearing
In May 2024, the district court heard arguments and received
evidence on Pathology Medical’s Second Motion for Summary
Judgment, Noel’s motion to compel, and Noel’s motion to con-
tinue. At the outset, the court reiterated that Noel’s counsel had
failed to comply with Rules of Dist. Ct. of Third Jud. Dist. 3-5
(rev. 1995) (local rule 3-5) by not conferring with opposing
counsel on Noel’s discovery motions. Noel’s counsel admit-
ted, “I have not discussed [the motion to compel or motion to
continue] with opposing counsel . . . .”
During the hearing, the court received evidence, includ-
ing an affidavit of Wood that included attachments per-
taining to the value and redemption of Noel’s shares, an
affidavit of Pathology Medical’s counsel that included as
an attachment the letter sent to Noel’s counsel regarding

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NOEL v. PATHOLOGY MED. SERVS.
Cite as 320 Neb. 92
value and redemption of Noel’s shares, an affidavit of DeHaan
that included as an attachment the meeting minutes from
three of Pathology Medical’s board of directors meetings,
and an affidavit of Noel’s counsel that again included as an
attachment Pathology Medical’s responses to Noel’s requests
for production.
Under the parties’ statements of undisputed facts in relation
to the Second Motion for Summary Judgment, it was undis-
puted that Noel was subject to Pathology Medical’s bylaws,
including the provisions relating to redemption of shares. It
was also undisputed that Pathology Medical tendered a check
to Noel for the book value of Noel’s shares, based on when
his employment with Pathology Medical ended. Noel dis-
puted that the book value was the appropriate valuation for
his shares.
In his index of evidence in support of his opposition to the
Second Motion for Summary Judgment, Noel cited filings
already submitted, namely, his counsel’s affidavit, Pathology
Medical’s responses to Noel’s first requests for production of
documents, and the letter from Pathology Medical’s counsel
regarding discovery. Noel did not submit any evidence to
dispute Pathology Medical’s valuation of his shares. Noel’s
only argument at the hearing was that discovery should be
allowed to take place and that summary judgment was there-
fore improper.
(j) Final Judgment
The district court issued its final judgment in which
it 	overruled 	Noel’s 	second 	motion 	to 	compel, 	granted
Pathology Medical’s Second Motion for Summary Judgment,
and dismissed Noel’s complaint with prejudice. It specifi-
cally denied all other relief requested but not specifically
granted in the order.
As explained by the district court, Noel based all his claims
on the allegations that

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NOEL v. PATHOLOGY MED. SERVS.
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(1) 	his 	employment 	with 	[Pathology 	Medical] 	was
wrongfully terminated while he had a reasonable expec-
tation of continued employment at [Pathology Medical];
(2) after his termination and in the process of redeeming
his shares, [Pathology Medical is] seeking to deprive him
of the full fair value of his shares; and (3) [Pathology
Medical] ha[s] deprived him of the opportunity to prac-
tice pathology in the community by operation of the
competition restrictions.
It found no genuine issue of material fact as to any of the
issues presented.
Specifically, the court reiterated its prior conclusion that
the noncompetition provision was valid and enforceable. It
found no genuine issue that Noel lacked a reasonable expec-
tation of continued employment in light of the provision of
the employment agreement that his employment could be
terminated for any reason or no reason. It also found that
Pathology Medical had provided sufficient evidence to make
a prima facie case of the correctness of the valuation of the
purchase price of the shares pursuant to the bylaws, shifting
the burden to Noel to raise a genuine issue of fact otherwise,
which he did not do.
As for the motion to compel, the district court noted Noel
had not served Pathology Medical with any discovery requests
following the court’s First Summary Judgment Order and
had not offered any evidence disputing Pathology Medical’s
valuation and redemption of Noel’s shares. Instead, Pathology
Medical had voluntarily given Noel additional documentation
in its possession relating to the value of the shares.
Noel timely filed this appeal.
III. ASSIGNMENTS OF ERROR
Noel assigns, condensed and restated, that the district
court erred by (1) granting summary judgment in favor
of 	Pathology 	Medical 	by 	determining 	that 	Pathology
Medical did not breach any fiduciary duty or engage in
any 	minority 	shareholder 	oppression 	by 	terminating

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Noel’s employment, seeking to redeem Noel’s shares at book
value, and enforcing the noncompetition provision of Noel’s
employment agreement; (2) abusing its discretion in deny-
ing Noel’s motion to compel discovery; and (3) abusing its
discretion in denying Noel’s motion to continue summary
judgment pursuant to § 25-1335.
IV. STANDARD OF REVIEW
[1,2] An appellate court reviews a district court’s grant of
summary judgment de novo. 2 In reviewing a summary judg-
ment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted,
and gives that party the benefit of all reasonable inferences
deducible from the evidence. 3
[3] The existence of a fiduciary duty and the scope of that
duty are questions of law for a court to decide. 4
[4] Generally, the control of discovery is a matter for judicial
discretion, and decisions regarding discovery will be upheld on
appeal in the absence of an abuse of discretion. 5
[5] Appellate review of a district court’s use of inherent
power is for an abuse of discretion. 6
[6] A court’s grant or denial of a continuance and other judi-
cial action authorized by § 25-1335 are within the discretion of
the trial court, whose ruling will not be disturbed on appeal in
the absence of an abuse of discretion. 7
V. ANALYSIS
[7,8] Noel does not dispute the validity of the noncompeti-
tion provision in the employment agreement or that, under
2 Syring v. Archdiocese of Omaha, 317 Neb. 195, 9 N.W.3d 445 (2024).
3 Clark v. Scheels All Sports, 314 Neb. 49, 989 N.W.2d 39 (2023).
4 Strohmyer v. Papillion Family Medicine, 296 Neb. 884, 896 N.W.2d 612
(2017).
5 Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
6 Id.
7 Id.

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the plain language of the underlying bylaws and employment
agreement, the directors were entitled to terminate Noel’s
employment and purchase his shares at book value—which
he does not dispute was accurately calculated. Instead, Noel
argues there were genuine and material issues as to whether it
was “reasonable” for the directors to carry out the terms of the
bylaws and the employment agreement, preventing summary
judgment on his claims of breach of fiduciary duty and for
judicial dissolution. A breach of fiduciary duty is a tort claim
that lies in equity. 8 Judicial dissolution as a remedy for share-
holder oppression is governed by the Nebraska Model Business
Corporation Act. 9 Noel’s breach of fiduciary duty and judicial
dissolution claims both center around Pathology Medical’s ter-
mination of Noel’s employment and attempt to repurchase his
shares at book value. They also both involve the overlapping
legal concept of reasonable expectations.
[9,10] We have said that shareholders in a close corpora-
tion owe one another the same fiduciary duty as that owed
by one partner to another in a partnership. 10 Partners must
exercise the utmost good faith in all their dealings with the
members of the firm and must always act for the common
benefit of all. 11 We have not elaborated on this abstract
8 See, Anderson v. Bellino, 265 Neb. 577, 658 N.W.2d 645 (2003);
Getzschman v. Miller Chemical Co., 232 Neb. 885, 443 N.W.2d 260
(1989).
9 See § 21-2,197.
10 Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007). See
Anderson v. Bellino, supra note 8. See, also, Anderson v. Clemens Mobile
Homes, 214 Neb. 283, 333 N.W.2d 900 (1983).
11 Strohmyer v. Papillion Family Medicine, supra note 4; Bellino v. McGrath
North, supra note 10; Bode v. Prettyman, 149 Neb. 179, 30 N.W.2d 627
(1948), supplemented by 149 Neb. 469, 31 N.W.2d 429. But see Neb. Rev.
Stat. § 67-424 (Reissue 2018) (the only fiduciary duties between partners
are duties of loyalty and due care as described by statute).

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standard but have applied it to a former shareholder employee
competing with his former employer, 12 usurpation of a cor-
porate opportunity, 13 failure to monitor corporate affairs, 14
and a personal representative’s improper payment out of an
estate. 15 We have not considered whether shareholders can
breach their fiduciary duties to each other by terminating
or not renewing the employment of a shareholder employee
under an at-will provision of an employment agreement and
then attempting to redeem shares at book value pursuant to
corporate bylaws ratified by that shareholder employee.
It has generally been explained that the “‘common benefit
of all’” is not an obligation that each corporate decision ben-
efit each shareholder as an individual, but, rather, that corpo-
rate business transactions be for the common benefit of the
corporation (and by extension of its shareholders), as opposed
to for personal gain. 16 At least one court has defined “good
faith” in the context of fiduciary duties between shareholders
of closely held corporations as the lack of bad faith, which
“embraces more than bad judgment or negligence. It imports
a dishonest purpose, moral obliquity, conscious wrongdoing,
breach of a known duty through some ulterior motive or ill
will partaking of the nature of fraud [or] actual intent to mis-
lead or deceive another.” 17
12 See Dick v. Koski Prof. Group, 307 Neb. 599, 950 N.W.2d 321 (2020),
modified on denial of rehearing 308 Neb. 257, 953 N.W.2d 257 (2021).
13 See Anderson v. Bellino, supra note 8.
14 See Trieweiler v. Sears, 268 Neb. 952, 689 N.W.2d 807 (2004).
15 See In re Estate of Lakin, 310 Neb. 271, 965 N.W.2d 365 (2021), modified
on denial of rehearing 310 Neb. 389, 966 N.W.2d 208.
16 See Henley v. Haynes, 376 So. 2d 1030, 1031 (La. App. 1979). Accord,
DeSantis v. Dixon, 72 Ariz. 345, 236 P.2d 38 (1951); Tinter v. Lucik,
172 Ohio App. 3d 692, 876 N.E.2d 1026 (2007); Bossier v. Lovell, 410
So. 2d 821 (La. App. 1982). See, also, Koehler v. Black River Falls Iron
Company, 67 U.S. (2 Black) 715, 17 L. Ed. 339 (1862).
17 Vontz v. Miller, 2016 Ohio 8477, ¶ 33, 111 N.E.3d 452, 461 (Ohio App.
2016) (internal quotation marks omitted).

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While some courts imposing partnership fiduciary duties
on shareholders in a closely held corporation use other tests,
such as the “‘business purpose test,’” 18 to determine claims
for breach of fiduciary duty amongst shareholders of closely
held corporations, there is a strong trend in favor of a rea-
sonable expectation test for such claims, either as a replace-
ment of prior standards or as a way of interpreting preexist-
ing ones. 19
The parties and the court below utilized the “reasonable
expectation test” to evaluate whether there was a genuine
issue that the directors, by terminating Noel’s employment
and calculating the repurchase price of his shares at book
value, acted in good faith and for the common benefit of all.
We, therefore, then assume without deciding that the reason-
able expectation test is an appropriate lens through which to
evaluate if there was a genuine issue of material fact prevent-
ing summary judgment on Noel’s claim that the directors
breached their fiduciary duties.
Based upon that assumption, it seems appropriate to employ
a reasonable expectation test to the question of whether
there was a genuine issue of material fact preventing sum-
mary judgment on Noel’s claim of shareholder oppression
under § 21-2,197(a)(2)(i)(B) of the Nebraska Model Business
Corporation Act.
Section 21-2,197(a)(2)(i)(B) provides that a court may
judicially dissolve a corporation if the shareholder estab-
lishes “[t]he directors or those in control of the corporation
have acted, are acting, or will act in a manner that is illegal,
oppressive, or fraudulent.” Noel correctly points out that the
18 168 Am. Jur. Trials 323, § 13 at 346 (2021).
19 See 2 F. Hodge O’Neal et al., O’Neal and Thompson’s Close Corporations
and LLCs: Law and Practice § 9:8 (rev. 3d ed. 2015). See, also, e.g.,
Benjamin Means, A Voice-Based Framework for Evaluating Claims of
Minority Shareholder Oppression in the Close Corporation, 97 Geo. L.J.
1207 (2009).

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Nebraska Model Business Corporation Act does not define
“oppression.” We have never expressly defined the term
but have said it must be strictly construed. 20 In Detter v.
Miracle Hills Animal Hosp., 21 the Nebraska Court of Appeals
explained that oppressive conduct must be something more
than conduct that is simply unkind, greedy, and unfair.
Elsewhere, it has been said that acts are not “oppressive,”
as set forth under the Nebraska Model Business Corporation
Act, where there is a reasonable explanation for them. 22
Secondary 	authorities 	discussing 	the 	undefined 	term
“oppression” from the Nebraska Model Business Corporation
Act observe that courts generally adopt one of three gen-
eral descriptions or tests: (1) frustration of a shareholder’s
reasonable expectations that are both objectively reasonable
and central to the decision to join the venture, (2) a visible
departure from standards of fair dealing and fair play on
which every shareholder is entitled to rely, and (3) some-
thing similar to breaching a fiduciary duty of good faith and
fair dealing. 23 These three different tests of oppression are
not contradictory. 24 But at least one court has explained that
the reasonable expectations test for defining oppressive con-
duct is the most appropriate test to employ where, as here, a
complaining shareholder was one of the original participants
committing capital and resources to the venture. 25
20 See In re Invol. Dissolution of Wiles Bros., 285 Neb. 920, 830 N.W.2d 474
(2013).
21 Detter v. Miracle Hills Animal Hosp., 12 Neb. App. 480, 677 N.W.2d 512
(2004), overruled in part on other grounds 269 Neb. 164, 691 N.W.2d 107
(2005).
22 See McCormick v. Dunn & Black, P.S., 140 Wash. App. 873, 167 P.3d 610
(2007).
23 See, 2 O’Neal et al., supra note 19, § 9:7; 12B William Meade Fletcher,
Fletcher Cyclopedia of the Law of Corporations § 5820.11 (2017); 19 Am.
Jur. 2d Corporations § 2356 (2015).
24 See 2 O’Neal et al., supra note 19, § 9:7.
25 McCormick v. Dunn & Black, P.S., supra note 22.

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Reasonable expectations have been described as “spoken
and unspoken understandings on which the founders of a
venture rely when commencing the venture.” 26 Stated another
way, reasonable expectations are those “of which all investors
shared a basic understanding at the inception of the venture
and that, objectively viewed, w[ere] reasonable under the
circumstances.” 27 Such expectations must be balanced against
the need for flexibility to run a business in a productive man-
ner. 28 Frustration of subjective hopes and desires will not alone
trigger relief. 29
Inside a closely held corporation, reasonable expectations
must be gleaned from the parties’ actions, as well as their
signed agreements. 30 Factors considered in an analysis of
whether a plaintiff shareholder’s expectation was reasonable
include whether the expectation
(i) contradicts any term of the operating agreement or
any reasonable implication of any term of that agree-
ment; (ii) was central to the plaintiff’s decision to
become a member of the limited liability company or
for a substantial time has been centrally important in the
member’s continuing membership; (iii) was known to
other members, who expressly or impliedly acquiesced
in it; (iv) is consistent with the reasonable expectations
of all the members, including expectations pertaining to
the plaintiff’s conduct; and (v) is otherwise reasonable
under the circumstances. 31
26 Noble v. Lubrin, 114 Wash. App. 812, 822, 60 P.3d 1224, 1230 (2003)
(internal quotation marks omitted).
27 Kortum v. Johnson, 755 N.W.2d 432, 446 (N.D. 2008) (emphasis in
original).
28 See id.
29 2 O’Neal et al., supra note 19.
30 See Harris v. Testar, Inc., 243 N.C. App. 33, 777 S.E.2d 776 (2015).
31 Manere v. Collins, 200 Conn. App. 356, 385, 241 A.3d 133, 154 (2020)
(internal quotation marks omitted).

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Not all of a shareholder’s “business bargain” will necessar-
ily be contained in the charter, bylaws, or separate signed
agreements, 32 but, depending on the circumstances, a writing
can affirmatively “delimit what participants’ reasonable expec-
tations are.” 33 “[T]hese reasonable expectations constitute the
bargain of the parties in light of which subsequent conduct
must be appraised.” 34
An expectation of continuing employment is reasonable
if continuing employment can be fairly characterized as part
of the shareholder’s investment 35 and if that expectation is
known and accepted by other shareholders and properly bal-
anced against the majority or controlling shareholders’ need
for flexibility in running the business. 36 Shareholder employ-
ees challenging terminations of employment are often unable
to overcome the obstacle of employment at will, 37 much
less the obstacle of having signed an employment agreement
expressly providing that employment can be terminated at any
time for any reason.
At-will employment or shareholder agreements requiring
minority shareholders to sell back their shares at a set price
upon termination of employment that can be for any reason
or no reason strongly weigh against a reasonable expectation
of continued employment. 38 And the minority’s shareholder
32 2 O’Neal et al., supra note 19, § 9:8 at 283.
33 Id. at 284.
34 Id. (internal quotation marks omitted).
35 See Haley v. Forcelle, 669 N.W.2d 48 (Minn. App. 2003).
36 See id.
37 See Douglas K. Moll, Shareholder Oppression v. Employment at Will in
the Close Corporation: The Investment Model Solution, 1999 U. Ill. L.
Rev. 517 (1999).
38 See Matthew C. McDermott & Christopher J. Jessen, At-Will or Something
More?: Reasonable Expectations of Continued Employment by Minority
Shareholders Post-Baur v. Baur Farms, Inc., 67 Drake L. Rev. 713 (2019)
(and cases cited therein).

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interest is not injured if the corporation redeems shares at
a fair price or a price determined by prior contract or the
shareholder is otherwise able to obtain a fair price. 39
Accordingly, in Siegel v. Goldstein, 40 where the validity of a
controlling agreement was no longer disputed, a court granted
summary judgment in favor of the majority shareholders of a
dental practice and against the minority dentist shareholder in
his action for shareholder oppression by canceling his shares
of the corporation when his license became inactive, which
was in conformity with the plain language of the agreement.
Likewise, in Mueller v. Cedar Shore Resort, Inc., 41 where a
plaintiff shareholder was lawfully removed in compliance with
the procedures set out in a company’s bylaws, evidence pre-
sented by the plaintiff that he was under the impression secret
meetings were conducted to remove him was insufficient to
create a genuine issue of material fact.
In McLaughlin v. Schenck, 42 a court affirmed summary
judgment against a minority shareholder in a closely held
corporation in his action for breach of fiduciary duty for ter-
minating his employment when his employment agreement
expressly stated his employment could be terminated at any
time for any reason, so long as 6-months’ notice was given.
Lastly, in Metro Mgmt Svcs v. Van Istendal, 43 a court affirmed
summary judgment in a shareholder oppression claim based
on termination of employment when the plaintiff signed an
employment agreement acknowledging her employment was
at will. The court distinguished the defendant shareholder’s
39 Hollis v. Hill, 232 F.3d 460 (5th Cir. 2000).
40 Siegel v. Goldstein, 657 F. Supp. 3d 646 (E.D. Pa. 2023).
41 Mueller v. Cedar Shore Resort, Inc., 643 N.W.2d 56 (S.D. 2002).
42 McLaughlin v. Schenck, 220 P.3d 146 (Utah 2009), abrogated on other
grounds, Haik v. Jones, 427 P.3d 1155 (Utah 2018).
43 Metro Mgmt Svcs v. Van Istendal, 457 N.J. Super. 66, 197 A.3d 695
(2018).

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case from cases where there was no specific employment
agreement entered into by the shareholder. 44
As one commentator has explained, while, standing alone,
buy-sell agreements might not be intended to memorialize the
parties’ understandings of the terms of employment, it “makes
sense” to find that “a shareholder who signs an employ-
ment agreement providing for termination without cause does
not have a reasonable expectation of continued employment”
because “[t]he purpose of employment agreements is to memo-
rialize the parties’ understandings concerning the terms of
employment, and provisions in employment agreements pro-
viding that termination may be without cause are generally
straightforward.” 45
[11] Under our case law, the party moving for summary
judgment must make a prima facie case by producing enough
evidence to show the movant would be entitled to judgment
if the evidence were uncontroverted at trial. 46 If the mov-
ing party makes a prima facie case, the burden shifts to the
nonmovant to produce evidence showing the existence of a
material issue of fact that prevents judgment as a matter of
law. 47 If the burden of proof at trial would be on the nonmov-
ing party, then the party moving for summary judgment may
satisfy its prima facie burden either by citing to materials in
the record that affirmatively negate an essential element of
the nonmoving party’s claim or by citing to materials in the
record demonstrating that the nonmoving party’s evidence is
44 See id.
45 Samuel E. Neschis, Reasonable Expectations of Shareholder-Employees in
Closely Held Corporations: Towards a Standard of When Termination of
Employment Constitutes Shareholder Oppression, 13 DePaul Bus. & Com.
L.J. 301, 314-15 (2015).
46 Clark v. Scheels All Sports, supra note 3.
47 Id.

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insufficient to establish an essential element of the nonmov-
ing party’s claim. 48
The evidence at the summary judgment hearings dem-
onstrated that Noel’s employment agreement provided his
employment could be terminated by either party at the expi-
ration of any renewal term, “for any reason or no reason.”
Noel not only signed this employment agreement but voted
to approve revisions to the shareholder employee agreements
in 2016. Pathology Medical’s bylaws also contemplated ter-
mination of employment, providing that an individual must
be a professional employee to be a shareholder and that an
individual ceases to be a shareholder when the individual is
no longer an employee of Pathology Medical. The bylaws
provide a detailed process for the repurchase of stock at a
set book value in the event of “Termination of Employment
Agreement.” It was undisputed that Noel voted for the revi-
sions to the Pathology Medical bylaws in 2016. It was
undisputed that Pathology Medical followed the terms of the
employment agreement in voting to not renew Noel’s employ-
ment and giving him ample notice and that it offered to repur-
chase Noel’s shares at a book value accurately calculated in
accordance with the bylaws.
Also relevant is the undisputed evidence introduced at the
summary judgment hearings showing a history of incidents
involving Noel. Noel himself suggested by text message that it
would be best for Pathology Medical if the directors voted to
not renew his employment contract for 2022.
As the moving party, Pathology Medical satisfied its prima
facie burden to show there was no genuine issue of any mate-
rial fact, more specifically, that there was no genuine issue
that Pathology Medical’s actions were contrary to Noel’s rea-
sonable expectation. The burden shifted to Noel to produce
evidence showing the existence of a material issue of fact.
Noel asserts that he had an understanding and an expectation
48 Id.

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of continued employment up until the mandatory age of retire-
ment, but he did not offer any evidence in support of this
understanding. Noel asserts that book value was not the appro-
priate valuation of his shares but did not offer any evidence of
a more appropriate valuation and does not dispute the calcula-
tion of the book value of his shares.
The undisputed evidence in this case shows that Noel did
not have a reasonable expectation of continued employment
and that the directors did not breach any fiduciary duties owed
to Noel or engage in oppressive conduct by voting to not renew
his employment agreement for 2022 and seeking to redeem his
shares at book value. The district court did not err in granting
summary judgment in favor of Pathology Medical.
We find no merit to Noel’s contention that he was prevented
from presenting a genuine issue of material fact because the
court did not grant his second motion to compel discovery and
second motion to continue to conduct such discovery.
A court’s decision to grant or deny a motion to compel,
as with other discovery matters, is discretionary and will not
be overturned absent an abuse of discretion. 49 Likewise, the
trial court’s decision to grant or deny a continuance under
§ 25-1335 will not be disturbed on appeal in the absence of an
abuse of discretion. 50
[12-15] Neb. Ct. R. Disc. § 6-326(a)(1) (rev. 2022) pro-
vides that parties may obtain discovery by required disclo-
sures, depositions, interrogatories, requests for production,
subpoenas of nonparties to produce, physical and mental
examinations, and requests for admission. The scope of dis-
covery is limited to nonprivileged matters relevant to the
subject matter involved in the pending action and reasonably
calculated to lead to the discovery of admissible evidence. 51
49 See Eddy v. Builders Supply Co., 304 Neb. 804, 937 N.W.2d 198 (2020).
50 See id.
51 See § 6-326(b)(1). See, also, Norquay v. Union Pacific Railroad, 225 Neb.
527, 407 N.W.2d 146 (1987).

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Neb. Ct. R. Disc. § 6-334(c)(1)(A) (codified 2008) states that
any request within the scope of § 6-326(b) must describe
with reasonable particularity each item or category of items
to be inspected. Neb. Ct. R. Disc. § 6-337(a)(3)(B) (codi-
fied 2008) states that a party seeking discovery may move
for an order compelling an answer, designation, production,
or inspection. Section 6-337(a)(1) requires that a movant
include a certification that the movant has in good faith
conferred or attempted to confer with the person or party
failing to make disclosure or discovery in an effort to obtain
it without court action. Similarly, district court local rule 3-5
provides that “the court shall refuse to consider any and all
motions relating to discovery, unless moving counsel, as
part of the motion, makes a written showing that after per-
sonal consultation with counsel for opposing party(ies) and
reasonable efforts to resolve differences, counsel are unable
to reach an accord.” While we have not explicitly ruled on
the effect of failure to meet and confer, the South Dakota
Supreme Court has said that “[a] failure to fulfill the meet
and confer requirement in good faith often serves as a basis
for denying the motion to compel.” 52
The district court denied Noel’s first motion to compel
Pathology Medical’s discovery responses on the grounds
that the requests largely related to Noel’s expectation of con-
tinued employment, which the court disposed of in its First
Summary Judgment Order. Noel’s second motion to compel
included as an attachment Pathology Medical’s responses
to his original 16 requests for production of documents and
asserted that Pathology Medical had yet to satisfy any of
them. The record reflects no discovery requests following
the First Summary Judgment Order. The record shows no
notices of depositions, including for Pathology Medical’s
directors. The record also reflects, as admitted by Noel’s
52 Krueger v. Grinnell Mutual Reinsurance Co., 921 N.W.2d 689, 695 (S.D.
2018).

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counsel at the hearing on the Second Motion for Summary
Judgment, that Noel’s counsel did not meet and confer with
opposing counsel on any of the discovery motions. The sec-
ond motion to compel was denied in the district court’s final
order for “the same reasons” as the first motion to compel.
Based on the record before us, we cannot say that the dis-
trict court abused its discretion in denying Noel’s motions
to compel.
The second motion to continue, pursuant to § 25-1335,
stated that Noel needed time to conduct discovery in order
to respond to the Second Motion for Summary Judgment. In
support of Noel’s second motion to continue, Noel’s counsel
attached an affidavit that mainly recited the procedural history
of the case, adding that Pathology Medical had not responded
to Noel’s requests for production, even though the district
court had denied Noel’s motion to compel in the court’s
First Summary Judgment Order. The affidavit alleged that
Pathology Medical had the documents and information to sup-
port Noel’s opposition and that no depositions had yet taken
place, adding “[Noel] requires testimony from [Pathology
Medical’s] managers and members to support his breach of
fiduciary duty claim.”
Noel’s affidavit failed to specifically identify the relevant
material sought, as required by our case law. 53 Section 25-1335
states:
Should it appear from the affidavits of a party opposing
the motion that he cannot for reasons stated present by
affidavit facts essential to justify his opposition, the court
may refuse the application for judgment or may order a
continuance to permit affidavits to be obtained or deposi-
tions to be taken or discovery to be had or may make such
other order as is just.
[16] The purpose of § 25-1335 is to provide a safeguard
against 	an 	improvident 	or 	premature 	grant 	of 	summary
53 See Lombardo v. Sedlacek, supra note 5.

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judgment. 54 An affidavit in support of relief under § 25-1335
need not contain evidence going to the merits of the case,
but it must contain a reasonable excuse or good cause,
explaining why a party is presently unable to offer evidence
essential to justify opposition to the motion for summary
judgment. 55 The affidavit should specifically identify the rel-
evant information that will be obtained with additional time
and indicate some basis for the conclusion that the sought
information actually exists. 56
The court denied the motion from the bench, noting that
Noel had failed to meet and confer with opposing counsel prior
to filing the motion, as required by district court local rule 3-5.
Notwithstanding the failure to meet and confer on Noel’s sec-
ond motion to continue, we cannot say on the present record
that the district court abused its discretion in denying Noel’s
motion to continue summary judgment.
VI. CONCLUSION
Pathology Medical satisfied its prima facie burden by
showing that Noel’s evidence was insufficient to establish
that there was a breach of fiduciary duty by the individual
directors or that Pathology Medical should be judicially dis-
solved due to minority shareholder oppression. Pathology
Medical would be entitled to judgment at trial if the evidence
was uncontroverted. Further, the district court did not abuse
its discretion by denying Noel’s motion to continue or Noel’s
motion to compel. The judgment of the district court should
be affirmed.
Affirmed.
Miller-Lerman and Papik, JJ., not participating.
54 Gaytan v. Wal-Mart, 289 Neb. 49, 853 N.W.2d 181 (2014).
55 Lombardo v. Sedlacek, supra note 5.
56 Id.