SGS North America, Inc. v. Christine Mullholand, as Stockholder Representative of Cybermetrix, Inc. ( 2019 )


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  •                                                                             FILED
    Nov 14 2019, 9:05 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Siobhán M. Murphy                                         George A. Gasper
    Benjamin C. Hoffman                                       Derek R. Molter
    Lewis Brisbois Bisgaard & Smith LLP                       Audrey K. Howard
    Indianapolis, Indiana                                     Ice Miller LLP
    Indianapolis, Indiana
    Brian P. Graffeo
    Joel Plainfield
    Kaplan, Williams, Graffeo & Stern LLC
    Morristown, New Jersey
    IN THE
    COURT OF APPEALS OF INDIANA
    SGS North America, Inc.,                                  November 14, 2019
    Appellant-Defendant,                                      Court of Appeals Case No.
    19A-PL-1283
    v.                                                Appeal from the Marion Superior
    Court
    Christine Mullholand, as                                  The Honorable Heather A. Welch,
    Stockholder Representative of                             Judge
    Cybermetrix, Inc.,                                        Trial Court Cause No.
    Appellee-Plaintiff                                        49D01-1812-PL-48315
    Crone, Judge.
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019                           Page 1 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
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019    Page 2 of 14
    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
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019   Page 3 of 14
    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
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019    Page 4 of 14
    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.
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019                          Page 5 of 14
    [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
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019    Page 6 of 14
    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.
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019    Page 7 of 14
    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
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019      Page 8 of 14
    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] dispute-
    resolution 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).
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019                           Page 9 of 14
    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.”).
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019                                Page 10 of 14
    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
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019     Page 11 of 14
    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
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019     Page 12 of 14
    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.
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019                            Page 13 of 14
    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).
    Court of Appeals of Indiana | Opinion 19A-PL-1283 | November 14, 2019                              Page 14 of 14