Bathroom break prompts appellate court to grant new hearing

Opinion rules in favor of South Fla. lawyer who returned from bathroom too late

PEMBROKE PARK, Fla. – A South Florida lawyer who left court to use the bathroom but returned to find the judge granting summary judgment to opposing counsel will get a new hearing after an appellate court ruled in his favor this week.

The Fourth District Court of Appeal ruled Wednesday that Boynton Beach attorney Jeff Tomberg should receive a new hearing on the defendant's motion for summary judgment.

Tomberg was set to appear before Palm Beach County Judge Thomas Barkdull III last year on behalf of plaintiffs Dorothy and William Natiello in a slip-and-fall lawsuit against Jacksonville-based Winn-Dixie.

"The plaintiffs' counsel arrived for the summary judgment hearing at the scheduled time but left to go to the restroom when he saw that defense counsel was not present," appellate Judges Robert Gross, Carole Taylor and Dorian Damoorgian ruled in an unsigned opinion. "When plaintiffs' counsel returned to the courtroom a few minutes later, the trial court and defense counsel were wrapping up the summary judgment hearing."

"I walked in at the end of the hearing," Tomberg told

Tomberg said Friday that Coral Gables defense attorney Eduardo Cosio was willing to re-argue the matter, but Barkdull refused. Tomberg said he filed a motion for a rehearing, which Barkdull denied. Tomberg then appealed the decision, which the appellate court reversed.

"I think it was appropriate for the court to reverse it because the matter should have been heard on its own merit," Tomberg said.

Because Tomberg was only a few minutes late upon his return 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 opinion said.

Tomberg said the new hearing is scheduled for Jan. 3, and he's "willing to bet" that Barkdull will be the judge.

"My experience is when a judge has been reversed, they don't take it personally," Tomberg said. left a message with Barkdull's judicial assistant seeking comment.

Tomberg said he expects to be treated fairly by Barkdull when they meet again in court.

The Daily Business Review first reported this story.