Audifas Perez Flores v. Jose Adan Gomez and Jose Abraham Gomez

Opinion

ACCEPTED

15-25-00170-CV

FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS

11/18/2025 10:52 AM

COURT OF APPEALS CAUSE NUMBER 15-25-00170-CV CHRISTOPHER A. PRINE

TRIAL COURT CAUSE NUMBER D-1-GN-25-001493 CLERK FILED IN

15th COURT OF APPEALS

AUSTIN, TEXAS

AUDIFAS PEREZ-FLORES § IN THE COURT OF10:52:56 AM 11/18/2025

APPEALS CHRISTOPHER A. PRINE Appellant, § Clerk §

v. § § FIFTEENTH COURT JOSE ADAN GOMEZ & § JOSE ABRAHAM GOMEZ § Appellees. § IN THE STATE OF TEXAS

MOTION TO DISMISS

COMES NOW, Jose Adan Gomez and Jose Abraham Gomez (“Appellees”), and file this Motion to Dismiss pursuant to the Texas Rules of Appellate Procedure 26 & 42, and respectfully shows the Court as follows:

I. INTRODUCTION

This appeal should be dismissed because it was untimely filed by Appellant.

II. BACKGROUND

1. On May 29th, 2025, Appellees Jose Adan Gomez and Jose Abraham Gomez filed a Motion for Determination and Award of Attorney Fees. (See Exhibit A)

2. On August 15th, 2025, the 201st Judicial District in Travis County, Ordered, Adjudicated, and Decreed for the motion to be Granted and granted Appellees Jose Adan Gomez and Jose Abraham Gomez, to recover attorney fees in the amount of $32,507.50 from the Appellant, Audifas Perez-Flores.

(See Exhibit B)

3. On September 24th, 2025, Appellant Audifas Perez-Flores filed a Notice of Appeal, Appealing Order Granting Appellees’ Motion to Determination of Attorney’s Fees dated on August 15th, 2025. (See Exhibit C)

III. GROUNDS FOR DISMISSAL 1. The Texas Rules of Appellate Procedure, Rule 26.1 states that the notice of appeal must be filed within 30 days after the judgment is signed. See Simmons v. Home Asset, Inc., 2025 Tex. App. LEXIS 1136, 2025 LX 289238, 2025 WL 597265.

2. The filing was due on or before September 14th, 2025. Appellant Audifas Perez-Flores filed his Notice of Appeal on September 24th, 2025.

3. Appellant Audifas Perez-Flores, failed to comply with Rule 26.1 of the Texas Rules of Appellate Procedure because he filed his Notice to Appeal outside of the 30-day window prescribed by Rule 26.1. Therefore, under Rule 42.3(c) of the Texas Rules of Appellate Procedure, this Motion to Dismiss should be granted. See De La Garza v. Vela, 2025 Tex. App. LEXIS 1233, 2025 LX 203100, 2025 WL 635239.

IV. PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellees Jose Adan Gomez and Jose Abram Gomez, respectfully request that this Court: 1. Grant this motion for the reasons stated above; 2. Grant all further relief to which Appellees Jose Adan Gomez and Jose Abraham Gomez are justly entitled to.

RESPECTFULLY SUBMITTED,

THE KELLY LEGAL GROUP, PLLC P.O. BOX 2125 AUSTIN, TX 78768-2125 Phone: (512) 55-0053 Fax: (512) 505-0054 service@kellylegalgroup.com

By: /s/ Jeffrey Kelly__________ Jeffrey S. Kelly, TXBN 24043749 Chris Cummings, TXBN 24090058 Kelechi Ohanu, TXBN 24123955 Rachel L. Messer TXBN 24090261 Amy S. Friday TXBN 24037551 ATTORNEYS FOR APPELLEES

CERTIFICATE OF SERVICE

This certifies that a true and correct copy of this Motion to Dismiss was served on all parties of record in accordance with the Texas Rules of Appellate Procedure on the 18th day of November 2025.

____/s/ Jeffrey Kelly_

Jeffrey S. Kelly

VIA CMRRR & First Class Mail Audifas Perez-Flores 4408 Rogers Avenue Fort Worth, Texas 76133

CERTIFICATE OF CONFERENCE As required by Texas Rule of Appellate Procedure 10.1(a)(5), I certify that I have conferred, or made a reasonable attempt to confer, with all other parties— which are listed below—about the merits of this motion with the following results:

Audifas Perez-Flores:

___ opposes motion ___ does not oppose motion ___ agrees with motion ___ would not say whether motion is opposed X did not return my message regarding the motion

___

____/s/ Jeffrey Kelly_

Jeffrey S. Kelly

11/18/2025

__________________

Date

EXHIBIT A 5/29/2025 5:17 PM Velva L. Price District Clerk Travis County D-1-GN-25-001493 Candy Schmidt

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Jeff Kelly on behalf of Jeff Kelly Bar No. 24043749 jkelly@kellylegalgroup.com Envelope ID: 101408687 Filing Code Description: Motion (No Fee) Filing Description: PLAINTIFFS' MOTION FOR DETERMINATION AND AWARD OF ATTORNEY'S FEES Status as of 5/30/2025 6:28 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

KLG ADMIN Kelly service@kellylegalgroup.com 5/29/2025 5:17:41 PM SENT

Albert 'Al' J. Heinrich office@albertheinrich.com 5/29/2025 5:17:41 PM SENT

EXHIBIT B

08/15/2025 04:47:32 PM

Velva L. Price District Clerk Travis County

D-1-GN-25-001493

CAUSE NO. D-1-GN-25-001493

JOSE ADAN GOMEZ AND § IN THE DISTRICT COURT JOSE ABRAHAM GOMEZ, § Plaintiffs, § § § §

v. § 201ST JUDICIAL DISTRICT § § §

AUDIFAS PEREZ FLORES, § Defendant. § § TRAVIS COUNTY, TEXAS

ORDER GRANTING PLAINTIFF’S MOTION FOR DETERMINATION OF ATTORNEY’S FEES

CAME ON TO BE CONSIDERED on this day, the Motion for Determination of

Attorney’s Fees, and after consideration of the Motion and the evidence on file, the Court is of the

opinion that the Motion should be granted in its entirety. It is therefore,

ORDERED, ADJUGED AND DECREED that the Motion is GRANTED; it is further

ORDERED, ADJUGED AND DECREED that Plaintiff shall have and recover its attorney’s fees

in the amount of $32,507.50 from Defendant AUDIFAS PEREZ FLORES.

Aug. 15

SO ORDERED on this _______ day of ___________, 2025

___________________________

PRESIDING JUDGE The Honorable Laurie Eiserloh

________________________________

Order on Motion for Attorney’s Fees Page 1 of 1

EXHIBIT C

FILE COPY

COURT OF APPEALS

THIRD DISTRICT OF TEXAS P.O. BOX 12547, AUSTIN, TEXAS 78711-2547 www.txcourts.gov/3rdcoa.aspx (512) 463-1733

DARLENE BYRNE, CHIEF JUSTICE JEFFREY D. KYLE, CLERK GISELA D. TRIANA, JUSTICE CHARI L. KELLY, JUSTICE ROSA LOPEZ THEOFANIS, JUSTICE KARIN CRUMP, JUSTICE MAGGIE ELLIS, JUSTICE September 25, 2025

Mr. Jeffrey S. Kelly Mr. Audifas Perez Flores The Kelly Legal Group, PLLC 4408 Rogers Avenue P. O. Box 2125 Fort Worth, TX 76133 Austin, TX 78768-2125 * DELIVERED VIA E-MAIL *

RE: Court of Appeals Number: 03-25-00734-CV Trial Court Case Number: D-1-GN-25-001493

Style: Audifas Perez Flores v. Jose Adan Gomez and Jose Abraham Gomez

Dear Mr. Flores and Counsel:

The Court has been advised that appellant has given notice of appeal. The cause in this Court will bear the number and style shown above. Cases in the Third Court of Appeals are governed by the Texas Rules of Appellate Procedure (Tex. R. App. P.) which may be accessed on the Court’s website at http://www.txcourts.gov/rules-forms/rules-standards/. The Court provides all notices, orders, or other communications about a case by email. All documents filed with this Court must include the filer’s email address in addition to any other information required by the Texas Rules of Appellate Procedure. It is the filer’s responsibility to update the Court with any changes to their email address. In addition, at or before the time of a document’s filing, the filing party must serve a copy of the document(s) on all parties to the proceeding. See Tex. R. App. P. 9.5.

Appellant is requested to forward the following items to this Court on or before Monday, October 6, 2025:

 $205.00 Filing Fee – Unless an appellant is exempt by law or is presumed unable to afford payment of court costs, the appellant must pay the required $205.00 filing fee to prosecute the appeal. See Tex. R. Civ. P. 145; Tex. R. App. P. 20. 1. Failure to pay the filing fee may result in dismissal of the cause in accordance with Tex. R. App. P. 5 and 42.3. If you are excused by statute or the appellate rules from paying costs, please notify the Court. Payment should be submitted electronically through the eFileTexas.gov electronic filing system. o Persons not represented by an attorney may pay in person at the Clerk’s office or by mailing a money order or check made payable to “The State of Texas.”

FILE COPY

 Docketing Statement – See Tex. R. App. P. 32. Until the clerk’s record is filed, the docketing statement is the primary source of important information about an appeal, including contact information for the parties and information about the order being appealed. A copy of the docketing statement is available on the Court’s website at http://www.txcourts.gov/3rdcoa/practice-before-the-court/forms/.

o Pro Bono Program - Please be advised that regardless of your request in the Docketing Statement to participate in the Pro Bono Program, you are required to comply with all Texas Rules of Appellate Procedure, including meeting filing deadlines, whether or not a volunteer attorney is matched to your case.

o Fifteenth Court of Appeals - Appeals with particular subject matter and parties will be transferred to the Fifteenth Court of Appeals on September 1, 2024. Section XV of this Court’s docketing statement is designed to help parties assess whether their appeal is within the exclusive jurisdiction of the Fifteenth Court of Appeals. See Tex. Gov’t Code § 22.220(d). The Court requests that the parties confer and advise the Court if you believe your appeal is subject to transfer to the Fifteenth Court of Appeals.

 Challenge to Constitutionality of a State Statute - Pursuant to Section 402.010 (a-1)

of the Texas Government Code, any party challenging the constitutionality of a Texas Statute must file a “Challenge to the Constitutionality of a State Statute” form with the court in which the challenge is pending. This form can be accessed on the Court’s website at http://www.txcourts.gov/3rdcoa/practice-before-the-court/forms/. Parties who are not challenging the constitutionality of a state statute need not file this form. Unless an appellant is exempt by law or is presumed unable to afford payment of court costs, the trial-court clerk and court reporter are not required to file the clerk’s and reporter’s records until appellant has paid the required fees, or has made satisfactory arrangements to pay the fees. See Tex. R. App. P. 35.3(a)(2), (b)(3). If appellant has not already done so, written requests and arrangements for payment of the following records must be made on or before Monday, October 6, 2025.

 Clerk’s Record - The Court may dismiss an appeal for want of prosecution if the clerk’s record is not filed and it is appellant’s fault. See Tex. R. App. P. 37.3(b); 42.3. Appellant should make arrangements for the clerk’s record with the trial-court clerk and may file a written designation specifying additional items to be included in the clerk’s record. See Tex. R. App. 34.5(b)(2).

 Reporter’s Record - If appellant decides to include a reporter’s record as part of the appellate record, a request in writing to the court reporter must be made. See Tex. R. App. P. 34.6(b). The request to the court reporter must designate the portions of the proceedings to be included in the record including any exhibits. Appellant must also file a copy of the request with the trial-court clerk. See Tex. R. App. P.34.6. If a reporter’s record is not filed, the Court may decide the appeal on those issues or points that do not require a reporter’s record for a decision. See Tex. R. App. P. 37.3(c).

FILE COPY

Appellant is required to file a brief no later than 30 days (20 days in an accelerated appeal)

after the filing of the Clerk’s Record or Reporter’s Record, whichever occurs later. See Tex. R. App. P. 38.6(a). More information about the court’s practices are available on the Court’s website at http://www.txcourts.gov/3rdcoa/practice-before-the-court/. Please note, Texas Rules of Appellate Procedure 9.6 requires that parties and counsel communicate with the appellate court about a case only through the clerk of the court.

Very truly yours,

JEFFREY D. KYLE, CLERK

BY: Courtland Crocker

Courtland Crocker, Deputy Clerk

cc: Ms. Della M. Duett

The Honorable Velva L. Price

Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Jeff Kelly on behalf of Jeff Kelly Bar No. 24043749 jkelly@kellylegalgroup.com Envelope ID: 108168509 Filing Code Description: Motion Filing Description: Motion to Dismiss Status as of 11/18/2025 11:09 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Jeff Kelly service@kellylegalgroup.com 11/18/2025 10:52:56 AM NOT SENT