concurring.
I concur with the Majority Opinion except on one point.
At p. 52 of the Majority Opinion we confront Taub’s argument that the Secretary of Transportation was without power to certify the road for condemnation because it was not in the six-year plan for highway and related improvement or otherwise expressly authorized by the General Assembly. Our Opinion disposes of this question on procedural grounds as an issue “raised on appeal but not decided,” holding in substance that because the Court of Appeals’ Opinion did not address this issue it would be “treated as settled against” the respondent because he failed to preserve it by cross-motion for discretionary review.
The Majority Opinion cites cases which are not on point: Nashville, C. & St.L. Ry. Co. v. Banks, 168 Ky. 579, 182 S.W. 660 (1916) and Eagle Fluorspar Co. v. Larue, 237 Ky. 263, 35 S.W.2d 303 (1931).
Both of these cases were decided, of course, long before we had a two-tiered appellate court system and a motion for discretionary review procedure. Both cases involved a second appeal after retrial in the trial court after decisions of the Court of Appeals, then our supreme court. In both cases the appellant had raised different issues on the first appeal, some of which called for reversal and remand, and some of which called for reversal and dismissal. When the supreme court reversed and remanded, omitting discussion of issues which, if sustained, would have called for dismissal, obviously the effect of tak*55ing this step was to overrule the appellant on the issues that called for dismissal.
In short, the cases cited are inapposite. The extension of a valid principle to present circumstances, requiring a cross-motion for discretionary review on the part of the party prevailing in the Kentucky Court of Appeals as to arguments which the Court of Appeals found it unnecessary to decide after it had already granted the relief sought on other grounds will present a procedural quagmire. It is a hypertech-nical approach which provides procedural stumbling blocks against a respondent to a motion for discretionary review, inhibiting the arguments in his Briefs which are directed against the issues raised against him simply because they were disposed of in the Court of Appeals on other grounds.
There is no reason for us to have a rule requiring a cross-motion for discretionary review before arguments can be made in our Court which address the issues raised by the movant on discretionary review on other grounds. Indeed, I do not believe our Court intends to go this far.
However, the point raised by the respondent, Taub, is lacking in substance on other grounds. The Transportation Cabinet’s statutory authority for this condemnation is found in KRS 177.020-.081 without limitation to any specific designation in a six year plan or express statutory authorization for the project. The requirements relate only to a legitimate exercise of discretion within the existing executive and legislative framework.
At the time this condemnation suit was filed the Governor had authorized the project and the necessary supporting legislation was pending. That legislation (S.B. 361) was enacted and signed into law before the trial of this case, thus rendering moot (indeed absurd) any question that the Secretary’s order was for an unauthorized project. The trial court’s Findings of Fact and Conclusions of Law specify that “the argument that the Commonwealth’s right to condemn may somehow be affected by the failure of the ‘six year’ plan to include this proposed road project is of no merit, in view of Senate Resolution # 7.” I agree.
S.J.R. 7, approved February 24, 1986, was a joint resolution of the General Assembly “pledging to enact legislative measures during the 1986 session to develop, staff, fund, support and maintain the programs and incentives pledged to the Toyota Motor Corporation in return for its commitment to the economic development of the Commonwealth,” including:
“(3) Highway improvement and construction program in the vicinity of the Georgetown, Kentucky site to serve the transportation needs of the Toyota Automotive Manufacturing Facility, its employes and the community, estimated to cost $47,000,000.”
True to this resolution, the General Assembly enacted such legislation and it was signed into law by the Governor by April, 1986, all before this case came to trial. There is no substance to the respondent’s claim that this road is unauthorized. Therefore, I agree with the Majority Opinion, although I disagree with the decision that Taub had no right to present this argument because he failed to file a cross-motion for discretionary review.