Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020 Page 1 of 18

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Robert E. Ahlgrim

State Auto Insurance

Carmel, Indiana

ATTORNEYS FOR APPELLEE

Patrick W. Harrison

Columbus, Indiana

David W. Stone

Anderson, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Brycor, Inc. d/b/a Meineke Car 

Care Center,

Appellant-Defendant,

v.

Anthony Alexander,

Appellee-Plaintiff.

July 22, 2020

Court of Appeals Case No.

19A-CT-2963

Appeal from the Floyd Superior 

Court

The Honorable Susan L. Orth, 

Judge

Trial Court Cause No.

22D01-1701-CT-139

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CT-2963 | July 22, 2020 Page 2 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 crossappeals.

[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 3 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 4 of 18

“Aspergillus/Penicillium-like fungi” on the carpet and low-to-very-low levels of 

various other fungi1 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 5 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 6 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 7 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 8 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 9 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 10 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 of 18

Mathias, J. and Tavitas, J. concur