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Lawyer Vindicated on Appeal After Losing Case on Untimely Bathroom Break

By William Vogeler, Esq. | Last updated on

Some things can't wait, like when a Florida lawyer desperately needed to leave the courtroom to go the bathroom.

But poor Jeff Tomberg had to wait 18 months for a court of appeal to excuse him. The appeals court said the trial judge should have allowed Tomberg to argue a motion, even though he was late to a hearing because he was in the bathroom. The justices said the judge abused his discretion in refusing the lawyer's request to be heard.

"Here, because plaintiffs' counsel was only a few minutes late for the summary judgment hearing and offered a patently reasonable explanation for his tardy appearance, and there was no showing of prejudice or willful misconduct, we find that the trial court abused its discretion in refusing to allow plaintiffs' counsel to present argument at the hearing," the Fourth Circuit Court of Appeal said.

In other words, "Yes, Jeff, you may go now."

Whew! Finally Got a Break

Tomberg was to appear before Palm Beach Circuit Judge Thomas Barkdull III in May 2015 to oppose the summary judgment motion in a slip-and-fall case. He arrived about five minutes before the hearing and saw opposing counsel was not in the courtroom and the judge was not on the bench. So he went to the restroom and came back a few minutes late.

"I walked in at the end of the hearing," Tomberg told Tomberg explained his tardiness, but Burkdull denied the attorney's request to be heard. "No motion to continue, no memorandum in opposition, counsel you may not argue," the judge said.

After timely filing an appeal, Tomberg got a break. The court reversed the summary judgment and remanded the case for a full hearing.

Attorney Didn't Want the 15 Minutes of Fame

Tomberg thought he would be excused for being a few minutes late that day, but he didn't expect to become famous for it. He once won Ohio's largest jury verdict for a child's wrongful death, argued before the Florida Supreme Court, and practiced 39 years as a board certified trial lawyer.

"There's an unfortunate irony here that this is what I'll be known for," he told Daily Business Review.

Hey, Jeff, it could have been worse. Just think if you hadn't gone to the bathroom, did the pee dance at the podium, and then lost the summary judgment ...

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