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# 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- 2

-

Commission’s (“KUIC”) order denying unemployment be nefits 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 t o 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

he aring 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 o f [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 su bject 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.- 3

- complaint shall state fully the grounds upon which review is sought, assign all errors relied o n, 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 i n Circuit C ourt 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 a s

request s 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 a nswer, but

rather, filed a mot ion 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. T he 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- 4

-

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 f or 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 t o 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.- 5

-

appear at the hearing. The circuit court summarily denied Po well’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. Lexin gton

- 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 cour t.

“ I t 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.

Com m ’ 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- 6

- 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 n o 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. Com m ’n v. Carter , 689 S.W.2d 360, 36 2 (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 at tempts 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 re garding 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.

Brief ly,

[u] nder the doctrine of equitable estoppel , certain conduct by a party is viewed as being so offensive that it- 7

- 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 c oncealment 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); Gr ay

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 h e raises it for

the first time to this Court

. Powell did no t bring it to the attention of the circuit

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

now c ontends 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).- 8

-

emails were not provided to KUIC. T herefore

, 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 quo tation marks and citation omitted). As

previously noted herein, c ounsel 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 esto ppel, 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 pro cess 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 W ithout any basis in law, Powell no w 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.- 9

-

BRIEF S FOR APPELLANT:

Peter J. Jannace Louisville, Kentucky BRIEF FOR APPELLEE

KENTUCKY UNEMPLOYMENT

INSURANCE COMMISSION :

Joshua R. Hurley Frankfort, Kentucky