Frederick Dill's ice cream business can remain open
WALPOLE, N.H. -- The newly renamed Carol's Scoop Shop can remain open for business after Cheshire County's lone judge denied a competitor's request to order the shop to stop selling ice cream.
Judge John C. Kissinger issued an order on Friday stating that Frederick Dill, who purchased the Walpole Scoop Shop from David Westover on July 31, does not have to shut down his operation as Walpole Creamery owner Robert Kasper was hoping he would. The order allows both enterprises to compete for business.
On July 28, the court ordered Westover -- who at that time stilled owned Walpole Ice Cream LLC -- to stop manufacturing, selling or distributing ice cream at the wholesale or retail level, due to the pending lawsuit in which Kasper alleges Westover violated a non-competition contract the two had. Westover said he sold the 9 Edwards Lane establishment and all the assets three days later. Dill told the Reformer he renamed the business as Carol's Scoop Shop after his late wife.
That order also required Walpole Creamery to post an injunction bond.
According to Kissinger's order, the court disagrees with Kasper's claim that any sale of Scoop Shop or its assets violates the non-competition agreement. Kissinger states there was nothing in the agreement that prohibited Westover from selling the business and the court will not force the Scoop Shop to stop selling ice cream. The court also found that Walpole Creamery did not a provide sufficient argument that such action was warranted.
Kissinger also said the sale of assets from Westover to Dill does not constitute a violation of the non-competition agreement, because it states Dill does not assume any of Westover's obligations.
But the judge's order wasn't without its concerns over the shop's sale.
"Prior to the Court order and in the days following the issuance of the (July 28) order," he wrote, "there were negotiations between counsel for Walpole Creamery and counsel for Westover and Walpole Ice Cream that appeared to reflect an effort to resolve the case.
"Given the timing, the Court has significant questions about whether the negotiations with Walpole Creamery were conducted in good faith," the order later states.
There had been a claim made that Westover had a pre-determined plan in case Kasper won injunction and Kissinger stated the hearing held July 21 and 22 and the speed of the sale's completion support that claim.
"The circumstances strongly suggest Westover and Walpole Ice Cream were stringing Walpole Creamery along while they were completing the deal" with Dill. Kissinger said the extent to which this may subject Westover to liability and damages -- such as for attorney fees accumulated in connection with settlement negotiations -- will depend "upon what further discovery develops."
Neither Westover nor his attorney, Frank Spinella, could be reached for comment on Monday.
Dill told the Reformer he hopes this is the end of the ice cream saga and is just pleased to have saved the jobs of the 16 young people who work for him.
Domenic Poli can be reached at email@example.com, or 802-254-2311, ext. 277. You can follow him on Twitter @dpoli_reformer.
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