                                                                            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
