CHARLESTON -- The owner of an ice cream truck company claims his ability to sell ice cream cones from a truck has been hindered after he has been unable to secure a truck for which he paid $10,000.

Lexington Hamilton filed a lawsuit July 16 in Kanawha Circuit Court against Joey’s Ice Cream Trucks, Joey Simonton, Jocelyn Simonton and Kona Ice.

In his complaint, Hamilton alleges he found a food truck for sale on Craigslist for $20,000. He inquired about the truck and engaged in a series of correspondences with Joey Simonton, according to the complaint.

During the ongoing conversation, Joey told Hamilton he would sell him a suitable used truck he could build to Hamilton’s specifications upon receipt of a $10,000 retainer fee, the suit states. The remaining money would be due after work on the truck had started, the complaint says.

Hamilton claims he forwarded Joey Simonton a check for $10,000, which he deposited April 11.

Following the issuance of his payment, Hamilton repeatedly checked in with Joey, who told Hamilton various conflicting and inaccurate information, according to the complaint. Joey Simonton became increasingly evasive in the subsequent weeks, so on May 4, Hamilton requested he stop any work on the truck and be refunded the $10,000, the suit states.

Joey Simonton told Hamilton he would be unable to immediately fully refund the money, but could send $1,000 every couple of weeks until the end of June, the complaint says. However, the only check Hamilton claims he has received since then has been for $500.

Hamilton names Jocelyn Simonton and Kona as defendants, saying they associated with Joey Simonton to carry out a business that does not perform the work promised. He alleges breach of contract and fraud against the defendants.

Hamilton seeks economic damages, non-economic damages, punitive damages, attorney’s fees, costs, pre- and post-judgment interest and other relief the court deems just.

He is being represented by attorney Steven B. Wiley of Wiley Law Offices in Norfolk.

Kanawha Circuit Court case number: 14-C-1263

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