SILVERHAWK HOMEOWNERS ASSOCIATION, INC. v. TAWOSE

OSCN Found Document:SILVERHAWK HOMEOWNERS ASSOCIATION, INC. v. TAWOSE SILVERHAWK HOMEOWNERS ASSOCIATION, INC. v. TAWOSE 2026 OK 82 Case Number: 122129 Decided: 11/10/2026 THE SUPREME COURT OF THE STATE OF OKLAHOMA Cite as: 2026 OK 82 , __ P.3d __ NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. SILVERHAWK HOMEOWNERS ASSOCIATION, INC. Plaintiff/Appellee, v. ADEWALE ENIOLA TAWOSE, an INDIVIDUAL, Defendant/Appellant. ON CERTIORARI TO THE OKLAHOMA COURT OF CIVIL APPEALS, DIV. II ¶0 Silverhawk Homeowners Association (HOA) filed an action in the District Court of Oklahoma County. The HOA sought declaratory judgment and temporary and permanent injunctions. Homeowner counterclaimed alleging breach of contract. The Honorable Sheila Stinson, District Judge, granted an injunction and declaratory judgment after a bench trial. The District Court found and concluded homeowner's use of his property was a short-term rental business and a prohibited use for residential property within the residential addition. Homeowner appealed and the Court of Civil Appeals, Div. II, by a divided panel, reversed in part the District Court's judgment, and directed additional proceedings. The HOA filed a petition for certiorari to review the appellate decision and certiorari was granted. We hold: (1) Homeowner's commercial activities violated clear and unambiguous language in a restrictive covenant; (2) Homeowner's challenges to the fines and assessment imposed by Homeowners Association lack merit; (3) The injunction against homeowner issued by the trial court is not against the clear weight of the evidence; and (4) Homeowner's challenges to the award of attorney fees is not preserved for appellate review; and (5) No abuse of discretion occurred when homeowner's motion for new trial was overruled. CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED Adewale Eniola Tawose, Roanoke, Texas, Defendant/Appellant/Pro se. Matthew L. Winton and Matt Adam Thomas, Winton Law, Edmond, Oklahoma, for Defendant/Appellee. EDMONDSON, J. I. Introduction ¶1 The parties present the primary issue on certiorari as whether a particular restrictive real estate covenant prohibits a homeowner's use of property for short-term rentals because of the commercial nature of the use. We agree with the trial court's findings and conclusions stating that the homeowner's activity was a business or commercial use of the property and prohibited by a real estate covenant. ¶2 We affirm the trial court's award of damages based upon the fines and assessments imposed upon the homeowner by the Homeowners Association. We affirm the trial court's injunction against the homeowner to prevent commercial activity in violation of the covenant. We decline to review homeowner's challenges to the award of attorney fees because the alleged error is not preserved for appellate review, and homeowner failed to file a new appeal as directed by the Court. No abuse of discretion occurred when homeowner's motion for new trial was overruled. The judgment of the District Court is affirmed. II. Summary of District Court Proceedings ¶3 Silverhawk Homeowners Association (HOA) sought an injunction and declaratory relief in the District Court and alleged Tawose's use of real property violated a restrictive covenant. Tawose responded and alleged the HOA breached a contract. ¶4 The HOA is an association of residential real estate owners governed by an Amended Declaration of Covenants, Conditions, and Restrictions (Declaration or CCRs), and the HOA holds title to common real property within the residential addition platted as Silverhawk. The language in the Amended Declaration at issue states as follows. Section 1. Use. The Lots in Silverhawk shall be used for private residence purposes only. No store or business, no gas or automobile service station, no flat, duplex, or apartment house, though intended for residential purposes, and no building of any kind whatsoever shall be erected or maintained thereon, except private dwelling houses, and such dwelling house in its entirety being designated for occupancy by a single family. Article II (Land Use Restrictions), Section 1 (Use), Amended Declaration of Covenants, etc. (January 26, 2017, Oklahoma County Clerk), O.R. at 45-62. One of the issues addressed by the parties and the District Court focused on whether Tawose's use of his property violated language in the Amended Declaration that referenced "used for private residence purposes only," "[n]o store or business . . . shall be maintained," "private dwelling houses" and "occupancy by a single family." ¶5 The District Court held a five-day bench trial and made several findings and conclusions. The court found that it was undisputed that the Declaration applied to Tawose's property, and that Tawose had himself voted to approve adoption of the Declaration as amended in 2016 and filed with the County Clerk in 2017. The court stated: "It is undisputed that Defendant operates his Property as a short-term rental. This was admitted and does not present a fact question for determination by this Court." ¶6 The trial court found the amended declaration prohibits operation of a business within Silverhawk, and lots within Silverhawk are to be used for private residence purposes only and in their entirety are designated for occupancy by a single family. The trial court found the Declaration "contains no definition of 'business' or 'single family use.'" The trial court stated the term "business" is not ambiguous and a plain meaning of the term applied. The trial court applied a definition from Black's Law Dictionary defining a business as commercial activity engaged in and for gain or livelihood; or activity for gain, benefit, advantage, or livelihood; or enterprise in or caused to be engaged in by any person with the object of gain, benefit, or advantage either direct of indirect. The court found 68 O.S. §1352 ¶7 The trial court found the Oklahoma City Municipal Code's Business Chapter states that the type of activity or business engaged in by Tawose requires a license and "[i]t is considered a home sharing license or transient rental under the Code ." The trial court found Tawose's use of the property requires payment of hotel and motel taxes. The court also found Tawose's rental of the property "is considered a 'transient' rental under the Code." The court stated the payment of hotel and motel taxes was a determinative fact of a business. ¶8 The trial court found "[Tawose] testified he advertises the Property for short-term rentals online and that he operates a short-term rental for money." The court found "[h]is intent in such operation is to rent the Property to transient guests." The court stated it considered the amount of gross revenue Tawose earned from the short-term rentals over a two-year period, and the court considered Tawose's tax return. The court found no information was provided for rental income and guests for rentals in 2019, 2020, and most of 2021. However, "from late 2021 to late 2023, the evidence shows 36 stays and 141 people staying over" in this period. ¶9 The court noted the people staying at the property are engaged in commerce, the same commerce as an operator of a hotel, motel, or innkeeper with short-term guests. The court noted the rental had check-in and check-out times. The court found Tawose retained the right to reenter the property the same as a hotel or motel "pursuant to the AirBNB rules that are posted;" and Tawose "testified that he supplies sundries to the tenants." The court concluded the property is being held out for remuneration in manner similar to that used by a hotel or motel. ¶10 The court concluded Tawose's rentals violated the Declaration. Judgment was granted against Tawose in amount of $8,528 for the HOA's Specific Assessments based upon monetary penalties allowed by the Declaration. e.g. , late-night gatherings, disruptive behaviors, etc., constituted a nuisance and awarded judgment to the HOA and against Tawose in the form of abatement of the nuisance. ¶11 The court found Tawose failed to meet his burden to show the HOA had breached a contract, and the court found in favor of the HOA and against Tawose on his breach of contract claim. ¶12 The trial court found the HOA to be the prevailing party. The court awarded attorney fees "based upon 60 O.S. § 856 III. Certiorari Review and Motions for Oral Argument and In Camera Review ¶13 Tawose filed a motion for new trial citing 12 O.S. § 651 ¶14 The HOA's petition for certiorari argues the trial court correctly adjudicated (1) Tawose's use of the property violated a restrictive covenant, and (2) the HOA's nuisance claim against Tawose was supported by the evidence. The HOA argued the controversy involved an issue of first impression involving short-term rentals of real property and the proper method for determining whether a restrictive covenant was violated by such rentals. We granted the petition for certiorari. We vacate the opinion by the Court of Civil Appeals. ¶15 Tawose filed a motion for oral argument and a motion to file confidential materials under seal for an in camera review on certiorari. The motion for oral argument argues the majority of the Court of Civils Appeals panel was correct and additional issues before the Court on appeal. The briefs before the Court are sufficient and the motion for oral argument on certiorari is denied. ¶16 Tawose's motion to file confidential material under seal for in camera review states he "is not seeking to supplement the appellate record." He "asserts the record Silverhawk Homeowners' Association (Petitioner) asks this Court to review on certiorari was fundamentally tainted by procedural irregularities and both counsel's conduct at the trial level." Our review of a record on certiorari is based upon a party preserving the assigned error in the trial court with a proper trial record and seeking review with a supporting appellate record. in camera review is denied. ¶17 We review issues raised on certiorari that are supported by argument and authority. ¶18 The parties discuss the appellate court's reliance upon Graham v. Reynolds , 2024 OK CIV APP 26 560 P.3d 51 Crystal Bay Estates Homeowners' Association, Inc. v. Cox , 2022 OK CIV APP 38 521 P.3d 812 Graham is inconsistent with language in Crystal Bay, opinions by the Supreme Court, and the meaning of terms in the restrictive covenant the HOA seeks to enforce against Tawose. IV. Analysis ¶18 In Graham v. Reynolds , 2024 OK CIV APP 26 560 P.3d 51 Id . at ¶2. The language in the restrictive covenant addressed by the court stated: "All lots in said Addition shall be used exclusively for residential purposes, and no lot in said Addition shall be used for commercial purposes." Id . at ¶5. ¶19 The trial court in Graham found that the phrases "residential purpose" and "commercial purpose" were not defined in the specific restrictive covenants, the lack of these definitions created ambiguity; and the trial court concluded ambiguities in a restrictive covenant are resolved in favor of an unencumbered use of the property. Id . at ¶11, & n.5, 560 P.3d 55 -6. ¶20 Graham noted that the intentions of the real estate development company concerning the meanings of terms in the restrictive covenant in 1969, when the covenant was created, "are not clear from the certifications and restrictions presented in this appellate record;" and the phrases "residential purpose" and "commercial purpose" lacked definitions within a factual context of renting one's property "regardless of the duration of the rental terms." Id . at ¶15. In Graham the owner testified he and his family continued to "spend considerable time at the lake house when it is not being rented," and the activities of renters were limited when using the property. Id . at ¶17. The disputed covenant language and facts before the trial court in Graham are different from the present controversy. These differences combined with the state of the appellate record noted in Graham reduces its persuasive value for application to the present controversy. ¶21 In Crystal Bay Estates the restrictive covenant controversy involved a construction plan and whether building materials were approved by a homeowners' association. The restrictive language in Crystal Bay Estates is not before us in the present controversy. Crystal Bay Estates discussed our long-recognized explanation that "restrictive covenants are not favored and, therefore, will be strictly construed," and "the intentions of the parties to restrictive covenants ordinarily control the construction of the covenants." ¶22 It is well-known that many courts use the intent of parties to determine the meaning of language in a written instrument and our Court has used this method in certain circumstances. Bumgarner v. Pruitt , 1966 OK 254 421 P.2d 651 O'Neil v. Vose , 1944 OK 26 145 P.2d 411 ¶23 This examination of the document, context, circumstances, and object or intent of the parties highlights the different views of Tawose and the HOA concerning alleged ambiguity and meaning of terms in a restrictive covenant. Tawose argued that terms in a restrictive covenant must be contractually defined to be enforceable because absence of definitions make, or possibly make, terms ambiguous; and also because restrictive covenants "are not favored by the law" "and they will be strictly construed to the end that all ambiguities will be resolved in favor of the unencumbered use of the property." ¶24 If the intent of parties concerning their rights and duties created by a real property deed or contract is plain and unambiguous, that intent must be ascertained from this plain and unambiguous language used in conveyance or contract, de novo review. ¶25 If a trial court applies contractual terms to adjudicated findings of fact for the purpose of granting or denying equitable relief, then the findings of fact "will not be set aside unless, after consideration of the entire record, it appears that such findings are clearly against the weight of the evidence." ¶26 Tawose's principal argument is that certain terms are not defined and are ambiguous. Tawose, who is not a lawyer, represented himself at trial and on appeal. He argued that the restrictive covenant does not distinguish between a long-term rental exceeding thirty days and an HOA prohibited short-term rental less than thirty days. He also argued the lack of specific definitions for terms such as "business," "family," and "home" and "single-family" in the restrictive covenants showed the HOA's claim lacked merit. ¶27 The HOA called Tawose to testify and asked him to explain his understanding of terms and phrases such as "private residence purposes only," "business," "family," "single family," "maintained thereon, except private dwelling houses," and "such dwelling house in its entirety being designated for occupancy by a single family." Tawose testified that "home" was a vague term. He stated: "'Home' can mean so many things. Home can be where somebody stays for a period of time. . . . That's vague to me." ¶28 Tawose also testified that he continued to have some of his clothes, a modem, router, and "things that I use" in a locked closet in the house. ¶29 Tawose argued at trial "The 'business' word is what - - is what the lawsuit is about based on the petition." Black's Law Dictionary and a Merriam-Webster's Dictionary . He was asked to read part of the definitions for a "license" and a "business." ¶30 Tawose confirmed several different short-term rentals at his property between 2019 and 2021 and declined to provide the exact income received from these rentals. ¶31 HOA counsel pointed to a few reports provided by Tawose from Airbnb and Vrbo accounts and argued they showed information had been deleted before providing it in discovery. Counsel argued this truncated information showed Airbnb income of $53,881.93 between July 15, 2021, and September 1, 2023. Counsel directed Tawose to a different exhibit showing guests between March 19 to May 15, 2022 (Vrbo spreadsheet) and showing income of $14,670.82, for a "long-term stay," and Tawose stated he could not remember anything about these guests. He was asked about another "long-term stay" of a "little over a month," December 30, 2022, to February 3, 2023, (Vrbo spreadsheet) with income of $10,631.81. IV(a). Disputed Language in the Covenants, Conditions and Restrictions ¶32 The District Court stated Tawose's payment of hotel and motel taxes was a determinative fact showing business activity. ¶33 We agree with the trial court that Tawose provided a service to his renters very similar to that found in some motels and hotels. Adjudication of this controversy does not need (1) analysis of the 1994 Oklahoma Innkeeper Rights Act, ¶34 The terms "business," "business pursuits," and "doing business" have been given, as a matter of law, a plain and ordinary meaning in contexts involving contract and statute, including circumstances where semantic clarity is usually required, e.g. , exclusion clauses in insurance policies and imposing a tax on a corporate business. i.e. , Tawose argues the term "business" in a legal document is facially ambiguous as a matter of law. Tawose also challenges the property developer's definition of "business." The property developer's definition agrees with a plain and ordinary meaning found in insurance contracts and tax statutes. Tawose argues the term "business" does not possess its well-known plain and ordinary meaning in the covenant created by the property developer; i.e. , Tawose argues for a meaning that is contrary to that intended by the "framer" of the original document. Tawose's argument is an attack upon originalism as a method for construing legal documents. ¶35 Tawose objected to the trial court and the HOA using commonly available dictionaries for determining the meaning of terms in the CCRs. A term's plain meaning in a statute or contract is an issue of law, and our adjudication of the issue may include, but not be limited to, a definition of the term found in dictionaries. For example, our analysis of plain meaning in many cases was aided by easily available general English dictionaries, Black's Law Dictionary , ¶36 More than one meaning or definition of a term in a dictionary does not by itself make that term ambiguous in a legal document. Generally, terms in a text, whether contract or statute, are examined in their context with their semantic (dictionary or lexical) referents as well as the grammar or syntax of a clause or language unit ¶37 Language restricts "use" to "private residence purposes only," and this is immediately followed in the text with "[n]o store or business," and then "no flat, duplex, or apartment house, though intended for residential purposes." This same sentence stating no "business" then states "no building . . . shall be erected or maintained thereon except private dwelling houses, and such dwelling house in its entirety being designated for occupancy by a single family." We construe a text based upon plain and consistent language in the context of the purpose sought to be accomplished by that language, while giving effect to every word with the consequences that follow the necessary legal implications of its terms. ¶38 Tawose's purpose for the CCRs allowed him to continue residing at the property while his guests were either (1) "residing" at his residence based upon their individual concepts of "residence," or (2) not "residing" but being merely guests with himself as the single continuous resident. Tawose argued there was no difference between his short-term rentals of less than thirty days and another owner in Silverhawk who had a long-term lease for more than thirty days for occupancy by a single family. ¶39 Although the parties discussed rentals for thirty days and less within the context of hotel/motel tax requirements, the HOA also raised this issue in the context of a "private residence" and a domicile consistent with long-term single-family leases but not the short-term rentals created by Tawose. We have explained: "Residence is defined as the place where one's habitation is fixed without the present purpose of removing therefrom. It is synonymous with 'Domicile.'" ¶40 A "private" purpose "use" contrasted with a business purpose use coupled with a "private" "occupancy by a single family" structure is language that should be given effect as a whole by linking the two concepts of "private" to reference residence or domicile. ¶41 Tawose relied upon a distinction between use restrictions and structural restrictions and identified the language "private dwelling houses, and such dwelling house in its entirety being designated for occupancy by a single family" as a structural restriction and not a use restriction. He relied upon Jackson v. Williams , 1985 OK 103 714 P.2d 1017 ¶42 The terms "flat," "duplex," and "apartment house" may be found in easily available dictionaries and the terms may refer to use, structure, or both based upon their context. ¶43 In 2023 Tawose filed an application with the Oklahoma City Board of Adjustment for a Special Exception for Home Sharing in an R-1 Single Family Residential District authorizing "lodging accommodations" not to exceed more than 30 consecutive days per renter/guest. ¶44 Tawose testified he was aware of the municipal ordinance requiring issuance of a special exception for home sharing use when the property was not his primary residence. Tawose was questioned whether he was aware that for his property to qualify for the special exception he was required to affirm that the property was not his primary residence. He answered he "wasn't aware of that." He then explained he has always considered the property as his primary residence, and he applied for the special exception because (1) he was "travelling more for work" and (2) he wanted "just to be careful." ¶45 Tawose argued the short-term rental restriction was unequally applied to him. A witness testified the HOA Board discovered a daycare was operating in a neighborhood residence, it was not allowed, and the Board started proceedings to shut it down and it no longer operated at the time of trial. ¶46 We conclude the trial court correctly applied common terms found in easily available dictionaries to language in the CCRs, and the language in the CCRs uses common terms for defining the nature of allowed and prohibited use and maintenance of the real property. Tawose objected to the trial court using dictionaries for defining terms in a legal document. The objection is without merit. The District Court's judgment that Tawose's short-term rentals violated clear and unambiguous language in the CCRs is supported by the clear weight of the evidence. ¶47 Appellate review of the judicial discretion exercised overruling a motion for new trial may include examining an alleged error of law using de novo review to examine a legal issue anew or a second time with a non-deferential review, and whether no rational basis in evidence for the ruling exists. IV(b). Tawose's Challenge to the HOA Assessment and Covenant Restriction ¶48 Tawose challenged the HOA process imposing his assessment and argued he did not receive due process. Tawose contacted an HOA Board member in October 2019 concerning his plan for short term rentals. The Board member did not give an approval of his plans, but the board member also stated "I don't see anything that stops you from doing that." ¶49 Tawose argued for an equitable estoppel to bar the HOA's requests for relief. He argued that he relied on statements made by individual Board members concerning his ability to use his property for a short-term rental. The testimony and exhibits show that an individual Board member could not act on behalf of the Board, or bind the Board, or change the meaning of terms in the CCRs. ¶50 Tawose was contacted in June 2020 by the rental company he used to rent his property, and this company was concerned whether short-term rentals were allowed in the Silverhawk addition. The Board Treasurer notified the rental company that "short-term rental businesses" are prohibited by the CCRs of Silverhawk. On June 1, 2020, Tawose emailed the source of the company's information, the "Silverhawk HOA Treasurer," and requested from him "a copy of the rules where it states that short-term rentals are prohibited in Silverhawk." ¶51 The HOA's evidence included a warning letter with a notice of potential fines for "operating a hospitality business" ¶52 The Treasurer of the HOA Board sent Tawose an email on February 21, 2021. The email included language stating a short-term rental violates the CCRs, and that the Board welcomes rentals "used as residential properties." The Board calculated Tawose's total fines for his past covenant violation for short-term rentals to be $1,375.00 as of February 2021. ¶53 HOA contacted their counsel for advice on how to proceed and the HOA sent notice to Tawose that he would receive a "due process hearing." Tawose requested a zoom meeting with the Board for "a presentation" Tawose "had put together," and Tawose was "eager to present evidence and make this presentation to the Board." ¶54 Tawose testified that he understood this meeting was for him to be "given the opportunity to present his evidence and presentation." Tawose testified that he "declined the opportunity to present that evidence and presentation" at the hearing. ¶55 Tawose testified that his due process hearing was insufficient because (1) "lies were said during that meeting," (2) HOA counsel had instructed Board members to not answer Tawose's questions to the Board, (3) he did not get an immediate result from the Board, and (4) he did not get a response from the Board "as of today." ¶56 A witness testified that if there is a separate Covenants Committee for the HOA that heard the issue first, then an appeal from the Committee's decision may be brought to the Board, but when there is no active Committee or Committee decision, then a due process hearing before the HOA Board is provided with no additional or second appeal before the Board. ¶57 The Declaration of Covenants provides for the HOA's "Silverhawk Rules." ¶58 The Governing Documents distinguish between a hearing before a Covenants Committee and a hearing before the Board. Tawose requested a "board hearing." Emails exchanged between the participants refer to a hearing before the Board. No emails state Tawose will receive a hearing before the Covenants Committee. Tawose references sending copies of the "board issue" to all members of the Board and not members of a Covenants Committee. The Governing Documents discuss a Covenants Committee "established" and also "appointed" with the Committee hearing disputes concerning covenant disputes. The evidence before the District Court showed an effort to create a functioning Committee but the HOA lacked owner-volunteers to staff the Committee. The Governing Documents allow the Board to hear a covenant dispute in the absence of an "established" Committee. The trial court record shows Tawose received a hearing before the Board and not a Covenants Committee. The record on appeal shows Tawose voluntarily participating in this procedure without challenging a decision by the Board as opposed to a Covenants Committee. ¶59 Tawose has not shown he was entitled to two Board hearings to satisfy due process. Tawose argues on appeal that no assessment should occur until after a due process hearing. A 2021 notice of the HOA Board hearing given to Tawose states it is for the purpose of a due process hearing, and he was aware of his opportunity to present arguments and facts to the Board at the hearing. Testimony and documentary evidence before the trial court showed that the Board's hearings on CCR violations included a purpose to have the resident agree to remove the cause of the assessment, state the offending conduct would not continue, and the assessment would be reversed or removed. ¶60 Tawosee appeared for the hearing but by his own conduct he declined to provide arguments and facts he had previously planned to submit. He knew when the hearing concluded that the Board did not agree with him using his property for short-term rentals. He knew the issue "was headed to court. Due process, by itself, does not mandate a particular form of procedure, and due process is measured against the circumstances to which due process is applied. ¶61 The elements of equitable estoppel are "(1) a false representation or concealment of facts, (2) made with actual or constructive knowledge of the facts, (3) to a person without knowledge of, or the means of knowing, those facts, (4) with the intent that it be acted upon, and (5) the person to whom it was made acted in reliance upon it to his detriment." ¶62 We note that Silverhawk's Bylaws state that the HOA's failure to take enforcement action upon a reasonable determination "shall not be construed a waiver of the right of the Association to enforce such provision at a later time." IV(c). Challenging Exclusion of Two Witnesses ¶63 Tawose's appellate brief argues he should have been allowed to designate on his pretrial list of witnesses by amending his category of "Former Association Board Members and Officers." He also argues he should have been allowed to call opposing counsel as a witness. He argues he was denied due process. The trial court proceedings, Tawose's failure to preserve an issue for appeal, and a lack of fundamental error show this claim to be without merit as a ground to reverse the trial court's judgment. ¶64 Tawose states his June 2022 discovery request to the HOA did not receive a timely response, and he did not receive the information until October 4, 2022, and he argues the HOA responses were vague and evasive. Tawose filed on May 12, 2023, a motion to compel discovery. The motion states it is based upon the responses he received seven months earlier. ¶65 Tawose filed on May 12, 2023, a motion to compel discovery. He then filed on July 11, 2023, a motion to amend the scheduling order because he could not complete discovery. The trial court held a hearing on July 20, 2023. The purpose of the hearing was to determine an objection to discovery based upon an assertion of attorney-client privilege, a motion to quash discovery, and a request for a protective order related to depositions. Tawose had proceeded with depositions in the absence of opposing counsel and while a motion was pending to quash the deposition subpoenas. Tawose agreed that if he did not follow procedure "they can go ahead and strike it and I will take depositions again." The trial court granted a motion to quash subpoenas as well as the depositions and ordered the subpoenas to be reissued for the depositions "at an agreed date" and "agreed location." ¶66 Counsel for HOA stated at the hearing concerning Tawose wanting depositions: "He can do his depositions. He just needs to do them right." Counsel for the HOA declined to instruct Tawose on how to conduct a deposition and what language must be included in legal documents sent to a deposition witness. The trial judge explained to Tawose that if he wanted to have a ruling on a motion to compel for a discovery issue then Tawose needed "to go ahead and get another date for your motion to compel." ¶67 Trial court held a hearing on Sept. 8, 2023, twelve days before the pretrial. The trial court denied the motion to extend the scheduling order and stated the discovery issues would be resolved later. Tawose's efforts at discovery were part of his motion to recuse the trial judge in October 2023. He sought recusal because he did not know "where my motion to compel stands." The trial judge noted Tawose had set more than one motion to compel. Tawose "received a large amount of documents that day" when Tawose's motions were scheduled to be heard, and the trial judge had stated to Tawose he should look at what was provided and "let me know." Tawose argued that the HOA "lied in the discovery responses to me." He stated he thought the judge was biased because "they [the HOA] have been allowed to get away with lies." ¶68 The trial judge asked Tawose what he thought a trial judge should do if Tawose states opposing counsel is untruthful. Tawose stated the judge should compel compliance with the Rules of Professional Conduct and make the HOA give him the information he wants. Tawose agreed that he had received over 1,300 pages of documents in response to discovery requests but they did not include the information he wanted. The trial judge explained: "I have not seen an updated list on what you're saying is still outstanding. Have you requested additional information that I asked them to provide you?" ¶69 Tawose stated the HOA had been allowed to take five months to respond to a discovery request and the HOA had not been held accountable. The trial judge explained Tawose was required to file something alleging facts and argument against opposing counsel so that the trial court would have something to examine. The judge explained: "I don't have anything on file for me to address their conduct." The trial judge noted Tawose had sought sanctions for certain conduct and the trial judge explained those specific allegations were reserved until after trial and he should focus on the reasons he sought recusal. ¶70 Tawose's additional allegation of bias was based on the trial judge allowing the HOA to file more than one motion for summary judgment or partial summary judgment as the facts developed during discovery. This Court explained approximately forty years ago and many times since that a trial court may re-examine interlocutory rulings prior to judgment. ¶71 Tawose's allegation of unfairness and bias is repeated in his appellate reply brief. He argues no appellate deference to the judge's rulings should occur as part of our appellate review. He cites adverse rulings, makes an allegation of "evidence of favoritism," the fact that the judge recused after an award of attorney fees had already been made, and the judge not stating reasons when overruling Tawose's motion for new trial. The order states Tawose "failed to meet his burden and prove an enumerated cause for a new trial," and he "presented many of these arguments and facts during the five-day non-jury trial." Adverse rulings, by themselves, are not usually appropriate tests for showing bias or prejudice. ¶72 Tawose states the judge was biased and states the witness should have been classified as a hostile witness. The witness, D. A., was a Board member. Tawose points to the trial judge sustaining three objections by opposing counsel when Tawose asked D. A. leading questions. The witness was called by Tawose in support of his case. The trial judge stated "sustained" without comment when ruling on the objections. pro se as counsel is held to the same standard as a lawyer, pro se counsel. This claim by Tawose has no support in the record or law to support a claim of bias for challenging a judgment. ¶73 Tawose's argument also invokes due process on the exclusion of two witnesses. The trial court stated the same principle applied to both Tawose and the HOA, and neither could designate trial witnesses by simply stating a category of people such as "former board members." ¶74 The HOA argues no offer of proof was made by Tawose concerning the testimony to be provided by C.S., and the HOA objects to appellate review. An offer of proof at trial is necessary to challenge an order excluding testimony from a proposed witness, and a failure to make an offer of proof is a failure to preserve the issue for appeal. ¶75 Tawose argues the trial court's decisions violated due process. A due process allegation may be reviewed for fundamental error although the complaining party failed to follow a particular procedure preserving error in a trial court. ¶76 Tawose argued the testimony from C.S. would show individual Board members previously had different reasons or views for conduct required by the CCRs. Tawose argued the testimony he sought would show ambiguity in the language of the CCRs as understood by the witness. For example, Tawose elicited testimony from Board members stating their individual opinions concerning what constituted a long-term rental, a short-term rental, and whether the CCRs were violated. For example, Tawose stated: Your Honor, part of my defense is that this case, even if this Court determines it's a business or not, is the ambiguity of the phrase itself. And the reason why I keep bringing up for every witness that is shown is because throughout the time I've gotten different definitions from each witness. Trial Tr. Vol. IV, p.76. Tawose then explained that if "business" meant using property for a profit then a lease for thirty-one days and longer was a business because a profit was being made by such a lease. Id . Again, Tawose asked a witness her opinion concerning whether a short-term rental was a business within the term "business" stated in the CCRs. The HOA objected because the witness was not on the HOA Board when the Board was taking actions against Tawose. Tawose stated he needed an answer from a witness "to prove ambiguity on the clause." The trial court judge explained the witness has not been qualified as an expert on this point, and "ambiguity is a legal determination." ¶77 Tawose was not allowed to amend his witness list prior to trial and call this proposed witness at trial. Tawose knew the name of the witness, failed to include her name on the witness list at the proper time, and wanted to present cumulative facts on Tawose's identified issue of contractual "language ambiguity" in a circumstance where the issue of ambiguity was in the first instance an issue of law. ¶78 Tawose also objected to not being allowed to call one of the HOA's trial lawyers as a witness for Tawose. Tawose sought to sequester opposing trial counsel "as a witness." Tawose asserted the lawyer had given legal advice or opinion concerning the same or similar covenant language in a covenant for property in a different property development, and this opinion for the other property conflicted with the advice and opinion by the Silverhawk HOA concerning short-term rentals. Tawose stated he possessed a video of opposing counsel stating: "For you to enjoin short-term rentals in additions, you have to be explicit." I'm not asking him to testify as an expert . . . [An HOA representative] testified yesterday under oath, that their case is based on the information they got from a person. . . . if that is a fact and I have evidence of that same person saying something opposite, I think it is for due process, my due process to be able to question that person, whoever it is not as an attorney, not as anything, for me to question that person an at least inquire why in this situation the information he has given is different from the information he's given when he's getting paid for that information. . . . My argument in this case is: For short-term rentals to be enjoined in restrictive covenants, you have to explicitly say that. Trial Tr. Vol. IV, p.5-6 (material omitted). Whether Tawose distinguished between covenant language that is "clear and unambiguous" and the meaning of "explicitly say that" is not relevant, and whether the alleged statement was made by counsel is also not relevant. Tawose's explanation shows he sought confidential communication. Tawose wanted to ask why opposing trial counsel gave advice to the HOA to file a lawsuit against Tawose and his short-term rentals. ¶79 In N. L. R. B. v. Sears, Roebuck & Co. , 421 U.S. 132, 154 , 95 S. Ct. 1504 , 44 L.Ed.2d 29 (1975) the Court noted: "Whatever the outer boundaries of the attorney's work-product rule are, the rule clearly applies to memoranda prepared by an attorney