MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 31 2017, 10:53 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Jean M. Blanton Charles L. Berger
Clifford R. Whitehead Berger & Berger, LLP
Ziemer Stayman Weitzel & Evansville, Indiana
Shoulders, LLP
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Vanderburgh County, Indiana, May 31, 2017
Appellant-Defendant, Court of Appeals Case No.
74A04-1610-PL-2409
v. Appeal from the Spencer Circuit
Court
Mike Hertweck, on behalf of The Honorable Jonathon A. Dartt,
himself and all others of the Special Judge
Vanderburgh County Sheriff’s Trial Court Cause No.
Department similarly situated, 74C01-0510-PL-404
Appellee-Plaintiff.
Robb, Judge.
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Case Summary and Issue
[1] In 1999, Mike Hertweck—on behalf of himself and all other Vanderburgh
County Sheriff’s Department members similarly situated—sued Vanderburgh
County claiming the County failed to provide overtime compensation.
Seventeen and one-half years later, the trial court denied the County’s motion
for summary judgment. The County now appeals, raising four issues for our
review, which we consolidate and restate as whether the trial court erred in
denying the County’s motion for summary judgment. Concluding the trial
court erred in denying the County’s motion and the County is entitled to
judgment as a matter of law, we reverse and remand.
Facts and Procedural History
[2] In the months of January through March 1984, Hertweck was an at-will
employee of the Vanderburgh County Sheriff’s Department training as a
probationary deputy at the Indiana Law Enforcement Academy (“ILEA”).1
The training schedule provided Hertweck would spend twelve weeks training
for forty hours a week for a total of 480 hours. However, Hertweck worked
approximately 750 hours during his time at the ILEA and the County did not
compensate him for overtime. On February 26, 1999, Hertweck filed a class
action complaint against the County alleging the County violated state law in
1
References to Hertweck are references to Hertweck individually and as representative of the class.
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failing to compensate for overtime. On July 13, 2015, the County moved for
summary judgment, which the trial court denied. This appeal ensued.
Discussion and Decision
I. Standard of Review
We review an appeal of a trial court’s ruling on a motion for
summary judgment using the same standard applicable to the
trial court. Summary judgment is appropriate only if the
evidence designated by the parties shows that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law. All facts and reasonable
inferences drawn from the facts are construed in favor of the non-
moving party. When material facts are not in dispute, our review
is limited to determining whether the trial court correctly applied
the law to the undisputed facts. We review a question of law de
novo.
Wynkoop v. Town of Cedar Lake, 970 N.E.2d 230, 233 (Ind. Ct. App. 2012)
(citations and quotations omitted), trans. denied.
II. Breach of Contract
[3] The County contends the trial court erred in denying its motion for summary
judgment, arguing Hertweck’s claim is waived for failure to comply with
Indiana’s notice pleading requirements.2 We agree.
2
The County raised this argument in its motion for summary judgment and in its brief. Hertweck did not
respond to this argument at any point.
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[4] Instituted in 1970, Indiana’s notice pleading system provides that pleadings
need not adopt a specific legal theory of recovery to be adhered to throughout
the case, but the pleadings must plead the operative facts so as to notify the
defendant of the evidence to be presented at trial. Stryczek v. Methodist Hosps.,
Inc., 694 N.E.2d 1186, 1191 (Ind. Ct. App. 1998), trans. denied. Here,
Hertweck’s complaint raises one claim broadly alleging members of the
Vanderburgh County Sheriff’s Department, including himself, were “deprived
of compensation for overtime” in violation of “certain laws of this state.”
Appellant’s Appendix, Volume 2 at 24-25. Hertweck did not allege the County
violated any federal statutes or common law, nor did he cite to a specific state
law he believed the County violated. Now, Hertweck appears to have given up
on his claim the County violated state law.3 As stated in his brief in opposition
to the County’s motion for summary judgment and again in his Brief of
Appellee, Hertweck’s current claim is the County violated its own personnel
policy in failing to compensate Hertweck for overtime. Stated differently,
Hertweck is now proceeding with a common-law breach of contract claim. As
the County properly asserts, Hertweck’s complaint is completely devoid of any
operative facts pertaining to a breach of contract claim apart from his central
3
Even assuming Hertweck proceeded under the theory the County violated state law, our review indicates
the only state law potentially applicable to this case is the Indiana Minimum Wage Law. The Indiana
Minimum Wage Law, however, dictates that employers who are subject to the minimum wage provision of
the Fair Labor Standards Act (“FLSA”) are not governed by the Indiana Minimum Wage Law. Ind. Code §
22-2-2-3 (defining “Employer”). The FLSA’s definition of an employer includes public agencies, 29 U.S.C. §
203(d), and political subdivisions of a state are included within the definition of public agencies, 29 U.S.C. §
203(x). Indiana defines counties of the State as political subdivisions. Ind. Code § 34-6-2-110. Therefore,
the County is governed by the FLSA, not the Indiana Minimum Wage Law.
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claim he was not compensated for overtime.4 For this reason, Hertweck’s claim
for breach of contract is waived and the County is entitled to judgment as a
matter of law.
Conclusion
[5] The trial court erred in denying the County’s motion for summary judgment.
Accordingly, we reverse and remand to the trial court with instructions to enter
judgment in favor of the County.
[6] Reversed and remanded.
Vaidik, C.J., and Bailey, J., concur.
4
We take this opportunity to address a general concern. The designated evidence indeed establishes the
County’s personnel policy, which the County adopted by ordinance, includes a provision that certain
employees of the County are entitled to overtime compensation. However, because we conclude Hertweck
waived any breach of contract claim, we need not address whether this policy would otherwise entitle
Hertweck to relief. Nonetheless, language such as this that is often included in local personnel ordinances or
employee manuals typically has the effect of encouraging employees into believing they have legal rights even
though ordinances and employee manuals are often not legally binding in cases such as this. See, e.g.,
Wynkoop, 970 N.E.2d at 239 (Robb, J., concurring in result).
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Vanderburgh County, Indiana v. Mike Hertweck, on behalf of himself and all others of the Vanderburgh County Sheriff's Department similarly situated (mem. dec.)
Combined Opinion