RENDERED: JUNE 11, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0833-MR

RICCO POWELL APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE ANNIE O’CONNELL, JUDGE

ACTION NO. 20-CI-000758 

KENTUCKY UNEMPLOYMENT 

INSURANCE COMMISSION; 

KENTUCKY DIVISION OF 

UNEMPLOYMENT INSURANCE 

APPEALS BRANCH; KENTUCKY 

UNEMPLOYMENT INSURANCE 

COMMISSION CABINET FOR 

WORKFORCE DEVELOPMENT; 

AND ZENITH LOGISTICS, INC. APPELLEES 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES.

KRAMER, JUDGE: Ricco Powell appeals from an order of the Jefferson Circuit 

Court dismissing his appeal from the Kentucky Unemployment Insurance 
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Commission’s (“KUIC”) order denying unemployment benefits to Powell 

following his termination of employment from Zenith Logistics, Inc. We affirm 

the Jefferson Circuit Court.

Powell filed for unemployment insurance in August 2019. The Office 

of Unemployment Insurance determined Powell was not entitled to receive benefits 

because he was terminated from Zenith Logistics, Inc. for reasons other than a lack 

of work. Powell, who remained pro se throughout all of the administrative 

proceedings, appealed to an unemployment insurance referee. An evidentiary 

hearing was conducted, and the referee affirmed the decision. Powell then 

appealed to KUIC. On December 11, 2019, KUIC issued an order affirming the 

referee decision. A section entitled “APPEAL RIGHTS” was at the end of the 

decision and stated:

An order of [KUIC] may, within twenty (20) days of the 

mailing date of the order, be appealed, to the appropriate 

Circuit Court, under the provisions of KRS[1] 341.450(1), 

which provides

“(1) Except as provided in KRS 341.460, within twenty 

(20) days after the date of the decision of [KUIC], any 

party aggrieved thereby may, after exhausting his 

remedies before [KUIC], secure judicial review thereof 

by filing a complaint against [KUIC] in the Circuit Court 

of the county in which the claimant was last employed by 

a subject employer whose reserve account is affected by 

such claims. Any other party to the proceeding before 

[KUIC] shall be made a defendant in such action. The 

 

1 Kentucky Revised Statute.
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complaint shall state fully the grounds upon which 

review is sought, assign all errors relied on, and shall be 

verified by the plaintiff or his attorney. The plaintiff 

shall furnish copies thereof for each defendant to 

[KUIC], which shall deliver one (1) copy to each 

defendant.”

If benefits are denied by this Order, and further appeal in

Circuit Court is initiated, claimants should continue to 

report to the local office and claim benefits. 

The record before us indicates that Powell filed a letter with KUIC 

expressing his desire to appeal the decision. KUIC interpreted the letter as

requests for rehearing and reconsideration, and both requests were denied by order 

dated January 8, 2020. Importantly, the order contained the same “APPEAL 

RIGHTS” section at the end, advising Powell of the twenty (20) day time frame in 

which to appeal to the circuit court.

Powell filed a pro se complaint in the Jefferson Circuit Court on 

January 29, 2020. This was one day past the deadline provided to Powell in the 

January 8 order and pursuant to KRS 341.450(1). KUIC did not file an answer, but 

rather, filed a motion to dismiss the complaint arguing the circuit court lacked 

jurisdiction because Powell failed to verify the complaint and failed to timely file

same. Powell filed a pro se motion in which he asserted the complaint was both 

verified and timely filed. The circuit court heard both motions on March 2, 2020, 

and informed the parties a decision would be entered in fourteen (14) days unless 

either had anything else they wished to submit. The record shows that Powell filed 
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a series of emails on March 9, 2020. These were not part of any motion or 

memorandum, nor was there any certification indicating Powell sent a copy to 

KUIC.2 On May 27, 2020, the circuit court entered an order dismissing the 

complaint due to Powell’s failure to file within twenty (20) days of the January 8, 

2020 order.3 Powell filed a motion “to check the status of my case” which was set 

for hearing on June 8, 2020. There is no indication in the record before us that a 

copy of the motion was sent to KUIC. On June 8, 2020, Powell appeared before 

the circuit court and was informed an order had been entered, but apparently it was 

sent to an incorrect address for Powell. On June 11, 2020, Powell filed a pro se 

motion to reconsider the dismissal and submitted an “order to reconsideration.” 

There is no indication in the record before us that a copy of the motion was sent to 

KUIC and, indeed, KUIC now argues that it did not receive a copy of the motion. 

The circuit court heard the motion on June 22, 2020, and Powell had retained 

counsel at that time. Counsel stated briefly and summarily that he believed Powell 

had an equitable estoppel argument. His statement to the court went no further 

than this; he offered nothing in support of the statement; he did not file a written 

motion regarding such; and, he did not seek a ruling on the matter. KUIC did not 

 

2 KUIC asserts in its brief to this Court that it did not receive a copy of the emails from Powell.

3 The circuit court did not address whether the complaint was properly verified.
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appear at the hearing. The circuit court summarily denied Powell’s motion for 

reconsideration. This appeal followed. 

The circuit court dismissed Powell’s complaint due to lack of 

jurisdiction. Whether a court is acting outside of its jurisdiction is a question of 

law that is reviewed de novo. Hisle v. Lexington-Fayette Urban County

Government, 258 S.W.3d 422, 428 (Ky. App. 2008) (citation omitted).

 Neither party disputes that KRS 341.450(1) is controlling regarding

the requirements of appealing an order of KUIC. The statute provides, in relevant 

part, that “within twenty (20) days after the date of the decision of [KUIC], any 

party aggrieved thereby may, after exhausting his remedies before [KUIC], secure 

judicial review thereof by filing a complaint against [KUIC] in the Circuit Court

. . . .” (Emphasis added.) Powell does not dispute that he received two orders 

from KUIC informing him of his appeal rights and the twenty (20) day deadline to 

file in circuit court. 

 “It is a firmly rooted concept of law in this state that the courts have 

no jurisdiction over an appeal from an administrative agency action unless every 

statutory precondition is satisfied.” Taylor v. Kentucky Unemployment Ins.

Comm’n, 382 S.W.3d 826, 831 (Ky. 2012) (footnote omitted) (emphasis added). 

Moreover,

[t]here is no appeal to the courts from an action of an

administrative agency as a matter of right. When grace
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to appeal is granted by statute, a strict compliance with

its terms is required. Where the conditions for the

exercise of power by a court are not met, the judicial

power is not lawfully invoked. That is to say, that the

court lacks jurisdiction or has no right to decide the

controversy. Kentucky Utilities Co. v. Farmers Rural

Electric Cooperative Corporation, Ky., 361 S.W.2d 300 

(1962); Roberts v. Watts, Ky., 258 S.W.2d 513 

(1953) . . . .

Kentucky Unemployment Ins. Comm’n v. Carter, 689 S.W.2d 360, 362 (Ky. 1985). 

 The circuit court incorporated this legal precedent in its decision to 

dismiss Powell’s complaint due to failure to file it within the prescribed statutory 

period. It is uncontroverted that Powell failed to file within the twenty (20) day 

time frame provided by KRS 341.450(1). Accordingly, we discern no error.

Powell does not dispute that he did not timely file his complaint in the 

circuit court; however, he now attempts to blame KUIC for his failure to do so – an 

argument that appears for the first time before this Court. Powell essentially 

argues before us that he was misled by a representative of KUIC, who he claims

made confusing and contradictory statements regarding when Powell was required 

to file his appeal in circuit court. He contends that he relied on those statements to 

his detriment, which was why his complaint was filed late. Powell asserts that

equitable estoppel should apply. We disagree. 

Briefly,

[u]nder the doctrine of equitable estoppel, certain 

conduct by a party is viewed as being so offensive that it 
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precludes the party from later asserting a claim or 

defense that would otherwise be meritorious. See

McDonald v. Burke, 288 S.W.2d 363 (Ky. 1956); P.V. &

K. Coal Co. v. Kelly, 301 Ky. 180, 191 S.W.2d 231 

(1945). In other words, it serves to offset the benefit that 

the offending party would otherwise derive from the 

conduct. See Edmondson v. Pennsylvania National

Mutual Casualty Insurance Co., 781 S.W.2d 753, 755 

(Ky. 1989). An equitable estoppel is permitted when the 

estopped party is aware of material facts that are 

unknown to the other party and then engages in conduct, 

such as acts, language, or silence, amounting to a 

representation or concealment of the material facts. The 

conduct is performed with the intention or expectation 

that the other party will rely upon it, and the other party 

does so to his detriment. See Howard v. Motorists

Mutual Insurance Co., 955 S.W.2d 525 (Ky. 1997); Gray

v. Jackson Purchase Production Credit Association, 691 

S.W.2d 904 (Ky. App. 1985).

Akers v. Pike County Bd. of Educ., 171 S.W.3d 740, 743 (Ky. 2005).

4

 Powell’s equitable estoppel argument must fail because he raises it for 

the first time to this Court. Powell did not bring it to the attention of the circuit 

court prior to dismissal of his case. It was not part of his complaint. The emails he 

now contends contain the misleading statements as the basis for his equitable 

estoppel claim were filed in the circuit court without any frame of reference or 

explanation such as an accompanying motion or memorandum, and copies of the 

 

4

Further, a governmental entity such as KUIC may be subject to equitable estoppel only “in 

unique circumstances where the court finds exceptional and extraordinary equities involved.” 

Weiand v. Board of Trustees of Kentucky Ret. Sys., 25 S.W.3d 88, 91 (Ky. 2000) (citations 

omitted).
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emails were not provided to KUIC. Therefore, the circuit court did not rule on the 

issue of equitable estoppel. As a result, we are without authority to make such a 

ruling on appeal. “An appellate court is without authority to review issues not

raised in or decided by the trial court.” Ten Broeck Dupont, Inc. v. Brooks, 283 

S.W.3d 705, 734 (Ky. 2009) (internal quotation marks and citation omitted). As 

previously noted herein, counsel mentioned equitable estoppel very briefly to the 

circuit court on June 22, 2020, without any further explanation or argument. 

However, KUIC was not present at the hearing because it did not receive a copy of 

the motion or notice of the hearing.5, 6 The circuit court denied Powell’s motion to 

reconsider without making further findings of fact or conclusions of law. Because 

the circuit court did not rule on the issue of equitable estoppel, we are without 

authority to review it now.

 Accordingly, the order of the Jefferson Circuit Court is affirmed.

ALL CONCUR.

 

5 We agree with KUIC that it was deprived of due process to address any possible argument 

Powell had regarding equitable estoppel. See Storm v. Mullins, 199 S.W.3d 156, 162 (Ky. 2006) 

(“[N]otice and opportunity to be heard are the basic requirements of due process.”).

6 Without any basis in law, Powell now argues that his failure to serve any documents on KUIC 

can essentially be cured if this Court remands the action for a hearing regarding equitable 

estoppel. He argues that remand “will afford all the litigants to this action the process they are 

due.” See page 5 of Powell’s reply brief. He does not address his failure to serve the documents 

prior to the hearing before the circuit court nor prior to this appeal. 
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BRIEFS FOR APPELLANT:

Peter J. Jannace

Louisville, Kentucky

BRIEF FOR APPELLEE

KENTUCKY UNEMPLOYMENT 

INSURANCE COMMISSION:

Joshua R. Hurley

Frankfort, Kentucky