## Facts

- Krishin P. Abichandani contracted on February 26, 1993 with Related Homes of Tampa, Inc. (Related Homes) to construct a home with a pool.
- The sale closed on January 12, 1994, after a walk-through about a week earlier.
- Shortly after closing, Related Homes installed a sprinkler control box on Abichandani’s property that controlled irrigation for his home and several neighboring homes.
- On February 23, 1994, Abichandani sued Related Homes for trespass based on the sprinkler control box (Circuit Court Case No. 94-1243).
- The trial court entered summary judgment for Related Homes in the trespass case, and the Second District affirmed on appeal (with review later dismissed).
- The day after oral argument in the trespass appeal, Abichandani filed a new lawsuit alleging construction defects in the home and pool (Circuit Court Case No. 95-1604).
- The construction-defect complaint named Related Homes (developer/builder) and Paradise Contractors, Inc. (pool subcontractor) and asserted three counts: breach of contract, breach of warranty, and fraud.
- The defendants moved to dismiss the construction-defect case, arguing Abichandani had impermissibly split his cause of action by not raising these claims in the earlier trespass case.
- In support of dismissal, Related Homes did not submit a certified copy (or comparable record material) from the trespass case file.
- The trial court dismissed Abichandani’s amended complaint with prejudice on claim-splitting grounds, and Abichandani appealed.

## Issues

1. Whether a trial court may grant a motion to dismiss based on the affirmative defense of improper splitting of causes of action when the defense is not established on the face of the complaint.
2. Whether a trial court may dismiss on claim-splitting based only on counsel’s allegations and argument about a prior lawsuit, without record evidence properly before the court at the pleading stage.

## Decision

- The Second District reversed the dismissal with prejudice and remanded for further proceedings.
- Improper splitting of causes of action is an affirmative defense that generally cannot support a motion to dismiss unless it is established within the four corners of the complaint.
- Because Abichandani’s amended complaint did not establish the prior trespass action or the facts required to decide claim-splitting as a matter of law, dismissal at the pleading stage was improper.
- The trial court could not treat counsel’s assertions about the earlier case as a substitute for record evidence; allegations by and argument of counsel are not evidence.

## Legal Principles

- A motion to dismiss generally must be decided from the complaint’s allegations, accepting well-pleaded facts as true and drawing reasonable inferences in the pleader’s favor.
- An affirmative defense (including res judicata-related defenses such as improper splitting of causes of action) may support dismissal only when the defense is conclusively shown on the face of the complaint.
- When the claimed bar depends on matters outside the complaint—such as the existence, scope, and effect of a prior lawsuit—the defense must be raised and proved through proper procedure and record materials, rather than assumed on argument.
- Allegations by and argument of counsel are no substitute for properly introduced evidence.

## Conclusion

The appellate court held that the trial court erred by dismissing Abichandani’s construction-defect complaint with prejudice on claim-splitting grounds where the amended complaint did not reveal the prior trespass action or otherwise establish the defense, and where the dismissal rested on counsel’s assertions rather than record evidence; the order was reversed and the case was remanded.


Abichandani v. Related Homes of Tampa, Inc., 696 So. 2d 802 (1997)