Powers v. Board of Directors of Elmwood Tower

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
POWERS v. BOARD OF DIRECTORS OF ELMWOOD TOWER
Cite as 320 Neb. 906
Mary Powers, appellant, v. Board of Directors
of Elmwood Tower et al., appellees.
___ N.W.3d ___
Filed March 6, 2026. 	No. S-24-899.
1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that
does not involve a factual dispute presents a question of law, which an
appellate court independently decides.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
3. Declaratory Judgments: Courts: Jurisdiction: Parties. The rule in a
declaratory judgment action is that all who have or claim any interest
which would be affected by the declaration sought are indispensable
parties, and when all such parties have not been joined, the district court
has no jurisdiction to determine the controversy.
4. Declaratory Judgments: Parties: Words and Phrases. In a declara-
tory judgment action, a party is “indispensable” when the party has an
interest in the controversy to an extent that such party’s absence from
the proceedings prevents the court from making a final determination
concerning the controversy without affecting such party’s interest.
Appeal from the District Court for Douglas County: Leigh
Ann Retelsdorf, Judge. Vacated and remanded with direc-
tions to dismiss.
Vincent M. Powers, of Powers Law, for appellant.
Christopher R. Hedican and Spencer R. Murphy, of Baird
Holm, L.L.P., for appellees.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:55 AM CDT

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
POWERS v. BOARD OF DIRECTORS OF ELMWOOD TOWER
Cite as 320 Neb. 906
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Papik, J.
Shortly after Mary Powers was elected to the board of direc-
tors of Elmwood Tower, a Nebraska nonprofit corporation, a
dispute arose between Powers and other members of the board
of directors. Those other directors, pursuant to a provision in
the corporation’s bylaws, voted to remove Powers from the
board of directors. Powers responded by filing an action in
district court. Powers named as defendants “[t]he Board of
Directors of Elmwood Tower,” the individual board mem-
bers who voted to remove her, and a board member who was
appointed to replace her. Powers sought a declaration that her
removal was void and an order restoring her to the board. The
district court rejected Powers’ claim on summary judgment,
concluding that, under the undisputed facts, Powers’ removal
was consistent with Nebraska law.
Powers now appeals to us, arguing that the provision of
the bylaws that permitted her removal violates the Nebraska
Nonprofit Corporation Act. We, however, conclude that we
cannot resolve that argument, because Elmwood Tower was an
indispensable party and Powers’ failure to join it deprived the
district court of subject matter jurisdiction. Accordingly, we
vacate the judgment of the district court and remand the cause
with directions to dismiss it without prejudice.
BACKGROUND
Powers Elected to and Then Removed
From Elmwood Tower Board.
Elmwood Tower is a Nebraska nonprofit corporation. It
operates an apartment building in Omaha, Nebraska, with the
same name. Residents of the apartment building sign lifetime
leases with Elmwood Tower. Under the corporation’s bylaws,
those lifetime leaseholders have the right to elect members of
the Elmwood Tower board of directors.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
POWERS v. BOARD OF DIRECTORS OF ELMWOOD TOWER
Cite as 320 Neb. 906
Powers, a lifetime leaseholder, was elected to the Elmwood
Tower 	board 	of 	directors 	and 	took 	office 	in 	July 	2023.
According 	to 	Powers, 	disagreements 	subsequently 	arose
between her and the other members of the board of direc-
tors. Those disagreements came to a head in December 2023
when the other six members of the board of directors voted to
remove her as a director. They did so pursuant to a provision
in Elmwood Tower’s bylaws that allows for the removal of
a director upon the vote of five of the seven members of the
board of directors.
Declaratory Judgment Action.
Powers responded by filing an action for a declaratory judg-
ment in district court. She named “[t]he Board of Directors of
Elmwood Tower” as a defendant, along with the six individual
board members who voted to remove her and a seventh indi-
vidual board member who was appointed to replace her. She
did not name Elmwood Tower as a defendant.
Powers alleged in her complaint that her removal from the
board of directors violated the Nebraska Nonprofit Corporation
Act. See Neb. Rev. Stat. § 21-1901 et seq. (Reissue 2022).
More specifically, Powers asserted that all lifetime lease-
holders are “members” of Elmwood Tower for purposes of
the Nebraska Nonprofit Corporation Act because Elmwood
Tower’s bylaws grant them the right to vote in elections for
the board of directors. See § 21-1914(20). Powers further
contended that under § 21-1975, directors elected by mem-
bers can be removed only under circumstances not present in
this case. Powers asked that the district court declare that her
removal was void and order her restoration to the board and
the removal of her replacement.
Both 	sides 	eventually 	moved 	for 	summary 	judgment.
Defendants 	argued 	they 	were 	entitled 	to 	summary 	judg-
ment because Powers’ argument that her removal was unlaw-
ful depended on her contention that she was elected by mem-
bers, but, according to defendants, Elmwood Tower had no

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
POWERS v. BOARD OF DIRECTORS OF ELMWOOD TOWER
Cite as 320 Neb. 906
members. Defendants pointed out that the Nebraska Nonprofit
Corporation Act does not require a corporation to have mem-
bers, see § 21-1940, and that Elmwood Tower’s Articles of
Incorporation stated that “[t]he Corporation Shall not have
members,” see § 21-1921(a)(5) (nonprofit corporation’s arti-
cles of incorporation shall state “[w]hether or not the corpora-
tion will have members”).
The district court denied Powers’ motion for summary judg-
ment and granted defendants’ motion for summary judgment.
It concluded that Elmwood Tower had no members and that
Powers could be removed pursuant to the removal provision
in Elmwood Tower’s bylaws.
Powers appealed.
ASSIGNMENTS OF ERROR
Powers assigns three errors, but for purposes of this appeal,
they can be paraphrased as one: She claims that the dis-
trict court erred by concluding that her removal from the
board of directors did not violate the Nebraska Nonprofit
Corporation Act.
STANDARD OF REVIEW
[1] A jurisdictional issue that does not involve a factual
dispute presents a question of law, which an appellate court
independently decides. Kimball v. Rosedale Ranch, 319 Neb.
650, 24 N.W.3d 841 (2025).
ANALYSIS
[2] Although the parties’ arguments in this case focus
on whether the district court was correct to conclude that
Elmwood Tower had no members, we are obligated to first
consider whether we have jurisdiction. Before reaching the
legal issues presented for review, it is the duty of an appel-
late court to determine whether it has jurisdiction over the
matter before it. Castillo v. Libert Land Holdings 4, 316 Neb.
287, 4 N.W.3d 377 (2024). This obligation requires appellate
courts to consider whether the court from which the appeal

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
POWERS v. BOARD OF DIRECTORS OF ELMWOOD TOWER
Cite as 320 Neb. 906
was taken had jurisdiction, because if it did not, then the
appellate court acquires no jurisdiction. See Swicord v. Police
Stds. Adv. Council, 314 Neb. 816, 993 N.W.2d 327 (2023). In
this case, we analyze whether the district court lacked subject
matter jurisdiction because Powers failed to join an indis-
pensable party.
[3,4] When, as here, declaratory relief is sought, Neb. Rev.
Stat. § 25-21,159 (Reissue 2016) requires that “all persons
shall be made parties who have or claim an interest which
would be affected by the declaration, and no declaration shall
prejudice the rights of persons not parties to the proceeding.”
The rule in a declaratory judgment action is that all who have
or claim any interest which would be affected by the dec-
laration sought are indispensable parties, and when all such
parties have not been joined, the district court has no jurisdic-
tion to determine the controversy. SID No. 2 of Knox Cty. v.
Fischer, 308 Neb. 791, 957 N.W.2d 154 (2021). A party is
“indispensable” under this rule when the party has an interest
in the controversy to an extent that such party’s absence from
the proceedings prevents the court from making a final deter-
mination concerning the controversy without affecting such
party’s interest. Id.
We hold that Elmwood Tower was an indispensable party
to this declaratory judgment action. The declaratory judgment
action asked the district court to determine the rightful board
members of Elmwood Tower. The district court’s resolution
of that issue would determine which individuals would have
the authority to manage Elmwood Tower. See § 21-1968(b)
(“all corporate powers shall be exercised by or under the
authority of, and the affairs of the corporation managed under
the direction of, its board”). In the words of our rule regard-
ing indispensable parties, the district court could not decide
the declaratory judgment action without affecting Elmwood
Tower’s interests.
Our decision is consistent with Harness v. Richarson, 436
S.W.3d 581 (Mo. App. 2014), a Missouri appellate court

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
POWERS v. BOARD OF DIRECTORS OF ELMWOOD TOWER
Cite as 320 Neb. 906
decision involving a fact pattern very similar to the one before
us. In that case, plaintiffs initiated a declaratory judgment
action alleging that their respective removals from a nonprofit
corporation’s board of directors were void. Plaintiffs named as
defendants the individuals who were the other members of the
board of directors, but did not name the corporation itself. After
the trial court ordered plaintiffs reinstated, the other members
of the board of directors appealed. The appellate court reversed
on the grounds that the corporation was an indispensable party
that had not been joined. The appellate court reasoned that the
corporation had “a vital interest in the identity of its board of
directors” and that the corporation’s duties and relationships
with third parties “could be affected by the composition of its
board of directors.” Id. at 585, 586.
In Harness, the court relied on Jones v. Jones, 285 S.W.3d
356 (Mo. App. 2009), another case decided by a Missouri
appellate court. In Jones, the appellate court concluded that a
nonprofit corporation was an indispensable party in an action
in which plaintiff claimed that she, rather than defendant,
rightfully held a corporate officer position. The appellate court
explained that the corporation had an interest in a lawsuit
involving the “identity of its directors and officers” and noted
that the remedies requested by plaintiff would require action
by the corporation. Id. at 361. As in Jones, in this case, if
Powers were to obtain the declaratory relief she seeks, the cor-
poration would need to take action to effectuate it.
At oral argument, Powers’ counsel argued that Elmwood
Tower was not an indispensable party to this lawsuit. Although
counsel appeared to recognize the necessity of naming as a
defendant someone beyond the individual board members
who voted to remove Powers and Powers’ replacement, he
argued that it was not necessary to name Elmwood Tower as
a defendant, because Powers had joined Elmwood Tower’s
board of directors. In support of this argument, counsel lik-
ened the naming of the board of directors in this case to a suit
naming the Board of Regents of the University of Nebraska.

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
POWERS v. BOARD OF DIRECTORS OF ELMWOOD TOWER
Cite as 320 Neb. 906
See, e.g., Shlien v. Board of Regents, 263 Neb. 465, 640
N.W.2d 643 (2002).
We are not persuaded that Powers could establish subject
matter jurisdiction by naming the board of directors as a
defendant. It is generally recognized that the board of directors
of a corporation is not a legal entity capable of being sued. As
an Ohio appellate court has explained, while a corporation’s
board of directors is the “body with the ultimate responsibil-
ity of making decisions on behalf of the corporation,” it is not
“some sort of corporate entity within a corporation.” Flarey v.
Youngstown Osteopathic Hosp., 151 Ohio App. 3d 92, 96, 783
N.E.2d 582, 585, 586 (2002). Many other courts have agreed
that a corporation’s board of directors lacks the capacity to
be sued. See, e.g., Lopez-Rosario v. Programa Seasonal Head
Start, 245 F. Supp. 3d 360 (D. Puerto Rico 2017); Heslep v.
Americans For African Adoption, Inc., 890 F. Supp. 2d 671
(N.D. W. Va. 2012); Siegler v. Sorrento Therapeutics, Inc.,
2021 WL 3046590 (Fed. Cir. July 20, 2021); Tahari v. 860
Fifth Ave. Corp., ___ A.D.3d ___, 244 N.Y.S.3d 534 (2025);
Willmschen v. Trinity Lakes Improvement, 362 Ill App. 3d 546,
840 N.E.2d 1275, 298 Ill. Dec. 840 (2005).
Not only do we agree with those courts that have recog-
nized that generally, a corporation’s board of directors is not
a legal entity with the capacity to be sued, we are not con-
vinced by Powers’ suggestion that if the Board of Regents of
the University of Nebraska can be sued, so too can the board
of directors of Elmwood Tower. The Board of Regents of the
University of Nebraska has the capacity to be sued because a
statute declares that board to “constitute a body corporate” and
“as such may sue and be sued.” See Neb. Rev. Stat. § 85-105
(Reissue 2024). The Nebraska Nonprofit Corporation Act does
not include similar language stating that the boards of direc-
tors of nonprofit corporations can sue and be sued, and, in
fact, the statute expressly provides that it is the corporation
itself that can sue and be sued. See § 21-1928(1).

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Nebraska Supreme Court Advance Sheets
320 Nebraska Reports
POWERS v. BOARD OF DIRECTORS OF ELMWOOD TOWER
Cite as 320 Neb. 906
Because Elmwood Tower was an indispensable party and
the presence of all indispensable parties is jurisdictional, the
district court had no jurisdiction to determine the controversy.
See SID No. 2 of Knox Cty. v. Fischer, 308 Neb. 791, 957
N.W.2d 154 (2021). For that reason, we vacate the district
court’s judgment for lack of jurisdiction and remand the cause
with directions to dismiss it without prejudice. See id.
CONCLUSION
For the foregoing reasons, we vacate the judgment of the
district court and remand the cause with directions to dismiss
it without prejudice for failure to join an indispensable party.
Vacated and remanded with
directions to dismiss.