ICE CREAM (copy)

The building housing Chocolate Shoppe Ice Cream at 2302 Atwood Ave. is now under new ownership. 

On a cool and rainy Wednesday, the Chocolate Shoppe Ice Cream location on the corner of Atwood Avenue and Jackson Street closed for the season.

It wasn’t a planned closure. Dave Deadman, the second-generation CEO of Chocolate Shoppe, sent out a press release saying the “new owners of the building ... entered the building without our consent or knowledge and barred our entry.” 

“We obviously are now entering a legal phase,” Deadman said when reached by phone. “They changed the locks. All our equipment, the cash receipts from yesterday are still in the building. Our ice cream is still in there.”

Casey Davenport, one of those new owners, closed on the building at 2302 Atwood Ave. on Tuesday. He said he and his brother/co-owner, Zach Davenport, do not have a lease agreement with Deadman. They want to run the corner store as an ice cream shop themselves, perhaps even continuing to serve Chocolate Shoppe ice cream.

Deadman had the right of first refusal to buy the building and chose not to. He has not signed anything with the new owners, arguing that the lease he signed in 2013 is still valid.

The Davenports contend that a letter sent more than a year ago by previous owners Teresa Pullara-Ouabel and Rachid Ouabel legally established “a year-to-year tenancy.” 

“The last owners went through all the proper steps,” Casey Davenport said. “If Dave was willing to play ball and pay an appropriate rent ... we’d consider another two-year lease. But the way the deal’s been going, Dave was not going to be rational, not going to be pleasant.”

Chocolate Shoppe, an ice cream company with roots in Madison since 1962, opened in this 354-square-foot concrete and stucco building six summers ago. Deadman says he signed a lease that allowed him to rent year-by-year in perpetuity for $600 a month (with no escalation clause). He paid extra to the city, about $125 a month, to use the patio out back.

Previously a tattoo shop, Jamaican Arts and Crafts and a bakery called Bea’s Bonnet, the building had been owned by the Ouabel family of Bunky’s Café since 2007. As a Chocolate Shoppe location, the counter on the corner quickly became a hot spot for local families.

Deadman got a notice from the Ouabels in September 2018 that they were planning to sell and that his lease would terminate on Sept. 30, 2019. The property was assessed by the city of Madison at $58,500, but when it went up for sale it was priced at nearly $160,000. Deadman didn’t want to pay “three times the value.”

When the Davenports heard about the sale, they were thrilled. Originally from Maple Bluff, Zach and Casey Davenport own Merrimac Scoop in Lodi, where they sell Chocolate Shoppe ice cream — $30,000 worth of it every season, Casey said. They own real estate in Madison (D-Port Properties) and a landscaping/lawn care business called Best Buds LLC.

“My brothers and I thought about buying it years ago,” Davenport said.

When he heard about Deadman’s right of first refusal, Casey was sure they were out of luck.

“I’ve seen the line over there, I know how much money they make,” Davenport said.

But they put in an offer anyway, even knowing the lease was in dispute. Their offer was accepted Aug. 8 and they closed on Tuesday, Oct. 1, for $159,000. 

“People love that neighborhood,” Davenport said. “Houses sell before they hit the market for $40,000 more than they’re worth. The foot traffic is so intense.”

On Tuesday, the property changed hands. By Wednesday, the Davenports and Deadman were at a standoff. The Davenports owned the building, but Deadman’s freezers and ice cream were still inside. Deadman called the police, but both sides said nothing was resolved.

Deadman then took the dispute public. He posted to Chocolate Shoppe’s Facebook page that the Davenport family has “made it clear they have no plans to work with us through this transition of ownership. We plan to legally dispute the decision and fight to keep the business we’ve worked so hard to build in the location we built it.”

Deadman insists that he has an “evergreen lease” that continues in perpetuity so long as he continues to pay rent.

“When Teresa sent me that letter (in September 2018) we said, ‘This is not a legal transaction. You can’t just change my lease,’” Deadman said. “Legally, when somebody buys a building the current leases go with the building.”

For his part, Casey Davenport sounded frustrated and bemused. He and his team want to scoop ice cream at 2302 Atwood — from Chocolate Shoppe Ice Cream, if Deadman is open to it, but another local creamery if they’re not. They want to keep the shop seasonal.

“We’re looking for the next one in Madison already, in Cambridge, in Columbus,” Davenport said. “We’re always looking for the next thing.”

The Davenports haven’t named their new ice cream shop yet, but Casey said the terms of their purchase say “everything in and around” the property at 2302 is now his property.

“I told my brothers and sisters I would let him come get his freezers,” Casey Davenport said. “I’m not a (jerk), I’m not going to steal the guy’s freezers.”

Deadman hasn’t ruled out continuing to sell ice cream to the Davenports (“I have no answer right now”). The Davenports haven’t ruled out selling Chocolate Shoppe to the neighborhood.

“We have enjoyed our working relationship with the Chocolate Shoppe but they’re not the only ones in town or in Wisconsin that make fantastic ice cream, with the same buttercream fat,” Casey Davenport said. “It is dreamy to own this place, it’s the cutest little ice cream stand ever. You don’t envision that dream coming with a legal battle.”

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