DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JEAN FRANCOIS RIGOLLET,

Appellant,

v.

LE MACARON DEVELOPMENT, LLC; ROSALIE GUILLEM; 

BERNARD GUILLEM; and DIDIER SABA,

Appellees.

No. 2D23-564

March 27, 2024

Appeal from the Circuit Court for Sarasota County; Stephen Walker, 

Judge.

Jean François Rigollet, pro se.

Kimberly D. Thresher and Dennis D. Leone of Shankman Leone, P.A., 

Tampa, for Appellees.

LABRIT, Judge.

Jean François Rigollet appeals the dismissal of his counterclaim 

against Le Macaron Development, LLC (LMD).1 The trial court granted 

LMD's motion to dismiss after determining that Mr. Rigollet lacked 

standing and didn't sustain any damages. But the trial court looked 

beyond Mr. Rigollet's counterclaim to make this determination, and the 

1 Mr. Rigollet timely appealed the dismissal after all claims between 

LMD and Mr. Rigollet were finally resolved and all judicial labor in the 

case was at an end. We have jurisdiction. See Fla. R. App. P. 9.110(k).
2

counterclaim otherwise alleges sufficient ultimate facts to support Mr. 

Rigollet's causes of action. We therefore reverse the dismissal and 

remand for further proceedings.

Background

LMD franchises pastry shops that specialize in macarons and other 

French pastries. In 2014, LMD entered into several franchise 

agreements with a similarly named but wholly unrelated entity, Le 

Macaron LLC (Franchisee). These agreements granted the Franchisee 

the rights to open and operate LMD's pastry shops, and they identified 

Mr. Rigollet as an "owner" of the Franchisee entity. In that capacity, Mr. 

Rigollet executed a personal guaranty for each franchise agreement 

through which he "guarantee[d] the prompt and full payment of all 

amounts owed by the Franchisee." Later, in 2015, LMD loaned the 

Franchisee $200,000 to complete construction of the pastry shops, in 

exchange for which the Franchisee executed a promissory note and Mr. 

Rigollet executed another personal guaranty.

Thereafter, the parties' business relationship soured. LMD filed a 

fifteen-count complaint against the Franchisee and Mr. Rigollet in 2017 

alleging that they breached their obligations under the franchise 

agreements, the promissory note, and the personal guaranties. Four of 

LMD's fifteen counts were against Mr. Rigollet individually, including a 

count for breach of the promissory note and a count for breach of the 

franchise agreement guaranties. Mr. Rigollet answered the complaint, 

asserted affirmative defenses in response, and contemporaneously filed 

the counterclaim against LMD that is at issue in this appeal.

Mr. Rigollet's counterclaim pled five counts against LMD for 

(1) fraud in the inducement, (2) violation of the Florida Deceptive and 

Unfair Trade Practices Act, (3) violation of the Florida Franchise Act, 
3

(4) breach of contract, and (5) breach of the implied covenant of good 

faith and fair dealing. In support, Mr. Rigollet alleged that LMD 

misrepresented several things associated with the pastry shop franchise, 

including its profitability, product quality, and the background and 

experience of its officers and head pastry chef. Mr. Rigollet also alleged 

that LMD's misrepresentations were part of a "scheme" that induced him 

and the Franchisee to enter into various agreements requiring 

"exorbitantly priced lease agreements" and "premium build out costs," 

caused the pastry shops to not be profitable, and ultimately allowed LMD 

to "take possession of the premium franchise locations" and reopen or 

resell them for profit without any of the incurred debt. 

LMD later moved to dismiss Mr. Rigollet's counterclaim. It argued 

that Mr. Rigollet lacked standing to assert all five counts and that he did 

not incur any damages independent of the Franchisee. LMD partly 

based these arguments on Mr. Rigollet's deposition testimony and asked 

the trial court to consider his testimony on a motion to dismiss. 

Following a hearing, the trial court granted LMD's motion. It 

reasoned that courts are "allowed to look outside the four corners of the 

complaint where a motion to dismiss challenges personal jurisdiction," 

and that "[t]he determination of standing is a jurisdictional issue." Based 

on this premise—and in part based on Mr. Rigollet's deposition 

testimony—the trial court found that Mr. Rigollet lacked standing to 

pursue all five counts in the counterclaim because "all damages alleged 

were in fact losses, expenses or damages of [the Franchisee]." The trial 

court also determined that Mr. Rigollet could not pursue any contractbased claims against LMD because he "was not a party to the contracts 

at issue," and that Mr. Rigollet could not sue under the Florida Franchise 

Act because "[o]nly the [Franchisee] has standing to pursue" such a 
4

claim. The trial court denied Mr. Rigollet's request to amend the 

counterclaim, finding that "no amendment . . . would allow [Mr.] Rigollet 

to state a viable claim." The trial court thus dismissed Mr. Rigollet's 

counterclaim with prejudice.

Mr. Rigollet appeals the dismissal of his counterclaim and the 

denial of his request for leave to amend.2 Because we agree with Mr. 

Rigollet that the trial court erred in dismissing his counterclaim, we need 

not reach the issue of amendment. 

Discussion

We review the trial court's decision to dismiss Mr. Rigollet's 

counterclaim de novo. See Kidwell Grp. LLC v. Fla. Farm Bureau Cas. 

Ins., 348 So. 3d 1239, 1241 (Fla. 2d DCA 2022); Nat'l Collegiate Student 

Loan Tr. 2006-4 v. Meyer, 265 So. 3d 715, 718 (Fla. 2d DCA 2019). The 

trial court dismissed all five counts on grounds that "all damages alleged 

were in fact losses, expenses or damages of [the Franchisee]," so Mr. 

Rigollet lacked standing to pursue them. To so conclude, the trial court 

considered Mr. Rigollet's deposition testimony. This was error.

"In determining whether to dismiss a complaint for lack of 

standing, [the court] must confine [its] review to the four corners of the 

complaint, draw all inferences in favor of the pleader, and accept all wellpled allegations in the complaint as true." Meyer, 265 So. 3d at 718 

(alterations in original). Likewise, because standing is an affirmative 

defense, only where "the face of the complaint contains allegations which 

2 Mr. Rigollet also attempted to appeal the dismissal of a thirdparty complaint he filed against LMD's principals Rosalie and Bernard 

Guillem and its head pastry chef Didier Saba. We lack jurisdiction to 

review that dismissal, however, because Mr. Rigollet did not appeal it 

within thirty days. See Fla. R. App. P. 9.110(k) ("If a partial final 

judgment totally disposes of an entire case as to any party, it must be 

appealed within 30 days of rendition."). 
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demonstrate the existence of" a lack of standing may the trial court 

dismiss it on those grounds. Id. And dismissals with prejudice based on 

a lack of standing are generally improper. Id.

The allegations in Mr. Rigollet's counterclaim, when accepted as 

true and viewed in his favor, allege that Mr. Rigollet sustained damages 

sufficient to establish standing at this stage. Despite these allegations, 

the trial court considered standing a "jurisdictional issue" that it could 

venture beyond the pleadings to resolve.3 But "[o]rdinarily, Florida 

courts do not construe a plaintiff's lack of standing as if it were a 

jurisdictional defect." Corrigan v. Bank of Am., N.A., 189 So. 3d 187, 192 

n.2 (Fla. 2d DCA 2016) (Lucas, J., concurring). Standing relates to a 

litigant having "a sufficient stake in an otherwise justiciable controversy" 

that enables the litigant to "obtain judicial resolution of that 

controversy." Tampa Port Auth. v. Henriquez, 377 So. 3d 187, 193 (Fla. 

2d DCA 2023) (quoting C.H. v. Adoption of N.K., 322 So. 3d 177, 180 (Fla. 

2d DCA 2021)). Subject matter jurisdiction, on the other hand, relates to 

a "court's constitutional or statutory authority to decide a class of cases." 

Id. (quoting Kozel v. Kozel, 302 So. 3d 939, 945 (Fla. 2d DCA 2019)). 

What's more, "[a] party's lack of standing . . . does not affect the court's 

subject matter jurisdiction." Id.; see also Page v. Deutsche Bank Tr. Co. 

3 The trial court relied on Rogers & Ford Construction Corp. v. 

Carlandia Corp., 626 So. 2d 1350 (Fla. 1993), but its reliance is 

misplaced. There, our supreme court explained that "[t]he determination 

of standing to sue concerns a court's exercise of jurisdiction to hear and 

decide the cause pled by a particular party." Id. at 1352. It did so in the 

context of holding that "the Legislature may not constitutionally 

determine whether a party has standing" because only "courts determine 

standing." Id. (citing Avila S. Condo. Ass'n v. Kappa Corp., 347 So. 2d 

599, 608 (Fla. 1977)). Thus, standing is not a jurisdictional issue under 

Rogers & Ford; it's an issue exclusively within the courts' jurisdiction to 

determine—just generally not on a motion to dismiss.
6

Ams., 308 So. 3d 953, 960–61 (Fla. 2020) (explaining that "standing is 

obviously not 'a component of subject-matter jurisdiction' " because 

subject matter jurisdiction is never waivable while "the issue of standing 

is a waivable defense").

Thus, Mr. Rigollet's alleged lack of standing due to his alleged lack 

of damages was not a jurisdictional concern.4 It was an affirmative 

defense that—like most affirmative defenses—could not be determined on 

a motion to dismiss unless the facts supporting it appeared on the face of 

Mr. Rigollet's pleading. They didn't, so the trial court erred reversibly by 

granting LMD's motion to dismiss based on a lack of standing. See 

Kidwell Grp. LLC, 348 So. 3d at 1241; Meyer, 265 So. 3d at 718–19; 

Landmark Funding, Inc. ex rel. Naples Syndications, LLC v. Chaluts, 213 

So. 3d 1078, 1079 (Fla. 2d DCA 2017).

Our analysis does not end there, however, because the trial court 

found alternative reasons to dismiss several counts of Mr. Rigollet's 

counterclaim. It dismissed Mr. Rigollet's contract-based counts for fraud 

in the inducement, breach of contract, and breach of the implied 

4 We also note that the trial court's determination that Mr. Rigollet 

lacked damages was more akin to a failure of proof than a lack of 

standing. While standing has an "injury in fact" component, see State v. 

J.P., 907 So. 2d 1101, 1113 n.4 (Fla. 2004), the trial court found that Mr. 

Rigollet did not sustain the damages "required for all [c]ounts in the 

[c]ounterclaim." In other words, the trial court believed that Mr. Rigollet 

couldn't prove at least one element of his claims. But "[a] motion to 

dismiss is not a substitute for a motion for summary judgment," and a 

trial court lacks authority "to look beyond the complaint to consider the 

sufficiency of the evidence." Migliazzo v. Wells Fargo Bank, N.A., 290 So. 

3d 577, 578–79 (Fla. 2d DCA 2020) (first quoting Baycon Indus., Inc. v. 

Shea, 714 So. 2d 1094, 1095 (Fla. 2d DCA 1998); and then quoting AlHakim v. Holder, 787 So. 2d 939, 941–42 (Fla. 2d DCA 2001)). We have 

not considered and do not comment on whether the evidence would be 

sufficient to withstand a motion for summary judgment, but it was not 

something the trial court could consider on a motion to dismiss.
7

warranty of good faith and fair dealing on grounds that Mr. Rigollet was 

not a party to the contracts upon which he sued. We have thoroughly 

reviewed Mr. Rigollet's pleading and its attachments, and we conclude 

that he sufficiently alleged that he was a party to the contracts identified 

in the counterclaim, namely the promissory note and the franchise 

agreement guaranties. Indeed, although we confine our review to Mr. 

Rigollet's counterclaim, we note that LMD sued Mr. Rigollet for breach of 

the very same contracts. Based on the allegations in Mr. Rigollet's 

counterclaim, the trial court erred in dismissing Mr. Rigollet's contractbased counts on grounds that he was not a contracting party.

As to Mr. Rigollet's claim under the Florida Franchise Act, the trial 

court determined that only the Franchisee could maintain such a claim. 

It based this ruling on our decision in Checkers Drive-In Restaurants, Inc. 

v. Tampa Checkmate Food Services, Inc., 805 So. 2d 941 (Fla. 2d DCA 

2001). We agree that Checkers is the proper authority, and that only the 

"person" who "invested" in the franchise has standing to sue under the 

Florida Franchise Act. Id. at 944. The problem here is that it's not clear 

from Mr. Rigollet's counterclaim which party invested in the franchise—

the Franchisee, Mr. Rigollet, or both. The trial court could only consider 

Mr. Rigollet's allegations, and it had to draw all inferences in his favor. 

See Meyer, 265 So. 3d at 718. His allegations do not clearly indicate a 

lack of standing to sue under the Florida Franchise Act so the trial court 

should not have dismissed this count of his counterclaim. Cf. Travelodge 

Int'l, Inc. v. E. Inns, Inc., 382 So. 2d 789, 790 (Fla. 1st DCA 1980) 

(affirming final judgment for franchisee and its individual guarantors 

under the Florida Franchise Act and agreeing that the allegations in their 

counterclaim against franchisor "were sufficient for an action under the 

statute"); Hetrick v. Ideal Image Dev. Corp., 372 F. App'x 985, 989 (11th 
8

Cir. 2010) (recognizing that those who invest in a franchise "individually 

and on their own behalf" have standing to file a claim under the Florida 

Franchise Act). 

At bottom, Mr. Rigollet's counterclaim alleged sufficient ultimate 

facts to support all five counts. We reverse the order of dismissal with 

prejudice and remand to the trial court for further proceedings.

Reversed and remanded.

KELLY and MORRIS, JJ., Concur. 

Opinion subject to revision prior to official publication.