KRISHIN P. ABICHANDANI, APPELLANT,
v.
RELATED HOMES OF TAMPA, INC., AND PARADISE CONTRACTORS, INC., APPELLEES
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Appellant challenged the dismissal of his construction defect claims against a home builder and pool subcontractor. The trial court dismissed based on claim-splitting, relying on facts from a prior trespass suit. The appellate court reversed, holding that the trial court improperly took judicial notice of records outside the current case without proper evidentiary foundation.
The trial court erred in dismissing the amended complaint on grounds of claim-splitting because it based its decision on information from the prior trespass suit that was not properly introduced into evidence in the present case. To determine whether a cause of action is impermissibly split, the trial court must have certified copies of relevant documents from the prior case, not merely counsel's allegations and argument.
[1] A trial court cannot take judicial notice of records from a different case pending or disposed of in the same court unless those records are formally introduced into evid…
[2] Allegations by counsel and arguments made during a hearing are insufficient to substitute for properly introduced evidence when determining issues in a case.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is well settled that the trial court is not authorized to take judicial notice of the records in a different case pending or disposed of in the same court but outside the record in the ease before it.”
Establishes the foundational rule that trial courts cannot rely on information from other cases without proper evidentiary foundation.
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Join FLexlaw to unlock all legal intelligenceAbichandani purchased a home with a pool from Related Homes of Tampa, Inc., with the sale closing on January 12, 1994. On February 23, 1994, he sued t…
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PER CURIAM.
The appellant, Krishin P. Abichandani, challenges the dismissal with prejudice of his amended complaint for breach of warranty, breach of contract, and fraud based on construction defects in a home he purchased from the appellees, Related Homes of Tampa, Inc., the developer and builder of the home, and Paradise Contractors, Inc., the pool subcontractor. The trial court dismissed the amended complaint based on a finding that the appellant was impermissibly splitting his causes of action because he had filed an earlier suit. We reverse.
The appellant contracted with the appel-lee/builder on February 26,1993, to construct a home with a pool in Tampa Palms. The sale closed on January 12,1994, after a walk-through performed a week earlier. On February 23,1994, the appellant sued the builder in Circuit Court Case No. 94-1243, alleging trespass on his property for placement of a sprinkler control box governing irrigation for several neighboring homes as well as his own. The trial court entered summary judgment in favor of the builder in that suit. This court affirmed. Abichandani v. Related Homes, Inc., 654 So. 2d 1169 (Fla. 2d DCA), review dismissed, 661 So. 2d 823 (Fla.1995). The day after we heard oral argument in the trespass suit appeal, the appellant filed the complaint in the instant case, Circuit Court Case No. 95-1604, alleging construction defects against the same builder and also the pool subcontractor. The three-count complaint sounded in breach of contract, breach of warranty, and fraud. The appellees moved to dismiss the appellant’s amended complaint on several bases, including that the appellant was attempting to split his cause of action. The appellees contended at the hearing on their motions that the appellant should have made these claims in the earlier suit because all the facts arose out of the same set of circumstances stemming from the purchase contract of February 26, 1993. The trial court agreed and dismissed the amended complaint with prejudice. This was error. At the hearing on the motions to dismiss, the trial court had before it the amended complaint in three counts, and the appellees’ motions to dismiss. The trial court learned of the trespass suit through argument and the allegations in the written motions and dismissed the complaint on the ground that this suit was an impermissible splitting of the causes of action. As the case then stood before the trial court, i.e., on a motion to dismiss which requires that the trial court confine itself to the four corners of the complaint, there was no indication of a split in the causes of action.
It is well settled that the trial court is not authorized to take judicial notice of the records in a different case pending or disposed of in the same court but outside the record in the ease before it. Kostecos v. Johnson, 85 So. 2d 594 (Fla.1956); Bergeron Land Development, Inc., v. Knight, 307 So. 2d 240 (Fla. 4th DCA 1975); Novack v. Novack, 196 So. 2d 499 (Fla. 3d DCA), cert. denied, 196 So. 2d 926 (Fla.1967).... In order to prove some matter contained in the record of a case other than the one being litigated, a party must offer the other court file or certified copies of portions thereof into evidence in the case then being litigated.
Carson v. Gibson, 595 So. 2d 175, 176-77 (Fla. 2d DCA 1992). Thus, for the trial court in the case before us to know of the issues in the trespass suit, certified copies of the relevant documents from the record in that case, or the court file, must have been presented to the trial court. This is necessary so the court could determine just what issues and factual circumstances were addressed in the prior suit before determining whether the cause of action was indeed split. Counsel for the appellees did attempt to provide the court background information relating to the trespass suit, but allegations by and argument of counsel are no substitute for properly introduced evidence. MediTek Therapy, Inc., v. Vat-Tech, Inc., 658 So. 2d 644 (Fla. 2d DCA 1995).
Because the trial court erroneously based its decision to dismiss the amended complaint on evidence which was not in the record before it, we reverse the final judgment, reinstate the amended complaint, and remand for further proceedings.
DANAHY, A.C.J., and PATTERSON and LAZZARA, JJ., concur.
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Patterson v. McNEEL, 704 So. 2d 1070 (Fla. 2d DCA 1997)…. It is well established that a motion to dismiss should not be granted on the basis of an affirmative defense, including res judicata, unless that defense is established on the face of the pleadings. See Abichandani v. Related Homes of Tampa, Inc., 696 So. 2d 802 (Fla. 2d DCA 1997); Mettler, Inc. v. Ellen Tracy, Inc., 648 So. 2d 253 (Fla. 2d DCA 1994); Byrd v. City of Niceville, 541 So. 2d 696 (Fla. 1st DCA 1989). Simply put, the defendants’ affirmative defense of res judica-ta is not established in this rec…
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Hayward & Assocs., Inc. v. M. Dexter Hoffman, Noel K. Evans, Evans & Donica, P.A., 826 So. 2d 332 (Fla. 2d DCA 2002)…s causes of action. To reach this conclusion, however, the court would still be basing its decision on the fact of the prior lawsuit, which fact cannot be reached at this procedural point in the case. See Abichandani v. Related Homes of Tampa, Inc., 696 So. 2d 802 (Fla. 2d DCA 1997) (reversing order that granted motion to dismiss based on improper splitting of cause of action when the four corners of the complaint did not indicate the prior suit). Accordingly, we reverse. On remand, the trial court must dec…
Authorities Cited
- Kostecos v. Johnson, 85 So. 2d 594 (Fla. 1956)
- Novack v. Novack, 196 So. 2d 499 (Fla. 3d DCA 1967)
- Bergeron Land Dev., Inc. v. Knight, 307 So. 2d 240 (Fla. 4th DCA 1975)
- Battisti v. Staples, 196 So. 2d 926 (Fla. 1967)
- Bretti v. Turner, 196 So. 2d 926 (Fla. 1967)
- Purdy v. Purdy, 595 So. 2d 175 (Fla. 5th DCA 1992)
- Carson v. Gibson, 595 So. 2d 175 (Fla. 2d DCA 1992)
- Meditek Therapy, Inc. v. Vat-Tech, Inc., 658 So. 2d 644 (Fla. 2d DCA 1995)