On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Small Claims, Monmouth County, Docket No. SC-2441-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, R. B. Coleman and Lyons.
In this case, plaintiff World Music Corporation (World Music) appeals from a judgment dismissing its complaint. A short recital of the facts is essential for our analysis.
Avon Hotel Corporation, trading as The Columns (Columns), is a beachfront bar and restaurant in Avon-by-the-Sea. Columns is a seasonal business, operating from May through October each year. Columns operates an indoor bar, while the restaurant is outside on a porch.
In April 1999, Columns entered into an agreement with World Music to deliver recorded music via a satellite dish system installed by World Music at Column's restaurant/bar. The five-year contract indicated in a hand-written term, "Seasonal billing 6 months per year." According to plaintiff, World Music "was to provide music for six months per year for a total of 30 months during a 60-month period."
In April 2004, Columns and World Music entered into another five-year contract. This contract called for two satellite systems so that Columns could entertain its restaurant customers with different music than its bar patrons. This contract also noted that this was a seasonal account. The monthly rate was increased to reflect the second receiver that was installed concurrently with the execution of the contract.
The April 2004 contract provided in paragraph five:
The initial term of this Agreement shall be a period of FIVE (5) years; beginning on Installation. This term shall thereafter be renewed for subsequent five year terms, unless terminated at the end of the then existing term of this Agreement, by written notice, sent by either party to the other at the address set forth above, by registered mail, not later than ninety (90) days prior to the expiration date of the current term.
Paragraph eight further provided:
WORLD shall not be liable for any failure or interruption due to Acts of God, strikes, emergencies, mechanical failure, governmental action, action or inaction by the Subscriber, its employees, agents, invitees or any other cause beyond WORLD's control. For any other failure or interruption, in excess of twenty four (24) hours brought to WORLD's attention within forty eight (48) hours after such failure or interruption, the Subscriber's account shall be credited on a pro rata basis based on the monthly charge.
Shortly after the second receiver was installed and the second contract was executed, Robert Wright (Wright), manager of Columns, claimed that it began to experience frequent service interruptions during lightening storms or when the phones went dead. Wright called World Music's customer service office, which consisted of a voice mail system. According to Wright, it took from twenty-four to forty-eight hours for somebody to return the phone call. However, because World Music was closed on weekends, interruptions on Friday, Saturday, or Sunday were not resolved until the following Tuesday, resulting in a disruption in music for the remainder of the weekend. Wright represented that most of Column's business, as a restaurant/bar, is done on Friday, Saturday, and Sunday.
Wright was dissatisfied with the "frequent, inexplicable service interruptions." Each time defendant received a billing statement, Wright allegedly contacted plaintiff telephonically to cancel the service. Wright claims that plaintiff's representatives agreed to the cancellation. Wright followed up with a fax on July 20, 2005, stating: "Please ...