On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. LT-6620-04.
The opinion of the court was delivered by: Cuff, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 14, 2005
Before Judges Cuff, Holston, Jr., and Gilroy*fn2.
This appeal arises from a summary dispossess action brought by Village Apartments of Cherry Hill, N.J. (Village Apartments) against its tenant, defendant Stuart Novack. Novack is incompetent but his guardian was neither named as a party nor appeared at trial. We hold that the trial judge erred when he proceeded to try the case in the absence of defendant's guardian and reverse due to lack of jurisdiction.
The complaint for possession was filed July 23, 2004, and alleged that on June 18, 2004, Novack willfully, or by reason of gross negligence, caused or allowed destruction, damage or injury to the premises. It is undisputed that Novack filled his bathtub with clothes, turned on the water and left the unit for hours. The clothes prevented the water from draining and water flowed throughout the apartment. The maintenance superintendent eventually saw water seeping beneath Novack's front door.
Damages exceeded $15,000. The judge found that Novack did not act willfully, but found that his conduct constituted gross negligence and cause for removal and entered a judgment of possession. N.J.S.A. 2A:18-61.1(c).*fn3
The grounds for appeal of a summary dispossess action are quite limited. In fact, such actions "shall not be appealable except on the ground of lack of jurisdiction." N.J.S.A. 2A:18-59. Jurisdiction includes subject matter jurisdiction, see Marini v. Ireland, 56 N.J. 130, 137 (1970) (complaint must allege facts giving rise to default to invoke jurisdiction of court); Housing Authority of East Orange v. Mishoe, 201 N.J. Super. 352, 358 (App. Div. 1985) (a determination in a dispossess proceeding that the proofs fail to evidence a default under the lease implicates the jurisdiction of the court), and personal jurisdiction of the parties. The issue before this court is whether, absent a guardian, the court had personal jurisdiction of defendant to decide this matter.
In March 1985, the Superior Court of New Jersey, Camden County, declared Novack incompetent and appointed a guardian of his person and property. The trial judge in this summary dispossess action was aware of defendant's status. Novack's mother was named as his guardian and served in that role until October 2001. On January 29, 2004, Rabbi Schlomo Perr was appointed to serve as substituted guardian. Rabbi Perr, however, failed to file the appropriate documentation, therefore, he had not been qualified as Novack's guardian in time for the September 2004 hearing.
Although Rabbi Perr was served in this case, he did not appear at the summary dispossess hearing on September 9, 2004. Novack was represented by counsel, but counsel made no motion to have a guardian ad litem appointed or to adjourn until Rabbi Perr could qualify and appear. Novack testified on September 9, 2004, but failed to appear on the adjourned date, September 15, 2004.*fn4 The trial continued and the judge granted possession to plaintiff.
"Every person of . . . sound mind may prosecute or defend any action in any court. . . ." N.J.S.A. 2A:15-1. Novack, however, had been declared incompetent. N.J.S.A. 3B:12-36 provides that "[i]f a guardian has been appointed as to the person of . . . an incapacitated person, the court shall have full authority over the ward's person. . . ." The statute further provides that "if a guardian has been appointed as to the estate of . . . an incapacitated person, the court shall have full authority over the ward's estate, and all matters relating thereto." N.J.S.A. 3B:12-49 provides that the court "may confer those powers upon a guardian of the estate." See Estate of Bechtold, 150 N.J. Super. 550, 553 (Ch. Div. 1977) ("The legal effect of an adjudication of incompetency [or incapacity] is that the ward is divested of all control and management of his property."), aff'd o.b., 156 N.J. Super. 194 (App. Div. 1978). Here, the Letters of Guardianship extend to the person and property of defendant.
Our courts zealously protect the personal and property rights of incompetent parties. E. Paterson v. Karkus, 136 N.J. Eq. 286, 289 (Ch. 1945). A mentally incapacitated person must be represented in an action by a guardian. R. 4:26-2(a). The purpose of this requirement is to protect the ward and his interests. R. 4:26-2; cf. In re Grady, 85 N.J. 235, 259 (1981) (the court, and inferentially a guardian, have the authority to protect the economic and property interests of an incompetent). If no guardian has been appointed, the mentally incapacitated individual shall be represented by a guardian ad litem appointed by the court. R. 4:26-2(a). In this case, a guardian ad litem was not appointed when the designated guardian did not appear. Plaintiff argues that Novack had the protection of attorney representation. This argument, however, fails to recognize the different roles played by an attorney and a guardian ad litem.
While the attorney acts as a zealous advocate for his client, the guardian ad litem determines for him or herself what action is in the ward's best interests and advocates for that position. In re M.R., 135 N.J. 155, 173-74 (1994). While the attorney provides services to the client, the guardian serves the court on the ward's behalf. The guardian ad litem is an independent factfinder who works to ...