Florida Record

Monday, April 6, 2020

Lawyer who lost case following bathroom break wins appeal

By Christopher Mobley | Dec 9, 2016

General court 10

WEST PALM BEACH, Florida – A Florida lawyer has won an appeal after being barred from arguing a motion by a Palm Beach County judge.

Lawyer Jeff Tomberg of Boynton Beach was representing plaintiffs Dorothy and William Natiello in a slip-and-fall suit against Winn-Dixie Stores.

On the day of the hearing, Tomberg had arrived at the scheduled time, but left for a bathroom break after noticing that the defense lawyer was not present at the time. After returning to the courtroom a few minutes later, the judge and defense lawyer were wrapping up the hearing, with the judge noting that Tomberg had not filed a memorandum in response to the defense's summary judgment motion.

On Nov. 16, Florida's Fourth District Court of Appeal ruled in Tomberg's favor, citing that the Palm Beach County judge abused his discretion when he refused to allow Tomberg to argue the motion and granted the summary judgment to Tomberg's opponent. Reasons for which the appeals court cited that the judge abused his discretion include the fact that Tomberg was only a few minutes late, and that Tomberg “offered a patently reasonable explanation for his tardy appearance.” This resulted in the three-judge panel reversing the trial judge's decision and remanding the case for a new summary judgment hearing.

Tomberg, who is a board certified civil trial lawyer with 39 years of experience, spoke with the Florida Record to express his satisfaction with the result of the appeal.

“I was surprised that the judge denied rehearing, but I ended up prevailing on the appeal.” said Tomberg when asked if the initial decision of the judge surprised him.

Tomberg also told the Florida Record that similar situations do not often happen, saying, “It doesn't happen very often at all. It has happened only a couple of times, but that's it.”

Tomberg expressed satisfaction with the decision of the appeals court. “The appeals court basically said that I was entitled to have a hearing on the merit, and I think that's good law.” Tomberg said.

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Florida Fourth District Court of Appeal