AMERICAN EXPRESS NATIONAL BANK v. JOSEPH INMAN [Note 1] and another [Note 2]

MURPHY, J. This appeal arises out of the trial court's allowance of a motion for summary judgment in favor of the plaintiff, American Express National Bank ("American Express"), and rulings related to that motion. The defendant-appellant ("Inman") claims that the allowance of the motion for summary judgment on his counterclaims and actions related to that ruling were improper. We agree in part.

Background. Inman opened four business credit card accounts with American Express in his name and in the name of four separate corporations that Inman controlled. On April 9, 2018, American Express filed a single-count complaint alleging Inman entered into a credit card agreement with it, that credit was extended pursuant to the terms of the agreement, and that Inman and the "Secret Handshake Corporation" breached the credit card agreement on account number 1009 by failing to pay $12,119.85 when due. It also closed the three other American Express accounts based on Inman's alleged nonpayment on account number 1009. On May 11, 2018, Inman filed an answer and counterclaim alleging breach of contract based on the cancellation of the other three accounts and fraudulent misrepresentation regarding the "linking" of the accounts. He sought substantial consequential damages allegedly flowing from the closure of the accounts. A fair reading of the pro se counterclaim alleges harm to Inman in his personal capacity. On June 13, 2018, Inman paid American Express $12,119.85, the full amount demanded in its complaint alleging breach of account number 1009. On September 18, 2018, American Express filed a voluntary dismissal with prejudice of its claim against Inman. Because Inman had filed an answer and counterclaim, the trial court refused to docket the dismissal absent the consent of Inman. See Mass. R. Civ. P. 41(a)(2).

Inman refused to consent to the dismissal of his counterclaim. American Express then engaged in discovery and, on May 24, 2019, filed a motion for summary judgment, including "Ex A," a detailed affidavit regarding the contract and billing records of account number 1009, and "Ex. B," copies of Inman's sworn and notarized answers to interrogatories and answers to requests for admissions. Inman filed a written opposition to the motion, which was unsworn and unaccompanied by any admissible

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documents. See Mass. R. Civ. P 56(c), (e). American Express and Inman argued the motion before a judge of the District Court ("first judge") on June 18, 2019. Orally on June 18, 2019, and in writing on June 19, 2019, the first judge took "no action" on the summary judgment motion and ordered the corporate defendant, "Secret Handshake Corporation," to obtain legal counsel within thirty days or be defaulted. No appearance was filed, and the corporation was defaulted on August 1, 2019. On December 17, 2019, a second judge held a hearing, "defaulted" Inman for failure to obtain counsel to represent him personally, and granted American Express's motion for summary judgment on Inman's counterclaim. The second judge made no written legal rulings. An initial judgment issued in the amount of $12,119.85 against Inman on American Express's complaint. The judgment amount was subsequently amended to $0.00 on November 12, 2020, in recognition of Inman's June, 2018 payment. This appeal followed.

Discussion. Inman was present and attempted to argue to the second judge on December 17, 2019. No argument was entertained, we assume, because of the second judge's mistaken understanding of the first judge's order for the corporation to obtain counsel, and because no appearance had been filed on behalf of Inman. Under these circumstances, entry of default for failure to obtain legal counsel and dismissal of Inman's personal counterclaim was improper. "As a general proposition, individuals may prosecute or defend their own actions. G.L. c. 221, § 48." LoCicero v. Hartford Ins. Group, 25 Mass. App. Ct. 339, 344 (1988). Judgment on Inman's counterclaim is vacated, and this case is returned to the trial court. [Note 3]