Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019 Page 1 of 14

ATTORNEYS FOR APPELLANT

Siobhán M. Murphy

Benjamin C. Hoffman

Lewis Brisbois Bisgaard & Smith LLP

Indianapolis, Indiana

Brian P. Graffeo

Joel Plainfield

Kaplan, Williams, Graffeo & Stern LLC

Morristown, New Jersey

ATTORNEYS FOR APPELLEE

George A. Gasper

Derek R. Molter

Audrey K. Howard

Ice Miller LLP

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

SGS North America, Inc.,

Appellant-Defendant,

v.

Christine Mullholand, as 

Stockholder Representative of 

Cybermetrix, Inc.,

Appellee-Plaintiff

November 14, 2019

Court of Appeals Case No.

19A-PL-1283

Appeal from the Marion Superior 

Court

The Honorable Heather A. Welch, 

Judge

Trial Court Cause No.

49D01-1812-PL-48315

Crone, Judge.

 
Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019 Page 2 of 14

Case Summary

[1] This case arises from a dispute concerning whether purchasers owe sellers what 

is commonly referred to as an “earnout” under a stock purchase agreement.

SGS North America, Inc. (“SGS”), appeals the trial court’s order granting an 

application to confirm arbitration award filed by Christine Mullholand, as 

stockholder representative for the stockholders of Cybermetrix, Inc.

(respectively “Mullholand” and “CMX”). In brief, Mullholand sold her 

company, CMX, to SGS and, in addition to the base purchase price, SGS 

agreed to pay CMX stockholders certain amounts (earnouts) contingent upon 

CMX’s 2015 earnings before interest, taxes, depreciation, and amortization 

(“EBITDA”) and CMX’s 2015 and 2016 combined EBITDA. SGS paid the 

first contingent payment but not the second, claiming that CMX’s 2015 and 

2016 combined EBITDA did not meet the applicable threshold for the second 

contingent payment. Pursuant to the relevant provision of the parties’ purchase 

agreement, the parties hired an auditor to perform an independent audit of 

CMX’s 2015 and 2016 combined EBITDA and to resolve the earnout dispute. 

The auditor determined that CMX’s 2015 and 2016 combined EBITDA met the 

threshold and entered a “final, conclusive, and binding” determination 

awarding the stockholders the second contingent payment of $3,000,000 plus a 

portion of the auditor’s fees. SGS disagreed with the determination and refused 

to pay, so Mullholand filed the current claim to enforce the auditor’s 

determination, characterizing such as a binding arbitration award. The Marion 
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County Commercial Court agreed with Mullholand and entered an order 

confirming the award and entering judgment in Mullholand’s favor. We affirm.

Facts and Procedural History

[2] CMX is an engineering and consulting business that provides management, test 

system design services, and engineering services. Mullholand founded and then 

operated CMX in Columbus for approximately twenty-five years until, on 

February 1, 2016, Mullholand and SGS entered into a stock purchase 

agreement (“the Purchase Agreement”) for the sale and purchase of all the 

issued and outstanding shares of CMX’s capital stock. SGS is a New Jersey 

corporation that is a subsidiary of an international corporation, SGS SA, that 

provides services similar to CMX. The Purchase Agreement provided a 

$21,000,000 base purchase price plus an additional contingent purchase price 

mechanism whereby stockholders would potentially receive additional 

payments from SGS (“First Contingent Payment” and “Second Contingent 

Payment”) based on whether CMX’s 2015 and 2016 EBITDA exceeded certain 

threshold amounts. Specifically, as the First Contingent Payment, the 

stockholders would receive an earnout of $4,000,000 if CMX’s 2015 EBITDA 

was between $4,146,048 and $4,606,720, or an earnout of $5,000,000 if CMX’s 

2015 EBITDA was equal to or greater than $4,606,720. Appellant’s App. Vol. 

3 at 25. As the Second Contingent Payment, the stockholders would receive an 

earnout of $8,000,000 (minus the First Contingent Payment) if CMX’s 2015 

and 2016 combined EBITDA was between $8,915,067 and $9,905,630, or an 
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earnout of $10,000,000 (again minus the First Contingent Payment) if CMX’s

2015 and 2016 combined EBITDA was equal to or greater than $9,905,630. Id.

[3] CMX’s EBITDA for 2015 exceeded the applicable threshold of $4,606,720, and 

SGS paid the stockholders the First Contingent Payment of $5,000,000. 

However, according to SGS’s calculations, CMX’s 2015 and 2016 combined 

EBITDA did not meet the applicable threshold for the Second Contingent 

Payment. On February 28, 2017, SGS submitted a price report to Mullholand 

with SGS’s calculations showing that CMX’s 2015 and 2016 combined 

EBITDA fell just below the threshold amount set forth in the Purchase 

Agreement and stating that SGS believed that a Second Contingent Payment 

was not owed to the stockholders. Mullholand provided written notice to SGS 

of the stockholders’ objection to SGS’s submission.

[4] The parties were ultimately unsuccessful in resolving their disagreement as to 

SGS’s calculations of CMX’s 2015 and 2016 combined EBITDA and whether 

the Second Contingent Payment was owed. Section 2.7(b) of the Purchase 

Agreement provided a binding dispute resolution procedure for such disputes 

which stated in relevant part:

In the event that the Stockholder Representative [i.e., 

Mulholland] objects to the [Contingent Purchase Price Report] 

submissions made by the Purchaser, the Purchaser and the 

Stockholder Representative shall use reasonable efforts to resolve 

any such objections. If no resolution is reached..., the Purchaser 

and the Stockholder Representative shall submit the issue to the 

Designated Auditor to review the submission. The Designated 

Auditor, shall, after reviewing all relevant matters as it deems 
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appropriate, deliver to the Stockholder Representative and the 

Purchaser a Designated Auditor Statement setting forth its 

calculations of EBITDA and the Contingent Purchase price (if 

any) payable, which shall be final and binding upon all of the 

parties to this Agreement.

Id. at 29.

[5] Accordingly, in July 2018, SGS and Mullholand retained Ernst and Young,

LLP (“EY”),

1

to serve as the Designated Auditor and to calculate CMX’s 

applicable EBITDA and to render a determination, delivered in the form of the 

“Designated Auditor Statement,” that would be final and binding upon the 

parties, as contemplated by the Purchase Agreement. The agreement between 

the parties and EY was memorialized in an engagement agreement (“EY

Engagement Agreement”). The EY Engagement Agreement provided that

each party “shall cooperate fully with the Designated Auditor during the 

arbitration” and provided a schedule of deadlines for “the arbitration,” and the 

parties agreed that “the Designated Auditor Statement will be conclusive and 

binding upon them with respect to the disputed items it addresses.” Id. at 107-

111 (emphases added). 

1 The Purchase Agreement provided that the “Designated Auditor” would be EY or “any other mutually

acceptable independent certified public accountant.” Appellant’s App. Vol. 3 at 28. Emails between counsel

for the parties indicate that Mullholand’s counsel suggested PricewaterhouseCoopers as “one of the leading 

arbitrators for earn-out disputes like this,” but SGS’s counsel responded, “[W]e would prefer to stick with 

[EY] as the designated auditor.” Appellee’s App. Vol. 2 at 31. Thereafter, Mullholand’s counsel “identified 

Christen Morand with [EY] to serve as the arbitrator in this case” to which SGS’s counsel “d[id] not have

any objection.” Id. at 30.
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[6] The parties submitted voluminous materials to EY over the next several 

months. EY spent 415 hours evaluating the parties’ submissions and issued an 

extensive and detailed Designated Auditor Statement on November 1, 2018. In 

short, EY determined that CMX’s 2015 and 2016 combined EBITDA met the 

threshold requirement for a Second Contingent Payment and that the 

stockholders were entitled to $3,000,000 plus half the fees and expenses

advanced to EY as the Designated Auditor ($107,000). The Designated

Auditor Statement provided that, per the Purchase Agreement and the EY 

Engagement Agreement, this decision was “final, conclusive, and binding.” Id. 

at 134.

[7] On November 28, 2018, SGS requested that EY review the findings contained 

in the Designated Auditor Statement or, in the alternative, provide SGS with 

certain clarifications. EY declined SGS’s request, reiterating to SGS that 

pursuant to the terms of the Purchase Agreement, the Designated Auditor 

Statement was “final, conclusive, and binding” on the parties. Appellant’s 

App. Vol. 2 at 20. Section 2.3(c)(ii) of the Purchase Agreement provided that 

SGS was to pay the stockholders the amount awarded within twenty days of the

release of the Designated Auditor Statement. SGS did not make payment to 

the stockholders.

[8] On January 11, 2019, Mullholand filed an amended complaint for confirmation

of arbitration award or, in the alternative, complaint for breach of contract in 
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the Marion County Commercial Court.

2 Specifically, Mullholand requested 

that the trial court confirm EY’s $3,107,000 award in the stockholders’ favor 

and enter judgment pursuant to Indiana’s Uniform Arbitration Act, Indiana 

Code Chapter 34-57-2. In the alternative, Mullholand asserted that even if EY’s 

decision did not constitute a binding arbitration decision, SGS’s refusal to 

honor EY’s decision was a breach of the Purchase Agreement. On February 7,

2019, Mullholand filed an application for confirmation of arbitration award, or 

in the alternative, a motion for summary judgment on the breach of contract

claim. In response, SGS filed a motion to dismiss Mullholand’s amended 

complaint pursuant to Indiana Trial Rule 12(B)(6) or, in the alternative, a 

motion to compel arbitration and stay the action. SGS argued that EY’s

determination did not constitute an arbitration award and thus Mullholand 

failed to state a claim upon which relief could be granted. In the alternative, 

SGS argued that the EY Engagement Agreement provided that any disputes 

regarding EY’s calculations were themselves subject to arbitration and thus the 

court should stay the action and compel arbitration.

[9] The trial court held a hearing on all pending motions on April 10, 2019. 

Thereafter, the trial court entered its order granting Mullholand’s application to

confirm the arbitration award and denying SGS’s motion to dismiss. The court 

concluded pursuant to Delaware law, which governs the interpretation of the 

Purchase Agreement, that the parties unambiguously agreed to arbitrate 

2 Mullholand filed her original complaint on December 5, 2018.
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earnout disputes, that EY’s determination constituted an arbitration award, and 

that SGS is bound by that determination. The trial court did not address

Mullholand’s alternative request for summary judgment on the breach of 

contract claim. The trial court entered judgment in favor of Mullholand for

$3,107,200, plus interest. This appeal ensued.

Discussion and Decision

[10] SGS contends that the trial court erred in granting Mullholand’s application to 

confirm arbitration award and, for the same reasons, in denying SGS’s Indiana 

Trial Rule 12(B)(6) motion to dismiss for failure to state a claim. The

dispositive issue in this appeal is whether the parties clearly and intentionally 

agreed to arbitrate earnout disputes in the Purchase Agreement, making EY’s

determination tantamount to an arbitration award that was properly confirmed, 

rather than dismissed, by the trial court upon Mullholand’s application. 

[11] As we are presented with an issue of contract interpretation, our appellate 

standard of review is well settled. The interpretation of a contract is a pure 

question of law that is reviewed de novo. Maynard v. Golden Living, 56 N.E.3d 

1232, 1238 (Ind. Ct. App. 2016). This Court owes no deference to the trial 

court’s determination of questions of law. 2513-2515 S. Holt Rd. Holdings, LLC v. 

Holt Rd., LLC, 40 N.E.3d 859, 865 (Ind. Ct. App. 2015). Similarly, we review 

de novo a trial court’s grant or denial of a motion to dismiss for failure to state a 

claim pursuant to Indiana Trial Rule 12(B)(6), again giving no deference to the 
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trial court’s decision. EngineAir, Inc. v. Centra Credit Union, 107 N.E.3d 

1061,1065 (Ind. Ct. App. 2018).

[12] It is undisputed that while Indiana law governs any procedural questions 

involved,

3 pursuant to the Purchase Agreement’s choice of law provision, 

Delaware substantive law governs our resolution of the dispositive issue on 

appeal. We begin by noting that “arbitration” is defined as “[a] disputeresolution process in which the disputing parties choose one or more neutral 

third parties to make a final and binding decision resolving the dispute.” 

BLACK’S LAW DICTIONARY (11th ed. 2019). Regarding agreements to arbitrate, 

the Supreme Court of Delaware has stated generally that

[t]he public policy of Delaware favors arbitration. In a 

proceeding to stay or to compel arbitration, the question of 

whether the parties agreed to arbitrate, commonly referred to as 

“substantive arbitrability,” is generally one for the courts and not 

for the arbitrators. In determining arbitrability, the courts are 

confined to ascertaining whether the dispute is one that, on its 

face, falls within the arbitration clause of the contract. Courts 

may not consider any aspect of the merits of the claim sought to 

be arbitrated, no matter how frivolous they appear. Any doubt as 

3

Indiana’s Uniform Arbitration Act provides, among other things, a mechanism for enforcing agreements to 

arbitrate. Marion Cmty. Sch. Corp. v. Marion Teachers Ass’n, 873 N.E.2d 605, 608 (Ind. Ct. App. 2007). 

Indiana Code Section 34-57-2-12 provides in relevant part: “Upon application of a party ... the court shall 

confirm an award.... Upon confirmation, the court shall enter a judgment consistent with the award and 

cause such entry to be docketed as if rendered in an action in the court.” Section 34-57-2-15 provides in 

relevant part: “Upon the granting of an order confirming, modifying, or correcting an award, judgment or 

decree shall be entered in conformity therewith and be enforced as any other judgment or decree.” Section 

34-57-2-16 provides in relevant part that “an application to the court under this chapter shall be by motion 

and shall be heard in the manner and upon the notice provided by law or rule of court for the making and 

hearing of motions.” Our supreme court has explained that “[c]onfirmation is a purely procedural 

mechanism by which a court converts an arbitration award into a judgment for enforcement purposes.” Nat’l 

Wine & Spirits, Inc. v. Ernst & Young, LLP, 976 N.E.2d 699, 705 (Ind. 2012), cert. denied (2013).
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to arbitrability is to be resolved in favor of arbitration. A court 

will not compel a party to arbitrate, however, absent a clear 

expression of such an intent.

SBC Interactive, Inc. v. Corp. Media Partners, 714 A.2d 758, 761 (Del. 1998)

(citations omitted).

[13] Accordingly, the contract must reflect that the parties clearly and intentionally 

bargained for whether and how to arbitrate. Kuhn Constr., Inc. v. Diamond State 

Port Corp., 990 A.2d 393, 396 (Del. 2010). Courts will not enforce a contract 

that unclearly or ambiguously reflects the intention to arbitrate. Id.

4

“Ambiguity exists ‘when the provisions in controversy are reasonably or fairly 

susceptible to different interpretations.’” Id. (citations omitted). A trial judge 

must review a contract for ambiguity through the lens of “what a reasonable 

person in the position of the parties would have thought the contract meant.”

Id. (citations omitted). The contract is read as a whole, and each provision and 

4

SGS goes to great lengths to make sure that this Court, unlike the trial court, accords no weight to 

Delaware’s public policy favoring the enforcement of arbitration agreements. To do so, SGS painstakingly 

explains to us the difference between answering the threshold question of whether there is an enforceable

agreement to arbitrate in the first place and the question of whether the disputed matter is the type of claim 

that the parties agreed to arbitrate, as only the former is at issue here. See Appellant’s Br. at 33 (citing Graham 

v. State Farm Mut. Auto, Ins. Co., 565 A.2d 908, 910 (Del. 1989) (noting that the public policy is rooted in a 

desire to rebuke “the old judicial hostility to arbitration” and accept agreements to arbitrate)). Stated another 

way, the public policy favoring arbitration presupposes that the parties clearly and intentionally bargained for 

arbitration. See Parfi Holding AB v. Mirror Image Internet, Inc., 817 A.2d 149, 156 (Del. 2002) (the policy 

favoring alternative dispute resolution mechanisms such as arbitration does not trump basic principles of 

contract interpretation, including the principle that a court will not compel a party to arbitrate absent a clear 

expression of such intent) (citation omitted). We assure SGS that we are well versed in the legal principles 

involved in the question we have been asked to address, as Indiana and Delaware law are in agreement on

this issue. See MPACT Constr. Grp., LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 907 (Ind. 2004) 

(“Only after it has been determined that the parties agreed to arbitrate their disputes does the policy favoring 

arbitration play an important role.”).
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term is given effect, so as not to render any part of the contract mere surplusage. 

Id. at 397. The absence of the “express” or “magic” word “arbitration’” does 

not render a contract ambiguous, nor is such term required to support a finding 

that the parties clearly and intentionally agreed to arbitrate. See id.

[14] Upon review of the contract at issue here, specifically the language of Section 

2.7(b) of the Purchase Agreement, we have little difficulty concluding that the 

parties clearly and intentionally agreed to arbitrate earnout disputes, and to do 

so through the Designated Auditor process. Although the term “arbitration”

does not appear, the agreement here delegates to the Designated Auditor broad 

authority to consider evidence, make determinations, and conclusively resolve

any earnout dispute arising under Section 2.7(b). This provision is not 

reasonably or fairly susceptible to different interpretations, and reasonable 

persons in the position of the parties would have thought that they were 

selecting a form of dispute resolution that placed final and binding resolution of

earnout disputes within the sole authority of the Designated Auditor. The 

provision clearly and unambiguously reflects the parties’ intention to arbitrate.

[15] SGS suggests that rather than evincing a clear intention to arbitrate, Section 

2.7(b) merely calls for an “expert determination” of earnout disputes. We 

acknowledge that Delaware law maintains a distinction between an arbitration 

and an expert determination. See Penton Bus. Media Holdings, LLC v. Informa 

PLC, 2018 WL 3343495, at *7-11 (Del. Ch. July 9, 2018) (providing 

comprehensive overview of Delaware law discussing differences between

arbitration and expert appraisal). However, in doing so, Delaware courts look 
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to the type and scope of authority given the neutral third party to resolve the 

dispute in question. Id. Specific limiting language providing that an 

independent auditor is acting “as an expert and not as an arbitrator” clearly 

narrows the scope of the auditor’s role and evinces the parties’ intentions that 

the auditor’s decision constitute an expert determination and not an arbitration. 

Chicago Bridge & Iron Co. N.V. v. Westinghouse Elec. Co., 166 A.3d 912, 930 (Del. 

2017). 

[16] There is no such stipulation or limiting language in the parties’ agreement here, 

leaving only language that clearly gives the Designated Auditor full and 

complete authority to act as an arbiter and issue a final and binding decision as 

to an earnout dispute. Indeed, the Designated Auditor is granted the authority 

not only to make EBITDA calculations (issues of fact), but also to determine 

SGS’s legal liability to pay the Second Contingent Payment (issue of law). This 

is exactly the type and scope of authority delegated to an arbitrator and not an 

expert. See Penton, 2018 WL 334395, at *15 (“If the proceeding is an 

arbitration, this means the parties have intended to delegate to the decision 

maker authority to decide all legal and factual issues necessary to resolve the 

matter.”) (citation omitted). If the parties here intended to limit the scope of the 

Designated Auditor’s authority, evincing an intent that the agreement be one 

for an expert determination rather than an arbitration, they could have easily 

done so. In fact, this practice has become the norm for parties seeking only an 

expert determination on a narrow issue involved in a larger dispute. See generally

id. at *13 (noting the standard use of limiting language, and that use of the
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expression ‘“as an expert and not as arbitrator’ is now so common that it is 

difficult to conceive of a case in which a court would not treat those words as

meaning exactly what they say.’”) (citations omitted). The specific language

used by the parties here, coupled with the lack of limiting language, indicates a 

clear intent to arbitrate.

5

[17] Regardless, it is evident that Delaware courts, much like Indiana courts, are less 

concerned with the exact nomenclature used by the parties than they are with

whether reasonable persons in the position of the parties would have thought 

they were clearly and intentionally agreeing to arbitrate. Thus, when a party, 

such as SGS, makes ambiguity arguments like those presented here, Indiana 

appellate courts have referred to Hoosier poet James Whitcomb Riley’s “Duck

Test” or to the famous Shakespeare quote, “What’s in a name? that which we 

call a rose/By any other name would smell as sweet.” See, e.g., Walczak v. Labor 

Works-Ft. Wayne LLC, 983 N.E.2d 1146, 1148 (Ind. 2013); Becker v. State, 992 

N.E.2d 697, 698 (Ind. 2013).

6

 The process agreed to by the parties in Section 

2.7(b) of the Purchase Agreement clearly sets out a binding dispute resolution 

procedure so similar to arbitration that reasonable persons would understand it

5 Both parties cite to countless unreported cases applying Delaware law as persuasive authority in support of 

their respective positions. We see no need to discuss or reproduce them all here. Rather, we have applied

Delaware law’s well-settled general principles of contract interpretation, and specifically arbitration 

agreements, to the specific and unique facts of this case.

6 As Whitcomb Riley expressed it, “[w]hen I see a bird that walks like a duck and swims like a duck and 

quacks like a duck, I call that bird a duck.” Walczak, 983 N.E.2d at 1148 (footnote omitted). Similarly, 

Gertrude Stein aptly answered Shakespeare’s question, “Rose is a rose is a rose is a rose.” Becker, 992 N.E.2d 

at 698 n.2.
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as a clear agreement to arbitrate. In other words, an arbitration agreement is an 

arbitration agreement is an arbitration agreement.

[18] We conclude that Section 2.7(b) of the Purchase Agreement clearly and 

unambiguously reflects the parties’ intention to arbitrate earnout disputes. 

Accordingly, we agree with Mullholand that EY’s determination of the parties’

earnout dispute constitutes a binding arbitration award.

7

 The trial court did not 

err in granting Mullholand’s application for confirmation of arbitration award

and in denying SGS’s motion to dismiss her application for the same reasons.

8

 

Therefore, we affirm the trial court’s entry of judgment in favor of Mullholand 

and against SGS for $3,107,200 plus appropriate interest.

[19] Affirmed.

Baker, J., and Kirsch, J., concur.

7 EY issued its Designated Auditor Statement on November 1, 2018. SGS had ninety days, or until January 

30, 2019, to file an application to vacate or modify that award with the trial court. See Ind. Code § 34-57-2-13 

(application to vacate award); Ind Code § 34-57-2-14 (application for modification or correction of award).

SGS did not do so. Accordingly, despite SGS’s continued disagreement with EY’s findings and award to 

Mullholand, we agree with the trial court’s statement that it is now without statutory authority to vacate or 

modify EY’s award.

8 Because we determine that the parties clearly and unambiguously agreed in the Purchase Agreement to 

arbitrate earnout disputes, we need not reach Mullholand’s alternative argument in her appellee’s brief that a 

second contract between the parties, the EY Engagement Agreement, also represents a clear and 

unambiguous agreement to arbitrate earnout disputes. We disagree, however, with SGS’s suggestion that it 

would be inappropriate for us to consider this alternative ground for affirming the trial court simply because it 

was neither raised by SGS nor specifically addressed by the trial court in its order confirming the arbitration 

award. It is well settled that an appellee may defend, and we may affirm, the trial court’s ruling on any 

grounds, whether or not the trial court considered those grounds. Citimortgage, Inc. v. Barabas, 975 N.E.2d 

805, 813 (Ind. 2012); J.M. v. Review Bd. of Ind. Dept. of Workforce Dev., 975 N.E.2d 1283, 1289 (Ind. 2012).