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Asani v. Abundant Life Worship Center of Lincoln Park

July 27, 2010

ISMAIL ASANI, PLAINTIFF-APPELLANT,
v.
ABUNDANT LIFE WORSHIP CENTER OF LINCOLN PARK, N.J., INC., DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
NAZMIE ASANI AND MENDI ASANI, THIRD-PARTY DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-167-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 9, 2010

Before Judges Grall, Messano and LeWinn.

This appeal is from a judgment entered following a bench trial on competing claims seeking rescission and specific performance of a contract for the sale of approximately six acres of land. The lot was to be subdivided from a larger parcel owned by plaintiff Ismail Asani and his wife, third-party defendant Nazmie Asani (collectively the Asanis). The buyer, defendant/third-party plaintiff Abundant Life Worship Center of Lincoln Park, N.J., Inc. (Abundant), owns land adjacent to the Asanis' property. The contract of sale was negotiated on behalf of the Asanis by their adult son, third-party defendant Mendi Asani (Mendi). It states a purchase price of $350,000.

Alleging that the agreed price was $350,000 per acre, not $350,000 for the entire parcel, Ismail filed a complaint seeking rescission of the contract due to unilateral mistake - his failure to detect the erroneous price stated in the contract. Abundant filed a counterclaim and third-party complaint seeking specific performance by the Asanis. In defense, the Asanis asserted that a grant of specific performance would be improper because the contract price is unconscionable, there is uncertainty about the property line and Abundant did not diligently perform. Abundant also filed a third-party claim against Mendi seeking an award for damages resulting from his misrepresentation of authority to negotiate on behalf of his parents. At the conclusion of trial, judgment was entered dismissing with prejudice plaintiff's claim for rescission and Abundant's claim against Mendi. All other relief requested was denied.

The Asanis appeal.*fn1 Because the judge's factual findings are adequately supported by the record and the Asanis' claims of legal error are not meritorious, we affirm for the reasons stated by the trial judge in her oral decision of January 23, 2009, as supplemented by this opinion.

The property owned by the Asanis is located at 34 Square Place. It consists of approximately sixteen acres that are designated as farmland. The lot includes wetlands and is situated in a flood plain. The Asanis purchased the entire parcel in 1988 for about $360,000. There is a single-family dwelling, a free-standing garage, and two accessory structures. Mendi, his wife and three children live with the Asanis, but Mendi also owns residential properties that he leases and two restaurants that he manages. In 2001, Abundant purchased its five-acre property adjacent to the Asanis' and the house on that property for about $375,000.

The Asanis also have a home in Macedonia. In October of 2006, they went there and stayed until September 2007. While they were away, the president of Abundant's board of trustees, Francine Schornstein, left a letter in the Asanis' mailbox expressing interest in meeting. Mendi did not recall seeing that letter, but he does recall Schornstein approaching him to discuss buying land in the rear area of his parents' house for $300,000 per acre. Mendi informed Ismail, and Mendi received his authorization to accept an offer at $350,000 per acre. According to Schornstein, all of her discussions with Mendi were about a price for the entire parcel. Abundant's trustees initially gave her oral authorization to offer $300,000 and in February 2007 passed a resolution approving the purchase for $350,000.

Mendi's attorney, Bennett Wasserstrum, and Abundant's attorney, Steven C. Schepis, corresponded and exchanged drafts of a contract initially prepared by Schepis. By the end of March 2007, they had a final contract. The property was described as a "[p]ortion of property [owned by the Asanis] approximately 6 [six] acres in overall lot area as depicted on Schedule A annexed hereto." Schedule A was a survey with an approximate boundary line drawn so as to leave the house and garage on the portion of the lot to be retained by the Asanis with a five-foot setback between the rear of the garage and the boundary line. With respect to the purchase price, there was no ambiguity. The contract stated: "The purchase price is $350,000."

The initial contract includes a subdivision site plan contingency; it conditions Abundant's performance on Abundant "securing all necessary governmental approvals so as to adjust the lot line between the subject properties." It further provides that the Asanis' remaining lot will "just meet the minimum zone requirements" and that Abundant would require additional approvals to expand its non-residential use in the residential zone. Abundant was required to "diligently pursue" the approvals "forthwith."

The contract was clarified and modified through an exchange of correspondence between the attorneys. That correspondence along with the contract was signed by Schornstein and by Mendi on behalf of his parents.

In a letter of March 16, 2007, the Asanis proposed and Schornstein agreed to an amendment providing that "all plans [and] site plans" are subject to review and inspection by the Asanis prior to submission. Mendi and Schornstein further agreed that Abundant would assume the obligation to subdivide "so that the remaining parcel owned by the Seller will not subject [sic] to any variances in the event that the Seller seeks to sell or use this remaining property." By letter of March 21, 2007, also signed by Mendi and Schornstein to acknowledge acceptance, the contingency was further clarified. That change provides for the proposed subdivision to leave the Asanis' retained property in conformity with overall lot requirements and consistent with bulk requirements, "apart from items which are presently out of compliance, i.e., side yard setbacks, rear yard setbacks, etc." The agreement is that the "subdivision line will not create any new variances from what already exist."

There were other changes. A closing date no later than July 15, 2007 was promised and subsequently modified to require closing "no later than one year from the date of the signing of the contract." The parties also agreed to an amendment acknowledging that the Asanis were "mak[ing] no representations with respect to the use or the ...


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