§ 25-1335 — Party unable to justify opposition by affidavit; refusal of order; continuance

Nebraska § 25-1335

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

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 depositions to be taken or discovery to be had or may make such other order as is just.

Legislative History

Source: Laws 1951, c. 65, § 6, p. 200. Annotations: This section provides a safeguard against an improvident or premature grant of summary judgment. George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947 N.W.2d 510 (2020). A continuance authorized by this section is within the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. Eastroads, Inc. v. City of Omaha, 237 Neb. 837, 467 N.W.2d 888 (1991); DeCamp v. Lewis, 231 Neb. 191, 435 N.W.2d 883 (1989). An affidavit under this section need not contain evidence going to the merits of the case; rather, the affidavit need only contain reasonable excuse or good cause explaining why a party is presently unable to offer evidence essential to justify opposition to a motion for summary judgment. DeCamp v. Lewis, 231 Neb. 191, 435 N.W.2d 883 (1989). This section does not provide relief to a party who has been dilatory. DeCamp v. Lewis, 231 Neb. 191, 435 N.W.2d 883 (1989). This section prescribes a prerequisite for continuance, or additional time or other relief under the statute, namely, an affidavit stating a reasonable excuse or good cause for a party's inability to oppose a summary judgment motion. DeCamp v. Lewis, 231 Neb. 191, 435 N.W.2d 883 (1989). The purpose of this section is to provide an additional safeguard against an improvident or premature grant of summary judgment. An affidavit need not contain evidence going to the merits of the case; rather, an affidavit 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. Wachtel v. Beer, 229 Neb. 392, 427 N.W.2d 56 (1988). Denial of motion for partial summary judgment was not error where basis for such action was not clearly shown. American Province Real Estate Corp. v. Metropolitan Utilities Dist., 178 Neb. 348, 133 N.W.2d 466 (1965). Where motion for summary judgment had been argued and submitted without objection, motion to amend pleadings thereafter made was properly denied. Lange v. Kansas Hide & Wool Co., 168 Neb. 601, 97 N.W.2d 246 (1959). A continuance authorized by this section is within the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. King v. Burlington Northern Santa Fe Ry. Co., 16 Neb. App. 544, 746 N.W.2d 383 (2008). As a prerequisite for a continuance or additional time or other relief under this section, a party is required to submit an affidavit stating a reasonable excuse or good cause for the party's inability to oppose a summary judgment motion. Holt Cty. Sch. Dist. No. 0025 v. Dixon, 8 Neb. App. 390, 594 N.W.2d 659 (1999).