You Can't Throw a Person in Jail for Failing to Comply with an Impossible Order

Posted on April 22, 2005 by Juan Antunez

Jensen v. Estate of Gambidilla, 30 Fla. L. Weekly D578 (Fla. 4 DCA March 2, 2005) (TRIAL COURT REVERSED)

St. Lucie County Circuit Court Judge Marc A. Cianca entered a civil contempt order requiring an estate's former personal representative to be incarcerated until she returned certain items of personal property to the estate. The Fourth DCA reversed the trial court's order holding that Probate Rule 5.440(d) contempt proceedings require that a trial court expressly find that the removed personal representative had the present ability to comply its order.

The Fourth DCA remanded the case back to the trial court with the following instructions:

We remand for further proceedings where additional evidence may be taken concerning the identity of the property, the property's value, [the removed Personal Representative's] ability to retrieve the property from third parties, and [the removed Personal Representative's] ability to pay the estate the fair market value of any property that she is unable to produce.
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