Nebraska Supreme Court: you cannot sue "the Board"
Nebraska Supreme Court: you cannot sue "the Board"
2026-09-12 · Nebraska · Courts
A removed director sued her board, won in the district court, and had the whole judgment vacated because she never sued the corporation. The Nebraska Supreme Court decided Powers v. Board of Directors of Elmwood Tower on March 6, 2026, vacating and remanding with directions to dismiss for lack of subject matter jurisdiction.1
The caption does not say “homeowners association,” and the case is still the most directly useful 2026 Nebraska decision for community associations — because most Nebraska HOAs are Nebraska nonprofit corporations governed by the same Act.
The facts
Elmwood Tower is a Nebraska nonprofit corporation operating a residential building in Omaha. Mary Powers, a lifetime leaseholder, was elected to its board and then removed by a vote of five of the seven directors under the bylaws. She sued the board of directors and the individual directors, seeking a declaration that her removal violated the Nebraska Nonprofit Corporation Act, Neb. Rev. Stat. § 21-1901 et seq.
She did not name Elmwood Tower itself.
Two holdings
First, the corporation is an indispensable party. “We hold that Elmwood Tower was an indispensable party to this declaratory judgment action… the district court could not decide the declaratory judgment action without affecting Elmwood Tower's interests.”1 Failure to join it defeated subject matter jurisdiction, which is why the judgment was vacated rather than reversed.
Second, and more bluntly: “It is generally recognized that the board of directors of a corporation is not a legal entity capable of being sued.” The court grounded that in the statute's own architecture — “The Nebraska Nonprofit Corporation Act does not include similar language stating that the boards of directors 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).”12
The question the court deliberately did not answer
The live dispute underneath the jurisdictional holding was whether Powers was a “member” under Neb. Rev. Stat. § 21-1914(20). That matters because § 21-1975 supplies the director-removal protections, and whether they apply turns on membership.
Elmwood Tower's articles of incorporation say the corporation shall not have members. Its bylaws give certain people voting rights. Those two documents point in opposite directions, and the Supreme Court expressly declined to resolve which one controls.
So the question is now live and unresolved in Nebraska. It is also extremely common: a great many Nebraska HOAs incorporated decades ago with articles that are silent or negative on membership, and bylaws that plainly contemplate owners voting. Any association in that position should understand that whether its directors have statutory removal protection is currently an open question in this state.
How to get the caption right
Sue the corporation. If the relief sought would determine who sits on the board, who holds office, whether an election was valid, or whether an amendment was properly adopted, the corporation's interests are affected and it must be joined. Naming only the directors, or only “the Board,” is a jurisdictional defect that can be raised at any time — including on appeal, after a full trial, as it was here.
The defect is not curable by treating the board as a shorthand. The court did not say the pleading was informal. It said a board of directors is not an entity capable of being sued. There is nothing to amend into if the corporation is not brought in.
It cuts both ways. An association defending a governance suit brought only against its board or its directors now has a clean jurisdictional argument. A board that wants the dispute resolved on the merits rather than dismissed may prefer to point the defect out early.
Reconcile your articles and your bylaws
This is the practical instruction the case generates, and it is cheap to act on.
Pull the articles of incorporation from the Secretary of State and read them beside the bylaws. If the articles say the corporation has no members while the bylaws give owners votes, the association is carrying the exact conflict the Supreme Court left unresolved. Fixing it is an amendment question governed by the association's own documents and by the Nonprofit Corporation Act — a lawyer's job, and a considerably smaller one than litigating the point later.
While you are in the Secretary of State's records, confirm the corporation is in good standing. Nebraska nonprofit biennial reports are due in odd-numbered years, and an administratively dissolved corporation has problems with covenant enforcement that make board-composition disputes look minor.
What to watch next
Watch for the next case that squarely presents the articles-versus-bylaws membership question, because the Supreme Court has now flagged it as undecided. The first Nebraska decision to resolve it will settle whether a large share of this state's association directors hold statutory removal protections or none.
Related Nebraska HOA Topics
Stay on top of Nebraska HOA law
Every week: new Nebraska legislation, court rulings, and regulatory developments affecting condos, planned communities, and property managers. Free.
No spam. Unsubscribe anytime.