Auctioneer supports motion to dismiss man’s suit alleging injures from upturned garden rake; Guest agrees to amend complaint

By Heather Isringhausen Gvillo | Nov 29, 2016

A man suing an auctioneer agreed to amend his complaint after the defendant sought dismissal on the grounds that the entity being sued does not legally exist.

Jerry Keel filed a complaint on June 10 against Geneve L. Wood, individually and as trustee of the Wood Trust and the Geneve Wood Trust, Wayne A. Mollett Auction Service and Wayne A. Mollett.


According to the complaint, Keel claims he was invited onto Wood’s property on Aug. 4, 2014, when he was allegedly injured. He claims that while he was walking into the barn, the defendants caused the power to go out and he stepped on the metal prongs of a garden rake.

As a result, he alleges he sustained injuries to his right foot and suffered an infection, which required multiple surgeries and amputation of his middle toe.

He claims the defendants negligently placed a garden rake on the ground with the prongs facing upwards, failed to provide adequate lighting and failed to warn invitees of the placement of the rake.

Mollett filed a motion to dismiss counts IV and V on Aug. 17, which are brought against Wayne A. Mollett Auction Service, which the defendant alleges is not a business but is a fictitious name under which he operates.

Keel filed a response to Mollett’s motion to dismiss on Oct. 4 through attorneys John Webster and Timothy Chartrand of Williamson Webster Falb & Glisson in Alton.

Keel argues that Mollett improperly utilized a motion to dismiss. He says the defendant must admit the legal sufficiency of the complaint despite the incorrect name and has the burden to prove that an affirmative matter negates the complaint.

Keel says the defendant instead “presented his own version of the facts,” which he claims is not allowed.

Keel further argues that the defendant failed to meet his burden of proof.

“Defendant has not provided any proof whatsoever that it is not a business entity. Defendant’s counsel did not even provide an affidavit from her own client to support this allegation. Rather, Plaintiff is left with the factual allegations found in Defendant’s Motion to Dismiss,” the response states.

Keel also argues he provided enough facts to support his cause of action against the defendant.

Mollet filed a reply in support of his motion to dismiss on Nov. 9 through attorneys Martin Morrissey and Dominque Seymoure of Reed Armstrong Mudge & Morrissey in Edwardsville.

He argues that Wayne A. Mollett Auction Service “is not a corporation, LLC, LLP or any other type of legal entity recognized under Illinois law. Rather Wayne A. Mollett Auction Service is merely a fictitious name used by Wayne Mollet for his business.”

The defendant included an affidavit of Illinois Secretary of State Jesse White, which states that there is no entity with the name Wayne A. Mollett Auction Service in the state.

Circuit Judge Dennis Ruth filed a Nov. 4 order stating the parties agreed that the plaintiff will file an amended complaint within 30 days.

Ruth scheduled a case management conference for Feb. 22 at 9 a.m.

Keel seeks a judgment of more than $50,000, plus costs of the complaint.

Madison County Circuit Court case number 16-L-802

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Organizations in this Story

Illinois Secretary of State Madison County Circuit Court Reed, Armstrong Mudge & Morrissey Williamson, Webster, Falb and Glisson

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