Lambert v. City of Chicago

2023 IL App (1st) 220265-U

SECOND DIVISION
May 16, 2023

No. 1-22-0265

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

MICHAEL LAMBERT, )
) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
) Cook County,
v. ) Chancery Division.
)
The CITY OF CHICAGO, the CHICAGO FIRE ) No. 2021 CH 2889
DEPARTMENT, and the CHICAGO POLICE )
DEPARTMENT, ) Honorable
) Moshe Jacobius,
Defendants-Appellants. ) Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Howse and Cobbs concur in the judgement.

ORDER

¶1 Held: The appeal is dismissed for lack of jurisdiction.

¶2 This appeal stems from a cause of action filed by the plaintiff, Michael Lambert, against

the defendants, the City of Chicago (the City), the Chicago Fire Department (CFD) and the

Chicago Police Department (CPD), seeking injunctive relief pursuant to the Freedom of
No. 1-22-0265

Information Act (FOIA) (5 ILCS 140/1 et seq. (West 2020)). The plaintiff submitted two separate

FOIA requests for records to the CPD and the CFD, both of which were related to an incident in

which a member of the CFD struck and killed his wife with his vehicle. The CPD provided the

plaintiff with some documents but denied that portion of his request that sought access to video

and audio recordings. The CFD, on the other hand, denied the entirety of the plaintiff’s request.

The plaintiff filed the instant lawsuit seeking access to all the records he requested. After it

reviewed the materials in camera, the circuit court determined that they were exempt from

disclosure under the Act (5 ILCS 140/7(1)(a), (c), 7.5(h) (West 2020)) and entered judgment in

favor of the defendants. The plaintiff now appeals, contending that dismissal of his action was

improper because he was denied a chance to conduct discovery, and because the defendants’

claimed exemptions were not specific or supported by an affidavit or any statement from

individuals in the City, the CPD or the CFD. The plaintiff further argues that the statutory

exemption relied on by the circuit court violates the Illinois Constitution’s prohibition against

special legislation. Ill. Const. 1970, Art. IV, § 13. For the following reasons, we find that we are

without jurisdiction to consider this appeal.

¶3 II. BACKGOUND

¶4 The record before us reveals the following relevant and undisputed facts and procedural

history. The incident that precipitated this litigation occurred on September 6, 2020, when CFD

member, Angelo Toskolas, struck and killed his wife Mary Jo Tsokolas, with a vehicle, in front of

their residence located at 3358 114th Street, Chicago. The CPD and the CFD conducted separate

investigations into the incident. Those investigations led to the creation of records, including

reports, witness statements, photographs, and video and audio recordings. Over the course of

several months, from October 2020 to March 2021, the plaintiff, who is Mary Joe’s uncle,

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submitted FOIA requests to the CPD and the CFD seeking records and materials related to the

incident.

¶5 On October 16, 2020, the CFD denied the plaintiff’s request, indicating that the records

could not be disclosed because the investigation was still pending. For the next six months, the

CFD repeatedly denied the plaintiff’s resubmissions, using the same rationale.

¶6 On November 5, 2020, the CPD provided the plaintiff with 169 documents related to the

incident. After the plaintiff complained that the documents failed to disclose any video or audio

recordings obtained by CPD members during their investigation of the incident, on June 8, 2021,

the CPD sent the plaintiff additional materials, which included photographs but no video

recordings.

¶7 On June 14, 2021, the plaintiff filed the instant lawsuit alleging violations of FOIA and

seeking compelled disclosure of the records being improperly withheld by the defendants.

¶8 On July 7, 2021, the defendants filed their answer and affirmative defenses, denying all

wrongdoing regarding the plaintiff’s FOIA requests. While the defendants did not deny the partial

disclosure of records by the CPD and the full denial of documents by the CFD, they asserted that

the requests were properly denied because they were “unduly burdensome” and because the

documents were exempt from disclosure under the Act. The defendants did not cite to any specific

exemptions under the Act, but instead generally argued that they did not need to be disclosed

“pursuant to one or more exemptions set forth in Section[s] 7 and 7.5 of FOIA.” See 5 ILCS 140/7,

7.5 (West 2020).

¶9 The plaintiff sought to conduct limited discovery. On July 29, 2021, he noticed a deposition

of Robert Earnshaw from the CPD. On August 8, 2021, he issued eight interrogatories to the

defendants. In response, the defendants sent an email asserting that discovery was premature, and

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“inappropriate at this time” because the matter was not ripe.

¶ 10 On August 6, 2021, the plaintiff filed a motion in the circuit court seeking to compel

discovery. In addition, he filed a motion to require the defendants to prepare and produce an index

of documents they were withholding.

¶ 11 On August 9, 2021, the circuit court denied the motion to compel without prejudice. The

court, however, ordered the defendants to file an index of documents that were being withheld

from the plaintiff.

¶ 12 On August 26, 2021, the defendants filed the index, listing 26 separate materials that they

claimed were exempt from disclosure under FOIA. For each category, the defendants asserted that

disclosure was exempt under section 7.5(h) of the Act because the records had been “turned over

to [the] Office of [the] Inspector General to complete [an] investigation.” 51 ILCS 140/7.5(h)

(West 2020). For the video footage requested from the CPD, the defendants cited two additional

exemptions. They claimed that the video footage was: (1) exempt under the Illinois Body-Worn

Camera Act (the Body Camera Act) (50 ILCS 706/10-20(b) (West 2020)); and (2) that its

disclosure would constitute a clearly unwarranted invasion of personal privacy for Angelo and

Mary Jo and was therefore exempt under section 7(1)(c) of FOIA. See 5 ILCS 140/7(1)(a), (c)

(West 2020)

¶ 13 Based on the information in the index, on September 7, 2021, the plaintiff filed a renewed

motion to conduct discovery. The defendants did not file a response and the circuit court did not

rule on this motion. Instead, on September 13, 2021, the court ordered the defendants to produce

physical and electronic copies of all the materials listed in their index, including the CPD’s video

footage, for an in camera review, to evaluate the defendants’ claimed exemptions. The court

subsequently set the matter for a hearing “on asserted exemptions” on December 7, 2021.

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¶ 14 On that date, with counsel for both parties present, the circuit court announced that after its

in camera review of the documents listed in the index, it believed that all the withheld materials

were exempt from disclosure under section 7.5(h) of the Act (5 ILCS 140/7.5(h) (West 2020))

because they were handed over to the Inspector General’s Officer for an investigation. In addition,

with respect to the video footage sought from the CPD, the court held that these materials were

exempt under the Body Camera Act. See 50 ILCS 706/10-20(b) (West 2020); 5 ILCS 140/7(1)(a)

(West 2020). Throughout its findings the court specified several times that it was relying on an

affidavit submitted by the defendants. The parties on appeal, however, agree that no such affidavit

was ever provided to the circuit court.

¶ 15 After explaining its findings, the circuit court clarified that this was its “suggested ruling,”

and that a draft judgment order had been prepared in advance of the hearing. The court then

permitted the parties to make arguments. After hearing arguments by both parties, and upon

plaintiff’s counsel’s request, the court agreed to add language to its order that would require the

defendants to inform the plaintiff when the Inspector General’s investigation was completed. The

court then stated “So, with that we will issue the opinion. We’ll add that, just that one sentence

about defendants notifying the [p]laintiff.” The court then reiterated that the order was “already

done” but that it was best “before it’s sent to you[,] we add that one sentence.” The court then

stated that this concludes “all the matter here.”

¶ 16 On that same day, December 7, 2021, the circuit court entered a written judgment in favor

of the defendants. A copy of the file-stamped order with the December 7, 2021, date was emailed

to the plaintiff’s counsel on the following morning, December 8, 2021.

¶ 17 The written order mirrors the court’s oral findings made at the December 7, 2021, hearing.

Specifically, the order states that the materials requested from the CFD are exempt from disclosure

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under section 7.5(h) of FOIA (5 ILCS 140/7.5(h) (West 2020)) because they were submitted to the

Inspector General’s Office for an investigation. The order further includes language that states that

the defendants “shall notify” the plaintiff “when the investigation into this matter” by the Inspector

General is “complete.”

¶ 18 In addition, the written order provides that based on the court’s in camera review, the body

camera footage sought from the CPD is exempt from disclosure for two additional reasons. First,

the Body Camera Act prohibits disclosure of the footage because the plaintiff did not request the

footage as a subject of the videos, and no other statutory predicates for disclosure are present (i.e.,

the filing of a complaint, discharge of a firearm, use of force, arrest or detention, or resulting death

or bodily harm). See 5 ILCS 140/7(1)(a) (West 2020); 50 ILCS 706/10-20(b) (West 2020). In

addition, neither the injuries nor the death of Mary Jo were recorded by the body-worn cameras,

nor were they the result of any actions by the responding officers. Id. Second, according to the

written order, the footage is exempt from disclosure under section 7(1)(c) of FOIA (5 ILCS

140/7(1)(c) (West 2020)) because releasing it to the public would constitute a clearly unwarranted

invasion of privacy, as it depicts a scene of a highly personal nature to the Toskolas family.

¶ 19 On January 7, 2022, 31 days after the circuit court entered its written order, the plaintiff

filed a motion to reconsider. At the hearing on that motion, on January 26, 2022, the defendants

asserted that the court was without jurisdiction to consider the motion because it was filed one

day late. The court stated that “it believed” the motion was filed “within the 30 days,” because it

was filed on January 7, and the written order was filed on December 7. The judge mentioned that

a glitch with the e-filing system delayed the scheduling of the motion and conceded that he was

“not the best with math” but reiterated that based on his calculations if the order was filed on

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December 7 and the motion was filed on January 7, “it looked like it was within the 30 days.”

¶ 20 The plaintiff’s counsel then stated that the parties received the judgment order on

December 8, 2021. The court responded in the following manner:

“Yes, I don’t know when it was stamped, because you know, the fact - I mean, we

certainly thought it was within the 30 days *** [I]t’s a little bit of a challenge, because

we’re doing things remotely. So[,] when you’re in a courtroom, they stamp it

immediately, and you give the lawyer the order. Here, we’re sending it over the Internet.

And sometimes it is stamped the day before, and then the attorney might receive it a day

later. That could be problematic.”

The circuit court then denied the plaintiff’s motion to reconsider on the merits. The plaintiff now

appeals.

¶ 21 II. ANALYSIS

¶ 22 On appeal, the plaintiff contends that dismissal of his action was improper because he

was denied a chance to conduct discovery and because, contrary to the circuit court’s findings,

none of the exemptions asserted by the defendants were supported by an affidavit from either the

CPD or the CFD. The plaintiff further argues that section 7.5(h) of the Act (5 ILCS 140/7.5(h)

(West 2020)), relied on by the circuit court to excuse the disclosure of the requested records,

violates the Illinois Constitution’s prohibition against special legislation. Ill. Const. 1970, Art.

IV, § 13.

¶ 23 The defendants concede that reversal is proper with respect to all the withheld records,

except for the video footage from the body-worn cameras of the CPD officers who responded to

the incident. The defendants agree that no affidavit supporting the documents listed in the index

was ever provided to the circuit court and that therefore the court’s reliance on such an affidavit

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was improper. The defendants nonetheless assert that the video footage was properly exempt

from disclosure under the Body Worn Camera Act (50 ILCS 706/10-20(b) (West 2020)). More

importantly, however, the defendants argue that regardless of the merits of the plaintiff’s

contentions, we are without jurisdiction to consider this appeal.

¶ 24 Unfortunately, after a review of the record below, we are compelled to agree with the

defendants and hold that the plaintiff’s notice of appeal was untimely field and that we therefore

have no jurisdiction to consider the merits of this appeal.

¶ 25 At the outset, we note that before filing their brief in this appeal, the defendants moved to

dismiss the appeal for want of jurisdiction, which a justice of this court denied. That denial,

however, “is not final and must be modified by the panel hearing the appeal where jurisdiction is

lacking.” In re Marriage of Teymour and Mostafa, 2017 IL App (1st) 161091, ¶ 10. Indeed,

“[t]he panel that hears the appeal has an independent duty to determine whether it has

jurisdiction and dismiss the appeal if it does not.” In re Estate of Gagliardo, 391 Ill. App. 3d

343, 349 (2009).

¶ 26 Whether a court has jurisdiction to consider an appeal presents a legal question to be

determined de novo without deference to the trial court’s reasoning. See In re Marriage of

Teymour, 2017 IL App (1st) 161091, ¶ 10; Stasko v. City of Chicago, 2013 IL App (1st) 120265,

¶ 27; Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755,¶ 20.

¶ 27 Illinois Supreme Court Rule 303(a) requires a party appealing from a judgement in the

circuit court to file a notice of appeal within 30 days after entry of the final judgment, or if a

timely postjudgment motion against the judgment is filed, within 30 days from the entry of the

order disposing of the last postjudgment motion. Ill. S. Ct. R. 303(a) (eff. July 1, 2017). To toll

the time for filing a notice of appeal, a postjudgment motion must be filed within 30 days of the

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final judgment. Id.; see also Lampe v. Pawlarczyk, 314 Ill. App. 3d 455, 469-70 (2000) (holding

that a postjudgment motion filed more than 30 days after the entry of the final judgment did not

toll the time for filing the notice of appeal).Where a posttrial motion directed against the

judgment is not filed within 30 days, the clock starts running on the day of the entry of the final

order. Id.; see also Won v. Grant Park 2, L.L.C., 2013 IL App (1st) 122523, ¶ 20.

¶ 28 Compliance with the deadlines for appeals set forth in Supreme Court Rule 303 is

mandatory and jurisdictional. Berg v. White, 357 Ill. App. 3d 496, 499 (2005);Won, 2013 IL App

(1st) 122523, ¶ 20. “Strict compliance with supreme court rules governing the time limits for

filing a notice of appeal is required and neither a trial court nor an appellate court has the

authority to excuse compliance with the filing requirements mandated by the supreme court

rules.” Won, 2013 IL App (1st) 122523, ¶ 20; Graves v. Cook County Republican Party, 2020 IL

App (1st) 181516, ¶ 30. When an appeal is untimely, this court has no discretion to take action

other than to dismiss the appeal. Won, 2013 IL App (1st) 122523, ¶ 20.

¶ 29 In the present case, the 30-day deadline for the plaintiff to file either a postjudgment

motion or a notice of appeal began to run on December 7, 2021, when the judgment order was

file-stamped as entered. The 30th day from the final judgment was January 6, 2022. The

plaintiff, however, filed his postjudgment motion on January 7, 2022, 31 days after the entry of

the final judgment. His motion therefore did not toll the 30-day deadline to file his notice of

appeal. Accordingly, the plaintiff’s notice of appeal, filed on February 23, 2022, was untimely,

and we have no option but to dismiss his appeal. Won, 2013 IL App (1st) 122523, ¶ 20.

¶ 30 The plaintiff concedes that he filed his postjudgment motion on January 7, 2022, 31 days

after the circuit court’s written order was file-stamped. He nonetheless asserts that this court

should ignore that file-stamp, and instead deem December 8, 2021, the date of the entry of the

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final judgment, as this was the day his counsel actually received an email with the written order.

The plaintiff points out that during the hearing on December 7, 2021, the trial judge made

various comments indicating that “several aspects of the case were left up in the air,” and that his

“standard operating procedure” was to issue an opinion “by sending it over the Interent” at a later

date. He therefore contends that he reasonably relied on the judge’s statements and believed that

the 30-day deadline to file his postjudgment motion was tolled by one day. In support, the

plaintiff cites to this appellate court’s decision in Comdisco, Inc. v. Dun & Bradstreet Corp, 306

Ill. App. 3d 197, 202 (1999), which held that the trial court’s failure to follow its “standard

operating procedure” in mailing its final judgment to the parties warranted an equitable tolling of

the time for filing an appeal. For the following reasons, we disagree and find that case

inapposite.

¶ 31 At the outset we disagree with the plaintiff’s characterization of what transpired at the

December 7, hearing. Contrary to the plaintiff’s position, even though the circuit court initially

described its findings as its “suggested” ruling, it subsequently allowed the parties to make

arguments. After the parties discussed the possibility that the defendants could notify the plaintiff

when the Inspector General’s Office completed its investigation, the court indicated that it could

add that language to its opinion. The court then explicitly stated “[s]o, with that we’ll issue the

opinion. We’ll add that, just that one sentence about defendants notifying the [p]laintiff.” The

court then stated that the opinion was “already done,” and that this resolved “all the matter here.”

The court nowhere indicated that there were aspects of the case that still needed to be resolved,

nor explicitly stated that its “standard operating procedure” would be to send the opinion by

email to the parties at a later date. Consistent with the court’s oral pronouncement, the written

opinion was issued on that same day. Accordingly, contrary to the plaintiff’s position, nothing in

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the court’s statements during the December 7, hearing, can be reasonably read as tolling the time

for filing the plaintiff’s postjudgment motion.

¶ 32 Moreover, even if the court’s statements could be read as such, our supreme court has

repeatedly rejected the position that the requisite 30-day period in which to file a postjudgment

motion is tolled until the parties have actual notice of the circuit court’s final order. See Granite

City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill. 2d 122, 123

(1990); Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 148-150 (1994).

¶ 33 In Mitchell, the circuit court signed its order disposing of the case on February 27, 1991.

The order was file-stamped March 1, 1991, and included directions to the clerk of the circuit

court to send a copy of the order to the attorneys of record. Mitchell, 158 Ill. 2d at 146. On April

25, 1991, Mitchell’s counsel learned that the court had entered a ruling in the case. After

conferring with opposing counsel and the court, Mitchell’s counsel filed a section 2-1401

petition (Ill. Rev. Stat. 199, ch. 110, par. 2-1401) to withdraw or vacate the February 27, 1991,

order. Id. On April 29, 1991, the court granted Mitchell’s petition, withdrew the judgment dated

February 27, 1991, and reentered the same order, effective April 29, 1991. Id. at 146-47.

Mitchell filed a timely notice of appeal of that order, and the appellate court upheld jurisdiction

and considered Mitchell’s appeal on the merits. Id. at 147.

¶ 34 Our supreme court reversed, concluding that the appellate court “improvidently took

jurisdiction over Mitchell’s appeal.” Id. at 148. In so concluding, the court reiterated its prior

holding in Granite City, that “ ‘actual notice [of the trial court’s judgment] is not required, so

long as the order appealed from was expressed publicly, in words and at the situs of the

proceeding.’ ” Id. (quoting Granite City, 141 Ill. 2d at 123). The court reiterated that an order is

deemed to have become public when it is filed with the clerk of the court, and that Rule 303

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“requires attorneys to monitor their cases to insure that appeals are timely filed.” Id. at 150; see

also Granite City, 141 Ill. 2d at 127.

¶ 35 The Mitchell court also emphasized that trial courts lack the authority to extend the time

for filing a notice of appeal. Id. at 149. The court explained, in part, as follows:

“The appellate court expressed concern over the unfairness of penalizing the litigant

because his attorney relied on the circuit court’s incorrect directive. We are not

insensitive to the concern expressed by the appellate court in the instant case. However,

this court has general supervisory authority to oversee the administration of its own rules

in the statewide system of courts. The circuit court’s attempt in the instant case to assist

Mitchell’s counsel is understandable and well-intentioned, but neither the trial court nor

the appellate court has the ‘authority to excuse compliance with the filing requirements

of the supreme court rules governing appeals.’ ” (Emphasis added.) Id. at 150 (quoting In

re Smith, 80 Ill. App. 3d 380, 382 (1980)).

¶ 36 Applying Mitchell to the present case, we are compelled to conclude that the circuit

court’s final judgment was expressed publicly, in words and at the situs of the proceedings on

December 7, 2021, when the written order was file-stamped by the clerk of the circuit court.

Mitchell, 158 Ill. 2d at 148-49; Granite City, 141 Ill. 2d at 126-27. Indeed, the circuit court’s

online docket confirms that the final order was entered on December 7, 2021. 1 As already

discussed above, the plaintiff therefore had until January 6, 2022, to file his postjudgment motion

in order to toll the 30-day notice of appeal. Since the plaintiff filed his postjudgment motion on

January 7, his motion was untimely, and did not toll the requisite deadline. The fact that the

plaintiff did not receive actual notice of the final judgment order until December 8, 2021, is of no

1
See Wells Fargo Bank, N.A. v. Simpson, 2015 IL App (1st) 142925, ¶ 24, n.4 (the appellate may take judicial
notice of the online docket reports of the circuit court of Cook county.)

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consequence since it was the plaintiff’s counsel’s duty to “monitor his case closely enough” to

know when the circuit court had ruled. Mitchell, 158 Ill. 2d at 149.

¶ 37 The plaintiff’s reliance on Comdisco, 306 Ill. App. 3d 197, to challenge this position, is

unavailing. In that case, the trial judge issued a written opinion on July 29, 1997. Id. at 201.

Nearly a year later, on May 29, 1998, Comidsco filed a motion to modify that order and to enter

final judgment. At a hearing on the motion to modify and enter final judgment, Comidsco argued

that it had never been notified of the ruling by either mail or telephone. Id. The trial judge stated

that he believed that Comidsco had “relied on the standard operating procedures” of the circuit

court but nonetheless denied the motion to modify. Id.

¶ 38 On appeal, this court held that because the trial judge’s statements in the record indicated

that Comidsco had relied on the court’s “standard operating procedure,” the trial court’s failure

to follow that procedure warranted an equitable tolling of the time for filing an appeal. Id. at 202.

Accordingly, we held that we had jurisdiction to consider the merits of the appeal. Id.

¶ 39 At the outset, we note that Comdisco is inconsistent with our supreme court rules and the

holding in Mitchell, both of which clearly hold that the appellate court does not have the

“authority to excuse compliance with the filing requirements mandated by the supreme court

rules.” Won, 2013 IL App (1st) 122523, ¶ 20; Graves, 2020 IL App (1st) 181516, ¶ 30; see also

Mitchell, 158 Ill. 2d at 150 (holding that an attorney cannot be excused from following the filing

requirements of Rule 303 merely because a lower court has recommended a procedural route that

lies beyond that court’s authority to follow); see also Martin v. Cajda, 238 Ill. App. 3d 721, 728

(1992) (“a trial court’s misapprehension of the law [will not] allow an appellant to file his notice

of appeal more than 30 days after the trial court issues what actually constitutes a final order.”).

¶ 40 Regardless, however, we also find that the facts of Comidsco are distinguishable from the

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instant case. Unlike in Comidsco, the record before us fails to show that the plaintiff’s failure to

timely file his notice of appeal was due to his reliance on the court’s standard operating

procedure as opposed to his failure to monitor his case. Unlike Comidsco where the plaintiff

asserted that he never received the trial court’s written order and was therefore never notified of

the court’s ruling by either mail or telephone, in the present case, after the trial judge explained

its ruling in open court, and indicated that he was issuing an opinion, that same-day file-stamped

opinion, was emailed to the plaintiff’s counsel the next morning. The plaintiff himself concedes

that his counsel received the email with the file-stamped order on December 8. It was counsel’s

duty, upon receipt of that email, to check the file-stamp on the written order, and to monitor the

deadlines for his own case. Counsel should have immediately realized that he had 30 days from

the date of the file-stamped order, and 29 days from the date that he received the court’s email, in

which to file his postjudgment motion. The fact that he chose to wait until January 7, 2022, 31

days after the final order was entered, and a day after the requisite deadline, was clearly an

oversight and not the result of any reliance on the court’s standard operating procedure.

Accordingly, Comidsco does not apply.

¶ 41 For these reasons, we are compelled to conclude that we have no jurisdiction to consider

this appeal.

¶ 42 Appeal dismissed for lack of jurisdiction.

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