DISMISS; and Opinion Filed July 21, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00502-CV

                            TARGET CORPORATION, Appellant
                                        V.
                                  JOHN KO, Appellee

                      On Appeal from the 134th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-13-04853

                             MEMORANDUM OPINION
                Before Chief Justice Wright and Justices Lang-Miers and Brown
                                   Opinion by Justice Brown
       Pursuant to Texas Civil Practice and Remedies Code section 51.014(d) and Rule of

Appellate Procedure 28.3, Target Corporation has filed a petition for permissive interlocutory

appeal. We may accept an interlocutory appeal if: (1) the order being appealed involves a

controlling question of law as to which there is a substantial ground for difference of opinion;

and (2) an immediate appeal from the order may materially advance the ultimate termination of

the litigation. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2013).

       Target moved for summary judgment on the ground that it was not served with process

until more than two months after the statute of limitations had run. John Ko responded that his

counsel requested issuance of citation on the same date the petition was filed. His counsel

acknowledged that a “clerical oversight resulted in a failure to calendar a follow-up date to

determine the status of counsel’s request for citation.” The trial court denied Target’s motion.
       In its petition for permissive appeal, Target contends the controlling question of law is

whether attorney error in failing to timely serve a defendant constitutes a lack of due diligence as

a matter of law. The law, however, is well settled that attorney error does not constitute due

diligence as a matter of law. See Parsons v. Turley, 109 S.W.3d 804, 808-09 (Tex. App.—Dallas

2003, pet. denied). The fact that the trial court may have erred in not granting summary

judgment is not a basis for a permissive appeal. See King-A Corp. v. Wehling, No. 13-13-00100-

CV, 2013 WL 1092209 (Tex. App.—Corpus Christi March 14, 2013, no pet.) (mem. op.)

(denying permission to appeal involving same issue).

       Accordingly, we conclude no substantial difference of opinion exists regarding the

controlling question of law in this case, deny the petition, and dismiss the appeal. See TEX. CIV.

PRAC. & REM. CODE ANN. § 51.014(d)(1); TEX. R. APP. P. 42.3(a).




                                                      /Ada Brown/
                                                      ADA BROWN
                                                      JUSTICE


140502F.P05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

TARGET CORPORATION, Appellant                         On Appeal from the 134th Judicial District
                                                      Court, Dallas County, Texas.
No. 05-14-00502-CV         V.                         Trial Court Cause No. DC-13-04853.
                                                      Opinion delivered by Justice Brown. Chief
JOHN KO, Appellee                                     Justice Wright and Justice Lang-Miers,
                                                      participating.

       In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

    It is ORDERED that appellee JOHN KO recover his costs of this appeal from appellant
TARGET CORPORATION.


Judgment entered this 21st day of July, 2014.




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