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November 5, 2001

The pro se defendants, Leo Rasberry and Bridgette Rasberry,appeal from the March 2, 2000, order of the circuit court of DuPage County entering judgment on behalf of the plaintiff, SterlingHomes, Ltd., in the amount of $35,007.28. On appeal, thedefendants raise numerous objections to the proceedings below. Forthe following reasons, we affirm and order a response from thedefendants pursuant to Supreme Court Rule 375(b) (155 Ill. 2d R.375(b)).

The following facts are relevant to the instant appeal. OnApril 20, 1997, the parties executed a construction and purchaseagreement for the construction of a new home. The agreementrequired the defendants to pay the plaintiff $25,000 toward thepurchase price of the home prior to closing. The agreement alsocontained the following provision:

"Builder, by accepting the final payment, waives all claimsagainst Purchaser except those which Builder has previouslymade in writing and which remain unsettled at the time ofclosing and occupancy by Purchaser."

Prior to closing, the defendants gave the plaintiff three separatechecks totaling $25,000. These were dated May 8, 1997, June 3,1997, and July 5, 1997. The check written on July 5, 1997, was inthe amount of $15,000. When this check was presented to thedefendants' bank, the bank refused to honor the check due toinsufficient funds.

The closing of the transaction took place on July 25, 1997. At the time of the closing, the defendants' $15,000 check had notyet been returned to the plaintiff unpaid. The amount of thischeck was therefore credited toward the purchase price. Thedefendants tendered a check for the remaining amount at theclosing, and the plaintiff turned over possession of the home.

On September 11, 1998, the plaintiff filed a three-countcomplaint against the defendants. Count I sought payment on thebad check pursuant to Article 3 of the Uniform Commercial Code (theCode) (810 ILCS 5/3--101 et seq. (West 1998)). Counts II and IIIsought recovery for breach of contract. The plaintiff soughtjudgment in the amount of $15,000, plus interest, attorney fees,and costs. The defendants appeared pro se.

On January 21, 2000, the trial court entered summary judgmenton behalf of the plaintiff. On March 2, 2001, following a hearing on attorney fees and the calculation of interest, the trial courtentered judgment on behalf of the plaintiff in the amount of$35,007.28. This amount included an award of $6,466.78 forinterest and costs and an award of $13,540.50 for attorney fees. Following the denial of their motion to reconsider, the defendantsfiled a timely notice of appeal.

On appeal, the defendants raise six different issues. Thedefendants' first argument on appeal is that the trial court erredin granting the plaintiff's motion for summary judgment and indenying the motion for summary judgment that the defendants hadfiled earlier in the proceedings. In their motion for summaryjudgment, the defendants argued that the plaintiff's complaint wasbarred because the plaintiff had accepted final payment on thehouse at the closing and had therefore waived all claims againstthe defendants under the contract. The defendants also argued thattheir motion should have been granted because the plaintiff failedto file any counteraffidavits.

The purpose of a motion for summary judgment is to determinewhether a genuine issue of triable fact exists and should begranted when "the pleadings, depositions, and admissions on file,together with the affidavits, if any, show that there is no genuineissue as to any material fact and that the moving party is entitledto a judgment as a matter of law." 735 ILCS 5/2--1005(c) (West1998). Our standard of review on such a motion is de novo. Quinton v. Kuffer, 221 Ill. App. 3d 466, 471 (1991).

Contrary to the defendants' assertions, we do not believe thatthe contract barred the plaintiff's action. As noted above, thecontract provided that the plaintiff waived all claims uponplaintiff's acceptance of final payment. Although the defendantstendered a check to the plaintiff at closing, we disagree that sucha check constituted "final payment" when $15,000 of the purchaseprice was allegedly outstanding. As the plaintiff had not yetreceived the full payment of the purchase price at closing, we donot believe that it waived its right to sue for breach of contract. Additionally, we note that the waiver provision contained in thecontract would not preclude the plaintiff from seeking recovery onthe bad check pursuant to the provisions of Article 3 of the Code. 810 ILCS 5/3--301 (West 1998). Accordingly, we conclude that theplaintiff's action was not barred under the provisions of thecontract.

We also reject the defendants' contentions that nocounteraffidavits were filed in opposition to their motion forsummary judgment. To the contrary, the record demonstrates thatthe plaintiff's president executed an affidavit indicating that thedefendants' $15,000 check had been returned to the plaintiff afterthe closing due to insufficient funds. The affidavit alsoindicated that the plaintiff had never submitted a new check orother payment. A copy of the returned check was attached to theplaintiff's verified complaint. In light of such evidence, webelieve that the trial court correctly determined that thedefendants were not entitled to summary judgment.

Rather, we agree with the trial court that the plaintiff wasentitled to summary judgment. Attached to the plaintiff's motionwas a copy of the returned check, along with a bank statementindicating that the check had been returned for insufficient funds. Also appearing in the record is a letter written by the defendantsacknowledging that their check had been returned and indicatingtheir intent to replace the check. In the entirety of theproceedings, the defendants have never offered any evidence thatthey replaced this check or otherwise paid the remaining $15,000still owed. Accordingly, we find that there is no genuine issue ofmaterial fact and that the plaintiff is entitled to judgment as amatter of law.

The defendants next argue that the trial court abused itsdiscretion in failing to require the plaintiff to respond to theirdiscovery requests. However, a review of the record reveals thatthe defendants never secured any rulings from the trial courtregarding discovery. On November 16, 1999, the defendants did filea motion to compel discovery. However, at the hearing on themotion, the defendants did not argue the merits of their motion and instead filed a petition for removal to the United StatesDistrict Court. When the proceedings were remanded to the trialcourt, the defendants did not pursue their motion to compel. Asthe trial court never entered any order on the defendants'discovery motion, there is nothing for us to review.

The defendants' next argument on appeal is that the trialcourt erred in failing to take judicial notice of an order enteredby the United States District Court for the Northern District ofIllinois allegedly dismissing the plaintiff's complaint. In makingthis argument, the defendants have blatantly misrepresented therecord. The record indicates that on November 19, 1999, thedefendants filed a petition to remove this case to the UnitedStates District Court. On March 18, 1999, the federal courtconducted a hearing on the petition for removal. The defendantsfailed to appear at the hearing, and the federal court dismissedthe defendants' petition for removal for want of prosecution. Thefederal court also remanded the case to the trial court for furtherproceedings. Therefore, contrary to the defendants' assertions,the federal court did not dismiss the underlying lawsuit.

The defendants next argue that the trial court's interestcalculations and award of attorney fees were unreasonable and notwarranted by existing law. We disagree. We have carefullyreviewed the trial court's interest calculations and havedetermined that they were correctly calculated according to thegoverning provisions of the contract. We have also reviewed theaffidavit of attorney fees submitted to the trial court and agreethat such fees were reasonable and warranted by existing law. SeeEDN Real Estate Corp. v. Marquette National Bank, 263 Ill. App. 3d161, 167 (1994). Accordingly, we decline the defendants' requestto disturb these awards.

The defendants' next contention on appeal is that the trialcourt erred in denying their motion for sanctions pursuant toSupreme Court Rule 137 (155 Ill. 2d R. 137). The defendants arguethat they were entitled to sanctions after the plaintiff began togarnish defendant Leo Rasberry's wages while the defendants' motionfor reconsideration of the final judgment order was still pending. The defendants argue that their timely filed postjudgment motionstayed the enforcement of the judgment and that the garnishmentproceedings were premature. See 735 ILCS 5/2--1203 (West 2000).

The trial court's decision whether to impose sanctions willnot be disturbed absent an abuse of discretion. Kennedy v. Miller,221 Ill. App. 3d 513, 525 (1991). We are hindered in our review ofthis issue by an incomplete record. The transcript from thehearing on the defendants' motion for sanctions does not appear inthe record. As the appellants, the defendants have the burden topresent a sufficiently complete record of the proceedings in thelower court to support any claim of error. EDN Real Estate, 263Ill. App. 3d at 167. In the absence of such a record, thereviewing court must presume that the trial court's order was inconformity with the law and had a sufficient factual basis. Foutchv. O'Bryant, 99 Ill. 2d 389, 391-92 (1984).

Based upon the minimal record before us, we cannot say thatthe trial court abused its discretion by denying the defendants'request for sanctions. Although it does appear that the plaintifffiled and served a wage deduction notice prior to the hearing onthe defendants' postjudgment motion, the lack of a supportingrecord makes it impossible for us to assess the plaintiff's motive,intent, or purpose in taking such action. Accordingly, we mustassume that the trial court's determination that such conduct wasnot sanctionable was supported by facts introduced at the hearingand in accordance with the law. Foutch, 99 Ill. 2d at 392.

As their final argument on appeal, the defendants assert thatthe trial court erred in setting a $70,000 appeal bond. However,this court has already considered this precise issue in ruling uponthe defendants' motion for reduction of bond. On April 12, 2001,this court allowed the motion in part and reduced the defendants'bond to $52,500. We will not visit this issue once again.

Finally, after considering the merits of the defendants'arguments on appeal, it is our belief that the appeal was frivolousand not taken in good faith in violation of Supreme Court Rule375(b) (155 Ill. 2d R. 375(b)). Although the plaintiff has notrequested the entry of sanctions, we have the inherent jurisdictionto impose sanctions under Rule 375(b). First Federal Savings Bankof Proviso Township v. Drovers National Bank of Chicago, 237 Ill.App. 3d 340, 344 (1992). The purpose of Rule 375(b) is to condemnand punish the abusive conduct of litigants and their attorneys whoappear before us. First Federal, 237 Ill. App. 3d at 344. Specifically, Rule 375(b) allows us to impose an appropriatesanction upon a party or a party's attorney if "it is determinedthat the appeal or other action itself is frivolous, or that anappeal or other action was not taken in good faith, for an improperpurpose, such as to harass or to cause unnecessary delay orneedless increase in the cost of litigation, or the manner ofprosecuting or defending the appeal or other action is for such purpose." 155 Ill. 2d R. 375(b).

Where the court initiates the sanction, the court must requirethe party or attorney or both the opportunity to show cause whysuch a sanction should not be imposed. 155 Ill. 2d R. 375(b). Webelieve that, in the absence of such a showing, this appealwarrants sanctions. As detailed above, all of the defendants'arguments were either without foundation or unsupported by thenecessary record. Based upon our review, we believe that thedefendants have filed the appeal in an attempt to delay theproceedings and to harass the plaintiff.

We therefore direct the defendants to file, within 14 days, abrief or memorandum with this court showing why we should notimpose sanctions or attorney fees under Rule 375(b). Should wethereafter decide that this appeal warrants sanctions, we shallorder, in due course, the plaintiff to file a statement ofreasonable expenses and attorney fees incurred in defending theappeal. See First Federal, 237 Ill. App. 3d at 344. Thedefendants shall then be accorded an opportunity to respond. Thiscourt will then file an order determining the amount of thesanction to be imposed upon the defendants.

For the foregoing reasons, the judgment of the circuit courtof Du Page County is affirmed and a rule to show cause issued.

Affirmed; rule to show cause issued.

McLAREN and BYRNE, JJ., concur.