Safeway Insurance Co. v. Ebijimi

2025 IL App (1st) 231543

• Court: Appellate Court of Illinois
• Decided: September 30, 2025
• Docket: 1-23-1543
• Status: Published

Opinion

2025 IL App (1st) 231543

FIFTH DIVISION September 30, 2025

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

No. 1-23-1543

SAFEWAY INSURANCE COMPANY, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CH 12097 ) BEATRICE EBIJIMI and DADA EBIJIMI, ) Honorable ) Anna Demacopoulos, Defendants-Appellants. ) Judge Presiding.

JUSTICE MIKVA delivered the judgment of the court, with opinion. Justices Oden Johnson and Tailor concurred in the judgment and opinion.

OPINION

¶1 Almost 20 years ago, when her daughter, Beatrice Ebijimi, was struck by a car, Dada

Ebijimi initiated a claim for uninsured motorist coverage under the automobile insurance policy

issued to her by Safeway Insurance Company (Safeway). Following years of intermittent

correspondence with the Ebijimis’ lawyer, Robert Langendorf, Safeway filed suit for a declaration

of no coverage, on the basis that the Ebijimis had not submitted a claim form, given a sworn

statement, or submitted Beatrice to an independent medical examination, all conditions precedent

to coverage set out in the policy. The Ebijimis’ position was that Safeway was estopped from

denying coverage because it had led Mr. Langendorf to believe that any attempts to satisfy those

conditions would be futile if the Ebijimis could not produce evidence of the driver’s uninsured No. 1-23-1543

status in the specific form that Safeway demanded. Following a bench trial, the trial court entered

judgment in Safeway’s favor.

¶2 On appeal, the Ebijimis assert numerous claims of error. Their primary argument, however,

is that it was an abuse of discretion for the trial court, as a sanction for his conduct at trial, to bar

the testimony of Mr. Langendorf concerning key conversations he claims to have had with

Safeway representatives. We agree that this sanction was an abuse of discretion but conclude that

the Ebijimis have not shown they were prejudiced by this error, where their offer of proof makes

clear that this testimony would not have proven their estoppel claim. We also conclude that each

of the Ebijimis’ other arguments about trial error lack merit. We affirm.

¶3 I. BACKGROUND

¶4 A more detailed account of the parties’ pleadings and the earlier proceedings in this matter

can be found in our 2018 opinion affirming in part and reversing in part the trial court’s grant of

summary judgment in favor of Safeway. Safeway Insurance Co. v. Ebijimi, 2018 IL App (1st)

170862. We summarize them here only to provide context for the issues raised in this appeal. We

then provide a brief overview of the evidence produced at trial, reserving facts specific to the

Ebijimis’ various arguments for our analysis.

¶5 A. Pretrial Proceedings and First Appeal

¶6 The Ebijimis assert that on January 20, 2006, Beatrice was struck by a vehicle driven by

Patricia Tyson, an uninsured driver. Beatrice’s mother, Dada, initiated a claim for uninsured

motorist coverage under the personal automobile insurance policy issued to her by Safeway that

covered the one-year period beginning on January 8, 2006 (policy No. 0110701-IL-PP-003), and

the Ebijimis corresponded with Safeway over the following years through their counsel, Mr.

Langendorf.

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¶7 On May 7, 2013, Safeway filed this action seeking declarations that (1) no coverage existed

under the policy for Beatrice’s accident and (2) due to the Ebijimis’ failure to comply with the

policy terms, Safeway was “not obligated to settle or arbitrate the uninsured motorist claim.”

Safeway alleged that the Ebijimis had failed to satisfy either condition 3—requiring them to

provide Safeway with timely written notice of the particulars of the accident—or condition 10—

requiring them to submit to examinations under oath, complete forms furnished by Safeway, have

Beatrice examined by a Safeway-selected physician, and allow Safeway to obtain and review her

medical records.

¶8 The Ebijimis answered the complaint on August 5, 2014, asserting, among other

affirmative defenses, that Safeway was estopped from disputing or denying coverage because the

company had “led [the Ebijimis] to believe their claim would not be processed because [Safeway]

was not satisfied with their proof of no insurance with respect to the driver of the vehicle.”

According to the Ebijimis, Safeway never advised them that it was contesting coverage because

of a failure on their part to comply with conditions precedent in the policy.

¶9 In a counterclaim demanding arbitration and asserting various causes of action against

Safeway on behalf of a purported class of similarly situated policyholders, the Ebijimis alleged

that Safeway had a policy of wrongfully demanding a certified letter from the Illinois Department

of Transportation (IDOT) as the only acceptable proof of a driver’s uninsured status. The Ebijimis

alleged that when IDOT records here indicated that Ms. Tyson was insured by Affirmative

Insurance Company (Affirmative), they obtained and forwarded to Safeway on December 17,

2007, a letter from Affirmative confirming that Ms. Tyson was not in fact one of the company’s

insureds at the time of the accident. An attached copy of that letter stated that the policy issued to

Ms. Tyson “had been cancelled due to non-payment of premium on 10-13-05 and had not been

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reinstated prior to the loss of 1-20-06.” In an attached letter dated July 18, 2008, however, Safeway

told Mr. Langendorf: “We need IDOT certification and a completed accident report form that was

previously forwarded to you. Upon receipt of same, we can schedule your client’s sworn statement.

You will need to set your client’s IME as explained in our numerous letters to you.” The Ebijimis

alleged that nothing in the policy required an IDOT certification and that Safeway’s refusal to

acknowledge the alternative proof they had provided of the driver’s uninsured status meant that

“any actions by [them] with respect to the claim or compliance with conditions of the policy would

have been futile.”

¶ 10 Safeway moved for summary judgment on November 12, 2014, arguing that there was no

genuine issue of material fact as to whether the Ebijimis had complied with the conditions

precedent to coverage set out in the policy. Discovery was permitted as to the issues raised in the

motion, and the Ebijimis filed their response on May 23, 2016. They attached to it an affidavit

submitted by Mr. Langendorf referencing the conversations he averred that he had had with

Safeway representatives and that the Ebijimis argued supported their affirmative defense of

estoppel. Safeway moved to strike the affidavit as conclusory, contradicted by the documentary

evidence, and—as to the conversations between Mr. Langendorf and Safeway—lacking an

adequate foundation. Safeway argued in its reply in support of summary judgment that the Ebijimis

had presented no admissible evidence of any statement made by it that would have lulled the

Ebijimis into a belief that Safeway would not require their compliance with the conditions in the

policy. “The only detrimental reliance by the Ebijimis,” Safeway insisted, “was on their own

attorney, who failed to take the most basic actions to pursue the uninsured motorist claim” on their

behalf.

¶ 11 The trial court granted Safeway’s motion to strike the affidavit in its entirety, on the basis

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that the contents were conclusory, self-serving, and lacking a proper foundation. In the court’s

view, the affidavit

“[did] not aver any details regarding the conversations that [Mr. Langendorf] had with

individuals at Safeway that lead him to believe that this was an appropriate and reasonable

conclusion for him to make, nor [wa]s there anything in the affidavit that [laid a] proper

foundation for th[o]se conversations to be admissible at trial or at a subsequent hearing.”

¶ 12 The court then granted summary judgment in favor of Safeway, finding that no genuine

issue of material fact existed regarding whether the Ebijimis had failed to comply with the

conditions in the policy. It rejected their affirmative defenses, specifically concluding that their

defense of estoppel—that Safeway had “ ‘lulled or induced Attorney Langendorf and defendants

to take no action on their claim as to Condition 10’ ”—lacked any support. Safeway, 2018 IL App

(1st) 170862, ¶ 24.

¶ 13 We affirmed in part and reversed in part. Although certain portions of Mr. Langendorf’s

affidavit did not comply with Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013), which sets

forth the requirements for affidavits offered in support of or in opposition to summary judgment,

we concluded that the trial court had “swept up the good with the bad.” (Internal quotation marks

omitted.) Safeway, 2018 IL App (1st) 170862, ¶ 45. We noted that an affidavit satisfies Rule 191(a)

“ ‘if from the document as a whole it appears the affidavit is based on the personal knowledge of

the affiant and there is a reasonable inference that the affiant could competently testify to its

contents’ ” at trial. Id. ¶ 40 (quoting Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d

362, 386 (2009)). We concluded that the affidavit met that standard and that, under the liberal

construction required of affidavits submitted in opposition to summary judgment, it raised issues

of material fact precluding summary judgment. Id. ¶ 47.

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¶ 14 B. Proceedings on Remand

¶ 15 1. Pretrial Motions

¶ 16 On remand, co-counsel was hired to represent the Ebijimis at trial, as Mr. Langendorf, who

was expected to testify as a witness, would be conflicted from doing so. That attorney was

permitted to withdraw from the case, however, on November 7, 2022. On January 24, 2023, just

six days before trial was set to begin, another lawyer, Mr. Curcio (no first name given), appeared

in court. Mr. Curcio explained that he had first been approached about appearing in this case during

the week between Christmas and the New Year and that, due to previously scheduled trials, he

could not file an appearance on behalf of the Ebijimis unless the court continued the matter until

at least May. The court denied that request.

¶ 17 On January 25, the Ebijimis filed an emergency motion to continue the trial that was set to

begin just five days later so that they could “proceed with minimal class discovery” on their class

action allegations and a motion for class certification “could be heard before the final trial in this

matter.” The court denied that motion, and Mr. Langendorf moved for a substitution of judge for

cause. Noting that this was the fourth such motion the Ebijimis had filed and concluding that it

was made solely for the purpose of delay, the court denied the motion without assigning it to

another judge for a hearing.

¶ 18 On January 26, Michael Connolly filed his appearance on behalf of the Ebijimis. He moved

for a continuance the next day, indicating that he was unable to try this case as scheduled due to a

death in his family. The court denied the motion for a continuance as untimely, lacking support,

and made for the purpose of delay, but stated that it would allow him to attend the services when

it was made clear when they would be held. The trial court judge noted that Beatrice’s accident

had occurred 17 years ago, that this case had been pending for 10 years, and that she “would find

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it difficult to believe that any judge in this building would think that it would be appropriate to

continue this case.” The judge said that she respected the life and death of Mr. Connolly’s niece

and would allow him to appear by Zoom if necessary but concluded, “I think that we’re ready to

go to trial.”

¶ 19 Safeway moved to bar nonparty witnesses from being present except when testifying, and

the court denied the motion as to Mr. Langendorf, ruling that he would be allowed to stay in the

courtroom during testimony but that, when he testified as a witness, Mr. Connolly would perform

the direct- and cross-examination. At this, Mr. Langendorf suggested that the court could simply

admit his affidavit in opposition to summary judgment into the record and he would not “even

need to be a witness.” The judge responded, “I’m not going to do that, Mr. Langendorf because as

the Appellate Court opinion indicated that there is a different standard for affidavits and testimony,

so, respectfully, I’m going to deny your request to introduce your affidavit.”

¶ 20 A five-day bench trial was held beginning on January 30, 2023.

¶ 21 2. The Evidence at Trial

¶ 22 a. Cheryl Fleming

¶ 23 Safeway’s first witness was its former counsel, Cheryl Fleming. Ms. Fleming stated that,

as a partner at Parillo, Weiss & O’Halloran (PWO), she had supervised uninsured motorist claims

for Safeway, including the Ebijimis’ claim. Ms. Fleming did not recall ever talking to Mr.

Langendorf; their communications had been in writing. She denied ever doing or saying anything

to deter or prevent the Ebijimis from fulfilling the conditions precedent to coverage in the policy

and denied agreeing to arbitrate without those conditions first having been met. She denied ever

having told Mr. Langendorf that it was unnecessary for his clients to provide a statement under

oath, a completed accident report, or a completed proof of claim form. She likewise never told Mr.

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Langendorf that it was unnecessary for Beatrice to submit to an independent medical evaluation.

Except where the injured person was deceased and could not provide a statement under oath, in

her 20 years supervising uninsured motorist claims, Ms. Fleming could not recall ever having told

a claimant or claimant’s counsel that a condition precedent to coverage was not required.

¶ 24 Ms. Fleming denied, on cross-examination, that Safeway required, as a precondition for

coverage, proof that the driver was uninsured in the specific form of an IDOT certification. She

acknowledged that in a July 18, 2008, letter she sent to Mr. Langendorf she had said “[w]e need

IDOT certification” and “[u]pon receipt of same, we can schedule your client’s sworn statement,”

but insisted that this was not the same as a demand for IDOT certification as the only form of proof

that the driver was uninsured. Nor, in her estimation, did it mean that the sworn statement would

“only” be scheduled upon receipt of that form of proof. “I don’t believe that the letter delayed it,”

she said, “My intent was never to delay this claim.”

¶ 25 b. The Ebijimis

¶ 26 Dada Ebijimi testified that at the time of the accident, Beatrice was 11 years old. Mr.

Langendorf had been their counsel since at least March 13, 2006. Dada was aware that an

application was filed for American Arbitration Association (AAA) to arbitrate the uninsured

motorist claim with Safeway in 2008, when Beatrice was 13 years old, and again in 2013, when

Beatrice was almost 18 years old. She agreed, when asked by Mr. Langendorf, that it would have

been a “waste of time” and a “futile exercise” for Beatrice to submit to an independent medical

evaluation or to provide a completed claim form or sworn statement until they were able to provide

Safeway with an IDOT certification. Dada agreed that Safeway gave no deadlines for compliance

with its requests and never communicated to Dada that the failure to comply with them would

result in a denial of coverage. She agreed that at no time before this action was filed did Safeway

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ever communicate to her that the Ebijimis were in violation of the policy or that coverage would

be denied.

¶ 27 On cross-examination, Dada acknowledged that she had relied on Mr. Langendorf to

communicate with Safeway on behalf of her and her daughter and to do everything that was

necessary to pursue their claim. Dada could not remember if she had filled out any forms but said

that she followed Mr. Langendorf’s directions, and if he had asked her to, she would have.

¶ 28 Beatrice Ebijimi, who was 27 years old at the time of trial, recalled that she was involved

in an accident in the winter or early spring of 2006, when she was in fifth grade, and that it required

her to be taken by ambulance to a nearby hospital. Beatrice did not personally take any steps to

pursue an uninsured motorist claim. She was a minor and “left everything to [her] mother” to

handle. Her mother hired Mr. Langendorf, and Beatrice did not know the details of what he did to

pursue that claim. To the best of her knowledge, she had done everything Mr. Langendorf had

instructed her to do.

¶ 29 c. Cliff Vickers

¶ 30 Cliff Vickers testified that in 2006 he was an assistant claims manager at Safeway and the

person assigned to handle the company’s uninsured motorist claims. Safeway received a letter

from Mr. Langendorf on March 13, 2006, seeking arbitration of the Ebijimis’ claim and attaching

an attorney lien. The company responded several days later by sending a report of loss form to the

Ebijimis and a letter to Mr. Langendorf instructing him, in accordance with condition 10 of the

policy, to make appointments with PWO for the Ebijimis to give statements under oath and with

one of two Safeway-approved doctors for Beatrice to undergo an independent medical

examination.

¶ 31 Mr. Vickers said that Safeway then waited for the Ebijimis to comply. According to him,

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Safeway never received a list of Beatrice’s medical providers or copies of her hospital or

ambulance records, and sometime in 2011 they closed the reserve set aside for the claim due to

inactivity. “Nothing was being sent in, and nothing was being done.” When Safeway received a

second demand for arbitration of the claim in early 2013, PWO sent Mr. Langendorf a letter stating

that the firm was now handling the matter on behalf of Safeway.

¶ 32 On cross-examination by Mr. Langendorf, Mr. Vickers agreed that Safeway did not send

the Ebijimis any letters saying the company was disputing coverage and that the filing of the

complaint in this matter was “the method used to advise the Ebijimis of the dispute of coverage.”

Though noncompliance with the conditions in the policy was the reason coverage was disputed,

Mr. Vickers agreed that Safeway also believed the Ebijimis had failed to provide sufficient

evidence of the driver’s uninsured status. He acknowledged that there was no written definition in

the policy of what constituted sufficient proof of a driver’s uninsured status. Although an IDOT

certification was not required, Mr. Vickers said “I guess I agree with that” when asked if it was

nevertheless the preferred method of proof. When asked what other ways existed, he said, “[a]

letter from the insurance company saying there’s no coverage” and could not recall any others at

that time. He nevertheless agreed with Ms. Fleming that the letter from Affirmative was “not direct

proof that there [wa]s no insurance,” because “there could be other insurance out there.”

¶ 33 When the Ebijimis filed an application with AAA in 2008, Safeway did not pay any portion

of the invoice. Mr. Vickers’ understanding was that this was because the Ebijimis had not complied

with the conditions of the policy. He denied that that decision had anything to do with their failure

to provide a certified IDOT letter as proof of the driver’s uninsured status.

¶ 34 The Ebijimis recalled Mr. Vickers, who was examined by Mr. Langendorf. Mr. Vickers

testified that the police report, prepared at the time of the accident, indicated that Ms. Tyson, the

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at fault driver, was covered by Affirmative. Mr. Vickers agreed that proof of the uninsured status

of the at fault driver is required for payment to be made on an uninsured motorist claim but did not

know whose burden it was to provide such proof. Mr. Vickers testified that Safeway did not

investigate the uninsured status of the driver in this case but rather “sent it to the attorneys to handle

it at that point” and that he “[did not] know how they did that.” When asked if a certified IDOT

letter, specifically, was required, he said, “I don’t know. We hire attorneys to handle that aspect.”

¶ 35 d. Mr. Langendorf

¶ 36 Over Safeway’s objection, Mr. Langendorf took the stand on February 8, 2023, and was

questioned by Mr. Connolly. Mr. Connolly soon asked for a short break to “get the exhibits all

together and get them straight,” noting, “We had to redo it all because we have many more

exhibits.” Mr. Connolly was able to get through some preliminary questions and have Mr.

Langendorf identify some documents before court broke for the day. The court admonished Mr.

Langendorf, telling him, “you are still under oath, which means, as in [sic] any other witness, it

would be inappropriate for you to confer with Counsel about your testimony that you’ve already

had, and the testimony you are about to give. I’m hoping you will abide by the Court’s order.”

¶ 37 There was no court reporter when the parties returned to court the following day, and a

Zoom recording was instead made of the proceedings, which we discuss in detail in our analysis.

No testimony was taken on that day. When trial resumed on February 10, 2023, the trial judge

accused Mr. Langendorf of violating her order by conferring with Mr. Connolly regarding the trial

exhibits during the break and barred him from further testifying in this case. The trial concluded

without Mr. Langendorf’s testimony, although he made an offer of proof which we discuss below.

¶ 38 3. The Circuit Court’s Judgment in Favor of Safeway

¶ 39 Following closing arguments on February 15, the court entered a 23-page memorandum

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opinion and order finding in favor of Safeway. The court’s memorandum discussed barring Mr.

Langendorf’s testimony, noting that when it had adjourned for the day on February 8, 2023, “Mr.

Langendorf was instructed to not speak with Mr. Connolly about his testimony or the exhibits.”

Both the Zoom recording and Mr. Connolly’s statements to the court on February 10, however,

led the court to conclude that Mr. Langendorf, and not Mr. Connolly, had “had the final say on the

content of the exhibit list.” In the court’s view, this was “a direct violation of the court’s order”

justifying the barring of Mr. Langendorf’s further testimony. The court concluded, among other

things, that the uncontroverted evidence presented at trial established that the Ebijimis had not

complied with condition 10 of the policy and that they had failed to prove their affirmative defense

of equitable estoppel.

¶ 40 The Ebijimis now appeal.

¶ 41 II. JURISDICTION

¶ 42 After denying the Ebijimis’ posttrial motions, the trial court entered judgment in favor of

Safeway on July 27, 2023, and the Ebijimis filed a timely notice of appeal from the judgment on

August 28, 2023. This court has jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb.

1, 1994) and Rule 303 (eff. July 1, 2017), which together govern appeals from final judgments

entered by the circuit court in civil cases.

¶ 43 III. ANALYSIS

¶ 44 A. The Trial Court’s Decision to Bar Mr. Langendorf’s Continued Testimony

¶ 45 The Ebijimis’ primary argument on appeal is that the trial court abused its discretion when

it barred Mr. Langendorf from continuing to testify at trial as a sanction for what the trial judge

viewed as a violation of her order that he not communicate with Mr. Connolly during a break in

the proceedings.

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¶ 46 As authority for barring Mr. Langendorf from continuing to testify, the trial court cited

Illinois Supreme Court Rule 219 (eff. July 1, 2002), titled “Consequences of Refusal to Comply

with Rules or Order Relating to Discovery or Pretrial Conferences.” Subsection (c)(iv) of that rule

provides that “[i]f a party, or any person at the instance of or in collusion with a party, unreasonably

fails to comply with *** [the rules governing discovery, requests for admission, or pretrial

procedures] or fails to comply with any order entered under th[o]se rules,” then the court may

order, among other things, “[t]hat a witness be barred from testifying concerning that issue.” Ill.

S. Ct. R. 219(c)(iv) (eff. July 1, 2002).

¶ 47 Although the Ebijimis fail to point this out, it is clear that the order at issue here did not

concern discovery or pretrial procedures; it concerned Mr. Langendorf’s conduct as a witness at

trial. And as this court has repeatedly held, “Rule 219 is not a basis for sanctioning conduct that

occurs at trial.” Gonzalez v. Nissan North America, Inc., 369 Ill. App. 3d 460, 469 (2006) (citing

Day v. Schoreck, 31 Ill. App. 3d 851, 852-53 (1975)).

¶ 48 Although both Safeway and the Ebijimis analyze the trial court’s sanction only under Rule

219, sanctions are also available outside of that rule. The trial court may regulate the conduct of

the parties, lawyers, and witnesses during trial, for example, as part of its “inherent power to afford

a fair trial to all parties.” Smith v. City of Chicago, 299 Ill. App. 3d 1048, 1053 (1998). It is through

the exercise of this power that courts frequently enter orders excluding nonparty witnesses from

the courtroom or prohibiting witnesses from discussing their testimony with each other, measures

intended to preserve the integrity of the witnesses’ testimony. Id. Because the exercise of this

inherent authority does not stem from a mandate in a statute or rule, however, clarity is a key

concern. Id. at 1053-54. As we explained in Smith, “[w]hen a court determines, in the

administration of a trial, that it is necessary to prohibit conduct which is not otherwise proscribed

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by a statute or rule, it is imperative that the court’s order be clear and that all parties concerned

have an accurate understanding of its limitations.” Id. at 1054. “If a trial court’s orders are unclear,

any sanction entered for their perceived violation is an abuse of discretion and subject to reversal

on appeal.” Id.

¶ 49 In our view, the court’s instruction to Mr. Langendorf when a break was taken after his

testimony on February 8, 2023, did not clearly prohibit the conduct for which his further testimony

was barred. Although, in its memorandum opinion and order, the court recalled that it had ordered

Mr. Langendorf “not to speak to Mr. Connolly about his testimony or the exhibits” (emphasis

added) during that break, what the court actually said was, “you are still under oath, which means,

as in [sic] any other witness, it would be inappropriate for you to confer with Counsel about your

testimony that you’ve already had, and the testimony you are about to give.” Unlike its prior

directives—the court told Ms. Fleming, for example “not to have any conversations with anyone”

during a break in her testimony—the trial court’s admonition to Mr. Langendorf concerned only

his testimony. He was never specifically instructed not to communicate with Mr. Connolly

regarding the trial exhibits.

¶ 50 More significantly, the interactions between the court and Mr. Langendorf following that

admonition reflect the understanding they both appear to have had that Mr. Langendorf and Mr.

Connolly would confer regarding the exhibits during the break in question. There was no court

reporter when the parties returned to court on the morning of February 9, 2023. A Zoom recording

was instead made of the proceedings. At the start of those proceedings, the court, Mr. Langendorf,

Mr. Connolly, and Ms. Hillison (Safeway’s counsel) were all present. The court noted that Mr.

Connolly had been marking exhibits in an inconsistent manner that made them difficult to keep

track of and asked him, going forward, to refer to the exhibits only by the designations given to

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them when they were first admitted. Mr. Connolly expressed some confusion over which exhibits

had already been introduced, prompting Mr. Langendorf to propose that Mr. Connolly meet with

Ms. Hillison to go over them together. Mr. Langendorf proposed that he “would not be present”

and would “stay out of it” because he understood that Ms. Hillison “had issues with [him]”

stemming from something that had happened the day before.

¶ 51 Ms. Hillison rejected that proposal, making clear that she did not wish to meet with either

Mr. Langendorf or Mr. Connolly unless the judge or a deputy was present. The court suggested

instead that Ms. Hillison could leave while Mr. Connolly separated out the exhibits that he still

intended to produce and arranged them on a table in the courtroom. He would then leave, and she

could return to review the exhibits alone. Following a discussion of other matters, the court said:

“So, Ms. Hillison if you want to step out. Mr. Langendorf, Mr. Connolly, when you are

ready, let my clerk know that, um, you are ready to have Ms. Hillison look at those

documents. I will then have you step out, and I will then allow Ms. Hillison to come in for

a period of time.” (Emphasis added.)

The Zoom recording shows the judge and Ms. Hillison leave, and for approximately 40 minutes,

Mr. Connolly can be seen arranging exhibits on the conference table. Mr. Langendorf remains in

the courtroom for a significant portion of that time, primarily looking at his phone but on several

occasions openly conversing with Mr. Connolly regarding the exhibits. The two men then inform

a member of the judge’s staff that they are finished and leave the courtroom. Ms. Hillison is invited

back to the courtroom and begins her own review of the exhibits.

¶ 52 Under these circumstances, where the trial court addressed both Mr. Connolly and Mr.

Langendorf and instructed them, together, to let the court’s staff know when the exhibits were

ready, a reasonable person in Mr. Langendorf’s position would not have understood that he was

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forbidden from engaging in any discussion whatsoever with Mr. Connolly regarding the trial

exhibits.

¶ 53 In re H.S.H., 322 Ill. App. 3d 892 (2001), is instructive. Although the trial court in that

case excluded other witnesses from the courtroom, it never ordered the witnesses, the attorneys,

or anyone else not to discuss the trial testimony. Id. at 898. We held that it was an abuse of

discretion for the court to sanction the State when its witness spoke to two other witnesses before

they took the stand, as that was conduct that “violated no clear order.” Id. Here, absent a clear

violation of a clear order, the imposition of a sanction was likewise improper.

¶ 54 In sum, where there was no clear violation of a clear order, it was an abuse of discretion

for the trial court to bar Mr. Langendorf’s continued testimony as a sanction. We need not address,

therefore, the Ebijimis’ additional arguments that continuing the Zoom recording while court was

not in session and relying on the resulting footage to find that Mr. Langendorf had consulted with

Mr. Connolly regarding the exhibits violated state and federal wiretapping statutes, that the lack

of an evidentiary hearing on the basis for the sanction deprived the Ebijimis of due process, or that

the trial court relied on matters outside the record in deciding that the sanction was warranted. Nor

do we need to address Safeway’s arguments that the Ebijimis forfeited these other arguments by

not making them in the trial court. Our finding that the imposition of this sanction was an abuse of

discretion renders these arguments moot.

¶ 55 However, the imposition of this sanction, which we find to be an abuse of discretion, does

not require us to reverse and remand for another trial. “Erroneous evidentiary rulings are only a

basis for reversal if the error was substantially prejudicial and affected the outcome of [the] trial.”

(Internal quotation marks omitted.) Ittersagen v. Advocate Health & Hospitals Corp., 2020 IL App

(1st) 190778, ¶ 71. It is the burden of the party seeking reversal to establish prejudice, and “[w]e

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will not reverse if it is apparent that no harm has been done.” (Internal quotation marks omitted.)

Id. On this record, we cannot conclude that the trial court’s decision to bar Mr. Langendorf’s

further testimony had such a prejudicial effect.

¶ 56 Mr. Langendorf’s barred testimony concerned certain conversations he claimed to have

had with Safeway representatives about the Ebijimis’ uninsured motorist claim, which the Ebijimis

argue proved their defense of equitable estoppel. To establish equitable estoppel, the party

asserting the defense must show that it reasonably and in good faith relied upon the conduct or

statements of the opposing party to its detriment, such that it would be unfair to permit the opposing

party to now deny the truth of its representations. Geddes v. Mill Creek Country Club, Inc., 196

Ill. 2d 302, 313-14 (2001). “The party claiming estoppel has the burden of proving it by clear and

unequivocal evidence.” Id. at 314.

¶ 57 The trial court invited the Ebijimis to make an offer of proof as to the barred testimony. As

that offer, the Ebijimis relied solely on Mr. Langendorf’s 2016 affidavit (both the original version

and an amended version), which they had submitted in opposition to Safeway’s motion for

summary judgment. Mr. Langendorf averred as follows:

“18. Over the course of a few years after the initiation of the claim, prior to and

after the AAA demand, I had various conversations with attorneys from PWO and

specifically Cheryl Fleming. During my conversations with Cheryl Fleming I was told

nothing would be done on the Ebijimi’s claim by Safeway because they did not have a

certified letter from IDOT stating that Ms. Tyson was uninsured.

19. Specifically, I recall telephone conversations with attorney Cheryl Fleming

close in time to when we provided them with the letter from Affirmative Insurance stating

this was not an uninsured motorist case. During the conversations Cheryl Fleming told me

17 No. 1-23-1543

Safeway was not accepting coverage. I asked what they wanted us to do (the Ebijimis) and

she suggested I file a declaratory action. I said no and I would proceed with AAA and they

could file a declaratory action.

20. The telephone conversations with Ms. Fleming, and my past experience with

Safeway and PWO, was a clear indication to me the claim was disputed based upon

Safeway’s dissatisfaction with the proof of no insurance provided and that any actions

taken on the part of the Ebijimis would be futile.

***

24. No further actions were taken on the claim on behalf of the Ebijimis at that

time because my communications with PWO made it clear and Safeway led me to believe

the threshold showing of uninsured motorist status of the driver was not accepted.”

¶ 58 The trial court assessed the Ebijimis’ offer of proof in its memorandum opinion and order,

stating:

“The affidavits refer to ‘phone conversations,’ but fail to mention when or where

the conversations took place, who was present and what exactly was said. The affidavits

refer to ‘experiences,’ with Safeway, but again lack foundation and authentication. There

is reference to ‘communications with PWO,’ but, once again, there is no identification as

to individuals, when, where, who was present or the form of communication.

*** If these conversations did occur, the Court would expect a lawyer of Mr.

Langendorf’s experience to subsequently memorialize these conversations in writing in his

file. There is no such evidence presented in the offer of proof. Mr. Langendorf knows the

rules of evidence as does this Court, but he chose not to follow them in filing his offer of

proof as to his proposed testimony.”

18 No. 1-23-1543

Based on this lack of foundation, the trial court said in her decision that she would not have allowed

Mr. Langendorf to testify regarding the purported conversations referred to in his affidavit, even

if the court had not already barred that testimony as a sanction.

¶ 59 We need not decide if we agree with the trial court that Mr. Langendorf’s affidavit

contained no admissible evidence because it is clear that his testimony, even if some or all of it

had been allowed to come in, was far too general and conclusory to have affected the outcome at

trial. The trial court, as the finder of fact, had before it Ms. Fleming’s July 18, 2008, letter to Mr.

Langendorf stating: “We need IDOT certification and a completed accident report form that was

previously forwarded to you. Upon receipt of same, we can schedule your client’s sworn statement.

You will need to set your client’s IME as explained in our numerous letters to you.” The court

found that the letter did not establish that Safeway communicated to Mr. Langendorf that

compliance with the conditions in the policy would be futile if the Ebijimis could not obtain proof

of the at fault driver’s uninsured status in the specific form of a certified IDOT letter. Ms. Fleming

took the stand and specifically denied that interpretation of the letter. She was adamant both that

Safeway did not require IDOT certification and that the claim was denied because the Ebijimis did

not fulfill the preconditions of coverage.

¶ 60 The conclusory statements, vague references to undated phone calls, and the assertion by

Mr. Langendorf that he himself believed Safeway had given a “clear indication” that it would deny

coverage contained in Mr. Langendorf’s affidavit would simply not have been enough to satisfy

the Ebijimis’ burden of proving the affirmative defense of equitable estoppel by clear and

convincing evidence. See Dwyer v. Love, 346 Ill. App. 3d 734, 740 (2004) (equating the “clear

and unequivocal” standard of proof with the more commonly referred to “clear and convincing”

standard); In re Tiffany W., 2012 IL App (1st) 102492-B, ¶ 12 (defining “[c]lear and convincing

19 No. 1-23-1543

evidence” as “that quantum of proof that leaves no reasonable doubt in the mind of the fact finder

about the truth of the proposition in question” (internal quotation marks omitted)). Unlike at

summary judgment, where we found in our 2018 decision that portions of the affidavit were

sufficient to raise an issue of fact, at trial the Ebijimis had the burden of proof on this defense, and

it was a high one.

¶ 61 For similar reasons, the Ebijimis’ argument that the trial court’s finding in Safeway’s favor

was against the manifest weight of the evidence also fails. The evidence here was undisputed that

the Ebijimis did not satisfy the conditions in the policy. The Ebijimis’ only chance of prevailing

was by proving their affirmative defense of equitable estoppel. The July 18, 2008, letter did not do

so on its own, and the trial court was entitled to believe Ms. Fleming that it did not mean what the

Ebijimis claimed it meant (see People v. Gray, 2017 IL 120958, ¶ 35 (“a court of review will not

substitute its judgment for that of the trier of fact on questions involving the weight of the evidence

or the credibility of the witnesses”)).

¶ 62 In a late reply brief we granted the Ebijimis leave to file instanter, after this opinion had

been drafted, they contend for the first time that the trial court’s ruling violated our 2018 mandate.

That argument is forfeited. See Sellers v. Rudert, 395 Ill. App. 3d 1041, 1046 (2009) (noting that

“an appellant forfeits points not raised in the initial brief and cannot argue them for the first time

in the reply brief” (citing Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006))). It also lacks merit. The

Ebijimis insist that the trial court had no right “to foreclose the very proof [our] mandate required

[it] to hear.” Nothing in our 2018 decision precluded the trial court from barring testimony as a

sanction.

¶ 63 In short, appellants are unable to demonstrate that barring Mr. Langendorf’s testimony as

a sanction “was substantially prejudicial and affected the outcome of the trial” (internal quotation

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marks omitted) (Moore v. Mandell, 2023 IL App (5th) 220289, ¶ 34). We will not reverse based

on this error.

¶ 64 B. Challenged Evidentiary Rulings

¶ 65 The Ebijimis also challenge two of the trial court’s evidentiary rulings. The admissibility

of evidence is of course a matter resting within the sound discretion of the trial court (People v.

Pikes, 2013 IL 115171, ¶ 12), and we will not disturb its rulings absent an abuse of that

discretion—i.e., where they are “fanciful, unreasonable or when no reasonable person would adopt

the trial court’s view” (People v. Taylor, 2011 IL 110067, ¶ 27).

¶ 66 The Ebijimis first argue that the court wrongly excluded checks made out by Mr.

Langendorf to AAA under the best evidence rule. Nowhere in the single paragraph they devote to

this argument, however, do the they once cite to the record on appeal. Nor is there any mention of

the checks or the trial court’s ruling on their admissibility in the Ebijimis’ lengthy statement of

facts. Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) requires arguments on appeal to

include citations to the pages of the record relied on. The Ebijimis have also drawn no connection

between payments made to AAA and their ability to prove the elements of their defense of

estoppel. Thus, we can discern no way in which they might have been prejudiced by this ruling,

even if it were wrong.

¶ 67 The Ebijimis next argue that it was error for the trial court to bar the evidence deposition

of Michael McCready, a personal injury attorney who has purportedly handled many uninsured

motorist cases against Safeway and would have provided testimony concerning the company’s

“pattern and practice” of requiring an IDOT certification as the only acceptable proof of a driver’s

uninsured status. The trial court refused to admit Mr. McCready’s deposition into evidence because

the Ebijimis did not disclose him as a witness until midway through trial.

21 No. 1-23-1543

¶ 68 Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2018) requires parties to identify the

witnesses they intend to call at trial during discovery. As noted above, Rule 219(c) “empowers a

trial court to impose appropriate sanctions, including barring a witness from testifying, for a party’s

failure to comply with the rules or court orders regarding discovery.” Smith v. Murphy, 2013 IL

App (1st) 121839, ¶ 24.

¶ 69 Counsel for the Ebijimis argued at trial that Mr. McCready’s testimony could not be

disclosed earlier because it was introduced to rebut the “surprise testimony” of Mr. Vickers and

Ms. Fleming, whom counsel claimed Safeway had itself not properly disclosed. The trial court

found this argument completely unpersuasive. Counsel was aware that Mr. Vickers and Ms.

Fleming were, respectively, the Safeway claims adjustor and the attorney handling the Ebijimis’

claim, and it could have been no surprise to him that Safeway called them as witnesses at trial. The

court also noted that allegations regarding Safeway’s policies had long formed the basis of the

Ebijimis’ counterclaims, which it had always been their burden to prove. There was nothing, in

the court’s view, that should have prevented the Ebijimis from finding, disclosing, and securing

the testimony of Mr. McCready before trial. We agree and find no abuse of discretion.

¶ 70 Nor, again, is it clear what difference the exclusion of this evidence would have made to

the outcome of this trial. Mr. McCready did not work on the Ebijimis’ case. His testimony

regarding what Safeway did in other cases could perhaps have lent credibility to a firsthand account

of what happened here, but it is no substitute for such an account. Without admissible evidence

regarding what Safeway said and did in this case to lull them into the belief that compliance with

the conditions in the policy were not required, the Ebijimis simply could not prevail.

¶ 71 The challenged rulings were not abuses of the trial court’s discretion and resulted in no

prejudice to the Ebijimis.

22 No. 1-23-1543

¶ 72 C. The Court’s Denial of a Continuance Four Days Before Trial

¶ 73 The Ebijimis next argue that the trial court denied them the counsel of their choice by

refusing to grant a continuance just days before trial. As noted above, the Ebijimis had sought to

retain Mr. Curcio just four days before trial, but he had a conflict that would require a continuance

of some months. The trial court denied that request, citing the closeness of the trial date and the

length of time the case had already been pending. The Ebijimis argue that this forced them to go

to trial represented by Mr. Connolly, whom they claim was “compromised by grief and familial

commitment” following the tragic death of his niece.

¶ 74 Although parties to civil actions are certainly entitled to be represented by counsel of their

own choosing (Herbster v. North American Co. for Life & Health Insurance, 150 Ill. App. 3d 21,

28 (1986)), the Ebijimis are wrong that this “constitutional right at the heart of the Sixth

Amendment” is one that “supersedes convenience to the parties, court and jury.” The sixth

amendment does not apply to civil cases. See U.S. Const., amend. VI (“In all criminal prosecutions,

the accused shall enjoy ***.”). In civil cases, “[i]t is well settled that a litigant does not have an

absolute right to a continuance.” K&K Iron Works, Inc. v. Marc Realty, LLC, 2014 IL App (1st)

133688, ¶ 22. Rather, “[t]he decision to grant or deny a motion for a continuance is within the

sound discretion of the trial court” and will not be disturbed absent an abuse of that discretion. Id.

¶ 75 As Safeway points out, Cook County Circuit Court Rule 5.2 provides that a party shall be

entitled to only one continuance on the ground that his attorney is engaged in another trial or

hearing. Cook County Cir. Ct. R. 5.2(a) (July 1, 1976). And “[a] continuance shall not be granted

upon the ground of substitution or addition of attorneys.” (Emphasis added.) Cook County Cir. Ct.

R. 5.2(b) (July 1, 1976).

¶ 76 Here, the attorney brought on to help prepare this case for trial moved to withdraw on

23 No. 1-23-1543

September 28, 2022, and her motion was granted on November 7, 2022. Trial was not scheduled

for nearly three months, and yet the Ebijimis apparently waited until just one month remained

before seeking the assistance of Mr. Curcio. Mr. Curcio’s request for a continuance was

furthermore accompanied by a flurry of emergency filings the trial court reasonably viewed as

untimely and made for the purpose of delay. Under these circumstances, we conclude neither that

the Ebijimis raised “especially grave reasons” for a continuance, nor that the denial of one was an

abuse of the trial court’s discretion.

¶ 77 D. Animus and Bias by the Trial Judge

¶ 78 The Ebijimis next argue that the trial judge harbored a bias against their counsel, Mr.

Langendorf, that prevented her from fairly deciding this matter. They ask us to vacate all orders

entered by that judge since our last decision on appeal and remand this matter for a new trial before

a different judge. As support for this extraordinary relief, they cite Illinois Supreme Court Rule

366(a)(5) (eff. Feb. 1, 1994), which gives this court the authority to enter any order and grant any

relief that a case may require. That authority has been used, as the cases the Ebijimis cite

demonstrate, to reassign a case to a different judge when it is otherwise necessary to reverse and

remand the case for a new trial. See, e.g., Eychaner v. Gross, 202 Ill. 2d 228, 279 (2002)

(discussing this authority). Here, the Ebijimis have failed to persuade of any such reversible error

and, even if they had, a request for such relief would be moot, as the judge who presided over this

trial has since retired.

¶ 79 As an independent basis for reversal, the charge of bias also fails on the merits. “A trial

judge is presumed to be impartial.” Id. at 280. To overcome this presumption, a party asserting

such a claim must point to an extrajudicial source of bias—as in People v. Rowjee, 308 Ill. App.

3d 179, 187-88 (1999), also cited by the Ebijimis, where the trial judge conducted an improper

24 No. 1-23-1543

independent investigation of the facts of the case—or the judge’s comments and conduct must

“reveal a high degree of favoritism or antagonism as to make fair judgment impossible” (People

v. Class, 2025 IL 129695, ¶ 44). To establish bias, it is not enough simply to show that a judge’s

comments sometimes revealed frustration, particularly where the judge’s motivation was not to

disparage counsel but rather to control the trial. People v. Burgess, 2015 IL App (1st)

130657, ¶ 174. Accordingly, remarks “ ‘that are critical or disapproving of, or even hostile to,

counsel, the parties, or their cases’ ” will not necessarily support such a finding. Eychaner, 202 Ill.

2d at 281 (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

¶ 80 Having reviewed the record of proceedings in this trial at length, we acknowledge that the

trial judge indeed often appeared frustrated with Mr. Langendorf. But Mr. Langendorf’s conduct

often appears to us to have been designed to prompt this frustration. He was frequently

argumentative or disrespectful to opposing counsel and to the court, failed to effectively elicit

information from the witnesses, and repeatedly failed to either comprehend or abide by the trial

judge’s evidentiary rulings. Despite the judge’s admonition that he could not use propensity

evidence to prove his claim, Mr. Langendorf appeared fixated on eliciting testimony concerning

Safeway’s practices generally. We agree with Safeway that the judge often exhibited extraordinary

patience and restraint in her efforts to finally see this matter through to a judgment. Within the

context of this unnecessarily long and tedious litigation, and particularly given counsel’s own

questionable conduct, we in no way view the trial judge’s treatment of him as evidence of “deep-

seated favoritism or antagonism” (see id.).

¶ 81 E. Court Reporting Fees

¶ 82 Finally, the Ebijimis fault the trial court for refusing to limit the fees that could be charged

by the court reporting service in this case, which they claim were excessive, against public policy,

25 No. 1-23-1543

and infringed on their right to appeal. We agree with Safeway that we lack jurisdiction to consider

this issue. “The appellate court is one of limited review.” Schittino v. Village of Niles, 2024 IL

App (1st) 230926, ¶ 21. “We may not review simply anything we wish that transpired in the circuit

court, searching for mistakes to fix, for wrongs to right.” Id. Rather, our jurisdiction is limited to

a review of the orders listed in the appellant’s notice of appeal. Id.; see Ill. S. Ct. R. 303(b)(2) (eff.

July 1, 2017) (requiring the notice of appeal to “specify the judgment or part thereof or other orders

appealed from and the relief sought from the reviewing court”). Here, the Ebijimis’ notice of

appeal seeks reversal only of the July 27, 2023, final judgment in this matter. Because it includes

no mention of any order concerning court reporting fees, that matter is not properly before us.

¶ 83 In their reply, the Ebijimis cite Northbrook Bank & Trust Co. v. 2120 Division LLC, 2015

IL App (1st) 133426, ¶ 8, for the proposition that it is not necessary for a particular order to be

identified, “as long as the order that is identified in the notice of appeal directly relates back to the

order or judgment sought to be reviewed.” This is just another way of stating the familiar principle

that “an appeal from a final judgment order entails review of not only the final judgment order,

but also any interlocutory orders that were a step in the procedural progression leading to the

judgment.” (Internal quotation marks omitted.) Id. That principle has no application here, however,

where any order concerning the court reporting fees came after the judgment order specified in the

notice of appeal, not before it.

¶ 84 Even if this matter were properly before us, the motions and orders the Ebijimis refer to

regarding this dispute are not included in the record on appeal. It is the appellants’ burden to

present a sufficiently complete record to support their claims, and any doubts arising from the

incompleteness of the record must be resolved against them. Chicago Title & Trust Co. v. Chicago

Title & Trust Co., 248 Ill. App. 3d 1065, 1075 (1993) (citing Foutch v. O’Bryant, 99 Ill. 2d 389,

26 No. 1-23-1543

391-92 (1984)). The Ebijimis’ include their motion for injunctive relief concerning the court

reporting fees in the appendix accompanying their brief, but that is nothing but an improper attempt

to supplement the record on appeal. See Illinois Supreme Court Rule 342 (eff. Oct. 1, 2019) (noting

that the appendix should contain “any pleadings or other materials from the record that are the

basis of the appeal or pertinent to it” (emphasis added)). Absent a complete record, we have no

way of confirming what specific relief the Ebijimis sought, the arguments made for or against that

relief, or the trial court’s reasons for denying it. There is simply no basis on which we could find

reversible error.

¶ 85 The Ebijimis’ suggestion that we search out these missing portions of the record in the

electronic filings of the circuit court and take judicial notice of them merely confirms a broader

problem with their argument. When it denied their motion for injunctive relief on March 1, 2024,

the court noted that the Ebijimis sought an order compelling the court reporting agency to supply

them with transcripts at a certain rate and concluded that it could not provide that relief, as the

court reporting service was “not a party to this case, and [the Ebijimis] ha[d] not filed a complaint

or counterclaim stating a cause of action against [it].” We agree entirely with that ruling. The court

reporting service would certainly be a necessary party to any request that the court limit the amount

it was permitted to charge for its services or find its contract void as against public policy. See

Cameron v. Bartels, 214 Ill. App. 3d 69, 75-76 (1991) (defining a necessary party as any with “a

present, substantial interest in the matter being litigated, and in whose absence a complete

resolution of the matter in controversy [could not] be achieved”).

¶ 86 This lawsuit has been pending for over a decade. It concerns $1,800 of insurance coverage

for an accident that occurred nearly 20 years ago. In what it is sadly emblematic of the disregard

for judicial resources that has been a hallmark of this case, counsel for the Ebijimis devotes seven

27 No. 1-23-1543

pages of their briefing to this issue alone, one that is plainly not properly before us, lacks any

supporting record, and has been presented with no cogent legal argument in its favor.

¶ 87 IV. CONCLUSION

¶ 88 For the above reasons, we affirm the circuit court’s judgment in favor of Safeway.

¶ 89 Affirmed.

28 No. 1-23-1543

Safeway Insurance Co. v. Ebijimi, 2025 IL App (1st) 231543

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 13-CH- 12097; the Hon. Anna Demacopoulos, Judge, presiding.

Attorneys David W. Lewarchik, of Lewarchik Law LLC, of Chicago, for for appellants. Appellant:

Attorneys Keely Hillison, of Keely Hillison Law LLC, of Chicago, for for appellee. Appellee: