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Click here for the full text of this decision FACTS:This is an appeal from the trial court’s final order confirming an arbitration award entered in favor of South Shore Harbour Community Association Inc. (South Shore), appellee, and against John and Elaine Kosty, appellants. Arbitration was required by a settlement agreement between the parties. The trial court’s order also modified the arbitrator’s award by awarding $5,386.43 against the Kostys for South Shore’s attorney’s fees and costs of arbitration. The Kostys are homeowners in South Shore Harbour in League City, Texas, a planned community that has South Shore as its homeowners’ association, and the underlying litigation concerns the adequacy of a potted plant used to conceal trash cans. HOLDING:Affirmed as modified. The Kostys contend that the trial court erred by confirming the arbitrator’s award because the arbitrator refused to hear evidence material to the controversy, and by modifying the arbitrator’s award to include attorney’s fees after the arbitrator expressly declined to do so. The issue before the arbitrator here concerned only whether the Kostys had violated the settlement agreement’s terms that 1. South Shore would “plant shrubs to match existing shrubs to aid in the concealment of the Kostys’ trash cans,” 2. The Kostys would “conceal their trash cans behind the shrubs to be planted by [South Shore],” and 3. South Shore would “reimburse the Kostys for up to $100 for a planter box or equivalent to be used in the concealment of the trash cans.” The court concludes that the arbitrator did not err by excluding evidence of defenses that may have been asserted in the underlying dispute because those possible defenses were abandoned when the Kostys settled the underlying lawsuit and thus were not material to the matters before the arbitrator. The court holds that the trial court did not err by confirming the arbitrator’s award. Because the arbitration agreement contains broad language, because the parties specifically requested that the arbitrator award attorney’s fees, and because the arbitrator’s statement that he would not award any party attorney’s fees indicates that he considered and rejected the award of attorney’s fees, the court concludes that the matter of attorney’s fees was submitted to the arbitrator. The trial court was without authority to modify the arbitrator’s award because the issue had properly been submitted to the arbitrator, who had rejected both parties’ request for attorney’s fees. OPINION:Alcala, J.; Radack, C.J., Jennings and Alcala, J.J.

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