A day after being locked out of its popular Atwood Avenue location, the head of Chocolate Shoppe Ice Cream Co. filed a lawsuit Thursday against the new owners of the East Side building.
Chocolate Shoppe CEO Dave Deadman sued the owners of the building at 2302 Atwood Ave., claiming new locks installed on the property violated a lease agreement Deadman had with the previous owners.
The lawsuit, filed on behalf of Deadman and Chocolate Shoppe Ice Cream Co., names the new company that owns the building, D Port Properties, and co-owners and brothers, Casey and Zach Davenport, as defendants.
Deadman is seeking an injunction forcing D Port Properties to comply with the lease, “actual and consequential damages” and attorneys fees.
Casey Davenport said the Chocolate Shoppe was provided notice by the previous owners a year ago that the lease would end Oct. 1, 2019, arguing Deadman is trying to hold his company to a poorly written, unenforceable lease that has expired.
“Dave got poor legal counsel, and he should have sought better counsel,” Davenport said.
According to the lawsuit:
In June, the previous owners of the 354-square-foot building that has housed Chocolate Shoppe’s walk-up ice cream store, Teresa and Rashid Ouabel, told Deadman they intended to sell the property. Deadman was given first dibs on purchasing the property, but has said it was not “financially feasible” for the price sought by the Ouabels.
A sale to D Port Properties was agreed to on Sept. 24 at a price of $159,000.
The following day, Casey Davenport met Deadman outside the store and told him D Port Properties intended to open its own ice cream store in the building, according to the lawsuit. The company runs The Merrimac Scoop ice cream store at the Merrimac Ferry, along with Best Buds Landscaping in Madison.
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Deadman objected, arguing the lease agreement with the Ouabels renewed yearly unless Deadman provided at least a 60-day notice before Oct. 1 of each year.
The lawsuit alleges Davenport said, “This is America … I can do anything I want,” claiming he also said, “I buy properties all of the time and evict tenants.”
In an interview with the Wisconsin State Journal, Davenport denied he said anything like that.
He characterized the Sept. 25 interaction as Deadman approaching him as he was having a malt at the Chocolate Shoppe, and Deadman telling him he was refusing to leave the space.
The sale was finalized Tuesday, and a key to the building was handed over to the new owners. The lawsuit claims Deadman arrived at work Wednesday morning as the locks were being changed, barring him from the building and “movable property, including freezers, cash and inventory that was inside the building.”
Davenport said he stands by his decision to change the locks and claims anything on the property after Oct. 1 is legally property of his company.
“Those came with my purchase,” Davenport said. “Anything on the property as of October 1 was definitely mine.”
The lawsuit also alleges the new owners “tampered with and disabled portions” of the Chocolate Shoppe’s security system.
Deadman is claiming the action of the new owners violates the lease agreement, constitutes an illegal eviction and results in civil theft by denying him access to his property and inventory inside the store.
The lawsuit also alleges Chocolate Shoppe, which is a seasonal operation at the Atwood location and usually is open until mid- to late-October, will lose profit from having to shut down early at one of the company’s six local locations.