MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Jul 22 2020, 10:09 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Robert E. Ahlgrim                                         Patrick W. Harrison
State Auto Insurance                                      Columbus, Indiana
Carmel, Indiana                                           David W. Stone
                                                          Anderson, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brycor, Inc. d/b/a Meineke Car                            July 22, 2020
Care Center,                                              Court of Appeals Case No.
Appellant-Defendant,                                      19A-CT-2963
                                                          Appeal from the Floyd Superior
        v.                                                Court
                                                          The Honorable Susan L. Orth,
Anthony Alexander,                                        Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          22D01-1701-CT-139



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020                    Page 1 of 18
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Brycor, Inc. d/b/a Meineke Car Care Center (Meineke),

      appeals the trial court’s denial of its motion for partial summary judgment in

      favor of Appellee-Plaintiff, Anthony Alexander (Alexander). Alexander cross-

      appeals.


[2]   We reverse, enter partial summary judgment for Meineke, and remand. We

      deny Alexander’s cross-appeal.


                                                   ISSUES
[3]   Meineke presents the court with two issues, one of which we find dispositive

      and which we restate as: Whether a genuine issue of material fact existed that

      precluded entry of partial summary judgment on Alexander’s personal injury

      claims against Meineke.


      On cross-appeal, Alexander presents us with one issue, which we restate as:

      Whether Meineke was required to file a motion to correct error before pursuing

      the instant appeal.


                      FACTS AND PROCEDURAL HISTORY
[4]   The facts most favorable to the non-moving party, Alexander, are as follows.

      In the later summer of 2016, Alexander, who is a medical doctor and a

      chemical engineer, owned a 2008 Lexus SUV (SUV). The SUV developed

      problems with its air conditioning system, and Alexander took it to Meineke in

      New Albany, Indiana, for repair. The first attempt at repair was unsuccessful,
      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 2 of 18
      so Alexander returned to Meineke for a second attempt. After he retrieved the

      SUV from Meineke after the second attempt at repair, Alexander drove it

      several times over the ensuing weeks from Jeffersonville, Indiana, to Chicago

      and back. On these trips Alexander ran the SUV’s air conditioning with the

      windows closed. Around the same time, Alexander began experiencing fatigue,

      breathing issues, and severe headaches. On four occasions, Alexander found

      many flies inside the SUV after having all the windows and doors shut. In

      October of 2016, Alexander noticed that there was water on the carpet of the

      front passenger side of the SUV. On October 20, 2016, Alexander took the

      SUV to a Lexus dealership. Lexus employee David Newton (Newton)

      inspected the SUV and concluded that the evaporator drain had been left off the

      evaporator case, causing water to drain onto the SUV’s floorboard and carpet.

      Newton also found damage to the SUV’s dash pad assembly. The dashboard

      and carpet were removed and replaced. At Alexander’s request, Lexus

      employees placed the wet carpet from the SUV into a plastic bag which was

      then sealed and placed in a box. Parts from the dashboard, including the

      ventilation system, were also placed into cardboard boxes. Alexander paid for

      the repairs to the SUV.


[5]   The boxes containing the SUV’s carpet and parts were stored in Alexander’s

      garage until an indoor environmental consulting firm arrived on November 16,

      2016, to perform surface fungal sampling on them. On December 6, 2016, the

      environmental firm generated a report stemming from that sampling. The

      report indicated that testing had revealed the presence of a moderate level of


      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 3 of 18
      “Aspergillus/Penicillium-like fungi” on the carpet and low-to-very-low levels of

      various other fungi 1 on the carpet and parts. (Appellant’s App. Vol. II, p. 50).

      The report provided that Aspergillus and Penicillium are common molds found

      outdoors and indoors but that some species of these molds do produce toxins

      that are unhealthy to humans.


[6]   On January 25, 2017, Alexander filed a complaint, which he amended on

      September 25, 2017, alleging that Meineke had negligently repaired his SUV,

      causing him personal injury and property damage. More specifically,

      Alexander alleged that Meineke’s negligence had caused mold to accumulate in

      the SUV and his exposure to the mold had damaged his lungs and liver,

      necessitating past and future medical care. During discovery, Meineke deposed

      Alexander. Meineke also propounded requests for admission. Alexander

      responded to Request for Admission Number 12 (Request No. 12) as follows:


              [] Alexander does not possess a measurement of the alleged
              concentration or level of mold within his vehicle before the parts
              and carpet were removed by the Lexus dealership.


              Response: admit


      (Appellant’s App. Vol. II, p. 54).




      1
        Neither party based its summary judgment arguments on these other fungi, and both parties concentrate
      their appellate arguments on the Aspergillus and Penicillium found on the SUV’s carpet. We will concentrate
      our analysis there as well.

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020                    Page 4 of 18
[7]   On May 24, 2019, Meineke filed a motion for partial summary judgment on

      Alexander’s personal injury claims only. Meineke argued that no genuine issue

      of material fact existed as to whether the mold at the base of Alexander’s claims

      caused his symptoms. In support of its motion, Meineke designated portions of

      Alexander’s deposition, the fungal testing report, and Alexander’s admission to

      Request No. 12. The designated portions of Alexander’s deposition showed

      that he testified that airborne Aspergillus or Penicillium “is not necessarily going

      to make you sick unless you have high concentrations of it” and that higher

      concentrations are possible in a contained environment. (Appellant’s App. Vol.

      II, p. 42). Alexander had also testified that mold tends to grow better in dark,

      moist, unventilated spaces, mold can be dormant for years and become active

      when the conditions are right, and one would expect to find mold in a vehicle’s

      carpet but not in the ventilation system.


[8]   On August 9, 2019, Alexander filed his response in opposition to partial

      summary judgment which included his verified affidavit (the Affidavit) in

      which he averred that none of his claimed physical symptoms had occurred

      prior to Meineke working on the air conditioning in his SUV. Alexander

      further averred that, as a medical doctor and chemical engineer, he could

      identify mold and did identify mold under the dashboard and on the carpet of

      his SUV prior to taking it to the Lexus dealership. Alexander testified that


              [m]old is by analogy like pollen in the spring and fall. It normally
              causes little if any problems until the quantity of the spores released
              increases to the point where one who is allergic to the spores begins
              having reactions. This is what happened to [Alexander]. As the

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 5 of 18
              mold increased because of the air conditioning drain not being
              connected to the evaporation case when [Alexander] would drive
              with the air conditioning on and the windows up the mold spores
              in the air caused physical injury. [Alexander] was allergic to the type
              of mold in his vehicle. . . . [Alexander] then began being treated by
              an internist and an ear nose and throat physician for the injuries
              produced by this mold to which [Alexander] was hypersensitive and
              allergic[.] . . . Without the necessity of any evidence it is common
              knowledge that there are people who are allergic to penicillin, with
              [Alexander] being one of those people.


      (Appellant’s App. Vol. II, pp. 57-58) (emphasis added). Alexander also averred

      that the removal of the carpet and dashboard from the SUV had stopped the

      progression of his symptoms. Alexander agreed with Meineke in the Affidavit

      that the types of mold found in his SUV “generally do not make people sick

      unless they are exposed to a high concentration of the mold. [] Alexander as an

      expert states that he was exposed to high concentrations of the mold and it

      made him sick.” (Appellant’s App. Vol. II, p. 59).


[9]   On August 14, 2019, Meineke filed its Reply along with a motion to strike

      portions of the Affidavit, namely, (1) Alexander’s references to a high

      concentration of mold within the SUV; and (2) Alexander’s statements that the

      types of mold found on the carpet were the cause of his symptoms. Meineke

      argued that Alexander was estopped by his admission to Request No. 12 from

      referring to any concentration of mold in the SUV because he had admitted that

      he did not have a measurement of the mold level in the SUV before the carpet

      and parts were removed. As to Alexander’s statements that the types of mold

      found on the SUV’s carpet made him sick, Meineke argued that Alexander had

      Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 6 of 18
       testified at his deposition that he did not have an allergy to penicillin and that

       he could not say, as a medical doctor, that his symptoms were caused by

       Aspergillosis. Meineke argued that the challenged portions of the Affidavit

       should be stricken because the non-movant in a summary judgment proceeding

       may not create a genuine issue of material fact by submitting contradictory

       testimony in an affidavit. Meineke quoted Alexander’s deposition testimony in

       its Reply but did not attach copies of the deposition testimony, which had not

       been filed with the trial court.


[10]   On August 21, 2019, the trial court held a hearing on Meineke’s motions to

       strike and for partial summary judgment. At the beginning of the hearing, the

       trial court stated on the record that the parties had reached an agreement to

       strike “as to the one issue that we were dealing with” and then asked the parties

       to present argument on the other issue. (Transcript Vol. I, p. 4). Counsel for

       Meineke and Alexander then argued regarding whether the portions of the

       Alexander Affidavit referring to a high concentration of mold in the SUV

       should be stricken. The trial court took the motion to strike under advisement

       and proceeded to hear argument on Meineke’s motion for partial summary

       judgment.


[11]   On September 9, 2019, the trial court denied Meineke’s partial summary

       judgment motion without entering findings of fact or detailed conclusions

       thereon. On September 20, 2019, the trial court held a final pre-trial hearing

       where, upon inquiry by Meineke’s counsel, the trial court indicated that it had

       not yet ruled on Meineke’s motion to strike portions of the Affidavit. Later that

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 7 of 18
       day, the trial court issued a written order striking the portions of the Affidavit

       referring to a high concentration of mold in the SUV but ruling that references

       by Alexander that the mold found on the SUV’s carpet was the cause of his

       symptoms was admissible.


[12]   On December 3, 2019, the trial court convened a two-day jury trial on

       Alexander’s complaint. The jury rendered a verdict in favor of Alexander and

       awarded damages in the amount of $150,000. Meineke did not file a motion to

       correct error following the entry of judgment.


[13]   Meineke now appeals, and Alexander cross-appeals. Additional facts will be

       provided as necessary.


                               DISCUSSION AND DECISION
                                              I. Standard of Review

[14]   Summary judgment is appropriate if the designated evidence “shows that there

       is no genuine issue as to any material fact and that the moving party is entitled

       to judgment as a matter of law.” Ind. Trial Rule 56(C). We review both the

       grant or denial of summary judgment de novo and apply the same standard as

       the trial court. Kerr v. City of South Bend, 48 N.E.3d 348, 352 (Ind. Ct. App.

       2015). The party moving for summary judgment bears the initial burden of

       making a prima facie showing that there are no genuine issues of material fact

       and that it is entitled to judgment as a matter of law. Sargent v. State, 27 N.E.3d

       729, 731 (Ind. 2015). Meeting this standard is difficult for the moving party,

       for, unlike federal practice where the moving party may prevail merely by

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 8 of 18
       showing that the party carrying the burden of proof at trial lacks evidence on a

       necessary element, in Indiana, we require that the moving party affirmatively

       “‘negate an opponent’s claim.’” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind.

       2014) (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118,

       123 (Ind. 1994)). “Summary judgment is improper if the movant fails to carry

       its burden, but if it succeeds, then the nonmoving party must come forward

       with evidence establishing the existence of a genuine issue of material fact.”

       Sargent, 27 N.E.3d at 731-32. “All disputed facts and doubts as to the existence

       of material facts must be resolved in favor of the non-moving party.” Kerr, 48

       N.E.3d at 352. As the party appealing the trial court’s denial of summary

       judgment, Meineke has the burden to persuade us that the trial court’s ruling

       was improper. Ind. Mich. Power Co. v. Runge, 717 N.E.2d 216, 227 (Ind. Ct.

       App. 1999).


[15]   In addition, we note that the trial court did not enter findings of fact or detailed

       conclusions of law in support of its judgment. Special findings are not required

       in summary judgment proceedings and are not binding on appeal.

       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale for its review and facilitate appellate review. Id.


                                                   II. Causation

[16]   Alexander’s complaint alleged that Meineke negligently repaired the SUV’s air

       conditioning system, causing him personal injury. In order to prevail in a

       negligence suit, a plaintiff must prove “three elements: (1) a duty on the part of

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 9 of 18
       the defendant in relation to the plaintiff; (2) a failure by the defendant to

       conform its conduct to the requisite standard of care; and (3) an injury to the

       plaintiff proximately caused by the failure.” Coleman v. Charles Court, LLC, 797

       N.E.2d 775, 788 (Ind. Ct. App. 2003). To prevail on a motion for summary

       judgment in a negligence suit, a defendant must show that the undisputed facts

       negate at least one of these elements. Id.


[17]   Here, Meineke argues that the undisputed facts showed no causation between

       the mold in the SUV and Alexander’s reported symptoms. In toxic tort cases

       such as this, causation is typically analyzed in terms of ‘generic’ and or

       ‘individual’ causation, both of which must be established by the plaintiff. 7-

       Eleven v. Bowens, 857 N.E.2d 382, 389 (Ind. Ct. App. 2006). “General, or

       ‘generic’ causation has been defined by courts to mean whether the substance at

       issue had the capacity to cause the harm alleged, while ‘individual causation’

       refers to whether a particular individual suffers from a particular ailment as a

       result of exposure to a substance.” Id. An expert’s opinion is not sufficient to

       show specific causation if it is based only upon a temporal relationship between

       an event and a subsequent medical condition. Outlaw v. Erbrich Products Co., 777

       N.E.2d 14, 29 (Ind. Ct. App. 2002), trans. denied. More specifically, we have

       held that testimony by an expert witness that exposure to a noxious substance

       caused a particular condition because the plaintiff was exposed and

       subsequently had symptoms was insufficient to establish causation without an

       analysis of the “level, concentration or duration of the exposure” to the

       substance in question and without sufficiently accounting for “the possibility of


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 10 of 18
       alternative causes[.]” See id. (finding expert testimony insufficient in a chemical

       exposure case).


[18]   Pursuant to Indiana’s summary judgment standard, in order to prevail on its

       motion, Meineke was required to affirmatively show that the mold found in the

       SUV was not the cause of Alexander’s symptoms. See Hughley, 15 N.E.3d at

       1004. In support of its motion for partial summary judgment, Meineke

       designated evidence that Aspergillus and Penicillium were found in the SUV,

       these molds do not normally produce illness unless a person is exposed to them

       in high concentrations, and there were only moderate levels of Aspergillus and

       Penicillium present in the SUV when testing was done after the parts and carpet

       were removed and stored in conditions which would encourage mold growth.

       With this evidence, Meineke met its burden of designating evidence tending to

       show that the Aspergillus and Penicillium found in the SUV could not have been

       the cause of Alexander’s symptoms because the evidence showed that the

       Aspergillus and Penicillium did not exist on the parts or carpet at a concentration

       sufficient to cause illness.


[19]   Because Meineke made its initial showing negating causation, the burden then

       shifted to Alexander to show that there was a genuine issue of material fact on

       that element. See Sargent, 27 N.E.3d at 731-32. In response to Meineke’s

       motion, Alexander designated the Affidavit in which he attempted to show

       causation in three ways, namely through his averments that (1) he was allergic

       to the Aspergillus and Penicillium found in the SUV; (2) as an expert, he found

       that there was a high concentration of mold in the SUV which made him sick;

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 11 of 18
       and (3) circumstantial evidence of the timing of Meineke’s work on the SUV

       and the onset of his symptoms showed causation. We conclude that none of

       these responses created a genuine issue of material fact.


[20]   As to his contention that he was allergic to Aspergillus and Penicillium,

       Alexander had testified at his deposition that he was not allergic to penicillin

       and that, as a medical doctor, he could not say that his symptoms were caused

       by Aspergillus. Meineke contends that at the beginning of the August 21, 2019,

       hearing, Alexander agreed to strike the averments in the Affidavit that he was

       allergic to penicillin. Although the trial court referred to an agreement to strike

       by the parties at the beginning of the hearing, the exact nature of that agreement

       is not in the record. Therefore, we did not consider any agreement to strike that

       testimony in rendering our decision. However, the Affidavit was squarely at

       odds with Alexander’s prior deposition testimony that he was not allergic to

       one allergen found in his SUV and the other allergen was not the source of his

       symptoms. The non-movant in a summary judgment proceeding may not

       create an issue of material fact merely by contradicting prior testimony. See

       King v. Ebrens, 804 N.E.2d 821, 825 (Ind. Ct. App. 2004) (“[A] party cannot

       create an issue of fact [to preclude summary judgment] by submitting an

       affidavit that contradicts prior deposition testimony.”).


[21]   Alexander argues that his deposition testimony that he was not allergic to

       penicillin and Aspergillus did not cause his symptoms was not properly

       designated to the trial court and is not part of the record on appeal. However,

       any objection Alexander may have had to our consideration of the portions of

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 12 of 18
       his deposition quoted in Meineke’s Reply is waived because he did not object to

       this material at the trial court level. See Wells Fargo Ins., Inc. v. Land, 932 N.E.2d

       195, 201 (Ind. Ct. App. 2010) (finding Wells Fargo’s challenge to deposition

       excerpts contained in Land’s reply to its opposition to summary judgment to be

       waived); see also Timberlake, Inc. v. O’Brien, 902 N.E.2d 843, 849 (Ind. Ct. App.

       2009) (holding that the rule that a party may not raise an issue for the first time

       on appeal applies equally to summary judgment proceedings). In addition,

       Meineke’s Reply quoting the challenged deposition testimony was filed with the

       trial court, and, therefore, contrary to Alexander’s assertions, Meineke has not

       improperly included material in its Appendix that was not before the trial court.


[22]   Neither did Alexander’s averment that, in his expert opinion, there was a high

       concentration of mold in the SUV that made him sick create an issue to be

       resolved by the jury. In his response to Request No. 12, Alexander had

       admitted that he did not have a measurement of the alleged concentration or

       level of mold in the SUV before the parts and carpet were removed, which

       would have been the period of time during which he developed his symptoms.

       Once Alexander made this admission, he was bound by it. See Gen. Motors

       Corp., Chevrolet Motor Div. v. Aetna Cas. & Sur. Co., 573 N.E.2d 885, 888 (Ind.

       1991) (observing that matters admitted pursuant a Trial Rule 36(B) requests for

       admissions are conclusively established). By averring that there was a high

       concentration of mold in his SUV which made him ill, Alexander offered a

       measurement of the concentration or level of mold in the SUV prior to the

       removal of the parts and carpet, a measurement which had already been


       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 13 of 18
       conclusively established did not exist. After Alexander admitted that the

       measurement did not exist, there was nothing remaining for the jury to resolve

       regarding that fact. In addition, as already noted, Alexander could not create a

       genuine issue of material fact by contradicting himself. See King, 804 N.E.2d at

       825.


[23]   Alexander also averred in the Affidavit that he did not experience symptoms

       before Meineke worked on his SUV, he did have symptoms after Meineke

       worked on the SUV, and that, after having the air conditioning repaired by the

       dealership and having the parts and carpet removed, his symptoms did not

       progress. Alexander argues that this circumstantial evidence created a factual

       issue on the element of causation, but this is precisely the type of opinion based

       on a purely temporal relationship between an event and a subsequent medical

       condition which this court has found to be inadequate to show causation. See

       Hannan v. Pest Control Servs., Inc., 734 N.E.2d 674, 682 (Ind. Ct. App. 2000)

       (holding that Hannan’s causation experts’ testimony did not establish causation

       where it was apparent they relied “on a mere temporal coincidence of the

       pesticide application and the Hannans’ alleged and self-reported illness.”), trans.

       denied.


[24]   Alexander directs our attention to the trial court’s instructions to the jury that

       he contends indicate that the jury’s verdict in his favor was not based on

       speculation, and he argues that we should not reverse the trial court’s denial of

       partial summary judgment because the matter had already proceeded to trial.

       However, the trial court’s instructions to the jury have no relevance to our

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 14 of 18
       consideration of summary judgment proceedings, and it has long been the rule

       in Indiana that parties are allowed to appeal the denial of summary judgment,

       even after a trial on the merits as taken place. See WESCO Distrib., Inc. v.

       ArcelorMittal Ind. Harbor LLC, 23 N.E.3d 682, 696 (Ind. Ct. App. 2014) (“[T]he

       denial of a motion for summary judgment is reviewable on appeal even

       following a trial on the merits.”), trans. dismissed; see also Keith v. Mendus, 661

       N.E.2d 26, 35 (Ind. Ct. App. 1996) (collecting cases).


[25]   Meineke made the required prima facie showing negating the element of

       causation in Alexander’s claim which Alexander did not rebut with evidence

       showing that a genuine issue of material fact remained for resolution by the

       jury. Accordingly, the trial court erred when it denied Meineke’s motion for

       partial summary judgment. We reverse the denial of partial summary judgment

       and enter summary judgment for Meineke on Alexander’s personal injury

       claims. The effect of our decision is to vacate the portion of the jury’s verdict

       and damages award relating to Alexander’s personal injury claims. It is unclear

       from the record before us how the jury’s damages award was apportioned

       between Alexander’s personal injury and property damage claims. Therefore,

       we remand for entry of a revised damages award consistent with this opinion.

       In addition, our resolution of this issue renders it unnecessary for us to consider

       the issue of the timing of trial court’s ruling on Meineke’s motion to strike, and,

       in the interests of judicial economy, we do not address it.




       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 15 of 18
                                            CROSS-APPEAL
[26]   On cross-appeal, Alexander argues that Indiana Trial Rule 56(E) mandates the

       filing of a motion to correct error before appealing the denial of a summary

       judgment motion and that Meineke’s failure to pursue a motion to correct error

       was fatal to its appeal. Alexander, therefore, urges us to dismiss Meineke’s

       appeal. Resolution of this issue will necessitate our examination and

       interpretation of the Trial Rules, which are interpreted according to rules of

       statutory construction. Lutheran Health Network of Ind., LLC v. Bauer, 139

       N.E.3d 269, 281 (Ind. Ct. App. 2019).


[27]   Trial Rule 56(E) provides in relevant part that a “[d]enial of summary judgment

       may be challenged by a motion to correct errors after a final judgment or order

       is entered.” Although recognizing that the word ‘may’ normally indicates that

       an action is permissive and not mandatory, Alexander, argues that according to

       the rules of statutory construction,


               where, from a consideration of the entire statute, and its nature
               and object, it appears that the intent of the legislature was to
               impose a positive duty rather than a discretionary power, the
               word “may” will be held to be mandatory.


       (Cross-Appellant Br. p. 19) (citing 26 Ind. Law Encyc. Statutes § 66).

       Therefore, Alexander’s argument continues, because motions to correct error

       were a prerequisite to appeal at the time the Trial Rules were adopted, the use

       of the word ‘may’ in T.R 56(E) should be construed as meaning that motions to

       correct error are mandatory to perfect an appeal.

       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 16 of 18
[28]   We disagree. T.R. 59(A) provides that a motion to correct error is not a

       prerequisite for appeal, except when a party seeks to address newly discovered

       evidence or a claim that a jury’s verdict is excessive or inadequate. Neither of

       those circumstances is implicated by this case. T.R. 59(A) also provides that

       “[a]ll other issues and grounds for appeal appropriately preserved during trial

       may be initially addressed in the appellate brief.” We are obliged by the rules of

       statutory construction to read statutes concerning the same subject matter

       together in a manner that harmonizes them and gives effect to each. Peoples

       State Bank v. Benton Tp. of Monroe Cty., 28 N.E.3d 317, 323 (Ind. Ct. App. 2015).

       Accepting Alexander’s interpretation of T.R. 56(E) would deprive T.R. 59(A)

       of its effect. An interpretation that harmonizes both Rules and gives effect to

       each is that a motion to correct error is not required before pursuing an appeal

       of the denial of a motion for summary judgment. We accept the latter

       interpretation and conclude that Meineke was not required to file a motion to

       correct error prior to filing the instant appeal. Accordingly, we deny

       Alexander’s cross-appeal.


                                             CONCLUSION
[29]   Based on the foregoing, we conclude that no genuine issue of fact existed

       precluding partial summary judgment in favor of Meineke on Alexander’s

       personal injury claims. We also conclude that Meineke was not required to file

       a motion to correct error prior to initiating the instant appeal.


[30]   Reversed, summary judgment entered for Meineke, and remanded for entry of

       damages consistent with this opinion. Cross-appeal denied.
       Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 17 of 18
Mathias, J. and Tavitas, J. concur




Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020   Page 18 of 18
