Target Corporation v. John KoAppeal from 134th Judicial District Court of Dallas County (memorandum opinion )
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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. 13-13-00100CV, 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 2 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT TARGET CORPORATION, Appellant No. 05-14-00502-CV On Appeal from the 134th Judicial District Court, Dallas County, Texas. Trial Court Cause No. DC-13-04853. Opinion delivered by Justice Brown. Chief Justice Wright and Justice Lang-Miers, participating. V. JOHN KO, Appellee 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. 3
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