(dissenting).
[¶ 26.] There are genuine issues of material fact as to fraud in the inducement to get Dr. Schwaiger to move to Mitchell, South Dakota, and agree to take a substantial first year reduction in pay in order to have a good faith opportunity to get equal ownership in 1 year rather than in 2 years.
[¶ 27.] The majority opinion reaches the wrong decision in part because it addresses the issues in absolute backwards order. See order of issues in majority opinion at ¶ 6. For example:
(1) If the majority opinion would first decide correctly that after-the-fact admissions by a corporation owner were relevant to prove fraud in the inducement, it would put the entire case in a different light and in fact, change the result.
(2) Likewise, parol evidence is always admissible to prove fraud in the inducement of a contract. See Ducheneaux v. Miller, 488 N.W.2d 902 (S.D.1992).
(3) Likewise, in the fraud in the inducement of the contract claim, which goes to good faith, there is a duty to disclose the shareholder’s agreement affecting management and voting.
(4) Finally, the circuit court erred in granting summary judgment because genuine issues of material fact as to fraud in the inducement exist.
[¶ 28.] More specifically, the after-the-fact admissions by Dr. Kundel “that [MRA failed] to honor our promise to make him a full partner at the end of his year” ... “as well as a continued violation of the commitment we made more than a year ago with Dr. Schwaiger” is sufficient to prove genuine issues of material fact. See the highlighted portions of attached Exhibit H (Crisis in Radiology Memo) to support these and other genuine issues of material fact.
*382[¶ 29.] Obviously, if Dr. Buhler knew at the time of the contract that he would block the “equal partnership” of an “excellent radiologist” without regard to his performance, it would constitute fraud in the inducement. Although not proven yet, it can be fairly inferred from the evidence and the Crisis in Radiology memo, which present genuine issues of material fact.
[¶ 30.] In summary, it is obvious that one should determine questions of relevant evidence, including parol evidence and legal duty to disclose in a fraud case before determining the ultimate issue: “1) [w]hether the circuit court erred in granting summary judgment.”
[¶ 31.] The majority opinion also gets the burden of proof backwards. Under Dep’t of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989), the moving party must show that there are no genuine issues of material fact. This it has failed to do. The burden is not upon the NONmoving party to show that there are genuine issues of material fact, even though he has.
[¶ 32.] KONENKAMP, Justice, joins this dissent.
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