        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                               JACK STEIN,
                                Appellant,

                                      v.

                     JOHN CHARLES and
         RIVERWALK OF THE PALM BEACHES HOMEOWNERS
                     ASSOCIATION, INC.,
                          Appellees.

                              No. 4D18-2662

                            [February 20, 2019]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Joseph    G.    Marx,     Judge;   L.T.    Case    No.
502015CA006183XXXXMB.

   Jack Stein, West Palm Beach, pro se.

  Ashley N. Landrum and Karen M. Nissen of Vernis & Bowling of Palm
Beach, P.A., North Palm Beach, for appellees.

GERBER, C.J.

   Third-party plaintiff Jack Stein (“Stein”) appeals from the circuit court’s
final order granting third-party defendants Riverwalk of the Palm Beaches
Homeowners’ Association, Inc.’s (“Riverwalk”) and John Charles’s
(“Charles”) motion for sanctions based upon Stein’s fraud upon the court.
The order’s ultimate outcome was to dismiss Stein’s claim against
Riverwalk and Charles for tortious interference with advantageous
business relationship, as well as Stein’s claim against Riverwalk for
violation of section 720.303(5), Florida Statutes, relating to record
requests. We affirm.

   This is the second time in which we have reviewed the circuit court’s
order granting Riverwalk’s and Charles’s motion for sanctions. Our first
review resulted in our opinion styled as Stein v. Defren, 247 So. 3d 24 (Fla.
4th DCA 2018) (“Stein I”). Stein I held, in pertinent part:
         Stein argues six purported errors by the trial court as a
      basis for reversal. Five of the asserted errors revolve around
      arguments that the trial court improperly weighed evidence,
      improperly conducted the sanction hearing, or applied the
      facts incorrectly in reaching legal conclusions. Because Stein
      has not provided us with a transcript of the proceedings and
      many of the assertions of facts in his brief, which he contends
      are favorable to his position, do not support his arguments,
      we affirm the trial court as to those five issues without
      discussion. However, we find merit in his sixth argument that
      the trial court erred by failing to make findings of fact in its
      order granting dismissal as a sanction. As we recently held in
      Chacha v. Transp. USA, Inc., 78 So. 3d 727 (Fla. 4th DCA
      2012):

            An order granting a dismissal or default for fraud on
         the court must include express written findings
         demonstrating that the trial court has carefully
         balanced the equities and supporting the conclusion
         that the moving party has proven, clearly and
         convincingly, that the non-moving party implemented a
         deliberate scheme calculated to subvert the judicial
         process.

      Id. at 731; see also Smith v. Brinks, Inc., 133 So. 3d 1176,
      1177 (Fla. 4th DCA 2014).

         Therefore, we reverse the final order granting dismissal and
      remand for the trial court to make express written findings.
      We make no comment on whether reconsideration of the
      ultimate ruling is warranted or not.

247 So. 3d at 24.

   Pursuant to our mandate in Stein I, the circuit court held a second
hearing on the motion for sanctions, but simply to give the parties an
opportunity to be heard before the court entered a more detailed order.
Following the hearing, both sides were given an opportunity to submit a
proposed more detailed order. The court ultimately entered a second,
more detailed order making express written findings to support the
dismissal of Stein’s claims as a sanction for fraud on the court.

    In this appeal from entry of the second order, Stein again argues that,
at the first hearing on the motion for sanctions, the trial court improperly

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weighed evidence, improperly conducted the hearing, or applied the facts
incorrectly in reaching legal conclusions. Because Stein once again has
not provided us with a transcript from the first hearing, we affirm the trial
court as to all claims without discussion. See Applegate v. Barnett Bank
of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“In appellate
proceedings[,] the decision of a trial court has the presumption of
correctness and the burden is on the appellant to demonstrate error.”).

   We comment only upon one argument which Stein had not raised in
Stein I, but which Stein has raised in this appeal. According to Stein,
during the first hearing, the circuit court erred in taking testimony from a
witness by phone without complying with Florida Rule of Civil Procedure
1.451. Rule 1.451(b) states, in pertinent part: “The court may permit a
witness to testify at a hearing or trial by contemporaneous audio or video
communication equipment (1) by agreement of the parties or (2) for good
cause shown upon written request of a party upon reasonable notice to all
other parties.” Rule 1.451(e) states, “Testimony may be taken through
communication equipment only if a notary public or other person
authorized to administer oaths in the witness’s jurisdiction is present with
the witness and administers the oath consistent with the laws of the
jurisdiction.”

    Because Stein has not provided us with a transcript from the first
hearing, we cannot determine whether Stein raised a contemporaneous
objection to the circuit court’s alleged taking of testimony from the witness
by phone without allegedly complying with rule 1.451. See Sunset Harbour
Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (“In order to be
preserved for further review by a higher court, an issue must be presented
to the lower court and the specific legal argument or ground to be argued
on appeal or review must be part of that presentation if it is to be
considered preserved.”).       Thus, that argument, like Stein’s other
arguments, was not preserved.

   However, even if the circuit court did not comply with rule 1.451, we
would find the error to be harmless based on the court’s express written
findings in its second order. The circuit court found the witness’s
properly-introduced deposition testimony revealed that the witness did not
create, read, or sign the affidavit which Stein used to defeat the third-party
defendants’ motion for summary judgment. The fact that the circuit court
may have attempted to have the witness testify by phone to confirm Stein’s
use of the affidavit to commit fraud upon the court would have been merely
cumulative and, therefore, harmless. See Witham v. Sheehan Pipeline
Constr. Co., 45 So. 3d 105, 109 (Fla. 1st DCA 2010) (“An error in the


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introduction of evidence may be considered harmless if the evidence is
merely cumulative to other evidence that was properly introduced.”).

   Affirmed.

CIKLIN and KUNTZ, JJ., concur.

                           *      *        *

   Not final until disposition of timely filed motion for rehearing.




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