WORLD MUSIC CORPORATION v. AVON HOTEL CORPORATION, t/a THE COLUMNS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6627-04T43088-06T1

WORLD MUSIC CORPORATION,

Plaintiff-Appellant,

v.

AVON HOTEL CORPORATION, t/a

THE COLUMNS,

Defendant-Respondent.

_____________________________________

 

Argued December 5, 2007 - Decided

Before Judges Parker, R. B. Coleman and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Small Claims, Monmouth County, Docket No. SC-2441-06.

Jay M. Nimaroff argued the cause for appellant (Biebelberg & Martin, attorneys; Mr. Nimaroff and Keith N. Biebelberg, on the brief).

Charles F. Shaw, III argued the cause for respondent (Pandolfe, Shaw & Rubino, L.L.C., attorneys; Mr. Shaw, on the brief).

PER CURIAM

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 discontinue the MU[Z]AK service at Avon Hotel Corporation, T/A The Columns. In effect March 2005."

For the 2005 season, Columns ceased using plaintiff's equipment and services and began using another supplier. As of the filing of the briefs, World Music had not retrieved its equipment from Columns.

On July 17, 2006, plaintiff filed suit against Columns in Superior Court of New Jersey, Monmouth County, Special Civil Part, Small Claims. On January 4, 2007, a bench trial was held before Judge Mark A. Sullivan, Jr. Judge Sullivan found that the parties entered into a five-year contract. He also found, however, that plaintiff breached the contract and that defendant was justified in canceling the contract based upon plaintiff's prior breach. Plaintiff's action was dismissed with prejudice because the court found no cause for action.

On February 9, 2007, plaintiff filed this appeal in which it claims that the trial court judge's findings of fact were unsupported by the record and that the court ignored the contract's provisions regarding contract termination, limitations of World Music's liability, and the contractual remedy for service interruptions.

Generally, in a non-jury case, we may not disturb the trial court's findings of fact unless wholly unsupported by the evidence. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). "An appellate court may not 'engage in an independent assessment of the evidence as if it were the court of first instance.'" Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 164 (2004) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We do not afford any special deference to a trial court's findings. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966). However, if the trial judge has a misconception of the applicable law or misapplies the law to the facts, "it is the duty of the reviewing court to adjudicate the controversy in light of the applicable law . . . ." Ibid.

Plaintiff claims that Wright's testimony was vague because he failed "to state even one specific date, weekend or weekday, where the defendant [sic] allegedly had failed to make a timely response to a problem . . . ." In addition, plaintiff argues that Wright failed to demonstrate how defendant suffered financial loss. Therefore, plaintiff argues, the judge's findings were unsupported by the record.

We disagree. Wright's testimony that World Music frequently failed to remedy service interruptions timely during Column's busy summer weekends was uncontroverted by either affirmative proofs or cross-examination of Wright. Since we find that Judge Sullivan's decision was based on substantial, credible evidence, we affirm. Rova Farms, supra, 65 N.J. at 484.

Plaintiff also contends that the contract contained provisions that specifically addressed the issues of contract termination and defendant's remedy was limited to monetary credits in the event of "specifically defined interruptions of service." Our Supreme Court has held, though, that "[w]hen there is a breach of a material term of an agreement, the non-breaching party is relieved of its obligations under the agreement." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (citing Stamato & Co. v. Borough of Lodi, 4 N.J. 14 (1950)). See also Magnet Resources, Inc. v. Summit MRI, Inc., 318 N.J. Super. 275 (App. Div. 1998). In those instances "[w]here a contract calls for a series of acts over a long term, a material breach may arise upon a single occurrence or consistent recurrences which tend to 'defeat the purpose of the contract.'" Magnet Resources, supra, 318 N.J. Super. at 286 (quoting Medivox Produtions, Inc. v. Hoffmann-La Roche, Inc., 107 N.J. Super. 47, 59 (Law Div. 1969)).

Based on substantial, credible evidence, the trial court's ruling reflects that World Music's failure to provide service to defendant on weekends constituted a failure to perform an essential obligation of the contract, thus permitting defendant to elect to terminate the contract. Vinen Corp. v. Alan W. Nau Contracting, Inc., 232 N.J. Super. 589, 595 (App. Div. 1989). Because the trial judge's decision was soundly based on established legal principles and supported by the record, we affirm.

Affirmed.

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A-6627-04T43088-06T1

December 21, 2007