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.




Court of Appeals of Indiana | Memorandum Decision 74A04-1610-PL-2409 | May 31, 2017           Page 1 of 5
                                    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.


      Court of Appeals of Indiana | Memorandum Decision 74A04-1610-PL-2409 | May 31, 2017                  Page 2 of 5
      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.

      Court of Appeals of Indiana | Memorandum Decision 74A04-1610-PL-2409 | May 31, 2017            Page 3 of 5
[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.

      Court of Appeals of Indiana | Memorandum Decision 74A04-1610-PL-2409 | May 31, 2017                  Page 4 of 5
      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).

      Court of Appeals of Indiana | Memorandum Decision 74A04-1610-PL-2409 | May 31, 2017               Page 5 of 5
