Co urt of Appeals of Indiana | Opinion 19A

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A TTORNEY S FOR A PPELLANT Siobh á n 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 A TTORNEY S FOR A PPELLEE George A. Gasper Derek R. Molter Audrey K. Howard Ice Miller LLP Indianapolis, Indiana



### I N T H E 

# COURT OF APPE A L S OF INDIANA

SGS North America , Inc. , Appellant

- Defendant,

v.


### Christine Mullhol and, as Stockholder Representative of Cybermetrix, Inc. , Appellee

- Plaintiff November 14, 2019 Court of Appeals Ca se No. 19A

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- 1283 Appeal from the Marion Superior Court T h e H onorable Heather A. Welch , Judge Trial Court Cause No. 49D01

- 1812

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- 48315

Crone , Judge
.Co urt of Appeals of Indiana | Opinion 19A

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- 1283 | November 14, 2019 Page 2 of 14 

### C ase Summary

[1] T his case ar ises from a dispu te con ce rning whether purchasers owe sellers wh at is commonly referred to as a n “ earnout ” under a stock purchase agre eme nt

. SGS North America , Inc. ( “ SGS ” ) , appe als the trial court ’ s order granting an application t o confirm arbitration award filed by C hris tine M ul lholand, as

s tockholde r r epresentative for the s tockholders of Cybermet ri x, Inc. ( respec tively “ Mull ho land ” a nd “ CM X ” ). In brief, Mullholand sold her company, CM X, to SGS and, in addition to the base purchase price, SGS agreed to pay CM X stockhold ers ce rt ain am oun ts (earnouts) contin gent upon CM X ’ s 2015 earnings before in terest, ta xes, depre c iation , and amortiza tio n ( “ EBITDA ” ) and CM X ’ s 2015 and 2016 combined EBITDA

. SGS paid the first contingent payment but not the second, claiming that CM X ’ s 201 5 a nd
2016 combined EBI TDA did n o t meet the applicable threshold for the second contingent payment

. Pursuant to the r ele vant pr ovis io n of the part i e s ’ pu rchase
agreemen t , t he par ties hired an auditor to perform an independent audit of
CM X ’ s 2015 and 2016 c om bine d EBITDA and to re solve the earnout dispute

. The auditor determined that CM X ’ s 2015 a nd 2016 combined EBITDA m e t the
threshold and ent ered a “ final , conclusive, and binding ” determination award ing the sto ckhol der s the second contin gent payment of $3 , 000, 0 00 plus a portion of the au ditor ’ s f ee s

. SG S disagreed with the determination and refused to pay , so Mullhol an d f

iled the current claim to enforce the auditor ’ s determination, characterizing such as a binding arbitration award

. The MarionCo urt of Appeals of Indiana | Opinion 19A

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County Co mmerci al Court agreed wit h Mullho land and entere d an ord er confirming the award and entering judgment in Mullholand ’ s fa vor. We affirm.



### Fact s and Proc edur al History

[2] CMX is an engine ering an d consulting business that provides management , test system design se rvi ces , and engineering service s. Mull h olan d founded and then operated CMX in C olumbus for approx imat ely tw enty

- f ive years until , o n February 1, 2016, Mullholand and SGS entered into a stock purch ase agreement ( “ the Purchase Agreement ” ) for the sale an d purch ase of all the issued and out standing shar es of CM X ’ s ca pital stock

. SGS is a New Jersey corporation that is a s ubsidiary of an in ternation al corporation , SGS SA, that provi des services similar to CMX. The Purchase Agreement provided a $21,000,000 base purchase price plus an additi onal contin gent purchase price mechanism whe reby s tockholders would potentially re cei ve additional payments f

rom SGS ( “ First C ontingent Payment ” and “ Second C ontingent Payment ” ) based on whether CM X ’ s 2015 and 2016 EBITDA exc ee ded c ertain threshold amounts. Specific ally, as the First Conti ngent Payment, the

s to ckholders would rec eive a n e arnout o f $4,000 ,000 if CMX ’ s 2015 EB I TDA was between $4,146,048 and $ 4,606,720 , or an earnout of $5 ,000,000 if CM X ’ s 2015 EBITDA was eq

ual to or gr eater than $4, 606,720. A ppellant ’ s App. Vo l.
3 at 25. As the S econd C ontingent Payment, the s tockholder s w ould receive an earnout of $8,000,000 ( minus the First C ontingent Payment ) if CM X ’ s 2015 and 2016 combined EBITDA was between $8 , 915,067 and $ 9,905, 630 , or anCo urt of Appeals of Indiana | Opinion 19A

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e arnout of $ 10,000,000 ( again minu s the First Contingent Payment ) if CM X ’ s 2015 and 2016 co mbi n ed EBITDA was e qual to or greater than $9 ,905,630. Id

.

[3] CM X ’ s EBITDA for 2015 e xceeded th e applicable threshold of $4,606,720 , a nd SGS pai d the s to ckholders the First C o nti ngent Payment of $5,000,000. However, acco rding to SGS ’ s calc u l ations, CM X ’ s 2015 and 2016 c ombined EBITDA did not meet the appli cable threshold for the Second Con tingent Payme nt

. O n February 28, 2017, SGS submitted a pr ice rep or t to Mullholand with S GS ’ s calculations showing that CM X ’ s 2015 and 2016 combined EBITDA fell just belo w the th reshold amount set for th in the Purchase Agreement an d stating that SGS bel ieved tha t a Secon d C ontingent Payment was not owed to the st ockhold er s. Mull holand provided writte n notice to S GS of the stockholders ’ objection to SGS ’ s submission

.

[4] T he partie s w ere ultimately unsucce ssful in resolv ing their disagreement as to SGS ’ s calculations of CM X ’ s 2015 and 2016 combined EBITDA and whether the Secon d Continge nt Payment was owed

. Section 2.7(b) of the Purchase Agreement provide d a binding dispute resoluti on procedure for such disputes which state d in relevant part :

In the event that the Sto ck ho lder Repres entativ e [ i.e., Mulholland] objects t o th e [C ontingen t P urchase P rice Report]
su bmissio ns made by the Purchaser, t he Purchaser and the Sto ckholde r Repres e nta tive s hall use reasonable efforts to resolve any su c h objections. If no res olution is re ached ..., the Purchase r and the Stockholder Repres enta tive shall s ubmit the is sue to the D esignated A uditor to review the submi ssio n. The Designated Auditor, shall , af

ter reviewing all relevant m atters as it deemsCo urt of Appeals of Indiana | Opinion 19A

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appropriate, deliver to the Stockholder Repres ent ative and the Purchaser a Designated Audito r St ateme nt sett ing forth it s calculatio ns of EBIT DA and the C ontingent Purch a se price (if any) payable, whi ch shall be final and binding upon all of the parties to this Agreement.

Id

. at 2 9.

[5] Accordingly, in July 2018, SGS and Mullholand r etain ed E rns t an d Yo ung, LLP ( “ EY ” ) , 1 to serve as the Designated Auditor and to ca lculate CM X ’ s applicab le EBITDA a nd to render a det e rm ination , delivered in the form of the

“ Designated Aud itor St atement, ” that would be final and binding upon the parties, a s contempla ted by the P urchase Agreement. The agreement between the par ties and EY was memorialized in an engagement agreement ( “ EY
En gagement Agr e ement ” ). The EY Engag ement Agreement provided that each party “ shall cooperate fully with the Desi gnate d Auditor durin g th e arbi tr ation ” and provided a sche dule of de adlines for “ t he arbitration , ” and the parties agreed that “ the Designate d A uditor Statement will be conclusive an d bi nding upon them with respect t o the disputed it ems it addresses. ” Id . at 107

- 111 ( emphases a d ded).

1 T h e Pur chase Agr eement p rovide d that the “ Designated Au dito r ” would be EY or “ any other mutua lly acceptable independent cer tified public accountan t. ” Appellant ’ s App. Vol. 3 at 2 8. Emails between cou nsel for the pa rties indicate that Mull ho land ’ s cou nsel sugges ted Price waterhouseCoopers as “ one of the leading
ar bitrators for earn

- out disputes li ke this , ” but SGS ’ s counsel re sponded, “ [W]e would pr e fer to st ick with [ EY] as the designated auditor

. ” Ap pell ee ’ s App. Vol. 2 a t 31. T hereafter, M ull h oland ’ s counsel “ identified Chris ten Morand with [EY] to se rve as the arbitrator in this case ” to which SGS ’ s counsel “ d [id] not have any ob jection

. ” Id . at 30.Co urt of Appeals of Indiana | Opinion 19A

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[6] Th e parti es submitted vol uminous material s to EY ov er the next several months. EY spent 415 hours evalu ating th e parties ’ s u bmissions and issued an extensive and detailed Designated Auditor Statement on Nov ember 1, 2018. In short, EY determined t hat CM X ’ s 2 015 and 2016 combined EBITDA met the threshold re quirement for a Se cond Contingent Payment and that the

st ock holders were entitled to $3,000,000 plus ha lf the fees and exp enses advanced to EY as the Designated A uditor ($107 ,00 0)

. The Designated Auditor Stateme nt provided that , per t he Purchase Agreem ent and the EY Eng agement Agree ment , th is decision was “ fina l , conclusive , and bin ding

. ” I d

. at 134.

[7] On N ovember 28, 2018, SGS requested that EY review t he findings contained
in t he Designated Aud it or St ate ment or, in the alternative, provide SGS with

cer tain clarification s

. EY declined SGS ’ s request, reiterating to SGS that pursuant to the terms of the Purchase Agreement, the Designated Auditor
Statement was “ f

inal , conclusive, a nd binding ” on the parties. Appell ant ’ s App. V o l. 2 at 20. S ection 2. 3 (c) ( ii ) of the Purchas e Agreement provided that SGS was to pay t he stockholders the amount awarded within tw enty days of the release of the Designate d Aud itor Statement. SGS did not m ake payment to the stockhol ders.

[8] O n Jan uary 11, 201 9, Mullholand filed an amended c omplaint for confirmation of arbitration award or , in th e alternative, complaint for breach of contract inCo urt of Appeals of Indiana | Opinion 19A

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the Marion C o unty C ommercial C ourt

. 2 Sp ecificall y, Mul lholand requested
th at the tri al court c onfirm EY ’ s $3 ,1 07,000 a ward in the st ockholders ’ favor and enter judgment pursuant to Indiana ’ s Uniform Ar bit ration Act, Indiana
C o de Chapter 34

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- 2

. In the alte rnative, Mul lhol and asserted that ev en if EY ’ s deci sion did not constitute a bindi ng arb itra t ion decision, S GS ’ s refusal to ho nor EY ’ s decision was a breach of the Purchase Agreement

. O n February 7,
20 19, Mullholand filed a n application for confirmation of arbitration award, or in the alternative, a motion for s ummary judgment on the b reach o f c ontra ct claim

. In response, SGS filed a motion to dismiss Mu llholand ’ s amended complaint pursuant to India na T rial Rule 12 ( B)(6) or , in the alternative, a motion to compel arbit ration and stay the action. S GS argued that EY ’ s determination did not cons ti tute a n arbit ration award and thus Mull holand failed to state a claim upon which relief could be granted. In the alternative, SGS argued that the EY Engagement Agreement provided that an y di sputes regarding EY ’ s calculations were themselves sub j ect to arb itration a nd th us the court sh ould s tay the action and compel arb it ration.

[9] The trial court h e ld a hearing o n a ll pending motions on April 10, 2019. Thereafter, the trial court entered its ord er gra nting M ull hol and ’ s application to confirm th e ar

bitration award and deny ing SGS ’ s motion to dismiss

. T he cour t concluded pursuant to Del aware law, which govern s the in terpretation of the Purchase Agreement, that the parties unambiguously agreed to ar bitrate

2 Mullholand filed her original complaint on December 5, 20 18

.Co urt of Appeals of Indiana | Opinion 19A

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earnout disputes , that EY ’ s de termina tion con s tituted a n arbitration award , and
that SGS is bound b y that determination. The trial cou rt did not address Mullhola nd ’ s alternative request for summary judgment on the breach of contract claim. T he trial court entered jud g m e n t in favor of Mullho land for $3,107, 20 0, plus interest

. This a ppeal ensu ed.



### D i scu ssion and Decision

[10] SGS contends that the trial court erred in g ran ting Mullholand ’ s application to confirm arbitration award and, for the s ame reas ons, in denying SGS ’ s Indiana Trial Rule 12(B)(6) motio n to dismi ss for failure to sta te a claim. The dispo s itive iss ue in this appeal is whether the parties clearly and i nte ntio nally
ag reed to arbi trate earnou t disputes in the Purchase Agreement , making EY ’ s determination tanta mount to an ar bitrati on award t hat was pr operly confir med , rather than dismissed , b y the trial court upon Mullholand ’ s application

.

[11] As we are pres ent ed with an issue of contract interpretation, our appellate standar d of review is well settled

. The interpre tation of a contract is a pu re questio n of law that is revi ewed de novo

. Maynard v. Golden Living , 56 N.E. 3d 1232, 1238 (Ind. Ct. App. 2016). T his Court owes no deference to the trial

court ’ s determinatio n of question s of law

. 2 513

- 25 15 S

. Holt Rd. Holdings , LLC v. H o l t Rd., LLC

, 40 N.E.3d 859, 865 (I n d. Ct. App. 2015)

. Similar ly, w e review
de novo a trial court ’ s grant or denial of a motion to di smiss for fa ilure to state a claim pursuant to In diana Trial Rule 12(B )(6) , again giving no deference to theCo urt of Appeals of Indiana | Opinion 19A

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trial court ’ s decision. En gineA ir, I n c. v . Centra Credit Union , 107 N.E .3d 1061, 106 5 (Ind. Ct. A p p. 2018).

[12] It is undisputed that while Indiana la w governs any proce dural questions involved , 3 pursua nt to the Purchase Ag reement ’ s choice of law provision,
Del aware substantive law gov erns o ur res olution of the d ispo s i tive issue on appeal

. We b eg in b y noting that “ a rbitration ” is defined as “ [a ] dis put e res olution process in which the disputi ng parties choose one or more n eutral third part ies to make a final and binding deci sion resolv i ng the d ispute. ”
B LACK ’ S L AW D ICTIONARY (11 th ed. 2019). R egarding a greements to a r bitrate,

t he Supreme Court of D el a ware has stated generally that
[ t ] he public policy of Delaware f avors arbitration . In a proceeding to stay or to compel arbitration, the questio n of whether the partie s agreed to a r bitrate, commonly referred to as “substantive arbitrability,” is general ly one for the courts and not for the arbitrators

. In determining arbitrability, the court s are confined to ascertaining whether the dispu te is on e that, on its face, fa lls wi thin th e 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 appea r. Any doubt as

3 Indiana ’ s Uniform Arbitrat ion Act provides , amo ng other things, a mechanism for enforcing agreement s to
ar bitrate

. Marion C

mty . Sch

. Corp. v. Marion Teachers Ass ’ n , 873 N.E.2d 605, 608 (Ind. Ct. App. 2007). Ind iana Co de Section 34

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- 2

- 12 provides in relevant part : “ Upo n appl icat ion of a party ... the court shall confirm an award .... Upon confirmation, th e court shall enter a judgment con sistent with the award and
c ause such entry to be doc keted as if ren dered in an act ion in the court. ” Section 34

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- 2

- 15 provides in relev ant part : “ Upon the granting of an order confirming, modifyi ng , or correcting an aw ard, judgment or decree shall be e ntered in conformity therewith and be enforced as any other judgment or decree. ” Se ction 34

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- 2

- 16 provides in relevant p art that “ an a pplication to t he co urt under this chapter shall be by motion and shall be heard in th e manner and upon the notice provided by law or rul e of court for the making an d hearin g of motions

. ” Our supreme court has exp lained that “ [c]onfirmation is a pure ly procedural mech anism by w hic h a cour t conve rts an arbi tration award into a judg ment for enforc ement purposes. ” Nat ’ l Wine & Spirits, Inc. v. Ernst & Young , LLP , 976 N.E .2d 69 9, 705 (Ind. 2012) , cert . denied (201 3 ).Co urt of Appeals of Indiana | Opinion 19A

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to arbitrability is to be resolved in favor of arbitration. A cour t will not co mpel a party to arbitrate, however, absent a clear expression of such an int ent

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

[13] Accordingly , the contract must re flect th at the parties clearly and intention ally bargained for whether and how to arbitrate

. Kuhn Const r ., Inc. v. D iam ond State Port Corp. , 990 A.2d 393, 396 (Del. 2010)

. Courts will not enforce a contract

t hat unclearly or ambiguously reflects the inte n tion to a rbitrate. Id

. 4 “Ambigu ity exists ‘w hen t he provisions in controversy are reasonably or fairly susceptible to different interpretations.’ ” Id . (citations omitted). A trial jud ge must review a contrac t for ambiguity through the lens of “what a re a sonable
p erson in the position o f the parties would have thought the cont ract meant.”
Id . (citations omitted)

. The con tract is read as a whole , and each provision and

4 SGS goes to grea t lengths to make sure that this Cour t , unlike the trial c ourt, accords no weight t o Del aware ’ s public policy fav oring the enforcem ent of a rbitration agreements

. To do so, SGS painstakingly explain s to us the difference between answering the th reshold ques tion of whether there is an enforceab le agreement to arbit rate in the first p lace a nd the question of w hether the dis pu ted matter i s the ty pe of claim that the parties agreed to arbitrate , as only the former is at issue here. See A ppellant ’ s Br. at 33 ( citing Graham v. State Farm Mut. Auto , I n s. Co. , 565 A.2d 908 , 910 ( Del. 1989) (noting tha t the p ublic policy is rooted in a d esire to rebuke “ the old judicial hostility to arbitration ” an d accept agr eements to arbitrate ) )

. Stated a nother
w ay, the public policy f

avoring arbitration presupposes t hat the parties clear ly and in tentionally b argained for arbitration

. See Parfi Holdi ng AB v. M

irror Image Internet, Inc. , 817 A. 2d 149 , 156 ( Del. 2002) ( the pol icy favoring alternative dispute r es olution mechanisms such as arbitration does not trump basic prin ciples of contrac t interpretation, including the principle that a cou rt will not c ompel a party to arbitrat e absent a clear expression of such intent) ( cita tion omitted )

. W e assure SGS that we are well versed in the legal pri nciples involved in the q

ue s tion we have been as ked to address , as Indiana and Del aware law are in a greement on this issu e. See M

PACT Const

r . Gr p. , LLC v. Superior Conc

rete Constructors, Inc. , 802 N.E.2d 901, 907 (Ind. 200 4) ( “ Only after it has be en determined that the parties ag re ed to arbitrate their disputes does the policy favoring arbitration p lay an importan t role. ” ).Co urt of Appeals of Indiana | Opinion 19A

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term is given effec t, so as not to render a ny part of the contract mere surplusage

. Id

. at 397

. T h e absence of the “ express ” or “ magic ” wor d “ arbitration ’ ” does
not render a contract ambiguous , nor is su ch t erm re quired to support a finding
that the parties clearly and intentionally agreed to arbitrate. Se e i d

.

[14] Upon review of the contr a ct at i ssue here , sp ecifically the lan guage of Secti on 2.7(b) of the P urchase Agreement, we have little difficulty concl udi ng that the parties clearl y and intentionally agreed to arbi trate e a rnout disputes, and to do so through the Designat ed Auditor process

. Al thou gh the term “ arbitratio n ” does not a ppear, the agreement here delegat es to the Designat ed Audito r broad autho rit y to consider evidence, m ake determinations , and co nclusively resolve

an y earnout disput e ar ising under Section 2.7(b)

. T his provision is n ot

r easonably or fairly susceptible to d ifferent interpretations , and reasonable
person s in the position of the p art ies would have thought that th ey were selecting a f

o r m of dispute resolution that plac ed f i n a l and binding r e s o l u t i o n o f

e a r n o u t d i s p u t e s w i t h i n t h e s o l e a u t h o r i t y o f t h e D e s i g n a t e d A u d i t o r

. The provis io n clearly and un ambiguously reflect s the parties ’ in tention to arbitrate

.

[15] SGS suggest s that rather than evin cing a clear intention to arbit rate, Section 2.7(b) merely calls for an “ expert dete rmi n at i on ” of earnout disputes

. We ack nowledge that Del aware la w mai ntains a di stinction between a n arbitration
and an expert determination. See Penton Bus. Media Holdings, LLC v. Informa
PLC , 2018 WL 3 343495 , at *7

- 11 ( Del . Ch. July 9, 2018 ) ( provid ing comprehens ive overview of Del aware law discussing differences between arbi tration and expe rt appraisal )

. However , i n doing so , Del aware courts lookCo urt of Appeals of Indiana | Opinion 19A

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to the type and scope of authority given t he neutral third party to resolve the dispute in question

. I

d. Specific l imi t ing l anguage providing that an i nde pendent auditor is acting “ as an expert and not a s an arbitra tor ” c learly

narrow s the scope of the auditor ’ s role and evinc es the parties ’ intentions that
the aud itor ’ s decision con stitute an expert dete rmination and n o t an arbi tra tion

. Chicago Bridge & I

ron Co . N.V. v. Westing

house El ec. Co. , 166 A. 3 d 912, 930 (Del.
2 01 7).

[16] There is no such stipulation or l imiting lan guage in the parties ’ agreement here, lea ving only language that clea rly giv es the Des ignat ed Au d i tor full and complete authority to ac t as an arbiter and issue a final and binding decision as
to an earn out dispute

. In deed , the Designated A uditor is granted the authority

not only to make EBITDA c alculations (issue s of fact) , but also to det ermine
SGS ’ s legal liability to pay the Second Co ntinge nt Payment (issue of law). This is exactly the type and scope of authority delega ted to an arbitrator and not an

ex pert. See Penton , 2018 W L 33 4395, at *1 5 ( “ If the proceeding is an arbitration, this means the p arties have inten ded to delegate to t he decision maker authority to decide all legal and factual issues n ece ssary to resolve the

matter. ” ) ( citation om i tted). If the parties here intended to limit th e scope of the Designated Auditor ’ s authority , evincing a n i nten t that the agree men t be one fo r an expert determination rather than an arbitration , they could hav e e a sily done so . I n fact , th is practice has become the norm f or parties seeking onl y an
exper t determination on a n arrow issue involved i n a larger d i spute

. See generally
id

. at *13 ( noti ng t he sta ndard use of limiting language , and that use of theCo urt of Appeals of Indiana | Opinion 19A

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expre ssi on ‘ “ as an expert and not a s arbitra tor ’ is now so common that it is difficult to conceive o f a case in which a court wou ld not treat th ose words as meaning exactly what they say. ’ ” ) (ci tations omitted)

. The specific langua ge used b y the par ties here , cou pled with the lack of limiting lang uage, indicates a clear intent to arbi t rate

. 5

[17] R egardless, it is eviden t that Del aware courts, much li ke Indiana courts, are less

concern ed with the exac t nomenclature used by the parti es tha n the y are with wh ether reas ona

ble person s in the positi o n of the partie s would have thought

t he y were clearly an d int entionally agreeing to arbitrate

. Thus, w hen a p arty, such as SGS, makes ambiguity argume nt s like those presented here, Indiana appellate courts have refer red to Ho o sie r p oet James Whi tcomb Riley ’ s “ Duck
Test ” or to the famous Shak espeare quote, “ W hat ’ s in a n ame? that which we call a rose/B y any other na me would s mell as s weet

. ” See , e.g. , Walczak v. L abor
Works

- Ft

. Wayne LLC

, 983 N.E.2d 1146, 11 48 ( Ind. 2013) ; Becke r v . State , 992
N.E. 2d 697, 698 (Ind. 2 0 13)

. 6 The process agreed to by the parties in Section 2.7( b) of the Purchase Agreement clearly se ts out a binding dispute r esol ution procedure so similar to arbitration that reasonable persons would un derst and it

5 Both part ies cite to countless unreported cases applying Dela ware l aw as persuasive a ut h ority in support of their respecti ve positions . W e see no need to dis cuss or rep roduce the m all here . Rather, w e have applied Del a ware l a w ’ s well

- settled g eneral principles of co ntr act interpretation , and spe c ifically arbitrat io n agre ements , to the specific and uni que facts of this case.

6 A s Whitco mb Ril ey exp ressed it, “ [w]hen I see a bi rd that walks like a duck and swims like a du ck and qua cks like a duck , I call that bird a duc k

. ” W a l czak , 983 N.E.2d at 11 48 ( footnote omitt ed). Similarly, Gertr ude Stein aptly answered S hakespear e ’ s ques tion, “ Rose is a ro s e is a rose is a rose. ” Becker , 992 N.E.2d at 698 n.2

.Co urt of Appeals of Indiana | Opinion 19A

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a s a clear agree me nt to a rbi trate

. In other words, a n arbitration agreement is an arbi tration agreement is an arbitration agree ment

.

[18] We con clude that Section 2.7(b) of the Purchase Agreement cle arly a nd unambiguously re flects the parties ’ intention to arbi t ra te e arnout disputes.
Accor dingly , we agree with Mullholand that EY ’ s de termination of the pa rties ’ earnout dispute constitutes a bindin g ar bit ration award

. 7 T he trial court did not err in granting Mullh oland ’ s application for confirmation of arbitrati on award
and in den ying SGS ’ s motion to dis miss her application for the same reasons

. 8
Ther efore, we aff

irm the tri al court ’ s entry of jud gment in favor of Mullholand
and against SGS for $3,107,200 plus appropriate inte rest.

[19] Affirmed.

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

7 EY iss ued its D esignated Auditor Statement on N ovember 1, 2018 . S GS had ninety days, or until January 30 , 2019, t o file a n ap plication to vacate or modify that a ward with the trial court

. See Ind. Code § 34

- 5 7

- 2

- 13 ( application t o vacate award ) ; Ind Code § 34

- 57

- 2

- 14 ( application for mo dification or correction of award )

. S GS did not do s o

. Accordingly , desp ite SGS ’ s continued d isagreement wi th EY ’ s fi ndings and award to Mullholand , w e agree with the trial cour t ’ s statement that it is now wi thout statutory authority to vacate or modify EY ’ s award.

8 Because we determine that the parties clearly and unambiguou sly ag ree d in the Pur chase Agreement to arbitrate earnout disputes, we need not reach Mullholand ’ s al tern ative argument in her appellee ’ s brief that a se cond contract between the part ies , the EY Engagement Agreement , a l s o represent s a clear and unambig uous agreemen t to arbitra te earnout disputes

. We disagree, however, with SGS ’ s suggestion that it would be i nappropriate f or us t o consider this alternative ground for a ff irming t he trial c ourt simply because it
was n either raised by SGS n or specifically addr essed by t he trial co urt in its order confirming the arbitration award

. I t is well settled that an appel lee may defend , an d w e may af fir m , the trial cou rt ’ s ruling on any grounds , w hether o r not the trial court co n sider ed those g rounds

. Citimortgag e, I nc . v. Bara bas , 975 N.E .2d 805, 813 (Ind. 2012) ; J.M. v. Rev iew Bd. o f Ind. Dep t. of Workforce Dev. , 975 N. E.2d 1283, 1289 ( I nd. 2012).