NOT DESIGNATED FOR PUBLICATION
No. 129,461
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
MARIA DEL PILAR VALDEZ JACQUEZ, Appellant,
v.
EL MERCADO FRESCO and EIAD MUSLET, a/k/a EDDIE MUSALLET, Appellees.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; TIMOTHY L. DUPREE, judge. Submitted without oral argument. Opinion filed September 4, 2026. Affirmed in part, reversed in part, and remanded with directions.
Scott A. Hunter, of Hunter & Cassidy, LLC, of Kansas City, Missouri, for appellant.
Tracy M. Hayes and Cade Burghart, of Sanders Warren & Russell, LLP, of Overland Park, for appellees.
Before MALONE, P.J., HURST and COBLE, JJ.
PER CURIAM: After falling in a neighborhood grocery store and suing for her damages, Maria del Pilar Valdez Jacquez now appeals the Wyandotte County District Court's dismissal of her negligence claims with prejudice. Jacquez argues that the district court erred because her service of the petition on the defendants was proper and because she prosecuted her case. On our review, we affirm the district court's dismissal of the store for lack of proper service of process, but remand to the district court to resolve the factual issues remaining as to service on Eiad Musallet. We also remand for the district
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court to examine the facts applicable to whether Jacquez failed to prosecute her case, for reasons fully explored below.
FACTUAL AND PROCEDURAL BACKGROUND
On June 13, 2024, Jacquez filed a petition alleging negligence by El Mercado Fresco grocery store and Eiad Muslet (a/k/a Eddie Musallet) (referenced as Eiad Musallet here, given the parties' primary usage of this name), the alleged owner of the store. Jacquez claimed that on June 16, 2022, she slipped on a tomato on the floor of the store and fell on her back, suffering injury. She argued that El Mercado Fresco and Eiad knew or should have known of the danger and should have remediated it.
Jacquez' attorney sent summonses by certified mail to El Mercado Fresco at 2102 Metropolitan Avenue, Kansas City, Kansas, and to Eiad at 17829 Benson Street, Bucyrus, Kansas. The return receipt for the mail delivered to El Mercado Fresco was signed by Jennifer Rodriguez on June 24, 2024. The return receipt for the mail delivered to Eiad was purportedly signed by Eiad, himself, with a signature and the initials "EM," bearing a postal service stamp dated June 22, 2024.
For more than three months, nothing happened in the litigation. The defendants did not file an answer or enter an appearance in the case. Jacquez did not move for default judgment.
According to defense counsel, months after Jacquez filed her petition, Eiad and another family member were involved in a business transaction. A credit check revealed the pending lawsuit, but the family was otherwise unaware of the litigation. The Musallets contacted State Farm, the grocery store's insurer, who turned the matter over to their attorney, Elizabeth Evers Guerra, in October 2024. Guerra conducted some research and learned that Eiad was not the legal owner of the store and that the legal name of the
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store was Metro Fresh Market, LLC. The defendants' litigation history described by Guerra—other than the identities of the legal entities—does not have evidentiary support in the record. Nothing, however, contradicts these factual assertions.
Guerra did not immediately file her appearance in court but informally contacted Jacquez' attorney, Scott Hunter, on November 7, 2024. The content of their phone call was not memorialized in detail, but emails reflect that they discussed the service of process. Hunter told Guerra that he would speak with his client.
A week later, Guerra followed up on this conversation with another email, asking whether Hunter had talked to his client. Hunter responded that he had not talked to his client because he had to schedule an interpreter to do so. Almost another week later, Guerra again wrote to Hunter:
"Scott, "I ran the names as listed in the pleadings by the Musallets. My understanding is that Eiad aka Eddie is correct, but that the proper legal name for El Mercado Fresco is 'Metro Fresh Market LLC'. "As for the proper parties named in the lawsuit, I'm not sure I can determine for you whether Eiad or someone else should be named. Like we discussed, Eiad runs the business and oversees everything, is my understanding. He has help from family (sister Jackleen and possibly others) and the business is legally in his wife's name—Remah [Musallet]. That said, Remah has limited involvement in running the business. Jackleen's name is on the policy.
....
"I did obtain permission from Jackleen, Eddie and Remah to accept service when that time comes. Please let me know your thoughts on next steps."
On November 20, 2024, Hunter responded that he would look into the matter.
Again, nothing happened in the case for another four months or so. On April 10, 2025, Guerra entered a limited appearance in the case for purposes of seeking dismissal of the
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petition for lack of personal jurisdiction due to invalid service of process and for lack of prosecution. The motion attached an affidavit by Eiad, who claimed that his wife was the legal owner of the grocery store, not him. He also asserted that his parents live at the residence at 17829 Benson Street, though Eiad is the legal owner of the property. He averred that Jennifer Rodriguez, who signed the certified mail receipt for the summons served on El Mercado Fresco, is not a registered agent or manager of the store and that the legal name for El Mercado Fresco is Metro Fresh Markets, LLC.
Jacquez opposed the motion to dismiss, attaching an affidavit by her attorney.
Hunter alleged that he conducted an internet search and discovered news articles and court pleadings naming El Mercado Fresco and listing Eiad's residential address as the Benson Street address. Hunter attached copies of some news and magazine articles and court documents. Guerra filed a reply in support of the motion to dismiss and attached three documents from the Secretary of State's office, designating the legal entity of the grocery store to be Metro Fresh Market, LLC. Remah Musallet was listed in the limited liability company's (LLC) documents as the owner, and Jackleen Musallet was listed as the LLC's organizer. Remah was also listed as the authorized agent for the LLC.
The district court heard arguments on the motion to dismiss on May 16, 2025.
Guerra recited the litigation history and her correspondence with Hunter, arguing that service of process was invalid and that Jacquez failed to prosecute her claim in a timely manner. Hunter argued that service was proper, and even if service was technically improper, the unique circumstances doctrine applied to save the service. Finally, Hunter argued that the district court should permit Jacquez to correct service under K.S.A. 60- 203(b). In response to the failure-to-prosecute argument, Hunter argued:
"I mean, we did take steps to move the case forward. We filed the lawsuit, we served the defendants. Yes, I was contacted by defense counsel in November. But steps have been taken to move the case forward. Candidly, their motion to dismiss should be denied. I
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believe a case management conference should be set, and we should proceed forward with the case."
Before ruling on the motion, the court asked Hunter whether the legal name of the business was El Mercado Fresco or Metro Fresh Market, LLC. Hunter acknowledged that the petition used an improper name and that he possessed no legal documents to establish that the entities were the same. He also admitted that he had no legal documents to establish that Eiad was the owner or legal representative of the LLC. He further acknowledged Guerra's communication with him, informing him of the correct party designations. When asked by the court why he refused to investigate the matter or to seek to amend the petition, Hunter claimed only that he believed he had effected proper service.
The court granted the defendants' motion to dismiss with prejudice for failure of proper service of process and for failure to prosecute.
Jacquez has timely appealed the dismissal.
SERVICE ON THE DEFENDANTS
Before we address whether service was proper, we must outline the standard by which we review this question. An appellate court exercises unlimited review of a district court's decision to grant a motion to dismiss. See Harding v. Capitol Federal Savings Bank, 321 Kan. 292, 295, 577 P.3d 553 (2025). Typically, when reviewing a motion to dismiss for failure to state a claim, the district court and the appellate court both accept the facts within the petition to be true. If the facts, taken in a light most favorable to the plaintiff, establish that the defendant is entitled to judgment as a matter of law, then the court may dismiss the claim. Otherwise, the motion to dismiss should not be granted. See League of Women Voters of Kansas v. Schwab, 318 Kan. 777, 793, 549 P.3d 363 (2024).
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When the motion to dismiss concerns improper service of process, the analysis is similar. A district court possesses personal jurisdiction over a plaintiff when the plaintiff subjects themselves to the court's jurisdiction by filing the petition. A district court possesses personal jurisdiction over a defendant through valid service of process. Davila v. Vanderberg, 4 Kan. App. 2d 586, 588-89, 608 P.2d 1388 (1980). At the pleading stage, the plaintiff must establish a prima facie showing of personal jurisdiction, including proper service of process. See POM of Kansas, LLC v. Kobach, 319 Kan. 764, 771, 561 P.3d 506 (2024) (citing Aeroflex Wichita, Inc. v. Filardo, 294 Kan. 258, 270, 275 P.3d 869 [2012]).
In conducting an inquiry into personal jurisdiction on a motion to dismiss, a district court has broad discretion to permit jurisdictional discovery, consider written materials attached to pleadings, and to order an evidentiary hearing. POM of Kansas, 319 Kan. at 771. If the court chooses to resolve the jurisdictional question by reviewing the pleadings and submitted written instruments alone without conducting an evidentiary hearing, the court must resolve factual disputes in the plaintiff's favor. 319 Kan. at 771.
Jacquez has consistently insisted that service of process was proper because she issued the summons by certified mail to El Mercado Fresco at the address where the fall occurred and to Eiad, personally, at 17829 Benson Street in Bucyrus, Kansas.
Our inquiry necessarily begins with the statutes governing service of process in Kansas. In this case, Jacquez elected to serve the summons to both defendants by certified mail. Accordingly, K.S.A. 60-303(c) governs the process and K.S.A. 60-304 governs on whom service is deemed effective. The dispute in this case revolves around the person to whom service was rendered, not the process used. As a result, our analysis focuses on K.S.A. 60-304.
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"As used in this section, 'serving' means making service by any of the methods described in K.S.A. 60-303, and amendments thereto, unless a specific method of making service is prescribed in this section. Except for service by publication under K.S.A. 60- 307, and amendments thereto, service of process under this article must be made as follows:
"(a) Individual. On an individual other than a minor or a disabled person, by serving the individual or by serving an agent authorized by appointment or by law to receive service of process. . . . Service by return receipt delivery must be addressed to an individual at the individual's dwelling or usual place of abode and to an authorized agent at the agent's usual or designated address. . . .
.... "(e) Corporations, domestic or foreign limited liability companies, domestic or foreign limited partnerships, domestic or foreign limited liability partnerships and partnerships. On a . . . domestic or foreign limited liability company . . . that is subject to suit in a common name, by:
(1) Serving an officer, manager, partner or a resident, managing or general agent; (2) leaving a copy of the summons and petition or other document at any of its business offices with the person having charge thereof; or (3) serving any agent authorized by appointment or by law to receive service of process, and if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.
"Service by return receipt delivery on an officer, partner or agent must be addressed to the person at the person's usual place of business." K.S.A. 60-304(a) and (e).
Individual Service on Eiad Musallet
In her petition, Jacquez alleged that El Mercado Fresco and Eiad were negligent for failing to remove a hazardous condition, of which they knew or should have known. Jacquez did not clarify whether Eiad's liability was a product of his position as the alleged owner of the store or for some personal duty he owned to the patrons of El Mercado Fresco as manager and primary operator of the store. Eiad has contended that he is not the owner of the store, but this argument does not go to the propriety of service of process but to Eiad's liability for negligence. Eiad's status as owner of the store is
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immaterial in determining whether he received proper service of process as an individual defendant. Depending on Jacquez' legal theory for liability, that status might be relevant to a dismissal for failure to state a claim. But Eiad has not yet sought to dismiss Jacquez' negligence claim against him for failure to state a claim. The appeal arises from a dismissal for improper service of process.
To the extent that Jacquez sued Eiad individually for personal liability or as owner of the grocery store, service of process by certified mail was proper if Jacquez mailed a summons addressed to Eiad at his residence or place of abode. K.S.A. 60-304(a). Jacquez claims that Eiad lived at 17829 Benson Street, Bucyrus, Kansas. For support, Jacquez noted that the return delivery receipt is ostensibly signed by Eiad. She also provided a 2023 municipal citation from Kansas City, Missouri, citing Eiad for failing to obtain a certificate of occupancy for a commercial building. The municipal citation lists Eiad's address as 17829 Benson Street, Overland Park, Kansas, but service was attempted at the same street address in Bucyrus, Kansas.
Still, based on the standard of review for a motion to dismiss, the district court and this court must view the facts in a light most favorable to Jacquez at this stage in the litigation. The return receipt for delivery to 17829 Benson Street, Bucyrus, Kansas, appears to bear Eiad's signature. Even if Eiad disputes that he signed the return receipt, his purported signature creates a fact question that cannot be resolved against Jacquez at this stage in the proceeding. Additionally, because the petition is unclear about Jacquez' theory of liability against Eiad, dismissal of the claim because he is not the owner of the store also appears premature. Eiad admitted, through counsel, that he manages and operates El Mercado Fresco, though his wife is the legal owner of the store. If Jacquez seeks to charge Eiad for negligence in his management and operation of the store and not solely as the store's owner, the petition's mistake, if any exists, in naming the owner does not preclude Jacquez' suit.
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Where factual disputes arise regarding proper service of process, a district court is authorized to order the parties to engage in limited discovery on the question of jurisdiction. See POM of Kansas, 319 Kan. at 771. With respect to the propriety of individual service on Eiad, the district court should have ordered such limited discovery rather than dismissing the claim, and we must reverse the district court's dismissal order as to Eiad. Limited discovery could establish whether Eiad was residing at the Bucyrus address or another location when service was attempted; whether his signature is affixed to the service return receipt; and whether the correct residential address for the home is Bucyrus or Overland Park. After allowing the parties to conduct limited discovery and after an evidentiary hearing, the district court may properly make findings regarding the propriety of service of process on Eiad. Under this record, the court cannot properly declare individual service on Eiad to be improper.
Service on the Limited Liability Company
As outlined above, K.S.A. 60-304(e) provides three methods of accomplishing service of process on a limited liability company. Two of the methods—subsections (e)(1) and (e)(3)—authorize "serving" the summons and petition. The third method— subsection (e)(2)—is satisfied by "leaving" the summons and petition. K.S.A. 60-304 statutorily defines "serving" to encompass any of the service methods authorized by K.S.A. 60-303, including certified mail. The Kansas Legislature's failure to use "serving" to authorize service in subsection (e)(2), however, suggests that service by the processes identified in K.S.A. 60-303 do not effect proper service under K.S.A. 60-304(e)(2). Instead, service under this provision can only be properly effected by "leaving" the summons and petition. In this context, "to leave" has the common meaning of "to make, place, deposit, etc., and cause to remain behind one." Webster's New World College Dictionary 829 (5th ed. 2018). K.S.A. 60-304(e)(2) then directs service on an LLC by taking a physical copy of the summons and petition to the place of business and giving it
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to a person with some sort of managerial authority over the business, not sending the summons and petition by mail to the place of business.
Here, interpreting the facts in a light most favorable to Jacquez, she sent the summons and petition by certified mail to El Mercado Fresco. Receipt of the mailing was signed by Jennifer Rodriguez, some type of employee of the store. This method of service did not comply with any of the authorized methods within K.S.A. 60-304(e). It is not clear what position of authority, if any, Rodriguez had in the store. But, even if the court assumes that she was a "person having charge" of the store under K.S.A. 60-304(e)(2), the summons and petition were not personally left with Rodriguez but mailed to the store. Rodriguez merely signed for the certified mail delivery. Therefore, service did not comply with K.S.A. 60-304(e)(2). Rodriguez has not been shown to be an officer, manager, or agent of the business nor has she been established as an agent authorized by law, any of whom could accept certified mail service under K.S.A. 60-340(e)(1) or (e)(3).
Even if, somehow, Rodriguez were a designated agent authorized to receive service of process on behalf of the store—which the Secretary of State documents reflect she was not—El Mercado Fresco is not a legal entity that may be sued. Hunter, Jacquez' attorney, admitted at the hearing that the legal name of the business was Metro Fresh Market LLC, not El Mercado Fresco.
On appeal, Jacquez relies heavily on newspaper articles to establish her assertion that El Mercado Fresco was a legitimate business entity. Newspaper articles may be admitted to establish dissemination of a fact, if the dissemination is relevant apart from the truth of the reported information. See Hudson v. City of Shawnee, 246 Kan. 395, 407, 790 P.2d 933 (1990). But the information in a newspaper article is hearsay when used to establish the truth of the statement asserted therein. See State v. Hunter, 241 Kan. 629, 637, 740 P.2d 559 (1987).
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Jacquez has admitted the newspaper articles to establish the truth of the business name of the store. So, for this purpose, the newspaper articles are inadmissible hearsay. Besides, newspapers print information for a purpose altogether different than establishing the legal name of an entity for purpose of suing or being sued. A newspaper seeks to convey information about a business that connects to the general public. Consequently, a newspaper might use the operating name of a business rather than its legal name to connect with readers. The information provided by newspaper articles is not authoritative proof of the legal name of a business, especially when a court is presented with conflicting information that has greater reliability. Here, the documents filed with the Secretary of State's office to establish the LLC are more authoritative information about the legal identity of the business.
For all these reasons, the district court properly dismissed Jacquez' claims against El Mercado Fresco for failing to effect proper service, and its decision on that point is affirmed.
Unique Circumstances Doctrine
Alternatively, Jacquez argues that, even if service of process was improper in some manner, the unique circumstances doctrine applies to save her claims. Jacquez' counsel limits his argument to individual service on Eiad as owner of El Mercado Fresco and residing at 17829 Benson Street. His argument does not touch on service of the store.
As discussed, the district court improperly dismissed Jacquez' claims against Eiad individually because the record contains disputed facts regarding Eiad's residence that must be resolved in Jacquez' favor and because the nature of the negligence claim against Eiad is not necessarily limited to Eiad's liability as owner. Accordingly, as to Eiad, the application of the unique circumstances doctrine is moot. Board of Riley County Comm'rs v. Kansas Historical Society, 66 Kan. App. 2d 318, 328, 581 P.3d 839 (2025) (noting that
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a case becomes moot when any judgment entered would be ineffectual for any purpose and would not impact the parties' rights).
Because Jacquez does not argue that the unique circumstances doctrine should apply to save service on El Mercado Fresco, she has waived and abandoned the issue. See Hodes & Nauser, MDs, P.A. v. Stanek, 318 Kan. 995, 1002, 551 P.3d 62 (2024). This is especially true when the issue involves an equitable exception for non-compliance with a legal rule. See Finley v. Estate of DeGrazio, 285 Kan. 202, 211, 170 P.3d 407 (2007) ("We next observe that the nature of the unique circumstances doctrine would preclude such relief under our facts because it has been said that the application of the doctrine depends upon such concepts as equity, the interests of justice, good faith, estoppel, or nonparty error.").
LACK OF PROSECUTION
Alternatively, the district court dismissed Jacquez' claims for lack of prosecution under K.S.A. 60-241(b)(1). Jacquez also challenges this ruling. The statute relied upon by the district court reads:
"(b) Involuntary dismissal; effect; notice. (1) If the plaintiff fails to prosecute or to comply with this chapter or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this paragraph and any dismissal not under this section, except one for lack of jurisdiction, improper venue or failure to join a party under K.S.A. 60-219, and amendments thereto, operates as an adjudication on the merits." K.S.A. 60-241(b)(1).
District courts have broad discretion to control their dockets, eliminate procrastination and delay, and expedite the orderly flow of business. So, as long as the district court provides a party with fair notice that a case may be dismissed for inaction, a court's decision to dismiss for failure to prosecute rests in its sound discretion. An
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appellate court will only reverse for a showing of an abuse of discretion. Frost v. Hardin, 218 Kan. 260, 263, 543 P.2d 941 (1975); Namelo v. Broyles, 33 Kan. App. 2d 349, 353, 103 P.3d 486 (2004). Judicial discretion is abused when the court's decision constitutes an error of law, an error of fact, or a position so arbitrary, capricious, or unreasonable that no rational person in the position of the court would have rendered the same decision. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). The party claiming an abuse of discretion bears the burden of establishing it. Zaragoza v. Board of Johnson County Comm'rs, 320 Kan. 691, 711, 571 P.3d 545 (2025).
As Jacquez notes in her appellate brief, the law favors trial of causes on their merits and looks with disfavor on dismissals. Dismissal of an action for failure to prosecute is an extraordinary remedy to be used with caution. Namelo, 33 Kan. App. 2d at 356. This is, however, the extent of her argument. She claims—consistent with her arguments in the district court—that she did move the case forward by filing the petition and serving the defendants. This argument fails to explain her lack of action in the case for several months after the initial filing of the case. "[T]he primary responsibility for the prosecution of a case lies ultimately upon the plaintiff." Coutts v. Crider, 219 Kan. 692, 700, 549 P.2d 1019 (1976); Namelo, 33 Kan. App. 2d at 357.
Even so, when dismissing a case for want of prosecution, a district court must consider certain factors before deciding to dismiss. See Fischer v. Roberge, 34 Kan. App. 2d 312, 315, 120 P.3d 796 (2005) (adopting Tenth Circuit Court of Appeals' three-factor analysis for dismissal for want of prosecution). These factors require a court to consider: (1) the degree of actual prejudice to the opposing party; (2) the amount of interference with the judicial process; and (3) the culpability of the litigant. 34 Kan. App. 2d at 315. Other courts have also considered the length of delay, the reasons for the delay, and what efforts have been made to prosecute the claim. Green v. General Motors Corp., No. 119,044, 2022 WL 570692, at *5 (Kan. App. 2022) (unpublished opinion).
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The district court abused its discretion by failing to at least inquire into these considerations before dismissing the case. See Woodmont Company v. West Ridge Pizza Pub, LLC, No. 122,827, 2021 WL 3239518, at *8 (Kan. App. 2021) (unpublished opinion) (reversing and remanding dismissal for lack of prosecution when court did not consider factors). The district court might have been understandably frustrated with the lackluster answers provided by Jacquez' counsel at the hearing. Even so, a court should be reluctant to deprive a party of his or her day in court to discipline an attorney. A.K. by and through N.K. v. Heit, No. 126,730, 2025 WL 1602925, at *7 (Kan. App. 2025) (unpublished opinion). Again, the dismissal of an action for failure to prosecute— particularly with prejudice—is an extreme remedy to be used sparingly. Namelo, 33 Kan. App. 2d at 356.
Though we naturally have thoughts on each of these factors recited above and how they may apply to this case, because the district court's decision was within its sound judicial discretion, we do not "substitute our view of the propriety of the district court's actions without those findings, which the district court is singularly empowered to make." Woodmont Company, 2021 WL 3239518, at *8. Instead, we reverse the district court's ruling on the motion to dismiss for failure to prosecute and remand for the district court to consider the necessary factors and make the required factual findings before again applying its discretion to rule on the motion.
Affirmed in part, reversed in part, and remanded with directions.