Two ice cream stores can remain open and in competition in Walpole, after a judge denied a request from one of the shop owners to stop the other from selling ice cream.

On Friday, Judge John C. Kissinger Jr. denied a request for a court order to stop Frederick Dill, the new owner of the former Walpole Scoop Shop, from selling ice cream.

The decision is the latest in a court dispute between Robert J. Kasper Jr., who owns the Walpole Creamery, and David A. Westover, who helped found Walpole Creamery and owned the Walpole Scoop Shop until last month.

On July 28, Kissinger ordered Westover to stop making and selling ice cream as a trial looms in a lawsuit filed by Kasper alleging that Westover violated a non-competition contract he had with Kasper and Walpole Creamery. Days after that decision, Westover sold the shop to Dill to avoid shutting down the store and firing his staff, he previously told The Sentinel.

The two sides, along with Dill, were back in Cheshire County Superior Court last week, as Kasper argued that Westover’s sale of the scoop shop was a way to get around the injunction Kissinger ordered against Westover.

Kasper and his attorney, Ronald J. Caron, argued that Dill shouldn’t be allowed to operate the scoop shop because the sale of the shop or its assets to a competitor also constitutes a violation of the non-competition agreement.

They also claimed that Westover breached the agreement by sharing confidential information with Dill, including the original process of making the creamery’s ice cream.

But Kissinger decided Kasper didn’t meet the burden of proof for an injunction.

There was nothing in the non-competition agreement that directly prohibited Westover from selling the scoop shop, according to the court decision. And Dill can’t be subject to the non-competition agreement, since he wasn’t involved in the agreement in the first place.

Westover’s attorneys also presented evidence that he hasn’t had any further involvement in the business following the sale, according to the court decision.

Still, Kissinger indicated he had some concerns about the sale in his decision Friday.

Prior to Kissinger’s July 28 order, lawyers for Westover and Kasper were in negotiations that appeared to reflect an effort to resolve the case, Kissinger wrote.

But then, right after the injunction order, Westover entered into negotiations with Dill to sell the business, which he did on July 31.

Given the timing, Kissinger had serious questions about whether Westover’s negotiations with Kasper and Walpole Creamery were in good faith, he wrote. Dill’s presence at the July hearing between Kasper and Westover also supports the claim that Westover had a plan to sell the shop in the event that Kasper won the injunction, Kissinger wrote.

“The circumstances strongly suggest Westover and Walpole Ice Cream were stringing Walpole Creamery along while they were completing the deal with Dill,” Kissinger wrote.

Whether that may cause Westover to be liable for damages such as attorney fees will depend on how the rest of the case pans out, Kissinger wrote.

Westover was one of the founders of the Walpole Creamery in 2006. When Kasper and other local investors purchased the business in 2011, Westover signed an agreement that would allow him to run an ice cream shop selling Walpole Creamery products.

In February, Westover told Kasper he wouldn’t sell Walpole Creamery ice cream anymore, and instead started making his own ice cream, called Dave’s Super Premium Homemade Ice Cream.

Westover claims in court documents that the quality of Walpole Creamery products has declined.

But a 10-year non-compete agreement bars Westover from making or selling ice cream in competition with the creamery.

In court last week, Dill’s attorney said he’s in the process of making the former Walpole Scoop Shop his own, including changing the name to Carol’s Homemade Super Premium Ice Cream.

Dill’s shop is less than a mile down the road from the Walpole Creamery production facility on Route 12, where Westover used to run the scoop shop before expanding it at the new location and selling to Dill. In May, Kasper re-opened a shop in front of the production facility to sell the creamery’s products.

Dill and Kasper could not be reached for comment this morning.

Kaitlin Mulhere can be reached at 352-1234, extension 1439, or kmulhere@keenesentinel.com. Follow her on Twitter @KMulhereKS.