author: LESTER, Judge.

text:
    Charles Daniel STILES, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 17, 1978.
    Rehearing Denied May 19, 1978.
    Discretionary Review Denied Oct. 3, 1978.

      Jack Emory Farley, Public Defender, M. Gail Robinson, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., Rodney V. Tapp, Asst. Atty. Gen., Frankfort, for appellee.
    Before HOWERTON, LESTER and WINTERSHEIMER, JJ.
   LESTER, Judge.

This appeal arises out of the conviction of appellant and two codefendants of third degree burglary in violation of KRS 511.-040.

Charles Stiles was a resident of Bowling Green and the offense took place at a supermarket in Owensboro. There was more than sufficient evidence upon which to base the conviction but we are urged to reverse upon several constitutional issues, some of which we will explore in depth while others we will deal with summarily.

On October 26, 1976, Kentucky State Police Detective, Jarold Nickens, obtained a search warrant for appellant’s house trailer and while at that residence, in the presence of Stiles, some tools were seized. At the trial, the prosecutor inquired of the officer if appellant explained what those tools were used for, to which the reply was “[t]o the best of my knowledge he’s never explained nothing to us.” Later on, during the proceedings when the Commonwealth’s attorney was cross-examining Stiles the following colloquy took place:

XQ Did the officers inform you of what you were being arrested for?
A Yes.
XQ And did you give them any statement—
MR. DUKE: I object, Your Honor. It’s not incumbent upon the defendant to explain his actions in any form.
THE COURT: He’s on the witness stand.
MR. DANIEL: He’s testifying now.
MR. DUKE: I’m talking about—
THE COURT: He’s a witness as any other witness for all purposes.
MR. DUKE: Okay.
A (continuing) I gave him no statement.
XQ You didn’t tell him about Mr. Graham?
A No.

The Commonwealth made no reference to appellant’s failure to give a statement in its final argument and the foregoing constitutes the evidence in its entirety upon which the contention is based that reference to Stiles’s postarrest silence deprived him of due process. In support of his position, appellant relies upon Niemeyer v. Commonwealth, Ky., 533 S.W.2d 218 (1976); Salisbury v. Commonwealth, Ky.App., 556 S.W.2d 922 (1977); and Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

In Niemeyer, supra, there were repeated references to those appellants’ failure to deny their guilt, not only during the direct and cross-examinations but also during the prosecutor’s closing remarks. Nevertheless, in spite of condemning the practice, the court determined that those specific errors were not prejudicial. In Salisbury, supra, the jury was required to determine whether it should believe that appellant’s testimony or the testimony of a witness. In other words, the Commonwealth’s comparison of Salisbury’s silence with the witness’s voluntary statement at the time of the arrest went to the vital issue of that case, namely, the credibility of the two persons present at the commission of the crime. The case at bar falls short of the Niemeyer and Salisbury situations on a comparative basis. To paraphrase Chief Justice Palmore in Summitt v. Commonwealth, Ky., 550 S.W.2d 548 (1977), even though we wish to discourage the type of questioning here under discussion, and to warn against its possible consequences, we are not ready to hold that in this particular instance it was all that bad. It was innocuous in comparison with the example in Niemeyer, supra.

One of the foremost tests in determining whether an error is prejudicial is consideration of whether upon the whole case there is a substantial possibility that the result would have been any different. Niemeyer, supra, and Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969). As we pointed out in the beginning, there was ample evidence upon which to base this conviction.

We wish to point out that, although it is inferred that Stiles was placed under arrest, there is no indication whether his testimony concerning giving no statement had reference to before or after the arrest. It should be mentioned that, from the number of exhibits searched for and produced from the trailer, we assume that some time was spent there on the day in question. There is absolutely no evidence of when the Miranda warnings were given so we cannot say that appellant’s silence was based thereon as was the case in Doyle, supra. It is our conclusion beyond a reasonable doubt that appellant’s first assignment of error was not prejudicial.

Detective Nickens testified that he had requested a counterpart in Bowling Green to determine if any burned or scorched money (some of the stolen cash in the instant case had been burned) had been passed in that area. Twelve questions later the same witness was asked:

Q Now why did you—if you will explain to the jury did you make a request in regard to looking out after or having someone watch out after burned money?
A Through an investigation a few years back we felt that the people responsible for these safe burglaries were from the Bowling Green area.

Appellant objected and moved for a mistrial which was overruled. However, the trial court delivered a strong and very complete admonishment to the jury which more than cured the error, if any there be. We cannot perceive how the remark of the witness could have any substantial influence upon the jury in light of the overwhelming circumstantial evidence of guilt and we believe beyond a reasonable doubt that the alleged error was harmless.

With respect to the foregoing argument, appellant urges, by way of reply brief, that “[t]he time has come to put a stop to this infringement on the constitutional rights of defendants by reversing convictions.” We would remind appellant that if we regarded every minor defect in all the criminal trials conducted in this Commonwealth as infringements upon constitutional rights then there would be no convictions. A defendant is entitled to a fair trial—not a perfect one.

In relation to appellant’s complaint concerning the third degree burglary instruction, we believe this issue to be without merit and accordingly, we invite a comparison between that given in this case and 1 Palmore Kentucky Instructions To Juries, Sec. 3.01, 2 at p. 113 (1975).

Since there was no objection to the alleged impropriety in the closing argument to the prosecutor, that issue is not preserved for review. RCr 9.22.

The most serious assignment of error is the prosecution’s inquiry into Stiles’s prior felony conviction. The Commonwealth’s attorney notified the court that he wished to impeach the appellant with a 1967 conviction for two counts of breaking and entering. The court thereupon retired to chambers and conducted a Cotton hearing whereat defense counsel objected because of the remoteness (ten years) of the conviction and after explaining his reasons, the court overruled the objection. The trial resumed and the following evidence and admonition was heard by the jury:

XQ Mr. Stiles, is it not a fact that sometime during the year—
THE COURT: Mr. McDaniel, come up. (The attorneys approached the bench for a conference with the judge out of the hearing of the reporter.)
XQ Just strike the last question, and I’ll start again. Mr. Stiles, were you convicted of a felony during the year of 1967?
MR. DUKE: If it please the Court, I would like at this time to renew my objection to this for the reasons we’ve previously put into the record.
THE COURT: Overruled.
A Yes, I was.
XQ And were you not convicted to two counts of breaking and entering and in connection therewith receive three years—
MR. DUKE: Your Honor, I object to the question as he’s phrased it. As I understand it, he can only ask what they were.
THE COURT: Sustained. He’s answered the question as far as the law permits us to go.
MR. MeDANIEL: Thank you.
MR. DUKE: Judge, I think it’s incumbent upon the Court to admonish the jury at this time.
THE COURT: Yes, it should be done at this time. Disregard the penalty which Mr. McDaniel was going to ask about— what penalty he received. The law permits this type evidence for one purpose only, that is the conviction of a previous offense when involves moral turpitude, and I thought I had it written out here the definition but I don’t guess I have it at my fingertips right now. I will state it verbally for you. This evidence is admissible only insofar as it affects his credibility or believability as a witness. You see what I mean? It’s not proof of any guilt on the crime he is now charged with. So disregard it for that purpose absolutely and positively, but it’s to be considered by you only insofar as you may think it affects his credibility or believability as a witness, if you do think that it does and it is in your discretion to decide that.
MR. MeDANIEL: Judge, may I approach the bench?
THE COURT: Yes.
(The attorneys approached the bench for a conference with the judge and the reporter was requested to read the last few questions asked by Mr. McDaniel to those at the bench out of the hearing of the jury.)
MR. DUKE: (Dictated to the reporter out of hearing of the jury) Show my objection to this and also I move for a mistrial in that the reemphasis of the prior felony conviction is prejudicial and is intended to inflame the jury.
THE COURT: Overruled. The penalties in the question was what I sustained the objection to. One more question, Mr. McDaniel.
XQ What were the felony charges you were convicted of in 1967?
A I believe it was two counts of breaking and entering.
MR. MeDANIEL: Thank you. That’s all I have to ask.

The Cotton mandates were succinctly summarized in Strong v. Commonwealth, Ky., 507 S.W.2d 691, 693 (1974):

Under the principles expressed in Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970), previous convictions of felonies involving dishonesty and stealing are relevant on the issue of the credibility of a witness and are basically admissible in evidence, subject to a duty on the part of the trial court to exercise a reasonable discretion in limiting or disallowing such evidence if its possible prejudice to the witness, especially in a criminal case in which he is the defendant, clearly outweighs its value for impeachment purposes. The kind of considerations that have a legitimate bearing on this determination are illustrated in Cotton as follows (454 S.W.2d at 701, 702):
“The nearness or remoteness of the prior conviction is a relevant factor to consider in the exercise of this discretion. The probability of prejudice is greater where the crime for which the defendant is presently being tried is one of dishonesty or false statement, especially in those instances where he has been convicted several times previously of the same type of crime. The age and circumstances of the defendant are also proper factors.”

The case before us presents that type of situation where “the probability of prejudice is greater” since appellant’s prior conviction was for the same offense as that for which he was being tried. Even though Cotton does not demand that the evidence of such be excluded it does require that the trial court be very circumspect in exercising its reasonable discretion in limiting or disallowing such evidence.

Having concluded that the former conviction can be placed before the jury for impeachment purposes if that earlier offense was one of those delineated in Cotton, then there can be no complaint made that the specific offense was denominated. Iles v. Commonwealth, Ky., 476 S.W.2d 170 (1972). Appellant’s position is that due to the remoteness of his first conviction (ten years prior to the current charge) and his age at that time, then the trial court should have prohibited the evidence. The record reveals that the circuit court considered both of these elements and in its discretion elected to permit the testimony. When Judge Short concluded that ten years was not too remote he might well have had in mind the federal rule of evidence which provides a ten year limitation. Fed.Rules Evid. 609, 28 U.S.C.A. Appellants consistently urge upon this Court rules and principles set forth in federal cases. We have been unable to locate any precedent in this jurisdiction setting forth a maximum with regard to the length of time expired between the conviction of the same type of offense as the one for which defendant is being tried and the introduction of that record for purposes of testing credibility, but practical considerations of fairness and relevancy demand that some boundary be recognized. This Court has neither the power nor the inclination to promulgate a binding rule in this respect but there should be a point whereat the probative value of the prior conviction regarding the person’s credibility diminishes to a level where it should no longer be admissible. In the present litigation where there was but one previous offense, albeit the same type charged, of some ten years vintage, with no intervening misconduct, we consider the time period to be about the maximum. What we have said is not to be construed as applicable in situations where there were consistent offenses of the nature of those set forth in Cotton beyond a ten year period, for in that type of case, we might very well entertain a different view.

When we review the record of the in camera hearing, the very limited number of questions pertaining to the record of Stiles, the sustaining of the objection to the sole reference to the penalty preceived, and especially the emphatic admonishment to the jury concerning the narrow purpose of the evidence, we are unable to say that the testimony had any prejudicial effect upon the minds of the jurors, nor are we willing to opine that the prior conviction allowed the jury “to draw the natural, if illegal, conclusion that appellant also broke into Wyndall’s Supermarket.”

Stiles further urges that the prosecutor was permitted to reemphasize the prior felony conviction. A close perusal of the transcript discloses that there were but three questions and two answers concerning the criminal history. After answering that he had been convicted of a felony, appellant did not reply to the first inquiry about the specific offense so it was only logical and proper that the Commonwealth repeat the question. In other words, counsel was interrupted by the objection of his adversary and he was still permitted to seek an answer to the specifics. We find no abuse of discretion or prejudicial error.

The court has examined the additional alleged error and find it to be without merit.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: HOWERTON, Judge.

license: Public Domain

text:
    BOYLE COUNTY STOCKYARDS COMPANY, Bourbon Stockyards Company, Kentucky-Tennessee Livestock Market, Clay-Wachs Stockyards, Inc., Kentuckian Livestock Market, Maysville Stockyards, Bowling Green Livestock Market, Farmers Stockyards, Franklin Stockyard Market, Paris Stockyards, Inc., Garrard Stockyards, Blue Grass Stockyards, Paducah Livestock Market and Mayfield Livestock Market, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF AGRICULTURE, Thomas O. Harris, Commissioner of Agriculture and Dr. Tom S. Maddox, State Veterinarian, Appellees. GRAYSON COUNTY STOCKYARDS MARKETS, INC. and Taylor County Stockyards, Appellants, v. COMMONWEALTH of Kentucky, DEPARTMENT OF AGRICULTURE, Thomas O. Harris, Commissioner of Agriculture and Dr. Tom S. Maddox, State Veterinarian, Appellees.
    Court of Appeals of Kentucky.
    April 21, 1978.
    Rehearing Denied June 30, 1978.
    Discretionary Review Denied Oct. 3, 1978.

      James F. Clay, Clay & Clay, Danville, Wayne J. Carroll, Ewen, McKenzie & Pe-den, Louisville, for appellants.
    Robert F. Stephens, Atty. Gen., William H. Mohr, Asst. Atty. Gen., William E. Johnson, Johnson, Judy & Gaines, Frankfort, for appellees.
    Before HOWERTON, LESTER and WINTERSHEIMER, JJ.
   HOWERTON, Judge.

This is an appeal from a judgment by the Franklin Circuit Court, upholding the validity of an administrative regulation relating to the testing of livestock for brucellosis.

Pursuant to the duties and power set forth for the Board of Agriculture, in relation to livestock disease control, in Chapter 257 of the Kentucky Revised Statutes, the Board adopted a regulation requiring bru-cellosis tests for all livestock at stockyards. The regulation was declared void for being vague, incomplete and for containing irreconcilable conflicts. A new regulation was quickly prepared and given immediate effect by executive order of the lieutenant governor. The appellants, in appeal CA-1318-MR, attacked the new regulation on the same grounds that they had attacked the prior regulation. In this litigation, the trial court found the modified regulation to be clear, and to be a valid and reasonable exercise of the state’s police power. The appellees sought enforcement of the regulation, and received a judgment against the appellants in CA-1583-MR, on the basis of the judgment entered in CA-1318-MR.

The regulation, 302 KAR 20:070, as amended, reads in part as follows:

Section 5. Cattle Requirements.
(2) Brucellosis:
(a)All cattle six (6) months of age or older offered for sale at the stockyard for breeding and dairy purposes, except for the following, shall be negative to an official brucellosis test within last eight (8) days of sale:
1. Official vaccinates identified by official tattoo, twenty-four (24) months of age and under, if a beef animal, and twenty (20) months of age or under if a dairy animal, provided heavy springers and females post partum shall be negative, regardless of age at time of sale.
2. Cattle from a certified herd.
(b) Backtagged cattle:
1. All mature cattle eighteen (18) months or older, as indicated by the presence of the first pair of permanent incisor teeth, except steers and spayed heifers, consigned to any stockyard, or purchased direct by any slaughtering establishment shall be backtagged in a routine manner prescribed by the Department.
2. All backtagged cattle shall be negative to a brucellosis test within eight (8) days of sale.
3. Backtags placed on slaughter cattle shall not be removed at any time, or by any person, only under specific instructions from the chief livestock sanitary official.
4. Backtagged cattle shall proceed directly to a recognized slaughtering center, with no diversion whatever enroute, except to another approved stockyard for reconsignment to slaughter.
5. Materials for the backtagging program shall be furnished by the department and/or Animal and Plant Health Inspection Service, Veterinary Services, United States Department of Agriculture.
(c) All breeding, dairy and back-tagged cattle requiring testing shall be tested at the first point of assembly or concentration.
(d) Cattle of beef breeds between the ages of six (6) and eighteen (18) months sold for feeding and grazing shall be exempt from brucellosis test unless they are heavy springers or females post partum.

The issues raised by appellants challenge the constitutionality of the amended regulation on the ground that it constitutes a taking of private property without just compensation, and that it is an unreasonable exercise of police power. The appel-lees restate the issues, but are nevertheless concerned with the same two points. The appellees raise the question of whether or not the regulation is a necessary and reasonable regulation, and then ask, “If the regulation is reasonable and necessary, does the fact that its enforcement may create some peculiar individual hardship and difficulty of compliance make it unconstitutional?”

Before specifically addressing the questions raised by the parties, we should consider the facts as established by the evidence. The evidence presented by appellants would have us believe that brucellosis is not a problem, and that enforcement of the regulation would bring financial disaster upon all of the stockyards. On the other hand, the evidence presented by the appellees would have us believe that brucel-losis is a very serious problem and that enforcement of the regulation would be of no consequence to many stockyards, and of relatively little consequence to other stockyards because of financial support for the enforcement program from federal funding. The facts, as found by Judge Squire Williams, are certainly supported by the evidence, and in order not to add or detract from the accuracy of his findings, we will quote extensively from his opinion.

It has been testified that this regulation is being implemented to, among other things, benefit the farmer. We are told the farmer will lose untold numbers of dollars without this program. On the other hand, we are also told that each animal subjected to testing will lose several pounds due to shrinkage at a substantial loss to the farmer. The fact is that although the farmer will benefit, it is the public, generally, which is the real beneficiary. We note the farmer, who is the producer, can avoid any weight loss from shrinkage by insisting on a weigh-in rather than a weigh-out operation. Further, if the testing were done on the farm, where it should be, the weight loss problem would not arise.

The procedure now followed is that all dairy and other testable animals, those going back to the farm, are tested at the stockyards. The others, backtagged animals, the slaughter animals, are not tested but as soon as they are slaughtered, blood is drawn and tests are conducted. The Federal government supervises the drawing the blood. There are means to control the movement and to maintain the identity of the animals. The tests are simple and could as easily be conducted at slaughterhouses as at stockyards. But, we are told the present system doesn’t work because the integrity of the blood samples is not maintained, and the test results are slow and not always accurate. With the Federal government directly involved, we really do not understand how the whole issue can be treated so cavalierly. However, we accept testimony that the program is not effective, that brucel-losis is not being controlled, and that it is necessary to implement a new procedure. We look to the latest amendment.

At the first hearing it appeared to the Court that the burden of the first point testing rested so heavily upon the stockyards as to be an unreasonable exercise of the police power. However, the latest regulation does not mandate several objectionable steps which, whether real or fancied, were required by the earlier regulation. For example, there is no requirement that testing be done before the sale; there is no necessity to keep each consignment as a unit; there is no necessity to test that motley group of animals from six (6) months of age up, including steers and spayed heifers, etc. As heretofore stated, this regulation is now clear and unambiguous.

So, we are faced with the crucial question of whether the financial burden on the stockyards is so great as to indicate an unreasonable and arbitrary exercise of the police power. Essentially, the regulation is quite simple. It demands that all testable animals be tested at the stockyards. There is no attempt to dictate when or how it shall be done. New or remodeled chutes and pens apparently must be constructed. More labor costs will be a natural result. New methods and new procedures may become necessary. Virtually every witness testified it would be a financial burden on each stockyard. One witness even testified that he could not do it. Most of the others did not go that far, but predicted severe financial effects. Especially hard hit, are those with no room to expand, and the larger ones. At first blush, it almost appears that Bourbon Stockyards is dealt a near fatal blow, but when we realize that Bourbon is tantamount to five yards in one, the burden does not appear unreasonable. Admittedly, it will be hard, but it can and must be done. The same must be said for Blue Grass, Clay-Wachs, and the others.

At this time, there are about thirty-seven (37) stockyards in the state already doing first point testing. Several stockyard men from other states testified they are now, and have been for some time, following that procedure. The Federal government has apparently agreed to pay the stockyards 50 cents for each tested animal. This will, in some small measure, alleviate the burden. There is other financial sop going to the veterinarians and to the producers who lose an animal to brucellosis. If this program is successful as the defendants [appellees] say it will be, it can be abandoned in about three years.

As heretofore stated, we originally feared the stockyards were being asked to shoulder too much of a burden. However, in view of the fact the latest regulation does not place any of the former onerous duties on them, and balancing the good that will inure to the public, we are of the opinion the regulation is a reasonable exercise of the police power. With the control of brucellosis and the attendant increase in the number and quality of cattle, the producer, the stockyard, others directly involved, as well as the general public, will be greatly benefited.

Appellants attack the constitutionality of 302 KAR 20:070, but the allegation that the exertion of the police power deprives one of property without compensation is basically an assertion that the act or regulation violates Section 2 of the Kentucky Constitution, which prohibits the exercise of absolute and arbitrary power. Moore v. Ward, Ky., 377 S.W.2d 881 (1964), and Pritchett v. Marshall, Ky., 375 S.W.2d 253 (1963). The question of constitutionality therefore requires us to examine the reasonableness of the regulation which may result in a “taking of property.”

What is' now our Supreme Court was confronted with a similar problem when considering a program requiring the fluoridation of water. In Graybeal v. McNevin, Ky., 439 S.W.2d 323 (1969), the Court provided, at 326, “On the issue of arbitrariness, the burden was on the plaintiff to show that the regulation had no reasonable basis in fact, or had no reasonable relation to the protection of the public health.”

The exercise of police power frequently involves the taking or limitation of property rights. A recent case illustrates the fact that a business may be lawfully destroyed or prohibited through the exercise of police powers. Stephens v. Bonding Association of Kentucky, Ky., 538 S.W.2d 580 (1976). The right to conduct a business is subordinate to police powers when they are exercised in a reasonable manner in the public interest. Jasper v. Commonwealth, Ky., 375 S.W.2d 709 (1964).

The regulation was prepared pursuant to the authority of KRS Chapter 257. The purpose was to improve the program from one of brucellosis control to one of brucello-sis eradication. Evidence supported its necessity in order to locate infected animals at the stockyards prior to their movement to other places; to locate animals which have come in contact with infected animals; to prevent infected and exposed cattle from being released to spread the disease; and, to avoid the expense of tracking suspected animals at a later time. Also, the program is needed to lift several restrictions on the transportation of cattle from Kentucky, known as a “dirty” state, to other states.

The regulation and program appear reasonable in that evidence supports the facts that the program has worked in other states, and there is no evidence that any stockyard has been put out of business because of any economic burden due to the enforcement of the testing program. Furthermore, in many states, no financial assistance has been provided to stockyards, but due to the implementation of the eradication program in Kentucky, $1,411,000.00 of federal funds has been allocated for Kentucky. Three hundred fifty thousand dollars ($350,000.00) has been designated for the brucellosis program.

We wish to make this point clear, however. We are not determining that the testing program is reasonable because the Commonwealth will receive nearly one and a half million dollars. We might note, however, that the fact that, the Federal government is encouraging and assisting such a program is some evidence of a determination of public necessity. In Moore v. Ward, supra, which upheld the exercise of police power to control billboards, the Court’s opinion, at 887, reads, “The fact that the federal congress and federal authorities have deemed this type of regulation as beneficial to the public is also a factor in determining public necessity.”

Appellants rely on Adams, Inc. v. Louisville and Jefferson County Board of Health, Ky., 439 S.W.2d 586 (1969), to support their contention that 302 KAR 20:070 is invalid as an unreasonable exercise of the police power. Judge Williams considered the Adams case, id., and found it to be “of little succor here.” In any situation such as this, the question of reasonableness is one of degree and must be based on the facts of a particular case.

In Adams, id., regulations were promulgated for the safe and healthy operation of swimming pools. Only two classifications were specified. One was for home-owner pools, and the other was for all other pool facilities. The regulations required all public facilities, including those at an apartment complex, to secure not only a trained lifeguard, but an additional attendant to insure that bathers had taken a shower prior to using the pool, and to provide separate entrances and exits for men and women. Facilities were also required to insure that bathers passed restrooms and a shower before entering the pool. Although it is obvious that cost would be involved in complying with the regulations, the Court’s decision did not turn on a dollar sign. The Court held that a single classification for all such pools was so broad that the regulation “does not bear a reasonable relationship to its avowed purpose.” Adams, id., at 592.

The only complaint that is seriously expressed by the appellants is cost, but cost figures alone are irrelevant, and they must be balanced with the public necessity to be meaningful. In this sense, we would have to agree with the appellee’s argument that neither peculiar individual hardship (which might involve cost), nor difficulty in compliance is sufficient constitutional objection unless the public interest at stake is shown to have no reasonable relationship to the regulatory program.

Judge Williams concluded that he had considered cost, custom and necessity, and found that necessity outweighed any other consideration. We find no reversible error in his findings and conclusions.

We must therefore affirm the judgment of the trial court in both appeals.

All concur.


author: HOWARD, Judge. COOPER, Judge,

text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Appellant, v. Emby A. McKEEHAN, Appellee.
    Court of Appeals of Kentucky.
    April 28, 1978.
    Discretionary Review Denied Oct. 3, 1978.

      Dennis A. Bradley, Bradley & Emerson, Lexington, for appellant.
    Thor H. Bahrman, Corbin, for appellee.
    Before COOPER, HOWARD and WIL-HOIT, JJ.
   HOWARD, Judge.

This is an appeal from the Whitley Circuit Court concerning a margin account in the Commodities Market opened by defendant-appellee, Emby A. McKeehan (hereinafter referred to as McKeehan), through plaintiff-appellant, Merrill Lynch, Pierce, Fenner & Smith, Inc. (hereinafter referred to as Merrill Lynch).

Two actions were filed in the court below and consolidated. The complaint filed by McKeehan, alleging fraud and demanding judgment for the amount of money which he had invested in the margin account with Merrill Lynch, was dismissed. The complaint filed by Merrill Lynch, demanding the amount of money lost by it when it was forced to liquidate McKeehan’s account when he failed to meet his margin calls, was likewise dismissed. Merrill Lynch appeals from the judgment of the trial court dismissing its complaint.

The issue on appeal, as stated by both parties, is whether an instruction indicating that a customer “does not want his account to go into the red” constitutes a continuing stop-loss order, precluding a brokerage firm from recovering losses sustained by the customer.

McKeehan began trading in the Commodities Market through an account established in the Louisville office of Merrill Lynch. After a telephone interview with a Lexington account executive, Mark Cardoza (hereinafter referred to as Cardoza), McKeehan transferred the balance of his account ($1,859.02) from the Louisville office to the Lexington office. McKeehan transferred another $1400.00 into the account and began trading in the Commodities Market through the Lexington office in November, 1972. On December 8, 1972, McKeehan opened another margin account in the Commodities Market with a deposit of $1000.00. He continued trading over the month of December, realizing several small profits and losses.

In December, 1972, McKeehan sold short contracts of pork bellies and soybeans, expecting to realize profits, when these contracts dropped from their near record highs. The Commodities Market, however, continued to reach record highs in prices, and McKeehan suffered continuing losses.

On January 15, 1973, a margin call was issued to McKeehan requesting more funds. No additional funds were advanced. On January 18, 1973, another margin call was issued, to which McKeehan also did not respond. The account was subsequently liquidated with the resultant losses which are the subject of this action.

A “short” sale is a sale of a commodity which the seller does not at that time possess, but by the date agreed upon in the future for delivery to the purchaser, the seller will have acquired for the purpose of such delivery. 12 Am.Jur.2d Brokers § 116.

A stop order is a direction given by the customer to a broker that, if the commodity touches the price named in the direction while it is being held, the broker shall then sell the commodity at the best available price. It is a measure of protection for the customer so that he can provide himself against loss in a fluctuating market. A definite price is not necessary; the price may be described by referring to conditions and contingencies. 12 Am.Jur.2d Brokers § 129 and note cases cited therein.

There appears to be no conflict between the parties that McKeehan made the general statement, while discussing his trading objectives in the Commodities Market with Cardoza, that he did not wish his account to go into the “red”. The trial court interpreted that statement as a broad stop-loss order to be executed by Merrill Lynch, even though this statement was made prior to the institution of any trades by McKeehan, therefore lacking specificity as to any particular commodity or market price.

McKeehan, in his brief to this Court, states that the real problem results from the fact that Merrill Lynch decided he had a trade capacity of some twenty thousand dollars (brokerage firms use a figure for trade capacity of 10% of an individual’s net worth). Cardoza received the information on MeKeehan’s net worth and net income from McKeehan himself. McKeehan also alleges that the trades were not suited to his investment account and that the only possible reason for these trades was to increase the commissions due Merrill Lynch and Cardoza.

McKeehan attempts to equate his position, in that respect, with the defrauded widow in Twomey v. Mitchum, Jones & Templeton, Incorporated, 262 Cal.App.2d 690, 69 Cal.Rptr. 222 (1968). We have read the applicable portions of the rather lengthy Twomey case, and the actions by the stockbrokers therein were found to be fraudulent, entitling the widow to recover the money she had invested with them. The trial court, in the instant case, held the McKeehan could not recover on the fraud theory alleged in his complaint, and with this we agree.

McKeehan argues that he was relying on the expertise of Merrill Lynch and that Merrill Lynch engaged in trading not suited to his financial resources. McKeehan was aware of the volatility of the Commodities Market and trading therein; he testified that he had suffered a loss while trading in commodities through the Louisville office of Merrill Lynch. Although the recommendations as to commodities and prices came to him from Cardoza, McKeehan made the final decision as to buying and selling.

McKeehan also testified that he didn’t know exactly the workings of a margin account or what trading in the Commodities Market entailed. He was knowledgeable, however, as this portion of the trial testimony indicates, as to how he wanted the soybean account handled.

Q. 139 In both of these letters you were advised that your account needed additional funds in order to maintain any position in the market, isn’t that correct?
A. That’s correct.
Q. 140 In response to these letters and' telephone calls that were made, what did you do?
A. I explained to Mr. Cardoza that he should let me go long on a spread, that is, buy back soybeans at another date in order that I could parlay it against my losses.
Q. 146 Did you follow their advice each time they gave it to you?
A. Except to close out after I had gone in the hole.

Certainly, McKeehan did not want his margin account to go into the “red” — what person who plays the stock market would? But there is testimony by Cardoza and testimony by McKeehan himself that indicates McKeehan did not want to change his position on the soybean contract so as to result in a smaller loss.

In Twomey, supra, at 69 Cal.Rptr. 222, 248, the court mentions the doctrine that an “. . . allegedly defrauded customer cannot stand by and speculate on the market, ratifying the transaction if it is to his advantage, and disaffirming it if it produces a loss.”

We believe McKeehan was speculating, and that the general statement, about his account not going into the red, did not allow him to continue to hold his position on the soybean contract, and thereafter place the loss of this speculation on Merrill Lynch. The finding by the trial court that MeKeehan’s statement constituted a broad stop-loss order is clearly erroneous and is therefore set aside. CR 52.01.

The judgment of the trial court is reversed and remanded with directions to the trial court to enter judgment in favor or Merrill Lynch as demanded in its complaint.

WILHOIT, J., concurs.

COOPER, J., dissents.

COOPER, Judge,

dissenting.

As a condition of their original bargain, appellant, hereinafter referred to as brokerage house, and appellee, hereinafter referred to as McKeehan, agreed that McKee-han’s trading account was not to go into the red, i. e., a deficit situation requiring additional funds to be submitted by McKeehan. If the brokerage house was prohibited by rule or regulation, or was otherwise unable to live up to such a condition, it should have advised McKeehan initially that such a condition was not acceptable. It. did not.

Additionally, after the first margin call (if not before, pursuant to their agreement) the brokerage house had the right to liquidate McKeehan’s account. The brokerage house’s failure to live up to its agreement and its failure to timely liquidate McKee-han’s account, as was its right, was the primary cause of most or all of McKeehan’s loss. Having failed to live up to their word and having failed to diligently pursue their remedies, they should not now be permitted to recover. For these reasons I respectfully dissent.


text:
    Beatrice FISK, Beatrice Fisk, Executrix under the Last Will of Harlie Fisk, Deceased, Appellants, v. The PEOPLES LIBERTY BANK & TRUST COMPANY, Robert C. Hoffman and Mary H. Hoffman, his wife, Appellees.
    Court of Appeals of Kentucky.
    May 12, 1978.
    Discretionary Review Denied Oct. 3, 1978.

      William G. Reed, Jonesville, for appellants.
    Richard S. Nelson, Covington, for Peoples Liberty Bank & Trust Co.
    Robert C. Hoffman, Elsmere, for Robert C. Hoffman and Mary H. Hoffman.
    Before HOWERTON, LESTER and WHITE, JJ.
   LESTER, Judge.

Appellants complain of a partial summary judgment entered by the trial court which determined that a lease, escrow agreement, escrow deed and subsequent documents all to be valid and binding as between the parties.

In 1966, the Peoples Liberty Bank of Cov-ington decided to improve its facilities at a branch office in Elsmere by adding thereto parking facilities. Harlie Fisk owned adjacent property suitable for the bank’s purposes so appellee attempted to make an outright purchase of the land, but Fisk’s attorney, E. H. Walton, thought it better to devise some plan whereby his client would not receive the entire purchase price at once, for he was fearful that “he (Fisk) will blow it in two weeks.”

On July 26, 1966, Harlie and his wife, Beatrice, executed to the bank a lease of ten years duration for a stipulated monthly rental which contract gave the appellee the privilege of removing any structures situated upon the land. On the same date, the Fisks also executed a contract in favor of the bank which provided that upon the expiration of the lease and payment of the consideration provided for therein, that they would direct their escrow agent, Mr. Walton, to deliver a deed of general warranty to the bank. In the event that the attorney became unable to act as escrow agent, the appellee retained the right to name his successor. The contract further provided:

In accordance with this agreement a deed to the properties described in said lease has as of the _ day of _, 1966, been deposited with E. H. Walton as Escrow Agent, it being a general warranty deed made, executed and delivered by the said Fisks to the said Escrow Agent for and on behalf of the Peoples Liberty Bank and Trust Company.

The Fisks executed a deed for the subject property dated July 26, 1966, to “E. H. Walton, Escrow Agent and his successors in office” which contained the following language:

It is understood and agreed between grantors and grantee, that said Escrow Agent or his successor shall deliver to the Peoples Liberty Bank and Trust Company of Covington, Kentucky, a General Warranty Deed to the aforementioned properties under the terms and conditions as set out in a contract entered into by the grantors herein and the Peoples Liberty Bank and Trust Company, which said contract is dated July_, 1966 and recorded in _ Book _, Page _, Kenton County records at Covington, Kentucky.

Harlie died on May 22, 1971, and on March 12, 1976, the agent executed a deed to the bank after the latter accelerated the last few payments due under the contract. On June 9th of the same year, Peoples Liberty conveyed the property to appellees, Robert C. Hoffman and his wife, Mary, who caused an office building to be constructed upon the land.

All of the foregoing documents were executed as the voluntary act and deed of all the parties and they were duly recorded in the county clerk’s office. No question of adequacy of consideration is raised.

Appellant filed her action in the circuit court to recover title to the property and for ejectment of the Hoffmans upon the theory that the Fisks’ deed to Walton never created the office of escrow agent and therefore, all subsequent conveyances were a nullity. After reviewing the record and the thirty-five page deposition of the bank’s president, the trial court granted a partial summary judgment to the defendant — ap-pellees upon the question of law and referred the matter to the master commissioner for a current report upon the financial status of the transaction.

We agree with the Kenton Circuit Court.

Appellant cites Home Insurance Company Of New York v. Wilson, 210 Ky. 237, 275 S.W. 691 (1925) as setting out the essentials for the creation of an escrow but we observe that the court said at page 241, 275 S.W. at pages 692-93:

We are, therefore, relieved from a discussion of the technical and somewhat variant rules concerning the legal establishment of escrow relations.

We prefer the general principles enunciated in 30A C.J.S. Escrows § 2 at' 968 to the effect:

In order that an instrument may operate as an escrow, not only must there be sufficient parties, a proper subject matter, and a consideration, but the parties must actually and validly contract with respect thereto, and the deposit of the instrument in pursuance of such contract must be absolute and beyond the control of the depositor, . . . . In order to create an escrow the grantor and grantee must agree to all the terms of the instructions; the escrow agreement should be clear and definite. The contract must be so complete that it only remains for the grantee or other person to perform the condition, or the event to happen, to give the instrument effect.

In the case at bar, we have sufficient parties, namely, the Fisks as lessors and grantors, the bank as lessee and eventual grantees and attorney Walton as escrow agent and depository. Moreover, the contract entered into by the parties sets forth the terms and conditions, not only in that instrument itself, but by reference to the lease. The deposit of the subject matter in pursuance of the contract was absolute and beyond the control of the Fisks to such an extent that they divested themselves of title by deeding the land to the escrow agent. By the terms of the instrument of conveyance, the agent was to re-convey to the bank upon fulfillment of the conditions of the contract as more fully hereinabove set forth. The transaction cannot be faulted because title was temporarily placed in the agent, for this appears to us to be a purer form of escrow than the average situation where the title is placed in the grantee and the depository merely holds that executed instrument.

It cannot be argued that there was any ambiguity in the terms and conditions as between the parties nor can it be said that the instructions to the agent were unclear. The appellants could exercise no control over the property and could only regain title if the appellee violated any of its obligations under the contract and lease. No contention can be made as to lack of delivery to the depository, for recordation raises a presumption of delivery. Linthicum v. Pruden, 313 Ky. 527, 233 S.W.2d 98 (1950), 26A C.J.S. Deeds § 187 at 24.

Appellant urges that the fact that the escrow agent was attorney for the grantors defeats the agency and it is true that the general rules of escrow would have prohibited such a practice in the past, but the law since 1909 has been that one may be an agent of both parties to an escrow if there is nothing inconsistent or antagonistic between his acts for the one and the other. J. I. Case Threshing Machine Co. v. Barnes, 133 Ky. 321, 117 S.W. 418 (1909). There is not one shred of evidence that Mr. Walton did anything inconsistent with the interests of either party or with the terms and conditions of the several written instruments. We wish to point out that the agent in this case' was a member of the bar and subject to an expectation of a greater degree of integrity than the average nonprofessional person acting in the same capacity. For a more detailed discussion of the permissibility of attorneys for either grantors or grantees acting as escrow agents, see 28 Am.Jur.2d Escrows §§ 13 and 14 at 21 et seq. and 3QA C.J.S. Escrows § 7d at 984.

The modern approach to the relationship created in this litigation is that of treating the agent as an escrow holder as is more fully discussed in Restatement (Second) of Agency § 14 D. and Appendix thereto.

Having reached the foregoing conclusions, it will be unnecessary to deal with appellees’ issue of the statute of limitations.

The judgment is affirmed.

ALL CONCUR.


author: HAYES, Judge.

text:
    E. L. ALLEN, Appellant, v. O.K. MOBILE HOME SALES, INC. and Clyde Elwood Scott, Jr., Appellees.
    Court of Appeals of Kentucky.
    Aug. 25, 1978.

      Charles G. Cole, Cole, Cole & Anderson, Barbourville, for appellant.
    Robert L. Milby, Hamm, Taylor, Milby & Farmer, London, for appellees.
    Before HAYES, PARK and WHITE, JJ.
   HAYES, Judge.

Appellant, E. L. Allen has appealed the granting of a motion for a summary judgment by the trial court. The issue there was whether Allen’s complaint for damages as a result of appellees’ negligence was barred by the one year statute of limitations. Therefore, the only issue before us is whether a genuine issue of fact exists concerning whether the summonses on the complaint were issued in good faith.

The record on this issue consists of the complaint filed by Carlos Pope, the former attorney for appellant, and affidavits by Pope, the sheriff of Lincoln County, Kentucky; attorney Glenn W. Denham; and the deputy circuit court clerk of Knox County, Kentucky.

The complaint, bearing Knox County Circuit Court No. 5194, contains an attestation by the deputy circuit clerk that the complaint was filed and summonses were issued on January 16, 1975. The date of the accident giving rise to appellant’s cause of action was January 28, 1974.

The affidavit of Pope states generally that the complaint was filed on January 16, 1975, and process was issued the same date and mailed to Lincoln County, Kentucky. The affidavit doesn’t state who mailed the process to the Lincoln County Sheriff; however, during oral argument, present counsel for appellant admitted that Pope had received the summonses and had mailed them.

The affidavit of the Lincoln County Sheriff generally states that there is no record of any process received by that office during the year 1975, pertaining to appellant’s complaint.

The affidavit of attorney Denham generally states that he was present in the Knox Circuit Court Clerk’s Office when he overheard a deputy clerk discuss this case with appellees’ attorney. The deputy clerk related that no complaint had been filed and that the summonses had been given to attorney Pope.

In her affidavit, the deputy clerk referred to above denied making a statement that no complaint had been filed. She stated the complaint had been filed and that she had issued summonses. She does not state what she did with the summonses.

Summonses issued July 1, 1976, were actually served on appellees on July 6,1976, in Knox County and July 8, 1976, in Lincoln County.

As stated in Louisville and Nashville Railroad Co. v. Little, 264 Ky. 579, 95 S.W.2d 253 (1936), the taking out of summons is presumptive evidence of an intention to have it served in due course. This is a rebuttable presumption. If the evidence shows that the clerk issued the summons conditionally, i. e., at the request of the attorney the summons was delivered to him with the intention of the attorney to deliver it to the sheriff at some future time, then the presumption of good faith issuance is rebutted if the service of the summons is made after the right to sue ends. See Whittinghill v. Smith, Ky.App., 562 S.W.2d 649 (1977) (Discretionary review denied April 4,1978). CR 4.01 makes it mandatory on the clerk to issue the required summons and cause it to be delivered for service. This is particularly significant in this case since the official record bears an attestation by the clerk that summonses were issued. We believe we are entitled to assume then that the complaint was filed and summonses were issued on January 16, 1975, well within the one year period of limitation.

The question is then whether the attorney directed that the summonses be issued by the clerk conditionally.

This same question was presented in Blue Grass Mining Co. v. Stamper, et al., 267 Ky. 643, 103 S.W.2d 112 (1937). The Court of Appeals on page 645, 103 S.W.2d at 113 of that opinion stated:

. If it had been made to appear that Stamper or his attorney had taken charge of the summons and failed to deliver it to the sheriff until after the period of limitation had expired, a different question would be presented. Blue Grass Mining Co. v. North, 265 Ky. 250, 96 S.W.2d 757; Louisville & N. R. Co. v. Little, 264 Ky. 579, 95 S.W.2d 253. All that we have is that the process did not reach the office of the sheriff of Perry county until January 1st. As the clerk or the sheriff may have been at fault, the evidence relied on falls far short of showing that the delay was due to any willful or negligent action on the part of Stamper or his attorney. When a party has caused the summons to issue in good faith, he has complied with the law and saved his right of action in respect of time, for it is the official duty of the clerk to see that the process is delivered to the sheriff for service, .

The only evidence of record in this case that the attorney for appellant received the summonses from the clerk is contained in an affidavit by attorney Glenn Denham submitted on behalf of the appellees. However, we are constrained to accept the statement of appellant’s attorney made during oral argument that Pope had received the summonses.

We have no problem with the fact that an attorney for a party on appeal may waive an assignment of error either expressly or impliedly. For a general discussion in this area see 5B C.J.S. Appeal and Error § 1801 and § 1802. However, the discussion therein and the case of Harmon v. Blackburn, 278 Ky. 306, 128 S.W.2d 730 (1939), deal primarily with points of law.

The question here is whether counsel for a party may concede or waive a question of fact not supported by the record on appeal. More particularly, where the only question on appeal is whether a genuine issue of a material fact exists as a result of a summary judgment entered in the trial court, may the attorney for appellant on oral argument concede that no genuine issue of fact exists where the record would indicate that an issue on this subject does exist? Are we to be bound by the attorney’s statement of the facts or are we to determine the facts from the record before us?

This apparently being a question of first impression in Kentucky, we are of the opinion that the rule of law in Robinson v. Hill-Diesel Engine Co., 255 Mich. 289, 238 N.W. 277 (1931) should be adopted. In that case, the issues on appeal involved merely questions of fact. Robinson, who was the original plaintiff and on appeal was cross-appellee as well as appellant, in his brief conceded a fact that had been construed differently by the trial court. The Michigan Supreme Court held that even though the record indicated that the trial court had properly decided the issue of fact upon the evidence before it, the Supreme Court would accept the concession. On the basis of that concession, the amount of Robinson’s judgment was reduced on appeal.

Therefore, even considering the facts in a light most favorable to the appellant, we agree with the trial court that there exists no genuine issue of a material fact.

We affirm the trial court.

All concur.


author: COOPER, Judge.

text:
    Murl J. HANDY et al., Appellants, v. WARREN COUNTY FISCAL COURT et al., Appellees.
    Court of Appeals of Kentucky.
    Aug. 25, 1978.
    Ordered Published Sept. 8, 1978.
    Charles R. Isenberg, Thomas G. Jarrell, Segal, Isenberg, Sales, Stewart & Nutt, Louisville, for appellants.
    Henry J. Potter, County Atty., Charles E. English, Bowling Green, Claude 0. Rainer, II, Nashville, Tenn., for appellees.
    Before COOPER, HOGGE and PARK, JJ.
   COOPER, Judge.

This is an appeal from a final order of the Warren Circuit Court which, in pertinent part, dismissed appellants’ (plaintiffs below) complaint.

Appellants, who are union members and representatives, sought to have a hospital construction contract, awarded by certain appellees to Joe M. Rogers and Associates, Inc. (all appellees were defendants below), declared void and to enjoin payment of any monies to Joe M. Rogers and Associates, Inc. in connection with construction of the public hospital in Warren County.

Appellants grounded their claim for relief on the provisions contained in KRS 424.260. They claim that appellees, Warren County Fiscal Court and Bowling Green-Warren County Community Hospital Corporation, are subject to this statute and violated its provisions by failing to award the hospital construction contract to the lowest and best bidder.

In its opinion and order, the circuit court did not agree with appellants’ interpretation of KRS 424.260. The court noted that the statute did not refer to the lowest and best bid, nor did it set out any criteria to guide the hospital corporation in the acceptance of a particular bid.

The lower court rejected appellants’ argument that the case law interpreting KRS 424.260 set the standard for actionability under that provision as a mere allegation that the lowest and best bid was not accepted. The court cited A & W Equipment Co., Inc. v. Carroll, Ky., 377 S.W.2d 895 (1964), as supporting the view, loosely quoted, as follows: That it is assumed when a governmental agency awards a contract to one other than the lowest bidder, that the award of contract is still to the best bidder, and the burden is on one who challenges the bid to show not just that the award was not, in fact, to the lowest and best bidder, but that there was an abuse of discretion on the agency’s part amounting to fraud, arbitrariness or capriciousness in awarding the contract.

In this appeal we are being asked to decide whether the lower court’s interpretation of the statutory and pertinent case law and legal conclusion based thereon concerning the threshold of actionability under KRS 424.260 is manifest legal error.

At first blush it would seem that the lower court’s opinion opens the door to all sorts of mischief by public agencies empowered to contract. But in discussing this matter, we recognize first and foremost that the regulation of bid acceptance and other related matters is essentially a legislative concern. Absent statutory control, public agencies would have the same generally unfettered discretion in awarding contracts as is held by private entities. Conceivably, they might be exposed to liability on some sort of hybrid derivative theory, but that possibility is of no concern to us here as we are solely confronted with a matter of statutory interpretation.

Lastly, in preface, we take notice, as we are certain did the Legislature, that the vast majority of public officeholders and appointed public board members are honest and diligent individuals who conscientiously attempt to fulfill the duties of their position. They are not a suspect class of any kind, so we feel no need to read into the statutes and regulations governing their official conduct anything more than the plain language requires. In reaching our determination we will, of course, be guided by any relevant ease decisions.

Possessed of the foregoing perspective we have carefully reviewed the holding of the circuit court and find it to be an essentially correct interpretation of the governing law. In pertinent part, KRS 424.260 requires that contracts in excess of $2,500 must be advertised for bids. It contains no language that the lowest and best bidder, or for that matter any bidder, must be awarded the contract.

Appellants cite Fosson v. Fiscal Court of Boyd County, Ky., 369 S.W.2d 108 (1963), in support of their position, but at page 109 of that opinion the court stated:

The trial court ruled that the power to accept or reject the bid was in the fiscal court, and that the trial court could not interfere in the matter except in cases of fraud or collusion, which were not alleged in this case. This holding is sustained by the case law of this jurisdiction, (citations omitted)

Earlier at page 109, the court had mentioned, but rejected in passing, a claim of arbitrary and capricious conduct on the part of the defendant fiscal court. No conduct of the type mentioned and discussed in Fos-son is charged in this action.

We read Fosson as entirely consistent with Carroll, supra, and, in conjunction, both opinions support the opinion of the lower court. This record is devoid of any charge that defendants acted fraudulently, collusively, arbitrarily, capriciously or in abuse of discretion. Because of this, and based on the above cases, we think the decision of the lower court was proper.

No appellate opinion or other authority cited in the appellants’ brief can properly be said to stand for the proposition that KRS 424.260 requires fiscal courts of counties or their agents to award contracts to the lowest and best bidder. The appellants contend that if there is no such requirement which can be “read” into the statute that the statute then becomes totally meaningless, i. e., why require advertisement for bids if there is no added requirement of acceptance of the lowest and best bid. It has been noted that the advertisement requirement and the bidding process itself involves three important benefits: (a) an offering to the public, (b) an opportunity for competition and (c) a basis for exact comparison of bids. OAG 74-420. Consequently, the requirement of KRS 424.260 for advertisement by publication and competitive bidding satisfies these and other public goals, notwithstanding that the statute makes no provision for the award of contracts to the lowest and best bidder.

Even appellants must agree that public agencies and boards of the type to which attention is directed here are vested with discretion to accept other than the lowest bid in a given instance. It would be tantamount to authorizing judicial review in virtually every case where the lowest bid was not accepted if the mere claim that the contract-awarding public unit “failed to accept the lowest and best bid" was sufficient to sustain an action. As the previously cited cases demonstrate, the courts of Kentucky have expressly and intentionally limited their scope of review, i. e., jurisdiction, in this area. This is to avoid needless conflict, delay and interference with what are, and should be, essentially administrative decisions.

Insofar as a question of pleading is concerned, we think that actionable misconduct of the type under discussion should be pleaded with particularity in accordance with the provisions of CR 9. Nothing in the record or argument presented to us in this case suggests that appellants can, in good faith, plead facts sufficient to state a claim along those lines.

The judgment appealed from is affirmed.

All concur.