Gross v. GIKK Investments

- 34 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
R. Michael Gross, M.D., and C. Michael Kelly,
M.D., appellants, v. GIKK Investments,
LLC, et al., appellees.
___ N.W.3d ___
Filed February 3, 2026. 	No. A-25-012.
1. Summary Judgment: Appeal and Error. An appellate court reviews
the district court’s grant of summary judgment de novo, viewing the
record in the light most favorable to the nonmoving party and drawing
all reasonable inferences in that party’s favor.
2. ____: ____. An appellate court affirms a lower court’s grant of summary
judgment if the pleadings and admitted evidence show that there is no
genuine issue as to any material facts or as to the ultimate inferences
that may be drawn from the facts and that the moving party is entitled to
judgment as a matter of law.
3. Trial: Expert Witnesses: Appeal and Error. An appellate court
reviews de novo whether the trial court applied the correct legal stan-
dards for admitting an expert’s testimony, and an appellate court reviews
for abuse of discretion how the trial court applied the appropriate stan-
dards in deciding whether to admit or exclude an expert’s testimony.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
5. Appeal and Error. Error without prejudice provides no ground for
appellate relief.
6. Evidence: Appeal and Error. To constitute reversible error in a civil
case, the admission or exclusion of evidence must unfairly prejudice a
substantial right of a litigant complaining about the evidence admitted
or excluded.
7. Contracts. The interpretation of a contract and whether a contract is
ambiguous are questions of law.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:39 AM CDT

- 35 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
8. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
9. Summary Judgment. Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and affidavits in
the record disclose that there is no genuine issue as to any material fact
or as to the ultimate inferences that may be drawn from those facts and
that the moving party is entitled to judgment as a matter of law.
10. Summary Judgment: Proof. 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 uncon-
troverted at trial. If the moving party makes a prima facie case, the bur-
den shifts to the nonmovant to produce evidence showing the existence
of a material issue of fact that prevents judgment as a matter of law.
11. Contracts. The meaning of a contract and whether a contract is ambigu-
ous are questions of law.
12. ____. In interpreting a contract, a court must first determine, as a matter
of law, whether the contract is ambiguous.
13. ____. A contract written in clear and unambiguous language is not sub-
ject to interpretation or construction and must be enforced according to
its terms.
14. Contracts: Words and Phrases. A contract is ambiguous when a word,
phrase, or provision in the contract has, or is susceptible of, at least two
reasonable but conflicting interpretations or meanings.
15. Contracts. The meaning of an ambiguous contract is generally a ques-
tion of fact.
16. Contracts: Words and Phrases. Trade terms, legal terms of art, num-
bers, common words of accepted usage, and terms of a similar nature
should be interpreted in accord with their specialized or accepted usage
unless such an interpretation would produce irrational results or the con-
tract documents are internally inconsistent.
17. Corporations: Sales: Words and Phrases. The phrase “all, or sub-
stantially all,” means a sale of corporate assets that, quantitatively or
qualitatively, would result in a fundamental change in the nature of
the corporation.
18. Corporations: Sales. The determinative factor in assessing whether a
sale constitutes all or substantially all of a business is whether the sale
changes the nature of the corporate activity.
19. Contracts: Summary Judgment: Questions of Law. The interpretation
and construction of a contract are questions of law, which a court can
resolve on summary judgment.
20. Contracts. A contract should be read so that all of its terms are
given meaning.

- 36 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
21. ____. A court is not free to rewrite a contract or to speculate as to terms
of the contract which the parties have not seen fit to include.
22. Contracts: Intent. A court should avoid interpreting contract provisions
in a manner that leads to unreasonable or absurd results that are obvi-
ously inconsistent with the parties’ intent.
23. Expert Witnesses: Evidence. Expert testimony is relevant and admis-
sible only if it tends to help the trier of fact understand the evidence or
determine a fact issue, and expert testimony concerning a question of
law does not tend to accomplish either of these goals. Consequently,
expert testimony concerning a question of law is generally not admis-
sible in evidence.
Appeal from the District Court for Douglas County: Derek
R. Vaughn, Judge. Affirmed.
Richard P. Jeffries and Nicholas J. Rock, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellants.
Patrick D. Pepper and Matthew G. Munro, of McGrath,
North, Mullin & Kratz, P.C., L.L.O., for appellees.
Pirtle, Welch, and Freeman, Judges.
Welch, Judge.
I. INTRODUCTION
R. Michael Gross, M.D., and C. Michael Kelly, M.D. (col-
lectively the Appellants as appropriate), filed a complaint
alleging 	breach 	of 	contract 	by 	GIKK 	Investments, 	LLC
(GIKK); breach of fiduciary duty by managers of GIKK; and
breach of fiduciary duties under the Uniform Partnership Act
against GIKK; John A. McCarthy, M.D.; Daniel L. Gaffney,
M.D.; Kayvon D. Izadi, M.D.; and Charles E. Rosipal, M.D.
(collectively the Appellees). The Appellees filed a motion for
summary judgment, which was granted by the Douglas County
District Court. Drs. Gross and Kelly appeal, alleging error
regarding the exclusion of opinions by their expert witness and
the granting of summary judgment in favor of the Appellees
on their breach of contract claims. For the reasons set forth
herein, we affirm.

- 37 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
II. STATEMENT OF FACTS
1. Background
Gross Iwerson Kratochvil & Klein, P.C. (the P.C.), was
a professional corporation formed to operate as an orthope-
dic surgery practice in Omaha, Nebraska. As relevant to this
appeal, in 2006, the physicians associated with the P.C. sepa-
rately formed a limited liability company, GIKK, to acquire a
minority interest in Midwest Surgical Hospital, LLC (MSH).
The P.C. referred to its owners-managers as “partners.”
Relevant partner decisions were captured in meeting minutes.
Partner minutes from 2010 reflected that physicians would
qualify for partner status in the P.C. and ownership status in
GIKK following 2½ years of employment as a physician in the
P.C., along with the successful passing of boards. At the time
GIKK was formed, there were 10 physicians serving as part-
ners in the P.C., and each physician was granted a 10-percent
membership interest in GIKK. Drs. Gross and Kelly were
two of the original partners in the P.C. and were members of
GIKK who signed GIKK’s “Operating Agreement.” By the
time Dr. Gross retired, GIKK had acquired an approximately
25-percent ownership interest in MSH.
GIKK’s Operating Agreement provided that GIKK was
formed to own shares in MSH and that the members of GIKK
owned membership units in GIKK. The Operating Agreement
further provided that upon retirement of a member from the
practice of medicine, a mandatory redemption event occurred
whereby GIKK would redeem that individual’s member units
in GIKK for $1,000. Partners of the P.C. required its employee
physicians to enter into employment agreements wherein they
each agreed to a mandatory retirement of surgical privileges
at age 67½, subject to continued surgical privileges at the dis-
cretion of the other partners. Regardless of whether surgical
privileges continued after age 67½, a partner in the P.C. and
continuing member in GIKK remained entitled to continued
earnings and distributions from both the P.C. and GIKK for

- 38 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
2½ years until reaching age 70. At age 70, shares in the P.C.
and membership interests in GIKK were redeemed. The com-
bination of 2½ years of earnings after age 67½ with the $1,000
redemption price constituted full remuneration for the redemp-
tion of ownership interests in both entities.
2. 2014 Amendment to GIKK’s
Operating Agreement
In 2014, Dr. Gross became the first physician to reach the
mandatory retirement age of 70. However, in December 2014,
Dr. Gross entered into a “Physician Services Agreement”
with the P.C. and GIKK wherein the parties agreed to allow
Dr. Gross to continue to provide physician services past the
normal retirement age. Although the parties agreed to allow
Dr. Gross to perform physician services for specified remu-
neration beyond age 70, the agreement provided that the P.C.
and GIKK would redeem his shares and membership units
effective December 31, 2014, and that he would no longer be
a shareholder or member in the P.C. or GIKK after that date.
Notwithstanding this redemption, as part of the Physician
Services Agreement, the parties agreed that, following the
redemption, “if substantially all of the Units in LLC owned by
the owners of LLC (or substantially all of the assets owned
by LLC) are sold to a bona fide purchaser before December
31, 2029,” then the LLC would pay a portion of the proceeds
equal to that which Dr. Gross would have received had he
still owned his units on the day of the sale. Dr. Gross spe-
cifically agreed that other retiring members could be granted
a postretirement share of sale proceeds or that additional
members could be added to the LLC, “which may have the
effect of reducing Dr. Gross’ future share.” Dr. Gross agreed
that “the owners of LLC may amend its Operating Agreement
(and enter into other agreements) without the consent of
Dr. Gross, provided that no such amendment (or other agree-
ments) would operate in derogation of the rights of Dr. Gross
created in this paragraph.”

- 39 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
At the time Dr. Gross entered into the Physician Services
Agreement, 	the 	members 	of 	GIKK 	agreed 	to 	amend 	the
Operating Agreement consistent with Dr. Gross’ Physician
Services Agreement, which became effective on December 31,
2014. The amendment provided:
a. The following shall be added as Sec. 17.2 of the
agreement:
“17.2 	Participation 	in 	Proceeds 	After 	Original
Continuing 	Member’s 	Sale. 	If, 	following 	the 	sale,
redemption 	or 	forfeiture 	of 	an 	Original 	Continuing
Member’s Interest in the Company, substantially all of
the Units in [GIKK] owned by the Members of [GIKK]
(or substantially all of the assets owned by [GIKK]) are
sold to a bona fide purchaser within fifteen years after
such sale, redemption or forfeiture, then [GIKK] will
cause that former Original Continuing Member (or his or
her surviving spouse, if the former Original Continuing
Member is then deceased but left a surviving spouse, but
if neither the former Original Continuing Member or a
surviving spouse is then living, then no such payment
shall be due) to receive such portion of the sales price
(whether in cash or such other consideration provided
in such sale from the purchaser) equal to that which
the former Original Continuing Member would have
received had the former Original Continuing Member
still owned [GIKK] Units on the date of such sale (i.e.
which would have been received either as a direct seller
of such units or, in the event of the sale by [GIKK] of its
assets, then the amount which would have been received
in exchange for his or her Company Units in liquidation
of [GIKK]). In all events, the former Original Continuing
Member’s share of such proceeds shall be based on the
net amount of such sale proceeds (not including earnings
accruing after the sale, redemption or forfeiture of the
former Original Continuing Member’s interest), after
payment of all debts and expenses, such calculation to

- 40 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
be otherwise made in the same way as that which applies
to the other Members of [GIKK]. No other amounts with
respect to [GIKK] Company Units will be due or owing
to the former Original Continuing Member upon or after
the date of the former Original Continuing Member’s
sale, redemption or forfeiture, other than as set forth
herein (i.e. the former Original Continuing Member
shall not be entitled to any earnings of [GIKK] accruing
after the date of the sale, redemption or forfeiture). Each
Original Continuing Member agrees that other Original
Continuing Members of [GIKK] may be granted a similar
share of sale proceeds, which may have the effect of
reducing each Original Continuing Member’s future share
under this provision. Each Original Continuing Member
also agrees that additional members may be added to
[GIKK], which may also have the effect of reducing
each Original Continuing Member’s future share under
this provision. Each Original Continuing Member further
agrees that he or she has or will have no ownership
or voting rights in [GIKK] after a sale, redemption or
forfeiture of the Original Continuing Member’s Interest
in 	[GIKK], 	and 	that 	the 	Members 	of 	[GIKK] 	may
amend this Operating Agreement (and enter into other
agreements) without the consent of any former Original
Continuing Member, provided that no such amendment
(or other agreements) would operate in derogation of
the rights of such former Original Continuing Member.
The parties acknowledge that by separate agreement
between [GIKK] and [Dr. Gross], the ownership interest
of Dr. Gross was purchased effective December 31,
2014. Therefore, while he is not continuing as a Member,
and is therefore not an Original Continuing Member,
provisions comparable to the provisions of this Section
17.2 apply to the benefit of Dr. Gross pursuant to such
separate agreement.”

- 41 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
b. The following shall be added as Sec. 18.28 of the
agreement:
“18.28 Original Continuing Member: A Member who
owned an interest in [GIKK] on the Effective Date and
who is a Member as of January 1, 2015.”
c. Subject to the alterations and amendments herein
contained, the Member(s) and Manager(s) do hereby ratify
and affirm said Limited Liability Company Operating
Agreement in all other respects.
(Emphasis supplied.) As such, pursuant to the Physician
Services Agreement and the amendment to the Operating
Agreement at § 17.2, a “former Original Continuing Member,”
such as Dr. Gross, and subsequently Dr. Kelly, was entitled to
receive payment upon either the sale of “substantially all” of
the units in GIKK or substantially all the assets of GIKK for
15 years after the redemption of their shares, even though
they were no longer partner physicians at the P.C. or members
of GIKK.
3. Retirement
Dr. Gross subsequently retired from performing physician
services for the P.C. in 2016. Another original member, Dr.
Kelly, retired in 2019. At the time of their retirements, both
Dr. Gross’ and Dr. Kelly’s membership units in GIKK were
redeemed for lump-sum payments as provided in GIKK’s
Operating Agreement.
4. 2020 Amendment to GIKK’s
Operating Agreement
After Drs. Gross and Kelly retired, the P.C. grew and
merged into the entity now known as MD West One, P.C.
In July 2020, the existing members of GIKK agreed to
amend the retirement policy and process in its Operating
Agreement. Pursuant to the terms of the “Seventh Amendment
to the Operating Agreement,” which we refer to as the “2020
Amendment,” instead of a retired physician’s receiving $1,000
for the redemption of his or her membership units in GIKK,

- 42 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
the physician would receive a single buyout in accordance
with MSH’s “process methodology.” As part of the 2020
Amendment, GIKK members specifically agreed that any for-
mer members with rights under § 17.2, including Drs. Gross
and Kelly, would retain those rights.
5. Additional Doctors’ Buy-In to GIKK
After the 2020 Amendment to GIKK’s Operating Agreement,
seven new physicians, who became partners in the P.C., were
offered the opportunity to invest in GIKK. Those seven phy-
sicians made capital contributions of $1,517,876.76 each to
GIKK. These contributions, along with additional capital contri-
butions of $131,989 each from the 14 existing GIKK members,
resulted in GIKK’s raising more than $12 million that GIKK
utilized to acquire an additional approximately 10-percent
ownership interest in MSH, which raised GIKK’s ownership in
MSH from approximately 25 percent to 35 percent.
As a result of these additional investment proceeds and con-
tinuing operations, MSH grew as a company and continued its
historical practice of distributing cash proceeds to its owners,
which included GIKK. GIKK then distributed those proceeds
to the existing members of GIKK. Although Drs. Gross and
Kelly had previously received these types of distributions
when they were members of GIKK, they did not receive any
such distributions following their retirement and the redemp-
tion of their membership units in GIKK.
6. Dr. McCarthy’s Retirement
In 2021, Dr. McCarthy retired at the age of 65, and pur-
suant to the amended Operating Agreement, Dr. McCarthy
surrendered his shares in GIKK and received the agreed-
upon formula buyout as provided in the amended Operating
Agreement. In exchange for his member units upon retire-
ment, in accordance with the revised buyout formula from the
2020 Amendment, Dr. McCarthy received $1,181,633.21 from
the buyout. This buyout was in lieu of the old formula from the
P.C. and GIKK, which would have entitled Dr. McCarthy

- 43 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
to distributions from the P.C. and GIKK for 2½ years and
$1,000 in redemption proceeds. The record provides testimony
that Dr. McCarthy received less money from his redemption
from both entities under the new formula than he would have
received under the old one. At the end of 2021, GIKK owned
approximately a 35-percent interest in MSH.
7. 2021 Sale of 49.9 Percent of MSH
In 2021, in an effort to add a strategic investor and grow the
value of MSH, GIKK and other MSH shareholders sold 49.9
percent of their ownership interest in MSH as of December
31, 2021, to Surgery Center Holdings, Inc., for $47 million.
Following the transaction, GIKK still retained ownership of
17.52337 percent of MSH. Following that transaction, GIKK
continued to expand its interests in MSH, and as of December
31, 2022, GIKK owned 18.39954 percent of MSH.
8. Complaint and Pretrial Motions
In September 2022, Drs. Gross and Kelly filed a complaint
against the Appellees alleging the series of transactions that
occurred following their retirement and redemptions resulted
in distributions to other members of GIKK and excluded them,
which constituted a breach of contract by the Appellees and a
breach of fiduciary duty by Dr. McCarthy as the manager of
GIKK. The complaint was later amended with the operative
complaint adding additional individual defendants and assert-
ing the following claims for relief: breach of contract, breach
of fiduciary duty by GIKK managers, and breach of fiduciary
duties under the Uniform Partnership Act. The Appellants
sought damages totaling “not less than $4,646,984.79 each.”
Thereafter, the Appellants filed a notice that they intended
to call Edward A. Morse, a professor of law, as an expert
witness. Attached to the notice was a report that set forth the
substance of the facts and opinions on which Professor Morse
was expected to testify and the summary and grounds for each
opinion. Professor Morse’s report stated, in part:

- 44 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
Based upon his knowledge, skill, experience, training,
and education in the fields of taxation, accounting, and
business associations, and in reliance upon the bases
and reasons stated below, Professor . . . Morse holds the
following opinions to a degree of reasonable certainty:
1. Through sales of LLC units and sales of underlying
assets, GIKK . . . sold “substantially all” of its assets
between July 2020 and December 31, 2021.
2. The LLC and its managers entered into agreements
in derogation of the rights of Drs. Gross, Kelly, and
Fitzgibbons, including the following transactions and
related distributions to members other than Drs. Gross,
Kelly, and Fitzgibbons:
a. The July 2020 sale of 33.33 [percent] of GIKK
. . . units to seven Methodist physicians followed by cash
distributions to the then-current members [of GIKK] other
than the newly admitted members;
b. The July 2021 sale of approximately 4.7619 [percent]
of [GIKK’s] assets to fund the full redemption of . . . [Dr.
McCarthy] incident to his retirement; [and]
c. The December 31, 2021, sale of 49.9 [percent]
of [GIKK’s] ownership interest in [MSH] to Surg[ery]
Center Holdings, Inc., followed by distributions to the
then-current LLC members.
Professor Morse’s report included other opinions, including
that Drs. Gross and Kelly have been harmed to the extent of
the damages set forth in their answers to interrogatories; that
other distributions from GIKK to its members likely caused
additional damages to Drs. Gross and Kelly; that GIKK’s
managers breached duties of care and loyalty to Drs. Gross
and Kelly; and that Drs. Gross and Kelly are entitled to “full
redemption of their interest . . . based on valuing the remainder
of the underlying assets of [GIKK].”
The Appellees responded by filing a motion to exclude the
opinions of Professor Morse “pursuant to Nebraska Rule of
Evidence § 27-702 and Schafersman v. Agland Coop, [262]

- 45 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
Neb. 215, 225, 631 N.W.2d 862, 872 (2001).” After a hearing
thereon, the district court excluded Professor Morse’s testi-
mony in its entirety on the grounds that his “methodology of
‘monetization’ is unproven and unreliable” and that he makes
“ultimate conclusions about what certain terms such as ‘sub-
stantially all’ and ‘derogation’ mean when used in the context
of the contract. These types of opinions are simply not admis-
sible as expert testimony. These legal conclusions are not help-
ful to the trier of fact and, therefore, are inadmissible.”
9. The Appellees’ Motion
for Summary Judgment
In July 2024, the Appellees filed a motion for summary
judgment, and in support of the motion, they submitted an
index of evidence and annotated statement of undisputed
facts. In response, the Appellants filed an annotated state-
ment of disputed and supplemental facts and an evidence
index in opposition to the Appellees’ motion for summary
judgment. At the hearing on the Appellees’ motion for sum-
mary judgment, numerous exhibits were received into evi-
dence containing facts as previously set forth. Following
the hearing, in a detailed order, the district court granted the
Appellees’ motion for summary judgment. The court noted
that the Appellees argued that the case had been brought
prematurely. In response, the Appellants raised three argu-
ments: (1) GIKK sold “‘substantially all’” of the units or
assets owned by GIKK, which triggered the Appellants’ rights
under § 17.2; (2) the Appellants’ rights were derogated by
the Appellees; and (3) the Appellees breached their fiduciary
duties to the Appellants. The Appellants argued that in respect
to these issues, at a minimum, there remained triable issues of
fact for a jury to decide.
Regarding the Appellants’ claim that GIKK had sold “‘sub-
stantially all’” of the units in GIKK or “‘substantially all’” of
the assets owned by GIKK so as to trigger § 17.2 and require
a payout for Drs. Gross and Kelly, the district court found that

- 46 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
“[t]he plain meaning of ‘substantially all’ suggests that GIKK
. . . did not sell enough of its assets to trigger section 17.2 and,
therefore, the [Appellees’] Motion for Summary Judgement
in regard to whether GIKK . . . sold ‘substantially all’ of its
assets is granted.”
The court further rejected the Appellants’ claims that the
2020 buy-in of additional doctors and the buyout of Dr.
McCarthy constituted “‘sales’” and that sale of 49.9 percent
of GIKK’s 35-percent ownership in MSH amounted to a sale
of “‘substantially all’” of GIKK’s assets or member units, not-
ing that “[l]ess that half does not amount to essentially every-
thing or largely but not wholly the total amount.”
The court also rejected the Appellants’ claim that there
had been a derogation of Drs. Gross and Kelly’s rights as
prohibited under § 17.2. The court stated that “[t]he operative
question is whether the condition precedent contained in the
Operating Agreement has been met so as to rise to a breach
of contract. Without evidence that the condition precedent has
been met, there can be no derogation of rights.” The court
then determined that the provision of § 17.2 providing that
GIKK has an enforceable obligation to the Appellants only if
“substantially all” of the units or assets owned by GIKK were
sold to a bona fide purchaser was a condition precedent to the
other language contained in § 17.2 that stated, “Members of
[GIKK] may amend this Operating Agreement (and enter into
other agreements) without the consent of any former Original
Continuing Member, provided that no such amendment (or
other agreements) would operate in derogation of the rights
of such former Original Continuing Member.” And because
the condition precedent had not been met, the Appellants did
not have a present right to enforce or have a present right
that had been “derogated” by the changes made to GIKK’s
Operating Agreement.
Finally, regarding the Appellants’ claim that GIKK’s man-
agers breached fiduciary duties to them as “[former] Original
Continuing Members,” the court found that Drs. Gross and

- 47 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
Kelly were no longer members of GIKK because they became
dissociated from GIKK after their retirements and that if Drs.
Gross and Kelly were still members of GIKK, the record did
not support that a breach of fiduciary duties had occurred,
because their rights are contingent on a sale of “substantially
all” of GIKK’s corporate units or assets.
III. ASSIGNMENTS OF ERROR
The Appellants’ assignments of error, consolidated, renum-
bered, and restated, are that the district court erred in (1)
granting summary judgment (a) finding that GIKK had not
sold “‘substantially all’” of its assets or ownership as a mat-
ter of law because its promise to the Appellants was triggered
by (i) the addition of seven new physicians and members for
value, (ii) the amendment to the redemption formula followed
by the redemption of Dr. McCarthy’s membership units, and
(iii) GIKK’s sale of a 49.9-percent interest in MSH; and (b)
finding that the Operating Agreement contained a condition
precedent to the Appellees’ promise not to enter into any
agreements that “‘would operate in derogation of the rights
of’” the Appellants; and (2) excluding Professor Morse’s tes-
timony (a) on the grounds characterized in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786,
125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop,
262 Neb. 215, 631 N.W.2d 862 (2001) (Daubert/Schafersman)
when the Appellees’ expert agreed with Professor Morse’s
“‘method’” and (b) based upon its finding that Professor
Morse’s testimony consisted entirely of “‘legal conclusions’”
when Professor Morse expressed factual opinions that quanti-
fied the extent of financial harm caused to the Appellants by
the Appellees.
IV. STANDARD OF REVIEW
[1,2] An appellate court reviews the district court’s grant
of summary judgment de novo, viewing the record in the
light most favorable to the nonmoving party and drawing all
reasonable inferences in that party’s favor. D&M Roofing &

- 48 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
Siding v. Distribution, Inc., 319 Neb. 707, 24 N.W.3d 850
(2025). An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. Id.
[3,4] An appellate court reviews de novo whether the trial
court applied the correct legal standards for admitting an
expert’s testimony, and we review for abuse of discretion how
the trial court applied the appropriate standards in deciding
whether to admit or exclude an expert’s testimony. Konsul v.
Asensio, 316 Neb. 874, 7 N.W.3d 619 (2024). An abuse of
discretion occurs when a trial court’s decision is based upon
reasons that are untenable or unreasonable or if its action is
clearly against justice or conscience, reason, and evidence. Id.
[5,6] Error without prejudice provides no ground for appel-
late relief. Agri Affiliates, Inc. v. Bones, 265 Neb. 798, 804,
660 N.W.2d 168, 174 (2003). To constitute reversible error in a
civil case, the admission or exclusion of evidence must unfairly
prejudice a substantial right of a litigant complaining about the
evidence admitted or excluded. Buttercase v. Davis, 313 Neb.
1, 982 N.W.2d 240 (2022), modified on denial of rehearing 313
Neb. 587, 985 N.W.2d 588 (2023).
[7,8] The interpretation of a contract and whether a contract
is ambiguous are questions of law. D&M Roofing & Siding
v. Distribution, Inc., supra. An appellate court independently
reviews questions of law decided by a lower court. Id.
V. ANALYSIS
The Appellants raise and argue on appeal, restated, that the
district court erred in (1) granting summary judgment, because
(a) there remained a factual question as to whether three trans-
actions following Dr. Gross’ and Dr. Kelly’s retirements consti-
tuted a sale of substantially all of the units or assets of GIKK
in violation of § 17.2 of GIKK’s Operating Agreement and

- 49 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
(b) there remained a factual question as to whether the execu-
tion of those three transactions constituted a derogation of the
Appellants’ rights under § 17.2 of the Operating Agreement,
and (2) excluding the testimony of Professor Morse as it relates
to both of those issues. We will address each of these assign-
ments of error independently.
1. Summary Judgment
Before addressing the Appellants’ assigned errors, we briefly
summarize the standard for reviewing appeals from the grant of
summary judgment.
[9,10] Summary judgment is proper only when the plead-
ings, depositions, admissions, stipulations, and affidavits in the
record disclose that there is no genuine issue as to any material
fact or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment
as a matter of law. Ricker v. Nebraska Methodist Health Sys.,
319 Neb. 628, 24 N.W.3d 344 (2025). The party moving for
summary judgment must make a prima facie case by produc-
ing enough evidence to show the movant would be entitled to
judgment if the evidence were uncontroverted at trial. Id. 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 matter
of law. Id.
(a) Sale of Substantially All of GIKK’s
Membership Units or Company Assets
The Appellants first contend that the district court erred
in granting summary judgment because a factual question
remained as to whether three transactions following Dr. Gross’
and Dr. Kelly’s retirements constituted a sale of substantially
all of the membership units or assets of GIKK.
Drs. Gross and Kelly were retired physicians whose shares
in the P.C. and membership units in GIKK had long since been
redeemed. Nevertheless, they brought this lawsuit seeking

- 50 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
monetary damages for business transactions conducted by
GIKK following their redemptions. Their right to do so is
based upon contractual terms that are found in Dr. Gross’
Physician Services Agreement and in § 17.2 of GIKK’s
amended Operating Agreement. The applicable provisions in
those documents preserved a limited trailing interest in pro-
ceeds from GIKK in the event of a sale of “substantially all
of the Units in [GIKK] owned by the Members of [GIKK]
(or substantially all of the assets owned by [GIKK])” to a
bona fide purchaser within 15 years after a retired physi-
cian’s own membership units were redeemed. In short, the
Appellants argue that a combination of three transactions that
occurred between 2020 and 2021 constituted a sale of sub-
stantially all of the units or assets of GIKK, which triggered
their right to share in the proceeds from those transactions.
The Appellants allege that the first transaction occurred when
GIKK issued membership units in GIKK to seven new physi-
cians who joined the P.C. and subsequently invested in GIKK
for monetary contributions, the second transaction occurred
when members of GIKK amended the Operating Agreement to
change the redemption formula upon a physician’s retirement
and subsequently redeemed Dr. McCarthy’s units following
his retirement using the revised formula, and the third transac-
tion occurred when GIKK sold 49.9 percent of its ownership
interest in MSH to a strategic partner.
The court held that the Appellees were entitled to summary
judgment on this issue, as the record demonstrated that there
was no genuine issue of material fact in dispute and that the
transactions did not amount to a sale of substantially all of
the units or assets as a matter of law. The Appellants argue
the district court erred in this finding.
Before addressing the transactions independently, in order
to determine whether any error occurred, we must first ascer-
tain the meaning of the phrase “substantially all” of the units
or assets as contained within the contracts in order to deter-
mine whether the identified transactions constituted a sale of

- 51 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
substantially all of the units or assets or did not constitute
such a sale, or whether a triable factual question remained on
this issue.
[11-15] The meaning of a contract and whether a contract is
ambiguous are questions of law. Facilities Cost Mgmt. Group
v. Otoe Cty. Sch. Dist., 291 Neb. 642, 868 N.W.2d 67 (2015).
In interpreting a contract, a court must first determine, as a
matter of law, whether the contract is ambiguous. Id. A con-
tract written in clear and unambiguous language is not subject
to interpretation or construction and must be enforced accord-
ing to its terms. Id. A contract is ambiguous when a word,
phrase, or provision in the contract has, or is susceptible of,
at least two reasonable but conflicting interpretations or mean-
ings. Id. The meaning of an ambiguous contract is generally a
question of fact. Id.
[16] The outcome of this case, at least in part, depends
upon the meaning of the phrase sale of “substantially all of the
Units . . . or substantially all of the assets” in relation to cer-
tain transactions that occurred after the contract was executed.
As the district court noted, neither the Physician Services
Agreement nor the amended Operating Agreement defined
the phrase “substantially all” in the contracts themselves.
But that does not necessarily render the phrase ambiguous.
In Kalkowski v. Nebraska Nat. Trails Museum Found., 290
Neb. 798, 862 N.W.2d 294 (2015), the Nebraska Supreme
Court was called upon to interpret the meaning of the word
“improvements” in a lease contract in which the term was
not defined. Under the circumstances, the Nebraska Supreme
Court held that, when interpreting the meaning of the word
“improvements” in a contract, “[where] [t]he lease agreement
[did] not define the term ‘improvements[,]’ . . . we give the
term its plain and ordinary meaning.” Id. at 804, 862 N.W.2d
at 300-01. In ascertaining the plain and ordinary meaning of
the word “improvements,” the court further held:
“Trade terms, legal terms of art, numbers, common words
of accepted usage and terms of a similar nature should be

- 52 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
interpreted in accord with their specialized or accepted
usage unless such an interpretation would produce irra-
tional results or the contract documents are internally
inconsistent.” Our interpretation of the term “improve-
ments,” as a legal term of art, should be informed by its
typical usage within farm lease agreements.
Id. at 804-05, 862 N.W.2d at 301.
We make a similar finding here. In State ex rel. Columbus
Metal v. Aaron Ferer & Sons, 272 Neb. 758, 766, 725 N.W.2d
158, 165 (2006), the Nebraska Supreme Court was called upon
to define the meaning of “‘a sale . . . of all, or substantially
all,’” of property as it related to the use of that term in a statute
governing dissenters’ rights. In identifying the policy behind
dissenters’ rights statutes, the Nebraska Supreme Court held:
This court has previously noted the policy behind these
provisions of the dissenters’ rights statutes. We stated:
“At common law, unanimous shareholder consent was
a prerequisite to fundamental changes in the corporation.
This made it possible for an arbitrary minority to establish
a nuisance value for its shares by refusal to cooperate. To
meet the situation, legislatures authorized the making of
changes by majority vote. This, however, opened the door
to victimization of the minority. To solve the dilemma,
statutes permitting a dissenting minority to recover the
appraised value of its shares, were widely adopted.”
Id. at 765, 725 N.W.2d at 164.
More specifically, the particular dissenters’ rights statute dis-
cussed in State ex rel. Columbus Metal v. Aaron Ferer & Sons,
supra, triggered dissenters’ rights when controlling sharehold-
ers approved a sale of all, or substantially all, of the assets.
Accordingly, the Nebraska Supreme Court turned to the mean-
ing of that phrase in that context, holding as follows:
Resolution of appellants’ claim on appeal requires a
determination of the meaning of “all, or substantially all”
as used in the context of § 21-20,138(1)(c), a question this
court has not previously addressed. The dissenters’ rights

- 53 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
statutes do not define the phrase “all, or substantially all.”
We note, however, that Nebraska’s Business Corporation
Act, including the dissenters’ rights statutes, is based
upon the 1984 version of the Model Business Corporation
Act. See, generally, 1995 Neb. Laws, L.B. 109. The
official comment 1 to § 12.01 of the Model Business
Corporation Act, which is similar to Neb. Rev. Stat.
§ 21-20,135 (Reissue 1997), has explained the meaning
of “all, or substantially all” in connection with a board of
directors’ ability to conduct the usual and regular course
of business without shareholder approval, and we believe
that explanation is equally applicable to the phrase “all,
or substantially all” in the Nebraska dissenters’ rights
statutes, § 21-20,138(1)(c). The comment states:
“The phrase ‘all or substantially all,’ chosen by the
draftsmen of the Model Act, is intended to mean what
it literally says, ‘all or substantially all.’ The phrase
‘substantially all’ is synonymous with ‘nearly all’ and
was added merely to make it clear that the statutory
requirements could not be avoided by retention of some
minimal or nominal residue of the original assets. A
sale of all the corporate assets other than cash or cash
equivalents is normally the sale of ‘all or substantially
all’ of the corporation’s property. A sale of several
distinct manufacturing lines while retaining one or more
lines is normally not a sale of ‘all or substantially all’
even though the lines being sold are substantial and
include a significant fraction of the corporation’s former
business. . . . Similarly, a sale of a plant but retention of
operating assets (e.g., machinery and equipment), accounts
receivable, good will, and the like with a view toward
continuing the operation at another location is not a sale
of ‘all or substantially all’ the corporation’s property.”
State ex rel. Columbus Metal v. Aaron Ferer & Sons, 272 Neb.
758, 766-67, 725 N.W.2d 158, 165 (2006).

- 54 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
[17] As the Nebraska Supreme Court noted, “[w]ith regard
to the transfer of corporate assets, the phrase ‘all, or substan-
tially all’ or comparable phrases have been adopted in all 50
states.” Id. at 767, 725 N.W.2d at 165. And then, after review-
ing the holdings from multiple states interpreting the phrase,
the court held:
We agree with the principle recognized in the foregoing
quoted material that an examination whether there has
been a change in the nature of the underlying corporate
business is central to a determination of whether there has
been a sale of “all, or substantially all” of the corporation’s
property. Accordingly, we conclude that the phrase “all, or
substantially all,” as used in § 21-20,138(1)(c), means a
sale of corporate assets that, quantitatively or qualitatively,
would result in a fundamental change in the nature of
the corporation. See Sterman v. Hornbeck, 156 Wis. 2d
[556,] 565, 457 N.W.2d [874,] 878 [(1990)] (stating that
“[t]he determinative factor is whether the sale changes the
nature of the corporate activity”).
Id. at 768, 725 N.W.2d at 166.
We make a similar finding here. The parties used the phrase
“substantially all” in the context of the sale of units or assets
of GIKK following the retirement of a member when he or she
no longer could control the outcome of any such sale but main-
tained the right to monetarily take part if such sale occurred.
Under these circumstances, the parties used a term of art
commonly utilized in this context, and similarly to the court
in Kalkowski v. Nebraska Nat. Trails Museum Found., 290
Neb. 798, 862 N.W.2d 294 (2015), we find that as a legal
term of art used in this context, the phrase “substantially all”
should be construed in the manner described by the Nebraska
Supreme Court in State ex rel. Columbus Metal v. Aaron Ferer
& Sons, supra, and commonly used by legislators in all 50
states. Although we recognize that Neb. Rev. Stat. § 21-20,138
(Reissue 2012) has been repealed and dissenters’ right statutes

- 55 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
now utilize different language, the language formerly used and
defined informs our analysis here.
Having determined the unambiguous meaning of the phrase
“substantially all” utilized by the parties in this contract, we
now turn to the Appellants’ arguments that several transac-
tions following the execution of the contracts resulted in a
sale of “substantially all” of the units of GIKK or of its assets
or whether a fact issue remained in relation to determining
this issue.
(i) Addition of New Physicians and Members
The Appellants first argue that subsequent to their retire-
ment, GIKK issued membership units in GIKK to seven new
physicians for value; GIKK utilized that investment to acquire
additional ownership interests in MSH; the additional invest-
ment resulted in increased distributions from MSH to GIKK
and its members; and these events should be factored into the
consideration as to whether this transaction constituted a sale
of “substantially all” of the units of GIKK.
Within § 17.2 of the Operating Agreement, wherein the
parties agreed to grant the Appellants a trailing interest in a
future sale of substantially all of GIKK’s units or assets, the
Appellants explicitly agreed that “additional members may be
added to [GIKK], which may also have the effect of reducing
each Original Continuing Member’s future share under this
provision.” As such, the addition of new members and dilution
of GIKK’s membership interests were specifically contem-
plated by the parties’ agreement.
But the Appellants argue that requiring the seven new phy-
sicians to “buy in” for their investment should further inform
the analysis. In requiring the investors to contribute capital for
their respective membership interests (together with additional
capital contributions from the existing members), GIKK was
able to raise over $12 million that GIKK utilized to increase
its investment in MSH. Following the acquisition of addi-
tional units in MSH, GIKK increased its ownership position in

- 56 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
MSH from approximately 25 percent to 35 percent. This obvi-
ously works against any concept of a divestiture of GIKK’s
assets that could trigger the contractual obligation. In short,
the issuance of additional units in GIKK was specifically con-
templated by the agreement and does not factor into the analy-
sis on the GIKK units side of the equation, and the increase
in GIKK’s assets (as opposed to a divestiture) likewise works
against the Appellants’ argument.
But as Professor Morse indicates in his analysis (a matter
we will discuss in greater detail later in the opinion), GIKK’s
acquisition of additional units in MSH had an additional con-
sequence: Because MSH issued new units in MSH to accom-
modate GIKK’s additional investment, the issuance of new
units in MSH had a dilutive impact on the existing owners,
including GIKK. In order to compensate its owners for that
dilution, MSH paid cash to its existing owners, including
GIKK, for the value associated with that dilution, which GIKK
then distributed to its 14 existing members.
The Appellants argue that the dilution payment must be
factored into the sale analysis in determining whether a sale
of substantially all of GIKK’s assets (its investment in MSH)
took place.
As Professor Morse indicated in his report, GIKK’s new
investment in MSH resulted in the issuance by MSH of
557,750 new units to GIKK, which he states “represent[s]
13.3717 percent of the 4,171,173 units owned by physicians
and physician-owned entities [in MSH] after the transaction.”
But because this issuance also results in a 13.3717-percent
dilution to existing owners in MSH, MSH paid those owners,
including GIKK, for that dilution in relation to their own-
ership interests among the physician and physician-owned
entities (approximately 85 percent of MSH). Prior to this
new investment, GIKK owned approximately 25 percent of
MSH, which translates into approximately a 30-percent own-
ership among the physicians and physician-owned entities. As
such, GIKK was paid for an approximately 4-percent dilutive

- 57 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
effect from its new investment (30 percent of 13.3717) but
experienced a net gain in ownership because of the invest-
ment in 557,750 new units in MSH. Taken together, GIKK
did receive a distribution of $5,994,926 for the dilutive effect
on its 25-percent investment but experienced a net gain in its
total investment in MSH from approximately 25 percent to
35 percent. Because GIKK expanded its investment from this
transaction and did not decrease it, standing alone, this most
certainly did not result in a sale of substantially all of GIKK’s
assets, and the dilutive effect on GIKK’s membership units to
add new members was specifically contemplated and allowed
by the parties to the agreement. Viewed in isolation, this trans-
action did not result in a sale of substantially all of the assets
or units in GIKK.
(ii) Redemption of Dr. McCarthy’s Units
The Appellants next argue that GIKK’s amendment to the
redemption price formula, along with Dr. McCarthy’s subse-
quent redemption utilizing that formula, should likewise be
considered as part of a sale of substantially all of GIKK’s units
or assets. As the Appellants note, at the time of Dr. McCarthy’s
redemption, Dr. McCarthy owned a 4.7619-percent interest in
GIKK. In order to fund Dr. McCarthy’s buyout, GIKK sold
a portion of its interest in MSH. Taken as a percentage, after
selling a small interest in GIKK, GIKK’s interest in MSH
was reduced from 35.0810696 percent to 34.97678 percent.
The undisputed facts are that this equates with 1.67 percent
of GIKK’s position in MSH, which was liquidated to pay the
redemption price.
[18] The redemption of Dr. McCarthy’s small 4.7619-percent
ownership interest in GIKK, like all obligatory retirement
redemptions before, would not constitute a sale of “substan-
tially all” of the units of GIKK by anyone’s definition; nor
would GIKK’s apparent small liquidation of just over 1 per-
cent of its ownership interest in MSH to obtain the money to
redeem those shares constitute a sale of substantially all of

- 58 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
its assets. As the Nebraska Supreme Court noted in State ex
rel. Columbus Metal v. Aaron Ferer & Sons, 272 Neb. 758,
768, 725 N.W.2d 158, 166 (2006), the determinative factor
in assessing whether a sale constitutes all or substantially all
of the business “‘“is whether the sale changes the nature of
the corporate activity.”’” The change in formula price that
ultimately impacted the redemption of Dr. McCarthy’s small
interest in GIKK and the liquidation of a minor portion of
holdings in MSH to fund that redemption most certainly did
not change the nature of GIKK’s corporate activity. GIKK
remained an investment tool to attract physicians to the prac-
tice who then benefited by returns generated from GIKK’s
investment in MSH. And GIKK’s investment in MSH was
only minimally changed to accomplish that redemption. Again,
we find that reasonable minds could not differ in finding that
Dr. McCarthy’s small redemption and the small liquidation
event it took to accomplish it did not result in a sale of “sub-
stantially all” of the units of GIKK or its assets, as they had no
meaningful impact on either. This portion of the Appellants’
assignment of error fails.
(iii) Sale of 49.9-Percent Interest in MSH
Finally, the Appellants assert that GIKK’s sale of approxi-
mately 49.9 percent of its interest in MSH to a strategic
partner constitutes a sale of substantially all of its assets. The
unrefuted record shows that GIKK, like all minority owners
in MSH, decided to relinquish 49.9 percent of its then-current
interest in MSH in favor of gaining Surgery Center Holdings
as a strategic partner. To that end, the record reveals that the
then-current owners believed that this strategy would best
help grow the value of MSH and, concomitantly, their invest-
ments in it. But to place the results of this transaction in per-
spective, at the time of Dr. Gross’ retirement, GIKK owned
an approximately 25-percent minority ownership interest in
MSH. And although GIKK grew its investment to nearly 35
percent, due to the addition of new physician investors whose

- 59 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
investment was used to grow GIKK’s investment in MSH fol-
lowing the transaction, GIKK still retained an approximately
17.5-percent interest in MSH following the sale. And GIKK
subsequently grew the investment to 18.39954 percent of
MSH. Qualitatively, both before and after the sale, GIKK was
a minority holder in MSH, GIKK was continuously utilized
as an investment tool to attract physicians to join the P.C.’s
medical practice, GIKK’s primary asset was and remained its
interest in MSH, the physicians in the P.C. continuously used
MSH’s hospital to perform procedures for their patients, and
the ownership and management structure in GIKK remained
the same. The reduction in interest in MSH designed to attract
a strategic partner in MSH did not change the qualitative
nature of GIKK, which remained a minority interest holder in
MSH to be utilized as an investment tool to attract physician
partners in the P.C. And although the Appellants argue that
the inclusion of a strategic partner qualitatively changed the
nature of MSH, the issue is whether it qualitatively changed
the nature of GIKK. The unrefuted facts demonstrate that it
did not.
From 	a 	quantitative 	standpoint, 	as 	3 	Model 	Business
Corporation Act Ann. § 12.01, official comment at 12-3 (3d
ed. 1984 & Supp. 1996), provides, in part, “The phrase ‘sub-
stantially all’ is synonymous with ‘nearly all’ and was added
merely to make it clear that the statutory requirements could
not be avoided by retention of some minimal or nominal resi-
due of the original assets.” Here, again, no reasonable person
on this record would conclude that GIKK’s retention of over
50 percent of its investment in MSH could constitute some
minimal or nominal residue from its original investment.
In sum, when performing either a quantitative or a qualita-
tive analysis, we find, on this record, that reasonable minds
cannot differ that the sale of GIKK’s 49.9-percent interest in
MSH shares did not, when analyzed in isolation, constitute a
sale of substantially all of GIKK’s assets.

- 60 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
But the thrust of the Appellants’ argument here is that when
the transactions are viewed in the aggregate, they amount
to a sale of substantially all of the units or assets in GIKK.
We disagree. In analyzing the units in GIKK, the addition of
seven new physicians had a dilutive effect on the members
and the “Original Continuing Members,” but that dilution
was contemplated and allowed by the parties and therefore
does not factor into the analysis. And GIKK’s redemption of
Dr. McCarthy’s units upon retirement had a minimal impact
on GIKK’s unit side and does not constitute a sale of sub-
stantially all the units, applying the definition of that term as
previously explained.
But the impact of the transactions on GIKK’s assets was
more 	significant. 	GIKK’s 	use 	of 	capital 	contributions 	to
acquire additional units in MSH resulted in a payout for the
dilutive effect on the existing owners of MSH. GIKK’s liqui-
dation of just over approximately 1 percent of its interest in
MSH to fund Dr. McCarthy’s buyout further reduced GIKK’s
position in MSH. And although the Appellants do not discuss
it in their brief, Professor Morse identified additional invest-
ments in MSH by Midwest Neuroscience Surgical, LLC,
which resulted in further dilution payments from MSH to its
existing owners, including GIKK (approximately 1.38 percent
determined by taking 29 percent of the 1.2839-percent dilu-
tive impact from the first investment and 40 percent of the
2.5-percent dilutive impact from the second investment). And
finally, GIKK, like other owners, sold 49.9 percent of its own-
ership position in MSH to Surgery Center Holdings in order
to attract a strategic partner in MSH’s hospital with a view
toward growing that investment.
But even when viewed in the aggregate, GIKK began with
an approximately 25-percent interest in MSH, grew it to nearly
35 percent, and, at its lowest point, owned nearly 17.52 per-
cent of MSH before growing it again to over 18 percent. Even
when considering the impact of the dilution payments made
by MSH to cover the dilutive impact from the issuance of new

- 61 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
ownership units in MSH, GIKK divested itself of less than 60
percent of its highest position of ownership or potential own-
ership in MSH. As we mentioned before, when undergoing a
qualitative analysis, none of these transactions, when viewed
individually or in the aggregate, changed the qualitative nature
of GIKK. And from a quantitative analysis, reasonable minds
cannot differ that a less than 60-percent divestiture of assets
does not amount to GIKK’s divesting itself of nearly all of its
units or assets, or the retention of some minimal or nominal
residue of that investment.
On this record, we find no dispute of material fact govern-
ing the relevant facts regarding the contract itself or the indi-
vidual transactions that took place. And even assuming without
deciding that all of the transactions argued by the Appellants
constituted “sales” of units or assets of GIKK, when applying
these facts to the legally determined definition of “substan-
tially all,” we find that reasonable minds cannot differ in that
application, and the district court did not err in granting sum-
mary judgment on this issue.
(b) Derogation of Rights
The Appellants next argue that even if the transactions did
not constitute a sale of substantially all of the units in GIKK
or its assets, the transactions themselves violated a separate
contractual obligation the Appellees promised the Appellants.
That is, the transactions derogated the Appellants’ rights under
the Operating Agreement.
[19] In order to determine whether the transactions them-
selves derogated the Appellants’ rights under the Operating
Agreement, we must first interpret that agreement to ascertain
the meaning of the derogation provision. The interpretation
and construction of a contract are questions of law, which a
court can resolve on summary judgment. See Kaiser v. Allstate
Indemnity Co., 307 Neb. 562, 949 N.W.2d 787 (2020).
[20-22] The operative language to interpret and construe is
found in § 17.2 of GIKK’s Operating Agreement. A contract

- 62 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
should be read so that all of its terms are given meaning. See
Acklie v. Greater Omaha Packing Co., 306 Neb. 108, 944
N.W.2d 297 (2020). A court is not free to rewrite a contract or
to speculate as to terms of the contract which the parties have
not seen fit to include. Kier v. County of Hall, 30 Neb. App.
1, 963 N.W.2d 74 (2021). A court should avoid interpreting
contract provisions in a manner that leads to unreasonable or
absurd results that are obviously inconsistent with the parties’
intent. Id.
Here, as the parties acknowledge, in § 17.2 of GIKK’s
Operating Agreement, GIKK provided for a trailing interest
for certain formerly redeemed members (referred to as the
“Original Continuing Members”) in proceeds from GIKK if
GIKK sold “substantially all of the Units in [GIKK] owned
by the Members of [GIKK] (or substantially all of the assets
owned by [GIKK]).” But within the same section of the
Operating Agreement, the parties provided:
Each Original Continuing Member also agrees that addi-
tional members may be added to [GIKK], which may
also have the effect of reducing each Original Continuing
Member’s future share under this provision [and] that
the Members of [GIKK] may amend this Operating
Agreement (and enter into other agreements) without
the consent of any former Original Continuing Member,
provided that no such amendment (or other agreements)
would operate in derogation of the rights of such former
Original Continuing Member.
The derogation of rights language here provides the basis
for the Appellants’ contention. The Appellants argue that
“[b]y selling [GIKK’s] equity and assets, and then siphon-
ing tens of millions of dollars of proceeds out of GIKK, the
Appellees reduced the value of GIKK, and derogated the rights
of Drs. Gross and Kelly.” Brief for appellants at 20. Stated
differently, the Appellants argue that the derogation of rights
provision should be interpreted to mean that the Original
Continuing Members were entitled to proceeds upon the sale of

- 63 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
substantially all of GIKK and that the members of GIKK were
contractually obligated not to reduce its value until such sale
eventually took place. We disagree.
In construing the meaning of this passage, the language
clearly 	and 	unambiguously 	provided 	that 	the 	only 	right
the Original Continuing Members reserved following their
redemptions was to receive a participatory share in proceeds if
substantially all of the units or assets were eventually sold, not
upon a sale of less than substantially all of such units or assets.
And if the Appellants desired to forbid GIKK’s members
from reducing GIKK’s value prior to a sale of substantially
all of the business, they could have so provided. As we stated
above, a court is not free to rewrite a contract or to speculate
as to terms of the contract which the parties have not seen fit
to include. Kier v. County of Hall, 30 Neb. App. 1, 963 N.W.2d
74 (2021). The Operating Agreement does not provide for any
protection in favor of the Original Continuing Members from
amendments to the Operating Agreement or other agreements
that might reduce GIKK’s value prior to a sale of substantially
all of its units or assets.
In fact, the language of the Operating Agreement directly
contemplates GIKK’s future acquisition of new members,
which would dilute the Original Continuing Members’ inter-
ests, and forbids amendments or other agreements that would
derogate the rights the Original Continuing Members preserved
in the agreement. The only right the Original Continuing
Members preserved was the right to participate in proceeds in
the event of a sale of substantially all of the units or assets.
We are not free to speculate as to terms that the parties did
not see fit to include in the contract, as the Appellants suggest
by their purported meaning of the language the parties actu-
ally utilized.
When attaching the meaning to the language actually uti-
lized by the parties, we reject the Appellants’ argument that the
transactions, when analyzed in isolation or in the aggregate,
constituted a derogation of the rights the Appellants reserved

- 64 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
in the contract. The transactions involving the issuance of
new units in GIKK to seven new members most certainly did
not act in derogation of the Appellants’ rights, as the dilution
of the Appellants’ interests was specifically contemplated
by the language actually used in the Operating Agreement.
The redemption of Dr. McCarthy’s units and remuneration
GIKK paid for it, albeit different from that received by the
Appellants, due to an amended payment structure, similarly
did not derogate the Appellants’ right to participate in a
future sale of substantially all of GIKK’s units or assets,
if and when that happens. And at least one physician testi-
fied that Dr. McCarthy received less under the new formula
than he would have under the old formula. And the sale of a
49.9-percent interest in MSH to a strategic partner likewise
did not result in a derogation of the Appellants’ future right to
share in the sale of substantially all of GIKK. Having rejected
the Appellants’ interpretation of the derogation provision
in the contract, we find, on this record, when applying the
undisputed facts governing the transactions themselves, that
reasonable minds could not differ that these transactions did
not result in a derogation of the Appellants’ rights reserved in
the contract, as they did not take away the Appellants’ right
to participate in a future sale of substantially all of GIKK, if
and when that happens. The district court did not err in grant-
ing summary judgment in favor of the Appellees as it relates
to this issue.
2. Exclusion of Expert Testimony
We next address the Appellants’ assignment of error that the
district court erred in excluding Professor Morse’s testimony (a)
based upon its finding that Professor Morse’s testimony con-
sisted entirely of “‘legal conclusions’” when Professor Morse
expressed factual opinions that quantified the extent of finan-
cial harm caused to the Appellants by the Appellees and (b)
on Daubert/Schafersman grounds when the Appellees’ expert
agreed with Professor Morse’s “‘method.’”

- 65 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
Summarized, Professor Morse’s report states six opinions:
(1) that GIKK had sold “‘substantially all’” of its assets
through “sales of LLC units” and underlying assets, (2) that
GIKK and its managers entered into agreements “in derogation
of the rights” of Drs. Gross and Kelly, (3) that Drs. Gross and
Kelly have been harmed to the extent of the damages set forth
in their answers to interrogatories, (4) that other distributions
from GIKK to its members from the proceeds of unit sales
and from redemption proceeds likely caused additional dam-
ages to Drs. Gross and Kelly, (5) that GIKK and its managers
breached duties of care and loyalty to Drs. Gross and Kelly,
and (6) that Drs. Gross and Kelly are entitled to full redemp-
tion of their interests in GIKK based on valuing the remainder
of the underlying assets of GIKK.
The district court found that Professor Morse’s opinions
were not admissible and did not consider those opinions in
reaching its decision here. The Appellants assign error to that
ruling, arguing that the opinions did not consist entirely of
legal conclusions and that it was error to reject the opinions
on Daubert/Schafersman grounds. We will address those argu-
ments independently.
(a) Legal Conclusions
[23] Pursuant to Neb. Rev. Stat. § 27-702 (Reissue 2016),
“[i]f scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert by knowl-
edge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” And, as the
Nebraska Supreme Court stated in Woodmen of the World v.
Nebraska Dept. of Rev., 299 Neb. 43, 62-63, 907 N.W.2d 1,
15 (2018):
Expert testimony is relevant and admissible only if it
tends to help the trier of fact understand the evidence or
determine a fact issue, and expert testimony concerning
a question of law does not tend to accomplish either of

- 66 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
these goals. Consequently “‘expert testimony concerning a
question of law is generally not admissible in evidence.’”
Here, one of the reasons why the district court excluded
Professor Morse’s testimony was that
[e]ach 	of 	[Professor 	Morse’s] 	opinions 	contain[s]
inadmissible legal conclusions that interpret the terms
of 	Section 	17.2. 	[Professor] 	Morse’s 	opinions 	make
ultimate conclusions about what certain terms such as
“substantially all” and “derogation” mean when used
in the context of the contract. These types of opinions
are simply not admissible as expert testimony. These
legal conclusions are not helpful to the trier of fact and,
therefore, are inadmissible.
We agree in part. As we have explained in earlier portions
of this opinion, the meaning of an unambiguous contract is a
question of law. Lassalle v. State, 307 Neb. 221, 948 N.W.2d
725 (2020). Having found that both the meaning of the phrase
“substantially all” and the derogation of rights provision uti-
lized by the parties could be ascertained from the contract
itself and were determined as a matter of law, we reject all
portions of Professor Morse’s opinions insofar as they relate
to his own attempts to define that term and provision. See
Woodmen of the World v. Nebraska Dept. of Rev., 299 Neb.
at 63, 907 N.W.2d at 15 (holding that “‘“expert testimony
concerning a question of law is generally not admissible in
evidence”’”). But we read Professor Morse’s opinions as con-
stituting both an attempt to provide testimony governing the
definition of those terms and as an attempt to opine on how
the transactional facts should be applied to those definitions.
As it relates to his attempt to apply facts to the legal defini-
tion of those terms, we will discuss that in connection with the
Appellants’ second argument.
(b) Daubert/Schafersman Analysis
As it relates to Professor Morse’s attempt to provide opin-
ions on how facts should be applied to the law in this context,

- 67 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
we return to the language of § 27-702. As we stated previ-
ously, § 27-702 provides, “If scientific, technical, or other
specialized knowledge will assist the trier of fact to under-
stand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, train-
ing, or education, may testify thereto in the form of an opinion
or otherwise.”
Once the meaning of the terms of the parties’ contract is
ascertained, the only question left for the district court was to
determine whether there were any questions of material fact
that prohibited granting summary judgment here, or whether,
on this record, the Appellees were entitled to judgment as a
matter of law. The gravamen of the Appellants’ arguments here
was that the transactions described before either constituted a
sale of substantially all of GIKK’s units or assets or resulted
in a derogation of the Appellants’ rights. The transactions
involved the addition of seven new members to GIKK for
value, the redemption of Dr. McCarthy’s membership interest
for value under a new remuneration formula, and the eventual
sale of approximately 49.9 percent of GIKK’s interest in MSH
to a strategic partner.
We read Professor Morse’s report as addressing both the
topics of the derogation of rights provision and the sale of
substantially all of the units or assets provision. As it relates
to the former, Professor Morse interpreted the contract in a
manner to suggest that the Appellees were forbidden from
reducing the value of GIKK until a sale of substantially all of
it. As such, his opinions are based upon a faulty premise. To
that end, his opinions on this topic are not relevant, reliable,
or helpful, and the district court did not abuse its discretion in
failing to admit them.
But Professor Morse’s analysis of the transaction in refer-
ence to the issue of a potential “substantial sale” was useful.
That is, in addition to documenting the specific nature of the
transactions themselves, he identifies the distributions made to
members for dilution payments made from MSH to owners to

- 68 -
Nebraska Court of Appeals Advance Sheets
34 Nebraska Appellate Reports
GROSS v. GIKK INVESTMENTS
Cite as 34 Neb. App. 34
compensate for the dilutive impact on their ownership posi-
tions, along with identifying what specific remuneration was
paid, how it was calculated, and how those payments flowed.
But even considering that information, which was helpful to
the analysis, as we noted before, we find that the series of
transactions did not constitute a sale of substantially all of the
units or assets of GIKK as we have defined those terms in
the contract. To be clear, even when considering that portion
of Professor Morse’s report that was helpful in unpacking the
transactions that occurred, we find that the transactions, taken
in isolation or in the aggregate, do not constitute a sale of
substantially all of the units or assets in GIKK, for the reasons
we set forth before. As such, assuming without deciding that
a small portion of Professor Morse’s report was admissible,
there was no prejudice associated with the district court’s deci-
sion rejecting its admissibility.
Because the Appellants do not separately assign error to
the court’s determinations regarding their separate claims for
breach of fiduciary duty, we do not address them.
VI. CONCLUSION
For the reasons stated above, we affirm.
Affirmed.