source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. Victor A. MORETA, Appellee.
    No. 2D05-5945.
    District Court of Appeal of Florida, Second District.
    May 2, 2007.
    Rehearing Denied June 13, 2007.

      Elizabeth K. Russo and Jonathan L. Gaines of Russo Appellate Firm, P.A., Miami, and Law Offices of Thomas E. O’Hara, Clearwater, for Appellant.

      Nancy A. Lauten and George A. Vaka of Yaka, Larson & Johnson, P.L., Tampa, for Appellee.
   WALLACE, Judge.

Mercury Insurance Company of Florida appeals an adverse judgment entered against it on Victor A. Moreta’s claim for uninsured/underinsured motorist (UM) benefits. Mercury raises three issues concerning the trial court’s denial of its motion for new trial. All of the issues raised by Mercury are without merit, and we affirm the judgment. However, we write to address Mercury’s point concerning the repeated and extensive remarks made by Mr. Moreta’s counsel during closing argument about Mercury’s alleged litigation practices and its alleged attempt to shirk its contractual obligations to Mr. Moreta. According to Mercury, these remarks were so exceptionally objectionable that they fall within the extremely limited exception to the rule requiring a contemporaneous objection to preserve a claim of error based on improper closing argument. We agree with Mercury that opposing counsel’s remarks were improper, but we hold that the trial court did not abuse its discretion in denying Mercury’s motion for new trial when Mercury made no contemporaneous objection to the improper remarks.

I. THE FACTUAL BACKGROUND

A.The Collision

On March 30, 2002, Mr. Moreta was involved in an automobile accident at the intersection of Dale Mabry Highway and West Lambright Street in Tampa. Joseph A. Colon was the driver of the other vehicle involved in the accident. Mr. Colon ran a red light, and Mr. Moreta’s vehicle hit Mr. Colon’s vehicle in a “T-bone” type collision.

B. Mr. Moreta’s Subsequent Medical Treatment

Mr. Moreta did not immediately seek medical attention after the accident. Instead, he went home. Mr. Moreta later sought treatment for back pain that he attributed to the force of the collision. Approximately two years after the accident, a neurologist diagnosed Mr. Moreta as having a herniated disc at the L5-S1 level and a bulge at the L4-5 level. In December 2004, a surgeon performed a left L4-5 percutaneous endoscopic discec-tomy on Mr. Moreta.

C. The Insurance Policy

When the accident occurred, Mr. More-ta’s wife had a private passenger automobile policy with Mercury. Mr. Moreta was listed as one of the “DRIVERS” on the policy. The policy terms pertinent to UM coverage provided, in pertinent part:

We will pay for damages, other than punitive or exemplary damages, which an insured person is entitled to recover from the owner or operator of an uninsured car because of bodily injury:
1. sustained by an insured person;
2. caused by accident; and
3. arising out of the ownership, maintenance or use of an uninsured car.
The bodily injury must be a serious injury as described in Section 627.737(2) of the Florida Motor Vehicle No-Fault Law before we will pay for damages consisting of pain, suffering, mental anguish, or inconvenience.

Mr. Moreta qualified as “an insured person” within the meaning of the policy. Mrs. Moreta’s policy with Mercury provided for non-stacked UM coverage with a policy limit of $25,000 per person and $50,000 per accident.

D. The Lawsuit and the Trial

In February 2004, Mr. Moreta filed a two-count complaint against Mr. Colon and Mercury. Count one of the complaint was for negligence against Mr. Colon. In the second count, Mr. Moreta sought to recover UM benefits from Mercury. Mr. More-ta alleged that Mr. Colon was an underin-sured motorist within the meaning of the policy of insurance issued by Mercury. One week before trial, Mr. Moreta took a voluntary dismissal of his claim against Mr. Colon.

In September 2005, the case went to trial before a jury on Mr. Moreta’s UM claim. At trial, Mercury stipulated that Mr. Colon had been negligent and that Mr. Moreta had not been comparatively negligent. Thus the issues to be decided by the jury were (1) whether Mr. Moreta had sustained an injury as a result of the collision; (2) if so, whether the injury was permanent within a reasonable degree of medical probability or involved the significant and permanent loss of an important bodily function; and (3) the amount of the damages, if any, to which Mr. Moreta was entitled. In the absence of any issues concerning responsibility for the collision, the trial developed into a battle of expert medical witnesses. Mr. Moreta’s experts testified that his back problems and surgery resulted from the collision. The surgeon who had operated on Mr. Moreta also testified that Mr. Moreta would probably require further surgery — a fusion at the L5-S1 level. In response, Mercury’s expert testified that whatever injuries Mr. Moreta had sustained in the accident were resolved within a few months after the incident. The defense expert opined that the disc problems in Mr. Moreta’s back were not caused by the collision. Instead, Mercury’s expert attributed Mr. Moreta’s back problems to another — albeit unknown — cause that occurred after the original problems had been resolved.

At the conclusion of the evidence, the trial court directed a verdict in favor of Mr. Moreta on the issue that the accident had caused an injury. The trial court also ruled that Mr. Moreta was entitled to recover his accrued medical expenses through July 17, 2003. The trial court denied Mr. Moreta’s motion for a directed verdict on the issues of permanency and the significant and permanent loss of an important bodily function. Based on Mercury’s stipulation on the issue of negligence and on the trial court’s grant of a partial directed verdict, the matters submitted to the jury, were limited to the medical issues and damages. With this background, we now turn to the remarks made by opposing counsel in his closing argument.

II. OPPOSING COUNSEL’S REMARKS MADE DURING CLOSING ARGUMENT

Mercury’s complaints about opposing counsel’s closing argument focus on his repeated comments about Mercury’s alleged litigation practices and its alleged attempt to shirk its contractual obligation to Mr. Moreta. Initially, we note that Mercury’s counsel first raised this topic with the trial court after jury selection was completed and before counsel began their opening statements:

[MERCURY’S COUNSEL]: Judge, just very briefly. I provided the Court and [Mr. Moreta’s counsel] has decided to follow a case of State Farm versus Welburn[] with the argument that the UM carrier was supposed to be there for the insured at a certain time.
THE COURT: Well, I think we talked about that earlier, and I think what we decided was there was some language that could be said but maybe not to the extent from which you were suggesting.
[MERCURY’S COUNSEL]: Okay.
THE COURT: Is that — when I read that case, it seemed to say that you can’t use the words [“]they should have been there for you[”] and try to invoke sympathy for the jurors, but I think he can illustrate the relationship between the two and that was his insurance company. There’s no problem with that. That’s perfectly fair game.
But to sit there and open his heart and say, oh, you know, they left him in the street alone in the rain or something, they left him out hanging, maybe along those lines. Is that kind of what you’re saying?
[MERCURY’S COUNSEL]: Right. I just want to make sure that we’re going to follow that other case and—
THE COURT: I will allow that there’s a nexus, a relationship there, a business relationship, and obviously you can talk about what the contract says, right? Because that’s a fact. The contract says that if I get uninsured, whatever the contract says, I think that’s a fact. But if he sits there and pours his heart out and says, oh, I left them in the cold or something.
I understand your point. If I start seeing [Mr. Moreta’s counsel] going down that emotional view with the jurors for sympathy, then I can stop that. But, again, a business factual basis I don’t think that case stops a relationship, a business contract nexus. Does It? I don’t think it does.
[MERCURY’S COUNSEL]: No.
[MR. MORETA’S COUNSEL]: Plus this is opening anyway. I don’t intend to argue that.
THE COURT: But in general, just in general, the nexus is okay, but if I see you opening your heart — but I don’t think you’ll do that. But, anyway, if that happens, object, and we’ll talk about it. Okay?
[MR. MORETA’S COUNSEL]: Some people say I don’t have a heart.

(Emphasis added.) With that, the trial court and the attorneys began a discussion of unrelated matters.

We note from the foregoing colloquy between the trial court and counsel that the trial court established clear ground rules governing opposing counsel’s remarks concerning the relationship between Mr. Moreta and Mercury. Opposing counsel was to limit his remarks about Mercury to the “business contract nexus” between the parties and to avoid appeals based on sympathy. If Mr. Moreta’s counsel exceeded these limitations and began “opening his heart,” then Mercury’s counsel was to object so that the trial court could rule on the propriety of any comments made. Mercury’s counsel did not demur or express any misunderstanding about the ground rules for argument that the conscientious trial judge announced in advance.

Unfortunately, once closing arguments began, both counsel appear to have either forgotten or ignored the ground rules for argument established at the beginning of the trial. After a few preliminary remarks, opposing counsel launched his closing argument with an attack on Mercury’s alleged claims-handling practices and litigation tactics. Using an analogy drawn from his own college art history course, Mr. Moreta’s counsel argued that there were certain recurring themes one could identify in every case where Mercury was the insurance carrier:

[I]n college I took an art history course, actually, and I’m not here to tell you that I’m an art expert because I’m not. But I’ll tell you that what I learned from that the [sic] course is, is that if one studies an artist, you can tell by then-style if that painting oftentimes [sic] was done by him or her. For example, there was an artist long ago by the name of El Greco, Spanish for the word [“] The Greek.[”] He was born in Greece and he spent a lot of his time in Spain. And you could tell me [sic] after a while, that his paintings were often made of icons, and they had elongated figures, they had a kind of real—figures, and long fingers, and you could tell that that was an El Greco work. And so the subject of the painting may be different but there was kind of a recurring theme or recurring motif throughout his paintings.
For example, there was another artist by the name of Rubens, who was Flemish, studied in Venice, and his paintings were distinct for the way he used shimmering light and the way he used bright colors; and, once again, you could recognize his works because of this recurring theme, his recurring motif throughout his works.
Now, the recurring theme in a Mercury insurance case is to blame anything and everything but the accident for the injury. And when that doesn’t work, they say, “We don’t know what it was but it just wasn’t the motor vehicle accident that caused these problems.”
Question posed, “If it wasn’t the motor vehicle accident, what was it?” “We don’t know but it must have been something.”
“Can you point to an event?” Was the question. “No, we can’t.”

A little later, Mr. Moreta’s counsel asserted that Mercury’s conduct was “worse” because the company was mistreating its own insured:

[T]rial by jury should be a search for the truth and not a win at all costs. What’s worse is this is their own insured.
Now, even though this is an adversarial relationship, technically, the reality is that Mr. Moreta’s insured by Mercury. And you got—one must remember that when one points the finger at somebody else, three fingers are pointing back to themselves. I suggest to you that three fingers are pointing back to themselves in this case for the way they’ve treated him.

Next, opposing counsel told the jury what his fourteen-year old son would have said about Mercury’s alleged mistreatment of Mr. Moreta:

I have a 14-year-old son, he plays sports, he is an athlete, and if he were here, he’d say, “Come on, dog, just give it up. Just give it up.” And they’re not giving it up.

After discussing the medical issues in the case, opposing counsel made a series of remarks suggesting that Mercury owed Mr. Moreta a “debt.” Mercury’s defense of the UM claim—opposing counsel claimed—was an attempt by the company to shirk its contractual responsibility to Mr. Moreta. Expanding on this theme, opposing counsel called on the jury to exercise its unlimited power to right the wrong:

As I contended from the very beginning, a debt was created on March 30th, 2002, a debt was created by Mercury Insurance Company, and we’re going to ask you to right a wrong that has occurred.
I believe that there are no coincidences in life, that things happen for a reason; and that you’re on this jury for a reason, that you’re on this jury because you’re going to right that wrong, and because you’re going to use your immense power as a juror to award restitution.
Now, the lack of accepting responsibility is one of the biggest problems that we face in our society today ... and that people don’t want to spent [sic] responsibilities for their actions. And, in fact, corporations are fictional people.
And there’s a book written, actually, it’s called, I Learned Everything I Needed to Know in Kindergarten.[] Some of you may be familiar with it. It talks about play well with others, and basically what they’re saying is these are things that you can use as an adult: Play well with others, something we can use; clean up after your own mess, that’s something we can use; and be responsible for your actions. We’re asking Mercury to read that book and not try to avoid their responsibility by coming in here and asking you to award less than [the] full amount of damages.

On rebuttal, opposing counsel concluded his argument by reiterating his claim that Mercury was attempting to evade its contractual obligation to Mr. Moreta:

[Mr. Moreta] has a contract with Mercury. They’re trying to avoid their responsibility. He has a relationship with Mercury. It’s a contractual relationship, and we’re asking them to live up to their responsibility under the contract. We’re asking for the full amount of this compensation in the amount of $1.5 million.
... One thing we really do agree on is this is wrong, it’s wrong what they’re doing to their own insured. It ain’t right. They have a handshake agreement, that’s what a contract is, handshake, they have a contract and they’re not living up to the terms and conditions of the contract, and we ask that you hold them to it.
Thank you.

Mercury’s counsel did not object to any of the foregoing remarks. Even at the conclusion of opposing counsel’s rebuttal argument, Mercury’s counsel made no objection, did not request any curative instructions, and made no motion for a mistrial.

III. THE JURY’S VERDICT AND POST TRIAL MATTERS

In his closing argument, opposing counsel asked the jury to award Mr. Moreta damages in the amount of $1.5 million. The jury returned a verdict in favor of Mr. Moreta but awarded a lesser amount— $800,000. The jury’s award was composed of the following elements: $30,200 for past medical expenses, $325,000 for future medical expenses, $50,000 for past pain and suffering, and $394,800 for future pain and suffering.

After the entry of the verdict, Mercury served a motion for new trial that raised several grounds. With respect to the closing argument, Mercury asserted in its motion that fundamental error occurred when opposing counsel argued that “Mercury had engaged in a pattern of wrongfully refusing to pay claims when due.” The trial court denied the motion for new trial. The trial court also entered judgment in favor of Mr. Moreta and against Mercury for $25,000 — the amount of the UM policy limit.

IV. DISCUSSION

A. Introduction

A trial court may grant a new trial based on improper closing argument by counsel. See Allison Transmission, Inc. v. J.R. Sailing, Inc., 926 So.2d 404, 407 (Fla. 2d DCA 2006) (citing Carlton v. Johns, 194 So.2d 670 (Fla. 4th DCA 1967)). “If the issue of an opponent’s improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.’ ” Engle v. Liggett Group, Inc., 945 So.2d 1246, 1271 (Fla.2006) (quoting Tanner v. Beck, 907 So.2d 1190, 1196 (Fla. 3d DCA 2005)).

A different standard for granting a new trial based on improper argument applies where there is no contemporaneous objection and motion for mistrial. In Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000), the Supreme Court of Florida announced a four-part test to be applied in assessing motions for new trial in civil cases based on claims of improper but unobjected-to remarks made during closing argument. As a preliminary matter, in order to preserve the issue for appellate review, the complaining party must at least challenge the improper but unobjected-to argument in the trial court by way of a motion for new trial. Id. at 1027. To .prevail on such a motion, the complaining party must establish that the argument was (1) improper, (2) harmful, (3) incurable, and (4) so damaging to the fairness of the trial that the public’s interest in our system of justice requires a new trial. Id. at 1031; Platz v. Auto Recycling & Repair, Inc., 795 So.2d 1025, 1027 (Fla. 2d DCA 2001). If the trial court finds that these four criteria have been met, “it must enter an order granting a new trial specifically identifying both the improper arguments of counsel and the actions of the jury resulting from those arguments.” Id. (citing Murphy, 766 So.2d at 1030). An appellate court applies an abuse of discretion standard in reviewing a trial court’s order granting or denying a new trial based on unobjected-to closing argument. Murphy, 766 So.2d at 1030-31.

The Murphy court recognized that very few cases would meet its stringent four-part test for obtaining a new trial based on improper but unobjected-to closing argument. Such cases will be rare exceptions to the rule requiring a contemporaneous objection. Indeed, the Murphy court described the rule it announced as “an escape valve with a very narrowly defined parameter and of extremely limited application.” Id. at 1026. This court has previously characterized Murphy’s four-part test as “extraordinarily demanding.” Platz, 795 So.2d at 1027. Noting the “shift in dynamics occasioned by” Murphy, the First District summarized Murphy’s lesson to trial counsel as follows: “[A] remedy will almost always be tied to a contemporaneous objection.” Bocher v. Glass, 874 So.2d 701, 704 (Fla. 1st DCA 2004). With these limitations in mind, we turn now to an examination of Mercury’s argument that opposing counsel’s remarks during closing argument met the four-part test of Murphy.

B. The Application of Murphy’s Four-Part Test

Initially, we observe that Mercury’s counsel did not make contemporaneous objections to any of the remarks made by opposing counsel that are challenged on this appeal. Moreover, Mercury did not request a curative instruction or move for a mistrial at the conclusion of opposing counsel’s argument. However, Mercury did serve a motion for new trial based on the unobjected-to remarks, thereby preserving the issue for review. Our task is to determine whether the trial court abused its discretion in denying Mercury’s motion for new trial based on Murphy’s four-part test.

1. The Challenged Argument Must Be Improper

In applying the four-part test of Murphy, we first look to whether opposing counsel’s remarks were improper. Upon reviewing the challenged remarks in context, we conclude that they were improper for multiple reasons. First, opposing counsel’s remarks violated the trial court’s ruling announced at the beginning of the trial about the scope of proper comment on the relationship between Mr. Moreta and Mercury. Opposing counsel’s remarks went far beyond a description of the “business contract nexus” that the trial court had declared was permissible. Instead, opposing counsel did precisely what the trial court had ruled he could not do — he “poured out his heart” and accused Mercury of leaving Mr. Moreta “out hanging.” At least where prejudice is shown, comments during closing argument that violate a pretrial order may warrant the granting of a new trial. See USAA Cos. Ins. Co. v. Howell, 901 So.2d 876, 879 (Fla. 4th DCA 2005); Leyva v. Samess, 732 So.2d 1118, 1121 (Fla. 4th DCA 1999).

Second, opposing counsel’s criticism of Mercury’s alleged litigation tactics and practices was not based on matters in evidence. Using the analogy to the paintings of El Greco and Rubens, opposing counsel described practices that he claimed one could identify in every case where Mercury was the insurance carrier. Because there was no evidence before the trial court to support these claims, it was improper for counsel to make them. See Carnival Cruise Lines, Inc. v. Rosania, 546 So.2d 736, 737-38 (Fla. 3d DCA 1989). Moreover, Mercury’s alleged practices in other cases were irrelevant to any issue to be determined by the jury.

Third, opposing counsel’s rebuke of Mercury for failing to pay UM benefits to Mr. Moreta and thereby breaching its alleged contractual obligations to him is the same type of argument that was condemned by the Third District in State Farm Mutual Automobile Insurance Co. v. Revuelta, 901 So.2d 377, 380 (Fla. 3d DCA 2005). Mr. Moreta’s action against Mercury was for the recovery of UM benefits, not an action for breach of contract or for bad faith. Contrary to opposing counsel’s assumption, an action to recover UM benefits is not an action for the breach of a contract of insurance. An action to recover UM benefits is based on a contract, but “it has its underpinnings in tort liability.” Auto-Owners Ins. Co. v. Dewberry, 383 So.2d 1109, 1109 (Fla. 1st DCA 1980); see also Geico Gen. Ins. Co. v. Graci, 849 So.2d 1196, 1199 (Fla. 4th DCA 2003) (stating that an action on a contract to recover UM benefits “is not an action for a breach of that contract; rather, it is an action filed pursuant to the contract”).

In fact, the basis of Mr. Moreta’s action against Mercury was the same as the basis of the action that he had filed against Mr. Colon (the underinsured third party tort-feasor) to recover damages for bodily injuries. Graci, 849 So.2d at 1199 (citing State Farm Mut. Auto. Ins. Co. v. Kilbreath, 419 So.2d 632 (Fla.1982)). Under the UM policy purchased by Mrs. Moreta, Mercury was obligated to pay only those damages “which an insured person is entitled to recover from the owner or operator of an uninsured car.” Thus Mercury stood in the shoes of the underinsured motorist and had the right to raise all substantive defenses to Mr. Moreta’s action that the underinsured motorist could have raised. See Allstate Ins. Co. v. Boynton, 486 So.2d 552, 556 (Fla.1986). For these reasons, it was improper for opposing counsel to argue to the jury that Mercury had “breached” the contract or that it was shirking its responsibilities to Mr. Moreta. See Howell, 901 So.2d at 879; Revuelta, 901 So.2d at 380.

Finally, it was improper for counsel to tell the jury what his fourteen-year-old son would have thought about Mercury’s defense of the case. Counsel’s son was not a witness who had testified at trial. If counsel’s son had testified, his opinion about Mercury’s litigation tactics would not have been admissible in evidence for a variety reasons. More important, irrelevant stories and information about counsel’s family have no place in closing argument. See Bocher, 874 So.2d at 703 (describing trial court ruling sustaining objection to plaintiffs’ counsel’s attempt to tell a story about him and his grandfather walking in the Florida woods when counsel was a child); Muhammad v. Toys “R” Us, Inc., 668 So.2d 254, 258 (Fla. 1st DCA 1996) (observing that “irrelevant familial rhetoric must not be condoned”); Metro. Dade County v. Cifuentes, 473 So.2d 297, 298 (Fla. 3d DCA 1985) (holding that closing argument by plaintiffs counsel in a wrongful death action about telling his wife the previous night for the first time in a long time that he loved her and about his fear of living if someone he loved died was improper); cf. Airport Rent-A-Car, Inc. v. Lewis, 701 So.2d 893, 896-97 (Fla. 4th DCA 1997) (noting the impropriety of plaintiffs counsel’s remarks during his cross-examination of defense expert that, “My daddy was a preacher, so I know what the truth is_”). In this case, opposing counsel’s discussion of his son’s hypothetical opinion was nothing more than a transparent attempt to curry favor with the jury and to further prejudice it against Mercury.

2. The Argument Must Be Harmful

Under the second part of the Murphy test, the complaining party must establish that the challenged argument was harmful. Murphy, 766 So.2d at 1029-30. The harmfulness requirement serves as a reminder to trial courts and appellate courts that the remedy of a new trial is not a tool to punish the misconduct of lawyers who transgress the proper bounds of closing argument. Id. at 1029. Instead, harmfulness “carries a requirement that the comments be so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury.” Id. The bar of the harmfulness requirement is set quite high. “[T]he improper closing argument comments must be of such a nature that it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments.” Id. at 1030.

The second part of the Murphy test is more difficult to apply in this case than the first part of the test. Opposing counsel’s remarks were unquestionably improper. However, the question of the harmfulness of those remarks under Murphy’s standard is not as easy to determine. On the one hand, opposing counsel depicted Mercury as a heartless corporate giant that had broken faith with Mr. Moreta. According to opposing counsel, Mercury’s standard litigation tactic in UM cases is to raise flimsy excuses to avoid paying its insureds — such as Mr. Moreta — the just compensation to which they are contractually entitled. Opposing counsel’s incessant drumbeat of criticism was calculated to elicit sympathy for Mr. Moreta from the members of the jury and to persuade them to draw inferences against Mercury that had no basis in the evidence presented at trial or in the applicable law. Moreover, Mercury presented credible evidence at trial from which the jury might have concluded that Mr. Moreta’s continuing back problems and subsequent surgery were entirely unrelated to the March 2002 accident. In light of these factors, we are inclined to believe that opposing counsel’s remarks had at least some impact on the jury that was prejudicial to Mercury in the defense of Mr. Moreta’s UM claim.

On the other hand, Mr. Moreta presented substantial evidence that linked his continuing back problems and subsequent surgery to the accident. After reviewing the record, we think the jury probably found Mr. Moreta’s expert witnesses more credible than the defense expert. And although the jury awarded Mr. Moreta a substantial sum, the $800,000 verdict was only a little more than one-half of the $1.5 million that opposing counsel had requested in his closing argument. Cf. Howell, 901 So.2d at 879 (finding that counsel’s remarks did not meet Murphy’s harmfulness requirement where plaintiff sought damages in excess of $260,000 and the jury awarded $300,000, a slightly larger amount). Under these circumstances, we are unable to say that the jury would not have reached the verdict that it did but for opposing counsel’s remarks. Thus Mercury has failed to establish harm-the second part of the Murphy test.

3. The Argument Must Be Incurable

We move now to the third part of the Mzutphy test — that the challenged argument was incurable. In order to establish Murphy’s third prong, “a complaining party must establish that even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict.” Murphy, 766 So.2d at 1030. The Murphy court noted that “it will be extremely difficult for a complaining party to establish that the unobjected-to argument is incurable.” Id.

The challenged remarks by opposing counsel in this case were not only highly improper, they were also repetitive and extensive. Nevertheless, they were not incurable. Generally speaking, improper references to insurance matters in closing argument may be cured by an appropriate instruction to the jury from the trial court. See S. Motor Co. of Dade County v. Accountable Constr. Co., 707 So.2d 909, 911 (Fla. 3d DCA 1998); Allstate Ins. Co. v. Wood, 535 So.2d 699, 700 (Fla. 1st DCA 1988). In several Florida cases, comments similar to those expressed by opposing counsel in this case have been deemed to be curable by an appropriate instruction. See Howell, 901 So.2d at 879-80; Allstate Ins. Co. v. Buzdigian, 776 So.2d 1104, 1104 (Fla. 5th DCA 2001); Wood, 535 So.2d at 700. In this case, the trial court instructed Mercury’s counsel at the beginning of the trial that if Mr. More-ta’s counsel began “opening his heart,” then Mercury’s counsel was to object. Accordingly, if Mercury’s counsel had objected the first time Mr. Moreta’s counsel made the offending remarks, the trial court could have sustained the objection, given a curative instruction to the jury, and admonished opposing counsel if he again engaged in improper argument. See Buzdigian, 776 So.2d at 1104 (describing how counsel’s contemporaneous objection to improper closing argument elicited an effective response from the trial court that cured any error). And by objecting to the first offending comment, Mercury could have deterred the repetition of the improper remarks that resulted in the “cumulative effect” about which it now complains. Thus Mercury has also failed to establish incurability — the third part of the Murphy test.

4. Consideration of the Public’s Interest in our System of Justice

Under Murphy, the analysis does not proceed to the last part of the four-part test unless the complaining party establishes that the argument being challenged is improper, harmful, and incurable. See Murphy, 766 So.2d at 1030; Telemundo Network, Inc. v. Spanish Television Servs., Inc., 812 So.2d 461, 467 (Fla. 3d DCA 2002) (Sorondo, J., specially concurring). Since Mercury has not established that the improper argument was both harmful and incurable, we need not reach the fourth part of the Murphy test.

V. CONCLUSION

For these reasons, we conclude that the trial court did not abuse its discretion in concluding that Mercury did not establish its entitlement to a new trial under the test of Murphy. Accordingly, we affirm the trial court’s judgment.

Affirmed.

CASANUEVA and STRINGER, JJ., Concur.

      . Mr. Moreta’s counsel on this appeal did not represent him in the trial court.

      . Mercury’s counsel did not provide a citation for this case, and we have not been able to find one. Perhaps the case Mercury’s counsel referred to is State Farm Mutual Automobile Insurance Co. v. Revuelta, 901 So.2d 377 (Fla. 3d DCA 2005). The Third District issued its opinion in Revuelta approximately four months before Mr. Moreta's case went to trial.

      . We presume that the book referred to here is Robert Fulghum, All I Really Need to Know I Learned in Kindergarten: Uncommon Thoughts on Common Things (Villard Books 1988).


author: PER CURIAM.

text:
    Juan Francisco MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2982.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Juan Francisco Martinez, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Bureau Chief, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Baker v. State, 878 So.2d 1236 (Fla.2004).


text:
    Rhondel PARIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-593.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Rehearing Denied June 6, 2007.
    Rhondel Paris, in proper person. Bill McCollum, Attorney General, for appellee.
    Before WELLS, and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Defendant’s Motion to Correct Illegal Sentence of September 22, 2005 and September 27, 2005, as well as, the addenda of September 30, 2005, November 1, 2005, November 7, 2005, November 17, 2005, November 29, 2005 and December 2, 2005, is affirmed.


text:
    Anthony LaPORTA, III, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-657.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Anthony LaPorta, III, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Pedro RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-117.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Pedro Rodriguez, in proper person.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ. and SCHWARTZ, Senior Judge.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: WOLF, J.

text:
    Rudolfo G. ORTIZ, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-4268.
    District Court of Appeal of Florida, First District.
    May 4, 2007.
    Rehearing Denied June 15, 2007.
    Rudolfo G. Ortiz, pro se, Appellant.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Ortiz challenges an order dismissing his petition for mandamus and an order finding him to be a vexatious litigant and assessing attorney’s fees. We affirm as to the dismissal of the mandamus petition without further comment.

We reverse that portion of the order finding Ortiz’s petition to be frivolous pursuant to section 57.085(9), Florida Statutes (2005), and assessing attorney’s fees pursuant to section 57.105, Florida Statutes (2005), as these sections do not apply to collateral criminal proceedings.

We affirm the order in all other respects as appellant has failed to properly raise a challenge as to the rest of the order regarding the finding of being a vexatious litigant.

ALLEN and POLSTON, JJ., concur.


text:
    Roselene WILKINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-59.
    District Court of Appeal of Florida, Third District.
    May 9, 2007.
    Roselene Wilkinson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Fla. R.Crim. P. 3.703(d)(30)(A); see also Lawson v. State, 812 So.2d 518 (Fla. 1st DCA 2002).


text:
    Jorge HERMELO, Appellant/Petitioner, v. The STATE of Florida, Appellee/Respondent.
    Nos. 3D06-2596, 3D06-2757.
    District Court of Appeal of Florida, Third District.
    May 9, 2007.
    Rehearing Denied June 5, 2007.
    Jorge Hermelo, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We affirm the trial court’s denial of the defendant’s motion for postconviction relief filed pursuant to Fla. R.Crim. P. 3.850 and deny the defendant’s petition for writ of habeas corpus.


text:
    Marcos A. MORA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-324.
    District Court of Appeal of Florida, Third District.
    May 9, 2007.
    Marcos A. Mora, in proper person.
    Bill McCollum, Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Defendant, Marcos A. Mora, appeals the trial court’s denial of the Rule 3.850 motions claiming ineffective assistance of counsel and newly discovered evidence. We have carefully reviewed the record, which includes the transcript of the trial court’s evidentiary hearing on these issues, and affirm the trial court as the issues raised are without merit.

Affirmed.


author: ROTHENBERG, Judge.

text:
    Yilka DE CASTRO, Appellant, v. Scorpio DE CASTRO, Appellee.
    No. 3D06-1315.
    District Court of Appeal of Florida, Third District.
    May 9, 2007.
    Lewis K. Hanna, Boca Raton, for appellant.
    Pollack & Rosen and Mark E. Pollack, Coral Gables, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Yilka De Castro (“mother”) appeals the trial court’s order finding her in indirect criminal contempt, modifying the Final Judgment of Dissolution of Marriage, and sentencing the mother to a term of incarceration. We conclude, and Scorpio De Castro (“father”) candidly admits, that the requirements of Florida Rule of Criminal Procedure 3.840 were not followed. Thus, reversal of the order under review is mandated on this ground, as well as on additional grounds which are addressed below.

The mother and the father were divorced by a Final Judgment of Dissolution of Marriage in March of 2001 (“Final Judgment”). As is unfortunately all too common in post-dissolution cases involving minor children, there has been on-going conflict between the father and mother regarding visitation. The record reflects numerous motions filed by the father seeking both compliance and contempt based upon the mother’s failure to comply with the Final Judgment, the General Master’s recommendations, and the trial court’s orders regarding visitation.

The order under review is entitled “Finding of Indirect Criminal Contempt And Order Of Commitment,” dated May 26, 2006. This order was entered by the trial court based upon the father’s pro se Motion For Contempt And/Or Enforcement, dated April 14, 2006; an Order Setting Hearing on the respondent’s Motion For Contempt/Enforcement, dated May 5, 2006, an Amended Motion For Contempt And/Or Enforcement filed by the father’s counsel, dated May 12, 2006; and the evidence presented at the May 25, 2006, special set hearing. The trial court’s order concludes that the mother “has been given numerous opportunities to come into compliance with visitation provisions but continues to willfully and flagrantly disregard Court Orders”; grants the father’s motion for contempt; sentences the mother to sixty days incarceration to begin on June 1, 2006; awards the father temporary custody of the minor child; modifies the judgment to award the father the sole decision making authority concerning the minor child’s extracurricular activities; and grants the father all fees and costs related to the motion within fifteen days of presentation and proof thereof.

Florida Rule of Criminal Procedure 3.840 provides the procedure that must be followed in the prosecution of indirect criminal contempt. The rule provides, among the listed provisions, specific requirements regarding notice; the opportunity of the respondent to be heard and to present evidence regarding the allegations; and the opportunity which must be afforded the respondent to present mitigation evidence upon a finding of indirect criminal contempt prior to the imposition of sentence. Rule 3.840 provides in pertinent part as follows:

Rule 3.840. Indirect Criminal Contempt
A criminal contempt, except as provided in rule 3.830 concerning direct con-tempts, shall be prosecuted in the following manner:
(a) Order to Show Cause. The judge, on the judge’s own motion or an affidavit of any person having knowledge of the facts, may issue and sign an order directed to the defendant, stating the essential facts constituting the criminal contempt charged and requiring the defendant to appear before the court to show cause why the defendant should not be held in contempt of court. The order shall specify the time and place of the hearing, with a reasonable time allowed for preparation of the defense after service of the order on the defendant.
(f) Verdict; Judgment. At the conclusion of the hearing the judge shall sign and enter of record a judgment of guilty or not guilty. There should be included in a judgment of guilty a recital of the facts constituting the contempt of which the defendant has been found and adjudicated guilty.
(g) Sentence; Indirect Contempt. Prior to the pronouncement of sentence, the judge shall inform the defendant of the accusation and judgment against the defendant and inquire as to whether the defendant has any cause to show why sentence should not be pronounced. The defendant shall be afforded the opportunity to present evidence of mitigating circumstances. The sentence shall be pronounced in open court and in the presence of the defendant.

Because a criminal contempt proceeding is punitive in nature, potential criminal contemnors are entitled to the same constitutional due process protections afforded criminal defendants in a more typical criminal proceeding. De Mauro v. State, 632 So.2d 727, 730 (Fla. 3d DCA 1994). The trial court may issue an order to show cause for indirect criminal contempt on its own motion if the trial judge has adequate knowledge of the events in question. Where the show cause order is, however, premised upon facts outside the trial court’s knowledge, the order must be based upon an affidavit or sworn testimony of an individual having personal knowledge of the essential facts. See Mendana v. Mendana, 911 So.2d 130 (Fla. 3d DCA 2005)(holding that where a sworn affidavit which sets forth the essential facts is attached to the order to show cause, the show cause order is sufficient); Proctor v. State, 764 So.2d 752 (Fla. 2d DCA 2000)(holding that predicating a finding of criminal contempt on an unsworn motion for an order to show cause amounted to fundamental error); Hunt v. State, 659 So.2d 363 (Fla. 1st DCA 1995)(fmding that a show cause order must be based on an affidavit or sworn testimony of an individual having personal knowledge of the essential facts).

The contempt proceeding in the instant case was based upon a motion filed by the father and a notice of hearing. No show cause order was issued by the trial judge, no affidavit or sworn testimony accompanied the motion or notice of hearing, and neither the motion nor the notice of hearing put the mother on notice that she was potentially facing criminal penalties. See J.M.P.U. v. State, 858 So.2d 389 (Fla. 3d DCA 2003)(reversing findings of contempt where defendant was not provided with the specifics regarding the alleged contempt and there was no information in the rule to show cause informing the defendant that he was subject to criminal penalties); Micciche v. State, 626 So.2d 1028 (Fla. 3d DCA 1993)(holding that a witness found in contempt in a criminal case must be informed in the show cause order whether he is being charged with direct or indirect civil or criminal contempt and, if he was being charged with indirect criminal contempt, the order must recite facts constituting contempt); Paris v. Paris, 427 So.2d 1080 (Fla. 1st DCA 1983)(holding that receipt of a motion for contempt and notice of hearing, rather than formal pleadings required by the rule governing indirect criminal contempt procedures, is insufficient for purpose of apprising one to be prepared to stand ready to answer a charge of criminal contempt).

In addition to the procedural errors regarding notice that have already been addressed, is the trial court’s written pronouncement finding the mother in contempt and sentencing her to inearcer-ation without providing her with an opportunity to present evidence in mitigation of her conduct. See Mendana, 911 So.2d at 135 (trial court was required to allow former husband the opportunity to present evidence in mitigation of his behavior prior to its pronouncement of the sentence for indirect criminal contempt).

The Florida Supreme Court and this court have long held that the failure to comply with the procedural requirements of Florida Rule of Criminal Procedure 3.840 constitutes fundamental error. Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977); Decoro v. State, 771 So.2d 627 (Fla. 3d DCA 2000); De Mauro v. State, 632 So.2d 727 (Fla. 3d DCA 1994). The trial court’s failure to comply with the procedural requirements of rule 3.840, therefore, requires reversal.

We also conclude that the trial court’s sua sponte modification of the Final Judgment awarding the father temporary custody of the parties’ minor child and granting the father sole decision making authority concerning the minor child’s extracurricular activities, was error. See Pelliccia v. Arce, 867 So.2d 619 (Fla. 2d DCA 2004)(affirming order of contempt but reversing that portion of the order modifying custody for failure to comply with visitation order because the proceedings were commenced upon a motion for contempt, not a petition to modify custody, and there was no finding that the modification was in the best interest of the child); LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131 (Fla. 2d DCA 1999)(finding that in a post-dissolution hearing on the father’s motion to find the mother in contempt for interfering with his visitation rights, the trial court had no jurisdiction to enter an order transferring custody of minor children to father where mother received no notice regarding modification of custody).

Reversed and remanded.


text:
    N.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2412.
    District Court of Appeal of Florida, Third District.
    May 16, 2007.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See § 790.01, Fla. Stat. (2005); R.R. v. State, 826 So.2d 465 (Fla. 5th DCA 2002).


author: FARMER, J. STONE, J.,

text:
    Stefan BORTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2491.
    District Court of Appeal of Florida, Fourth District.
    May 16, 2007.
    Rehearing Denied July 6, 2007.
    Carey Haughwout, Public Defender, Ian Seldin and Adam Langino, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

A joint task force of customs agents, FBI, Secret Service and the Broward Sherriffs Office were investigating three Romanian men — Panaipescu, Romulus and Cerna who were living in Tamarac — for using false identity papers to bilk people out of more than $1 million. Armed with arrest warrants for only Panaipescu and Cerna, they began surveillance at an apartment complex. Agent Lopez saw three men standing outside one of the buildings. He thought he recognized only Romulus and Cerna by sight. A third man, whom they mistakenly believed was Panaipescu, entered one of the buildings.

The next day they saw Cerna and Romulus leave the apartment. A secret service agent — still believing the man was Panai-pescu — advised that the third man was on the patio of the apartment, smoking a cigarette and talking on a phone. The agents decided to arrest the man they believed was Panaipescu. Agent Lopez went to the patio and approached the man from behind. He placed his arms around the man, handcuffed him, and asked for identification. The man said his name was Borta and took the agents inside, where he produced a Canadian passport identifying himself as Borta, not Panaipescu. Lopez telephoned and verified that Borta was legally a permanent resident. The agents thereupon removed the handcuffs and released Borta.

Meanwhile one task force member asked Borta if he could look around the apartment for weapons or other persons. Borta consented. The agent looked in a closet and found an open box containing several drivers’ licenses, social security cards and credit cards with Borta’s picture but different names. After finding this box, they arrested Borta and again handcuffed him. Borta then signed a consent form to search the premises. That search turned up another box with more false identity papers with the pictures of the other suspects.

Borta later moved to suppress all the evidence, claiming that all of it resulted from the initial seizure and handcuffing. The trial court denied the motion, holding that the initial handcuffing was a good faith mistake, that Borta had then been released from that seizure, and that his later consents to search were both valid. We agree.

In Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), the Supreme Court held that when police have a warrant to arrest one person but mistakenly arrest another, the arrest is valid if the mistake was reasonable. Subjective good faith alone is not enough; the mistake would be reasonable if the surrounding facts and context made the identification of the suspect sufficiently probable. 401 U.S. at 804, 91 S.Ct. 1106. Later the Court held that that the reasonableness of the arrest depends on the totality of circumstances. United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

The trial judge’s factual finding is supported by substantial competent evidence. The agents already had probable cause to arrest Panaipescu and Cerna. They had seen the man they believed was Panaipes-cu with another known suspect whom they recognized as part of the scheme and who lived in the same complex. They knew the three suspects had all been together in the same apartment, seeing the two leave. Under the circumstances the trial judge could determine that the identification of the third man, Panaipescu, was sufficiently probable. Their mistake was therefore reasonable under the circumstances.

Affirmed.

MAY, J., concurs.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I would reverse. In my judgment, Borta’s arrest was not valid. It is undisputed that the customs agents simply assumed that Borta was the third man for whom they were looking. Although the address they had was for building 8090, Borta lived, and was arrested, in building 8040. The agents had no basis to assume there was any relationship between Borta and the two men he was seen briefly talking with at the residential complex, and when the conversation ended, he did not leave with them. The agent did not get a good look at Borta’s face until after his arrest, the agent relying on his judgment that Borta looked Romanian. No effort was made to determine whether Borta’s apartment was Panaipescu’s. In short, no effort was made to identify Borta as Pa-naipescu before the arrest. The agent acknowledged that they look nothing alike, Borta weighing 140 pounds and Panaipes-cu, 250 pounds. I would, therefore, conclude that it is an abuse of discretion to find the identification reasonable.


author: SILBERMAN, Judge.

text:
    Calvin WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3319.
    District Court of Appeal of Florida, Second District.
    May 23, 2007.
   SILBERMAN, Judge.

In this appeal after remand following a prior appeal, Calvin Wilson challenges the summary denial of his motion for return of property. We reverse and remand for further proceedings.

In Wilson v. State, 924 So.2d 969 (Fla. 2d DCA 2006), this court considered Wilson’s appeal of an order denying his two motions for return of property. We affirmed the denial of his motion seeking return of $2164, but we reversed the denial of his motion seeking return of $108,375. We observed that the circuit court did not make any findings as to whether the $108,375 had been the subject of forfeiture proceedings under the Florida Contraband Forfeiture Act, sections 932.701 to 932.707, Florida Statutes (2003), or whether the money had vested in the Tampa Police Department pursuant to the procedure regarding unclaimed evidence contained in section 705.105(1), Florida Statutes (2003). We remanded with directions that the circuit court either conduct an evidentiary hearing or attach to its order those portions of the record demonstrating that Wilson is not entitled to relief. Wilson, 924 So.2d at 969-70.

On remand, the circuit court ordered the State to file a response to Wilson’s motion. The State argued that Wilson’s motion was facially insufficient, that the $108,375 had been previously forfeited through judicial proceedings, and that Wilson had no legal right to the property. The State attached to its response various documents relating to forfeiture proceedings in circuit court civil case number 03-6433, but the response did not include the final judgment of forfeiture of the $108,375.

The circuit court could have concluded that the motion was facially insufficient. “A facially sufficient motion for return of property must specifically identify the property and allege that it is the mov-ant’s personal property, that the property is not the fruit of criminal activity, and that the property is not being held as evidence.” Justice v. State, 944 So.2d 538, 539 (Fla. 2d DCA 2006); see also Scott v. State, 922 So.2d 1024, 1026 (Fla. 5th DCA 2006).' Wilson’s motion failed to make these allegations, but the trial court did not address the sufficiency of the motion. Instead, the court summarily denied the motion based on the State’s response. The court concluded that Wilson had fair notice that the $108,375 was or would be subject to forfeiture and that whatever interest he may have had in the funds was extinguished upon completion of the civil forfeiture proceedings in circuit court civil case number 03-6433. However, neither a final judgment of forfeiture nor other documents conclusively establishing forfeiture of the $108,375 was attached to the court’s order. Further, the documents included with the State’s response do not fully support the court’s conclusions.

Thus, we must again reverse and remand for further proceedings because the record documents do not support the summary denial of Wilson’s motion. See Harkless v. State, 32 Fla. L. Weekly D792, D793, - So.2d -, -, 2007 WL 865808 (Fla. 2d DCA Mar.23, 2007); Bolden v. State, 875 So.2d 780, 782 (Fla. 2d DCA 2004). On remand, the circuit court should first address the sufficiency of Wilson’s motion. If the court dismisses the motion as facially insufficient, it shall identify the deficiencies and grant Wilson leave to amend within a reasonable time. See Harkless, 32 Fla. L. Weekly at D793, — So.2d at—; Justice, 944 So.2d at 540. If the court deems the motion to be facially sufficient, then it must conduct an evi-dentiary hearing or attach those record documents that conclusively refute Wilson’s claim. See Harkless, 32 Fla. L. Weekly at D793, — So.2d at—; Cloud v. State, 801 So.2d 964 (Fla. 2d DCA 2001).

Further, it is still unclear whether Wilson’s motion seeks relief from a final judgment entered following forfeiture proceedings under sections 932.701 to 932.707, or if he seeks relief pursuant to section 705.105(1). If he seeks relief from a forfeiture judgment, he may only be able to proceed under Florida Rule of Civil Procedure 1.540 if he is able to establish a basis for relief under that rule. See Reed v. City of Clearwater, 899 So.2d 343, 344 (Fla. 2d DCA 2005). If he seeks relief from the disposition of funds pursuant to section 705.105(1), his claim may be untimely because it was not filed within sixty days after the conclusion of the criminal proceeding. See Sarmiento v. State, 816 So.2d 826, 827 (Fla. 3d DCA 2002).

Accordingly, we reverse the order denying Wilson’s motion for return of the $108,375 and remand for further proceedings consistent with this opinion.

Reversed and remanded.

WHATLEY and DAVIS, JJ., Concur.


author: STONE, J.

text:
    STATE of Florida, Appellant, v. Kevin NASH, Appellee.
    No. 4D06-3125.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellant.
    No appearance for appellee.
   STONE, J.

The state appeals the trial court’s order granting Nash’s motion to suppress. We reverse.

Nash was cited for leaving an unattended vehicle’s motor running while in a convenience store parking lot. After the citation was issued, the officer asked Nash for consent to search his person for weapons and/or narcotics, to which Nash responded, “I have nothing, go right ahead.” The officer then performed a pat-down search. During the search, he removed a cigarette box from Nash’s pocket which contained cocaine.

In granting the motion to suppress, the court found, in part, that “[t]he police officer decided that after his business with Mr. Nash was over, to go further and ask for consent to search his body without any reasonable suspicion or any need for safety concerns.” The court did not address the voluntariness or the scope of the consent.

We review a trial court’s legal conclusions de novo. State v. R.H., 900 So.2d 689, 691 (Fla. 4th DCA 2005).

“As a general rule, a law enforcement officer may validly ask for consent to search during a legal traffic stop. No objective justification or reasonable suspicion is required. Furthermore, even if the purpose of the traffic stop has been completed, the detention may continue if the driver has freely given consent to a search of himself or the vehicle.” State v. Johns, 920 So.2d 1156, 1158 (Fla. 2d DCA 2006) (internal citations omitted).

Here, the trial court ruled incorrectly, as a matter of law, that the officer could not ask Nash for consent to search his body after the citation was given without a showing of reasonable suspicion or concern for officer safety.

As the trial court did not reach the issue of the voluntariness or scope of the consent, we remand for further consideration of Nash’s motion to suppress. See Johns, 920 So.2d at 1158.

FARMER and MAY, JJ., concur.


text:
    Neil DOHERTY, Petitioner, v. JOHN DOE NO. 22, et al., Respondents.
    No. 4D07-140.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Steven M. Pincus and C. Brooks Ricca, Jr. of C. Brooks Ricca, Jr. & Associates, P.A., West Palm Beach, for petitioner.
    Jeffrey M. Herman and Stuart S. Mer-melstein of Herman & Mermelstein, P.A., Miami, for respondents.
   PER CURIAM.

Neil Doherty (Doherty), a non-party petitioner in the proceeding below, seeks review of a non-final order compelling the production of certain documents in response to discovery requests by the plaintiffs, overruling his claim of privilege in the records of his health care providers, after an in camera inspection of the documents. The petition challenges the order in connection with only two of the documents ordered to be produced, which have been filed with this court under seal. We grant the petition and quash the order as it pertains to the two documents.

In the underlying litigation, the respondents — John Doe No. 22(Doe), his mother, and his father (collectively, Plaintiffs)— sued the Archdiocese of Miami, Inc., the Archdiocese of Miami, a corporation sole, and Archbishop Favalora, as corporate sole of the Archdiocese of Miami (collectively, the Archdiocese) in connection with the alleged sexual abuse of Doe by Doherty, a priest formerly ministering for the Archdiocese and now retired, when Doe was between ten and fourteen years old (approximately 1996-2000).

In the course of discovery, Plaintiffs requested documents pertaining to Doherty. Doherty filed a notice of appearance and has objected to the production of certain documents. Ultimately, the trial court held an in camera inspection of documents, including those produced in response to Doherty’s release and request for records from a number of named health care providers.

Among the items which the trial court ordered produced over Doherty’s objection was a neuropsychological evaluation of him conducted in April 2006, Bates-stamped 189-95; and an evaluation of him for pedophilia prepared by the Southdown Institute in Canada in August 2002, Bates-stamped 339-495, which included psychological testing and evaluation by a clinical psychologist, a psychiatric interview, and an addiction assessment. Doherty’s objection as to both documents was based on the psychotherapist-patient privilege described in section 90.503, which protects from disclosure to third parties the confidential communications between the patient and the psychotherapist and the records of mental health treatment.

In arguing for abrogation of the privilege in this case, Plaintiffs relied upon section 39.204, Florida Statutes, which provides as follows:

The privileged quality of communication between husband and wife and between any professional person and his or her patient or client, and any other privileged communication except that between attorney and client or the privilege provided in s. 90.505, as such communication relates both to the competency of the witness and to the exclusion of confidential communications, shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect and shall not constitute grounds for failure to report as required by s. 39.201 regardless of the source of the information requiring the report, failure to cooperate with law enforcement or the department in its activities pursuant to this chapter, or failure to give evidence in any judicial proceeding relating to child abuse, abandonment, or neglect.

(Emphasis added).

With respect to the neuropsycho-logical evaluation conducted in 2006, Bates-stamped 189-95, we quash the order compelling production. This document did not at all concern communications involving known or suspected child abuse involving Doherty, but related to other matters entirely, including measures of his intelligence and social functioning.

The much lengthier August 2002 Southdown Institute evaluation does contain some communications involving suspected child abuse involving Doherty. We reject Doherty’s argument that the abuse must relate to alleged abuse of Doe himself for the abrogation statute to apply. Compare I.T. v. State, Dep’t of Health & Rehabilitative Servs., 532 So.2d 1085, 1088 (Fla. 3d DCA 1988) (while reversing an order adjudicating a child dependent for other reasons, finding no merit in parents’ argument that the trial court erred in permitting discovery of their psychiatric histories, because of the abrogation of the psychotherapist-patient privilege in situations involving known or suspect child abuse or neglect, and finding that the predecessor abrogation statute, section 414.512, Florida Statutes, “cannot be read so narrowly as to apply only to privileged communications occurring after the birth of a child who is later made the subject of a dependency hearing”).

However, the bulk of the 2002 evaluation consists of Doherty’s medical and mental health history without reference to allegations of child abuse, including psychological testing. We conclude that the trial court must conduct a further in camera inspection to determine specifically which portions of the 2002 evaluation that are protected by section 90.503, the psychotherapist-patient privilege, do not concern communications involving known or suspected child abuse, and thus remain privileged. See Carson v. Jackson, 466 So.2d 1188, 1192 (Fla. 4th DCA 1985) (providing that abrogation of privilege applied only to communications dealing with child abuse or neglect, while the privilege provision continued in effect as to other communications); Hill v. State, 846 So.2d 1208 (Fla. 5th DCA 2003) (recognizing that the charge of child neglect could not open the door to discovery of all defendant’s psychological records, only those relevant to the child neglect charge).

Accordingly, the petition is granted, and that portion of the order on review compelling production of the two documents in question is quashed. On remand, the trial court is directed to hold another in camera inspection of the 2002 evaluation, Bates-stamped 339-495, to determine which portions constitute communications involving Doherty in any situation involving known or suspected child abuse, abrogating the privilege only to the extent of such communications.

Granted.

GUNTHER, WARNER and POLEN, JJ., concur.

      . Section 90.503(2), Florida Statutes, provides as follows:
      (2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

      . Plaintiffs have indicated in their response that they are not interested in receiving this document.

      . The I.T. court apparently found that records prepared before the child’s birth were discoverable, though they could not possibly have pertained to this particular child's abuse or neglect.


text:
    Anthony Jerome FAILS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1418.
    District Court of Appeal of Florida, First District.
    June 5, 2007.
    Anthony Jerome Fails, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of April 26, 2007, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on February 21, 2007, appealing the order on the appellant’s posteonvietion motion, rendered on January 10, 2007, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). DISMISSED.

WOLF, DAVIS, and THOMAS, JJ„ concur.


text:
    Randolph S. PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1591.
    District Court of Appeal of Florida, First District.
    June 5, 2007.
    Randolph S. Phillips, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 9, 2007, the Court has determined that the appellant has failed to demonstrate that the notice of appeal was timely filed. Accordingly, the appeal is hereby dismissed as untimely.

WOLF, DAVIS, and THOMAS, JJ, concur.


author: MAY, J.

text:
    William HAWLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4315.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.

      William Hawley, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee and Assistant Attorney General Diane F. Medley, West Palm Beach, for ap-pellee.
   MAY, J.

The defendant appeals an order dismissing his motion for post-conviction relief, pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure. The trial court dismissed the motion after the defendant absconded from the Martin Correctional Institution’s work camp while the motion was pending. He argues the court erred in dismissing the motion for that reason. We agree and reverse.

On November 29, 2004, the defendant filed a rule 3.850 motion and supplemented it on January 18, 2005. The trial court ordered the State to respond. On May 10, 2005, the defendant escaped from his work detail. He claims the escape was necessary because of threats against his life.

On May 13, 2005, the State requested an extension of time to respond to the motion. Three days later, the State moved to dismiss the defendant’s 3.850 motion based upon Griffis v. State, 759 So.2d 668 (Fla.2000). Relying on that authority, the trial court dismissed the defendant’s motion for post-conviction relief.

The defendant argues the trial court erred in dismissing his motion for post-conviction relief based upon Griffis. We have found no case that directly addresses the issue, but find the supreme court’s opinion in Griffis and the United States Supreme Court’s opinion in Ortega-Rodriguez v. United States, 507 U.S. 284, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) instructive.

In Griffis, our supreme court receded from its prior decision in State v. Gurican, 576 So.2d 709 (Fla.1991), based on the United States Supreme Court’s subsequent decision in Ortega-Rodriguez. The issue presented was whether the dismissal of an appeal is appropriate when the defendant absconds prior to the initiation of the appellate process. Our supreme court answered that question in the negative. Acknowledging the rationale behind appellate dismissals, e.g., ensuring enforceability of the adjudication, discouraging escape, responding to contemptuous disrespect, and defending the court’s dignity, the court found none of these justified the dismissal of a defendant’s constitutional right to appeal unless it bore “a sufficiently detrimental connection between [the defendant’s] fugitive status and the appellate process.” Griffis, 759 So.2d at 672; see also Ortega-Rodriguez, 507 U.S. at 240-46, 113 S.Ct. 1199.

[I]t is well settled that when a defendant absconds after filing an appeal, the appellate court has the authority to dismiss the appeal. However, where the defendant absconds and returns before filing an appeal, trial courts are better suited to address the matter. The latter misconduct is committed within the jurisdiction of the trial court, and the Florida legislature has armed that court with a series of statutory sanctions (which does not include appellate dismissal).

Griffis, 759 So.2d at 672.

Our supreme court also identified the sanctions available to punish the affront to a trial court when the defendant absconds. They include prosecution for the escape, contempt, and assessment of status points under the sentencing guidelines or Criminal Punishment Code. Id. Conspicuously absent from these options is the dismissal of a motion for post-conviction relief.

We take from Griffis that while the trial court is in the best position to sanction a defendant for absconding, it has a variety of options with which to do so. A dismissal should be entered as a last resort and is warranted when the defendant’s conduct has created a sufficient detriment to the State or the court that it prevents the resolution of the motion on its merits.

In this case, the defendant filed his motion for post-conviction relief; he subsequently absconded before the trial court heard the motion. He claims that his escape was necessitated by threats against his life. Significantly, the defendant was apprehended within fifteen days of his escape. This two-week absence did not create a sufficient detriment to the State or the trial court to warrant a dismissal of his motion for post-conviction relief.

By this opinion, we do not suggest that dismissal of a post-conviction motion is never appropriate. Post-conviction relief motions are designed to give the defendant a last opportunity to ensure the correctness of a conviction. While post-conviction proceedings are not explicitly identified in the constitution, they serve as an important means to assure due process. Steele v. Kehoe, 747 So.2d 931 (Fla.1999). For that reason, the harshest sanction of dismissal is appropriate only when there is a sufficient connection between the defendant’s fugitive status and the court’s ability to resolve the pending motion. Under the circumstances presented here, we find the sanction simply too harsh.

Reversed and Remanded.

STEVENSON, C.J., and WARNER, J., concur.

      . Perhaps that is because the escapes in these cases occurred prior to sentencing and not post-conviction.


text:
    Mark MONTALVO, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-171.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Mark Montalvo, South Bay, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Mark Montalvo (Defendant) appeals an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850(b)(3), Florida Rules of Criminal Procedure, in which he sought leave to file a belated rule 3.850 motion. He set forth legally sufficient allegations that he retained counsel to file a timely rule 3.850 motion, but counsel failed to file a motion with the proper file number within the time allowed and the corrected motion filed a day later was denied as time-barred. The trial court’s denial was based on a state response which asserted that ineffective assistance of postconviction counsel is not a cognizable ground for relief and that, because Defendant did not label his motion as a petition for writ of habeas corpus, see Steele v. Kehoe, 747 So.2d 931, 934 (Fla.1999), relief must be denied.

In response to this court’s order to show cause, the state acknowledges that the motion should have been treated as a petition for writ of habeas corpus, compare Mills v. State, 901 So.2d 939 (Fla. 4th DCA 2005) (reversing trial court’s order summarily denying “rule 3.850(h)” motion filed pursuant to Steele v. Kehoe, which trial court should have treated as petition for writ of habeas corpus), but asserts that the motion was properly denied because it was facially insufficient.

We do not agree that the motion was facially insufficient. Accordingly, we reverse the summary denial and direct the trial court on remand to treat the motion as a petition for writ of habeas corpus pursuant to Steele and Mills.

Reversed and Remanded for Further Proceedings.

POLEN, KLEIN and SHAHOOD, JJ., concur.


text:
    James TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1868.
    District Court of Appeal of Florida, First District.
    June 6, 2007.
    James Turner, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, LEWIS, and HAWKES, JJ., concur.


text:
    Kenneth A. DURKEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2310.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2007.
    Melanie S. Kohler, of Melanie S. Kohler, P. A., Ocala, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Kenneth A. Durkee appeals from the judgment and sentence imposed upon him upon his being convicted by a jury of one count of lewd or lascivious molestation of a minor less than 12 by an adult age 18 or over, and a second count of attempted lewd or lascivious molestation. We affirm.

Mr. Durkee first asserts that similar fact evidence of prior molestations was erroneously admitted by the trial court. We, however, conclude that there was no abuse of discretion in admitting the evidence. See § 90.404, Fla. Stat. (2004). See also McLean v. State, 934 So.2d 1248 (Fla.2006). In addition, we find the second point on appeal raised by Mr. Durkee to be without merit.

AFFIRMED.

ORFINGER, MONACO and EVANDER, JJ., concur.


author: TRAYLOR, Justice.

text:
    Frank HENRY and Mary Henry, Individually and on Behalf of their Minor Children v. SOUTH LOUISIANA SUGARS COOPERATIVE, INC.
    No. 2006-C-2764.
    Supreme Court of Louisiana.
    May 22, 2007.
    Gieger, Laborde & Laperouse, Robert Irwin Siegel, Brendan Patrick Doherty, New Orleans, for Applicant.
    Harris & Rufty, Alfred Jackson Rufty, III, Rufus Carrollton Harris, III, Cindy Galpin Martin, Allen & Gooch, Michael E. Parker, Lafayette, George Stubbs Bourgeois, Jr., for Respondent.
   TRAYLOR, Justice.

| ^his case presents an issue of insurance policy interpretation. Finding that the terms of the insurance policy unambiguously exclude coverage, we reverse the summary judgment determination by the lower court which found coverage.

FACTS AND PROCEDURAL HISTORY

Plaintiffs Frank Henry (“Henry”) and Mary Henry filed suit seeking damages for personal injuries allegedly sustained by Henry on July 9, 2003 at the South Louisiana Sugars Cooperative, Inc. (“So. La. Sugars”) sugar mill facility in St. James Parish, Louisiana. On that date, Henry, an employee of Quality Liquid Feeds, was aboard a moored barge used as a dock (hereinafter referred to as the “dock barge”) which was owned by So. La. Sugars. Henry was loading molasses onto a cargo barge that was alongside the dock barge on the Mississippi River. Connecting the dock barge to the adjacent cargo barge was a gangplank attached to the dock barge that could be raised and lowered. Henry claimed that the gangplank slipped as he was walking on the gangplank, causing him to fall and seriously injure his back, both legs, and right wrist. Named defendants in the plaintiffs’ suit were So. La. Sugars and its 12insurer.

At the time of the incident, Audubon Indemnity Company (“Audubon”) provided general liability coverage to So. La. Sugars under a comprehensive general liability (“CGL”) policy. Westport Insurance Company (“Westport”) provided to So. La. Sugars a Protection & Indemnity (P & I) insurance policy which listed the dock barge as a covered vessel.

Upon being sued by the Henry plaintiffs for alleged deficiencies in the dock barge, So. La. Sugars demanded coverage and a defense from Audubon. By letter dated December 15, 2004, Audubon denied coverage on the ground that the CGL policy had an exclusion for injury occurring on watercraft which barred coverage.

So. La. Sugars named Audubon as a defendant in a third-party complaint, asserting that the Audubon CGL policy provided coverage and demanding a defense to and indemnity for the claims of Henry. So. La. Sugars additionally claimed that Audubon was in bad faith for refusing to provide a defense and indemnity, and sought statutory penalties and attorneys fees. Audubon answered the third-party complaint of So. La. Sugars, denying coverage and asserting as an affirmative defense that coverage for the Henry incident was found in the Westport P & I policy, wherein the dock barge.in question was specifically listed as a covered vessel.

Cross motions for summary judgment were filed by Audubon and So. La. |3Sugars regarding coverage for the Henry claim, as well as the bad faith claim asserted by So. La. Sugars. Audubon maintained that no coverage was owed under its policy based on a clear and unambiguous watercraft exclusion. Audubon further argued that the presence of the watercraft exclusion made the insurer’s denial of coverage neither arbitrary nor capricious and provided no basis for the insured’s claim to statutory penalties or attorney fees. So. La. Sugars maintained that an exception to the watercraft exclusion applied, by which operation the policy provided coverage. Under the facts of this case, So. La. Sugars claimed that Audubon’s actions were arbitrary and capricious in denying coverage.

After a hearing on the cross-motions for summary judgment, the district court denied Audubon’s summary judgment motion in part, finding the CGL policy did provide coverage, but granting the motion in part, finding So. La. Sugars was not entitled to statutory penalties or attorney fees. The district court similarly denied in part and granted in part So. La. Sugar’s motion for summary judgment, granting as to the coverage issue but denying the insured’s request for penalties and attorney fees. The district court did not issue reasons for judgment. Audubon appealed the district court’s finding that the CGL policy provided coverage.

The court of appeal affirmed the district court’s determination that coverage existed under the CGL policy, finding that the language in the insurance contract was ambiguous, which ambiguity should be held against the insurer, Audubon. We granted Audubon’s writ to review the correctness of that determination.

1 .STANDARD OF REVIEW

The law applicable to review of a grant or denial of a motion for summary judgment, and to the proper interpretation of an insurance policy, was recently discussed in Bonin v. Westport Ins. Corp., 2005-886 (La.5/1/06), 930 So.2d 906. In Bonin, we stated:

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). This court reviews a grant or denial of a motion for summary judgment de novo, Schroeder v. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991). Thus, this court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Robinson v. Heard, 01-1697, pp. 3-4 (La.2/26/02), 809 So.2d 943, 945.
Interpretation of an insurance policy usually involves a legal question which can be resolved properly in the framework of a motion for summary judgment. Robinson, 01-1697 at p. 4, 809 So.2d at 945. An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. Cadwallader v. Allstate Ins. Co., 02-1637, p. 3 (La.6/27/03), 848 So.2d 577, 580; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911, p. 5 (La.1/14/94), 630 So.2d 759, 763. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. La. C.C. art.2045; Louisiana Ins. Guar. Ass’n, 93-0911 at p. 5, 630 So.2d at 763; Garcia v. St. Bernard Parish School Board, 576 So.2d 975, 976 (La.1991). Words and phrases used in an insurance policy are to be construed using their plain, ordinary and generally prevailing meaning, unless the words have acquired a technical meaning. La. C.C. art.2047; Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carbon v. Allstate Ins. Co., 97-3085, p. 4 (La.10/20/98), 719 So.2d 437, 439.
An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Carrier v. Reliance Ins. Co., 99-2573, pp. 11-12 (La.4/11/00), 759 So.2d 37, 43 (quoting Louisiana Ins. Guar. Ass’n, 93-0911 at p. 5, 630 So.2d at 763). Unless a policy conflicts with statutory provisions or public policy, it may limit an insurer’s liability and impose and enforce reasonable conditions upon the policy obligations the insurer contractually assumes. Carbon, 97-3085 at p. 5, 719 So.2d at 5440; Louisiana Ins. Guar. Ass’n, 93-0911 at p. 6, 630 So.2d at 763.
If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer and in favor of coverage. Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carrier, 99-2573 at p. 12, 759 So.2d at 43-44. Under this rule of strict construction, equivocal provisions seeking to narrow an insurer’s obligation are strictly construed against the insurer. Louisiana Ins. Guar. Ass’n, 93-0911 at p. 6, 630 so.2d at 764; Garda, 576 So.2d at 976. That strict construction principle, however, is subject to exceptions. Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carrier, 99-2573 at p. 12, 759 So.2d at 43-44. One of these exceptions is that the strict construction rule applies only if the ambiguous policy provision is susceptible to two or more reasonable interpretations. Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carrier, 99-2573 at p. 12, 759 So.2d at 43-44. For the rule of strict construction to apply, the insurance policy must be not only susceptible to two or more interpretations, but each of the alternative interpretations must be reasonable. Cadwallader, 02-1637 at p. 3, 848 So.2d at 580; Carrier, 99-2573 at p. 12, 759 So.2d at 43-44.

Bonin, 05-0886 at p. 4-6, 930 So.2d at 910-911.

LAW AND ANALYSIS

The question presented to the court is whether there exists a genuine issue of material fact as to whether the CGL policy issued by Audubon to So. La. Sugars provides coverage which would require Audubon to indemnify So. La. Sugars for liability the sugar mill may incur as a result of Henry’s alleged accident. The policy language at issue provides, in pertinent part, as follows:

2. Exclusions
This insurance contract does not apply to:
g. Aircraft, Auto or Watercraft
“Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading”.
This exclusion does not apply to:
|fi(l) A watercraft while ashore on premises you own or rent; ...

Audubon asserts that the language of the watercraft exclusion in its policy unambiguously excludes coverage for the alleged injuries of Henry because the dock barge where the injury allegedly occurred was a watercraft and the alleged incident arose out of the use, ownership, maintenance or entrustment to others of that watercraft. So. La. Sugars argues that Audubon’s position fails because Audubon’s policy expressly states that the watercraft exclusion does not apply to watercraft while “ashore,” and that the dock barge’s moored position alongside the shore satisfies the requirement of being “ashore.”

The pleadings, deposition excerpts, answers to interrogatories and admissions submitted with the cross-motions for summary judgment show there is no real dispute that the dock barge is a watercraft or that the Henry accident as alleged arose out of So. La. Sugars’ “ownership, maintenance, use or entrustment to others” of the dock barge. Consequently, the provisions of the watercraft exclusion are satisfied. Unless the provisions of the exception to the watercraft exclusion apply, there is no coverage under the Audubon policy.

The documents submitted with the summary judgment motions further show that the dock barge had been moored in the same location in front of the sugar mill to assist in loading operations prior to the accident since, at least, 1997. The dock barge was secured on four sides by means of posts driven into the riverbed of the Mississippi River, making the dock barge stationary in lateral or forward movement, but allowing the dock barge to rise and fall with the movement of the tide. The dock barge was surrounded on all sides by water. A walkway and a sugar conveyor extended from the grounds of the sugar mill facility to the dock barge.

|7The word “ashore” is not defined in the Audubon policy. Nor is the word “ashore” found in Black’s Law Dictionary. This is apparently a matter of first impression in this court.

As the word “ashore” is one in common usage, “ashore” is defined in general purpose dictionaries which the parties rely on for the plain, ordinary and generally prevailing meaning of the word. So. La. Sugars relies on dictionary definitions which define “ashore” as “toward or on the shore.” Audubon relies on a dictionary definition which defines “ashore” to mean “on land.”

From these definitions it is clear to us that the word “ashore” in its ordinary meaning conveys both a direction and a location. This being so, it is also clear to us that the word’s unambiguous usage in the context of the insurance policy at issue refers to a location. Consequently, the meaning of the word “ashore” within the context of the insurance policy at issue means “on land,” or the opposite of “afloat,” and not “toward land.” Since the facts show that the dock barge was moored but still completely afloat, the dock barge was not “ashore” under the policy and the 1 ¿watercraft exclusion applies in this case to preclude coverage.

This interpretation is strengthened by reading the word “ashore,” as we must, in context with the entire phrase in which the word is found in the exception to the watercraft exclusion. The exception to the watercraft exclusion states that coverage would be provided to a watercraft “ashore on premises owned or rented” by the insured. As admitted by counsel for So. La. Sugars at oral argument, and as our review of the record confirms, there is no indication in the record that the sugar mill rents or owns the river bottom where the posts securing the dock barge are secured. Here, there is no dispute that the dock barge is moored by means of posts driven into the riverbed of the Mississippi River. The Mississippi River, as a natural navigable water body, is a public thing, insusceptible of private ownership, including its river bottoms. See La. C.C. art. 450. Consequently, even if the meaning of the word “ashore” was as argued by So. La. Sugars to include a watercraft floating but moored next to the shore, its dock barge is not located on premises owned or rented by So. La. Sugars. The exception to the watercraft exclusion is not applicable under the facts of this case for this additional reason.

CONCLUSION

We find the question presented here, the interpretation of the insurance policy at issue, involves a legal question which can be resolved properly in the framework of a motion for summary judgment. Reviewing the pleadings, depositions, answers) ¡¡to interrogatories, and admissions on file, we find there is no genuine issue as to material fact and that Audubon is entitled to judgment as a matter of law. The watercraft exclusion in the Audubon CGL policy unambiguously denies coverage for the alleged injuries sustained by the Henry plaintiffs in the main demand. We find that the dock barge, moored in place in the Mississippi River and surrounded by water, was afloat and not “ashore” on premises owned or rented by the insured. Thus, the exception to the watercraft exclusion, urged by So. La. Sugars, is not applicable here. Accordingly, the judgment granting summary judgment on the issue of coverage is reversed.

REVERSED AND RENDERED.

      . The Audubon CGL policy, attached as an exhibit to Audubon's motion for summary judgment, shows that the policy provided personal injury coverage of $1,000,000 per occurrence with no deductible. R. Vol. 1, p. 175.

      . The Westport P & I policy, attached as an exhibit to Audubon’s motion for summary judgment, shows that the policy provided personal injury coverage of $250,000 per occurrence with a $5000 deductible. R. Vol. 1, p. 201-202.

      . Plaintiffs in the main demand amended and supplemented their petition to add both Audubon and Westport as named defendants. R. Vol. 2, p. 347-350.

      . In fact, the dock barge was the only vessel named in the Westport policy.

      . Henry v. South Louisiana Sugars Co-op., Inc., 2006-71 (La.App. 5 Cir. 9/26/06), 940 So.2d 688.

      . Henry v. South Louisiana Sugars Co-op., Inc., 2006-2764 (La.2/2/07), 948 So.2d 183.

      . So. La. Sugars admitted the barge was constructed as a watercraft subject to the clarification that it was being used as a dock. R. Vol. 2, p. 265.

      . Although the word "shore” is defined in Black's Law Dictionary, that definition does not aid our determination in this case.

      . Although the parties cite to cases from various jurisdictions, the reasoning and holdings in those cases are not persuasive authority, as we find their factual circumstances to be unlike the issue presented here.

      . According to So. La. Sugars, the American Heritage Dictionary of the English Language, (New College Edition 1981) defines “ashore” as "toward or on the shore.” In addition, So. La. Sugars relies on the Cambridge Dictionary of American English, (2000) for its definition of "ashore” as "toward or onto land from an area of water, or on land after coming from an area of water.”

      . Audubon argues the American Heritage Dictionary (4th ed.2000) defines "ashore” to mean "on land.” Audubon also cites to several nautical dictionaries which similarly define "ashore.”

      . Under So. La. Sugars’ alternative definition, a vessel at sea, on its way back to a port and heading “toward the shore” could be considered "ashore.” We find this alternative interpretation, that a watercraft fully afloat, even next to the shore, could be the same as "ashore” to be nonsensical under the facts of this case. An insurance policy should not be interpreted in an unreasonable or strained manner so as to achieve an absurd conclusion. Carrier, 99-2573 p. 11-12, 759 So.2d at 43.

      . Our holding in this case expresses no opinion as to whether the exception to the watercraft exclusion would apply to a watercraft partially on land and partially in the water.

      . La. C.C. art. 450 provides, in pertinent part, as follows:
      Public things are owned by the state or its political subdivisions in their capacity as public persons.
      Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea and the seashore....