CHARLESTON - A Maryland man has filed a lawsuit against a local ice cream truck company, claiming he sent a deposit for the truck, but never received it.

Rossevelt Francois filed a suit Feb. 21 in Kanawha Circuit Court against Joey Simonton and Joey's Ice Cream Trucks, a Kanawha County business.

The suit says Francois contacted Simonton in August of 2006, regarding a truck for sale on the company's Web site. The two entered into a written contract for a soft serve ice cream truck and on Aug. 17, 2006, Francois sent Simonton a check for $32,000, which was a down payment for the truck.

The suit says the check was put into the company's account on Aug. 21, but the truck was never delivered. The company has also refused to refund the deposit.

On Nov. 17, 2006, Francois contacted Simonton to find out where the truck was, and Simonton was unable to provide a location. He said "the truck was somewhere in Ohio to have an engine installed," the suit says.

However, he could not provide the name of the person hired to install the engine, or the city or town where it was located. The suit also says Simonton refused to provide any documents, receipts or invoices that proved the truck even existed.

Francois claims Simonton and his company were in violation of the West Virginia Consumer Credit and Protection Act, after defrauding him of $32,000 and breaching the contract between the two.

Francois, through his counsel C. Benjamin Salango, seeks punitive damages sufficient to punish the defendants and to deter any similar conduct in the future.

Simonton and his company were sued last year in Putnam County in a similar case. In that suit, which still is pending, James J. Moore said Simonton took an $11,925 down payment on a hot dog truck but failed to deliver the vehicle as promised. Moore sought to have his down payment returned.

The Francois case has been assigned to Judge Louis Bloom.

Kanawha Circuit Court case number 07-C-332

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