MARY POWERS, APPELLANT, V. BOARD OF DIRECTORS OF ELMWOOD TOWER ET AL., APPELLEES.
No. S-24-899.
Nebraska Supreme Court
Filed March 6, 2026.
320 Neb. 906
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 declarаtory 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 directions 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.
Papik, J.
Shоrtly after Mary Powers was elected to the board of directors of Elmwood Tower, a Nebraska nonprofit corporation, a dispute arose between Powers and other members of the board of directors. Those other directors, pursuаnt 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 members 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, howevеr, 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 namе. 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.
Declaratory Judgment Action.
Powers responded by filing an action for a declaratory judgment 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 individual 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
Both sides eventually moved for summary judgment. Defendants argued they were entitled to summary judgment because Powers’ argument that her removal was unlawful depended on her contention that she was elected by members, but, according to defendants, Elmwood Tower had no
The district court denied Powers’ motion for summary judgment 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 district 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 invоlve 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 mеmbers, we are obligated to first consider whether we have jurisdiction. 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. 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
[3,4] When, as here, declaratory relief is sought,
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
Our decision is consistent with Harness v. Richarson, 436 S.W.3d 581 (Mo. App. 2014), a Missouri appellate court
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 indispеnsable 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 corporation 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, counsеl likened the naming of the board of directors in this case to a suit naming the Board of Regents of the University of Nebraska.
We are not persuaded that Powers could establish subject matter jurisdiction by naming the board of directors as a defendant. It is generally rеcognized 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 respоnsibility 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 bе 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 recognized that generally, a corporation’s board of directors is not a legal entity with the capacity to be sued, we are not convinced 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
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.