HERBERT L. JUMP; AND VERNA M. JUMP v. TIMOTHY IRWIN MILLER
Annotate this Case
Download PDF
RENDERED: APRIL 6, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002116-MR
HERBERT L. JUMP;
AND VERNA M. JUMP
v.
APPELLANTS
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE ANTHONY W. FROHLICH, JUDGE
ACTION NO. 03-CI-00944
TIMOTHY IRWIN MILLER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; WINE, JUDGE; PAISLEY,1 SENIOR JUDGE.
PAISLEY, SENIOR JUDGE: Herbert L. Jump and his wife, Verna M. Jump, appeal
from an order and judgment of the Boone Circuit Court in which the trial court adopted
the deputy master commissioner's report which recommended dismissal of the Jumps'
complaint against Timothy Irwin Miller. On appeal, the Jumps argue that the trial court
erred when it adopted the report since the deputy master commissioner erred when he
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
1
held that the Jumps had failed to prove the lease option agreement between them and
Miller was unconscionable. Finding no error, we affirm.
In 1998, the Jumps purchased approximately 20 acres of real property in
Burlington, Kentucky. Later, in early 2002, Miller approached the Jumps about
purchasing the 20 acres. On March 8, 2002, Miller and the Jumps entered into a purchase
contract in which the Jumps agreed to sell 15.6836 acres of the 20 acres to Miller for
$145,000.00. The purchase contract incorporated by reference a lease option agreement
between the Jumps and Miller in which the Jumps agreed to lease the remaining 4.5 acres
to Miller for 12 months in exchange for $100.00 per year. According to the agreement,
the lease would automatically renew unless Miller decided to terminate it. In addition,
Miller agreed to pay any real estate taxes assessed against the rental property. Most
importantly, the agreement contained a provision granting Miller an option to purchase
the remaining acreage for $55,000.00, provided he exercised the option within 3 years.
Subsequently, in June of 2002, the parties closed on the purchase contract, and Miller
paid the first year's rent on the 4.5 acres.
In March of 2003, the Jumps, through an attorney, sent Miller a letter in
which they attempted to terminate the lease option agreement. On March 26th, Miller,
through his attorney, sent a letter to the Jumps' attorney in which Miller contested their
right to unilaterally terminate the lease option agreement. Moreover, in the March 26th
letter, Miller informed the Jumps that he intended to exercise his option to buy the
remaining acreage.
-2-
On July 8, 2003, the Jumps filed in the Boone Circuit Court a complaint
and petition for declaratory judgment against Miller. In their complaint, the Jumps
claimed that the lease option agreement was unconscionable, that no consideration was
given for the purchase option provision, and that Miller had violated the terms of the
lease option agreement by failing to pay the real estate taxes assessed against the rental
property. Miller filed a counterclaim against the Jumps seeking to enforce the purchase
option provision. The trial court assigned the Jumps' case to a deputy master
commissioner.
On August 4, 2005, the deputy master commissioner held a final hearing at
which the Jumps and Miller testified. Verna Jump testified that she and Herbert had been
willing to sell approximately 16 acres of their property to Miller, and she admitted that
Miller had paid a fair and reasonable amount for the property. According to Verna's
testimony, if she and Herbert ever decided to sell the remaining acreage, then they would
give Miller the first opportunity to buy it. Verna admitted that she signed both the
purchase contract and the lease option agreement but that she did not read either
document. Additionally, she testified that they did not have an attorney review the
documents. Herbert Jump testified as well, and his testimony was consistent with his
wife's. In addition, Herbert testified that he only had a 7th grade education and that no
one explained the lease option agreement to him. Moreover, Herbert did not indicate
whether he read either the purchase contract or the lease option agreement. At the final
hearing, the Jumps raised the arguments presented in their complaint; additionally, they
-3-
argued that Miller had obtained the lease option agreement by fraud and
misrepresentation.
At the hearing, Miller testified that he would not have bought the 15.6836
acres unless he had an agreement to buy the remaining acreage. According to Miller, he
only agreed to such a piecemeal bargain because he had trouble obtaining financing for
the entire 20 acres and because the Jumps' daughter was living in an old house on the
property and the Jumps wished for her to continue living there until Miller had put his
finances in order.
In the deputy master commissioner's report, he concluded that the
$145,000.00 that Miller had paid for the 15.6836 acres formed part of the consideration
for the purchase option provision, so that provision was supported by consideration.
Upon considering the purchase contract and lease option agreement together, the deputy
master commissioner concluded that the Jumps had received a fair bargain. Thus, he held
that the Jumps had failed to prove that the lease option agreement was unconscionable
and that the purchase option lacked consideration. Regarding fraud, the deputy master
commissioner held that the Jumps had failed to prove fraud, and they could not claim
fraud as a matter of law since they had not read the lease option agreement. Regarding
breach of the agreement, the deputy master commissioner found that the Jumps presented
no evidence that they had paid the taxes on the rental property, and the deputy master
commissioner concluded that even if Miller had failed to pay the taxes, that was not
sufficient to set aside the agreement. The deputy master commissioner recommended
that the trial court conclude that the lease option agreement was valid and binding on the
-4-
parties; that the trial court order the parties to comply with it; that the trial court dismiss
the Jumps' complaint with prejudice; and that the trial court order Miller to pay 90% of
any taxes assessed against the remaining acreage for the years 2003, 2004 and 2005.
After the trial court adopted the deputy master commissioner's report on
October 6, 2005, the Jumps did not file written objections to the deputy master
commissioner's report; instead, they filed an appeal with this Court.
On appeal, the Jumps claim that they are elderly and have limited
education. They claim that they did not understand the provisions contained in the lease
option agreement, even though they admit that they never read it. According to the
Jumps, they thought the purchase option provision meant that Miller would have the right
of first refusal in the event that they ever decided to sell the remaining acreage. The
Jumps aver that they did not consult with an attorney regarding the lease option
agreement. In addition, they claim that the purchase option lacked consideration; that the
lease option agreement did not contain an accurate legal description of the remaining
acreage; that the agreement lacked a determinable beginning and end; and that it gave
Miller the unilateral right to terminate it. Citing Louisville Bear Safety Service, Inc. v.
South Central Bell Telephone, 571 S.W.2d 438 (Ky.App. 1978), the Jumps argue that,
based on the above assertions, the lease option agreement was unconscionable.
In response, Miller points out that the Jumps failed to file objections to the
deputy master commissioner's report as provided by CR 53.06(2). Miller argues that, in a
cause of action tried before a commissioner, a party must file written objections to the
-5-
commissioner's report with the trial court in order to preserve any claim of error for
appellate review. Eiland v. Ferrell, 937 S.W.2d 713, 716 (Ky. 1997).
CR 53.06(2) reads:
Within 10 days after being served with notice of the filing of
the report any party may serve written objections thereto upon
the other parties. Application to the court for action upon the
report and upon objections thereto shall be by motion and upon
notice as prescribed in CR 6.04. The court after hearing may
adopt the report, or may modify it, or may reject it in whole or
in part, or may receive further evidence, or may recommit it
with instructions.
In Eiland v. Ferrell, supra, the Supreme Court of Kentucky addressed this issue and held:
While actions tried before the court without intervention of a
jury are governed by CR 52, et. seq., it seems apparent that on
matters referred to a commissioner pursuant to CR 53.03, the
specific provisions of the rules relating to commissioners
prevail. In general, a party who desires to object to a report
must do so as provided in CR 53.06(2) or be precluded from
questioning on appeal the action of the circuit court in
confirming the commissioner's report. Such a rule does not
create in the commissioner an additional level of the Court of
Justice or elevate the status of the office, but merely recognizes
that enforcement of such a rule is necessary as the means of
informing the trial court of the parties' disagreement with or
complaint about the report. Ordinarily, appellate courts review
only the orders or judgments of lower courts, and pursuant to
CR 46, a party must make “known to the court the action
which he desires the court to take or his objection to the action
of the court.” If we should merely apply the provisions of CR
52.03, as appellant urges, and authorize review of questions of
sufficiency of evidence without requiring objections to the
commissioner's report, appeals would be taken from trial court
judgments adopting commissioner's reports without the trial
court ever having been apprised of any disagreement with the
report. Not only would this amount to the blind-siding of trial
courts, it would also result in unnecessary appeals, confusion
in appellate courts, needless reversals, and in general, would
-6-
invite all the mischief associated with appellate review of
unpreserved error.
Id. at 716 (Citations omitted.). The Supreme Court has made it abundantly clear that
written objections are necessary to preserve claims of error when a trial court has adopted
a commissioner's report even if the claim is questioning the sufficiency of the evidence.
In the present case, the Jumps failed to file written objections with the trial court; thus,
they failed to preserve the issue of unconscionability for appeal.
However, despite being unpreserved, we will briefly address the Jumps'
argument. Essentially, the Jumps are questioning the sufficiency of the evidence. That
is, they are claiming that they presented sufficient evidence to compel a conclusion that
the lease option agreement was unconscionable. However, after reviewing the record, we
agree with the deputy master commissioner that the Jumps failed to prove
unconscionability.
The judgment of the Boone Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Darrell A. Cox
Covington, Kentucky
Thomas R. Nienaber
Covington, Kentucky
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.