[Cite as Borkey v. J.F. Glaze Cleveland L.L.C., 2014-Ohio-3727.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100834 

FREDERICK A. BORKEY

PLAINTIFF-APPELLANT 

vs. 

J.F. GLAZE CLEVELAND L.L.C., ET AL. 

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED 

Civil Appeal from the 

 Cuyahoga County Court of Common Pleas 

Case No. CV-10-720739 

BEFORE: E.A. Gallagher, J., S. Gallagher, P.J., Keough, J. 

 

RELEASED AND JOURNALIZED: August 28, 2014 
ATTORNEY FOR APPELLANT

Rodger A. Pelagalli 

Law Offices of Rodger A. Pelagalli 

6659 Pearl Road 

Suite 401 

Middleburg Heights, Ohio 44130 

ATTORNEY FOR APPELLEE

Brian R. Moriarty 

1370 Ontario Street 

Suite 2000 

Cleveland, Ohio 44113 
EILEEN A. GALLAGHER, J.: 

{¶1} Appellant Frederick A. Borkey (“Borkey”) appeals the judgment of the 

Cuyahoga County Court of Common Pleas on his motion to show cause/ motion to 

enforce. After a review of the record and applicable law, we affirm. 

{¶2} Borkey and appellant J.F. Glaze Cleveland, L.L.C. entered into an agreement 

for the sale of Jack Frost Donuts in April 2008. This agreement included a 

non-compete clause. After the deal failed to proceed as planned, litigation between 

Borkey and J.F. Glaze began on March 10, 2010. A settlement agreement was reached 

and accepted by the trial court in January 2013. The agreement purported to resolve all 

claims between the parties regarding the disputes stemming from the sale. The 

agreement provided for the execution of a non-compete agreement and set forth terms 

for the parties in the event that the real property on which the business is situated is 

transferred or not transferred pursuant to a separate sales agreement for the real property 

between the parties. The non-compete agreement was executed. 

{¶3} On July 9, 2013, Borkey filed a motion to show cause/motion to enforce the 

settlement agreement alleging that the failure to execute a new non-compete agreement 

and failure to transfer the property to Borkey constituted a breach of the settlement 

agreement. 

{¶4} On December 2, 2013, the trial court determined that the issue of the 

non-compete agreement was moot because, during the course of a hearing on the matter, 

the parties executed a second non-compete agreement. The trial court further noted that 

the settlement agreement did not include an agreed upon date by which the property 

would transfer and, therefore, the trial court determined that the property was to transfer 
within a “reasonable” time. To effectuate the transfer, the trial court crafted an 

equitable solution to the problem: the property must transfer to Borkey by January 1, 

2014, or the purchase price of $35,000 was to reduce by $500 each month the property 

did not transfer. In the event that the property was not transferred within six months, the 

trial court reserved the right to impose further sanctions. The property has since 

transferred to Borkey. Borkey appeals asserting the following sole assignment of error: 

The trial court erred in failing to enforce the clear, reasonable and 

unambiguous settlement agreement. 

{¶5} Borkey first argues that the trial court erred in concluding the issue regarding 

the non-compete agreement to be moot after the parties executed a second non-compete 

agreement with the assistance of the court. The settlement agreement provides that: 

In the event that such agreement are [sic] not executed within ten business 

days of mailing to [appellee’s counsel], Fred Borkey shall owe nothing to 

[appellee] whether the real property transfers or not, and Fred Borkey shall 

own all assets including the recipes for the starter dough, icings, and 

creams. 

{¶6} First, we note that there does not appear to be any dispute that the parties had 

already entered into a non-compete agreement prior to the settlement agreement, and 

there is no evidence that appellee has failed to comply with that non-compete agreement. 

 When the trial court examined this matter at the hearing, the parties set blame on each 

other for failing to properly communicate after the settlement hearing regarding a 

proposed new non-compete agreement. 

{¶7} Even if the non-compete provision was not satisfied by the parties’ previous 
non-compete agreement, we find the provision in the settlement agreement to be so 

lacking in detail that it would be nearly impossible to enforce. Ohio has long 

recognized the general validity of preliminary agreements. See, e.g., Normandy Place 

Assocs. v. Beyer, 2 Ohio St.3d 102, 105, 443 N.E.2d 161 (1982), overruled on other 

grounds, citing to Rhodes v. Baird, 16 Ohio St. 573, 1866 Ohio LEXIS11 1 (Dec 1866). 

It is thus not the law that an agreement to make an agreement is per 

se unenforceable. The enforceability of such an agreement 

depends rather on whether the parties have manifested an intention 

to be bound by its terms and whether these intentions are 

sufficiently definite to be specifically enforced. 

Id. at 105-106. “The actions of the parties may show conclusively that they have 

intended to conclude a binding agreement, even though one or more terms are missing or 

are left to be agreed upon.” (Citations omitted.) Oglebay Norton Co. v. Armco, 52 

Ohio St.3d 232, 236, 556 N.E.2d 515 (1990). Therefore, a trial court must consider 

whether the parties manifested a sufficiently definite intention to be bound such that an 

agreement would be specifically enforceable or whether they merely negotiated toward a 

formal contract without ever reaching it. Id. 

{¶8} If we were to construe the settlement agreement as requiring a new 

non-compete agreement, it is little more than an agreement to agree without description 

of any of the material terms in which the parties would be agreeing. It would be 

nonsensical to construe the settlement agreement as requiring a new non-compete 

agreement to replace the first without any details on what the terms of the new agreement 

would be. Such a construction would call into question whether the parties manifested 

a sufficiently definite intention to be bound to the settlement agreement. 

{¶9} We cannot say the trial court erred in refusing to construe the poorly drafted 
settlement agreement in this manner and, in any event, the parties did enter into a new 

non-compete agreement at the hearing, thus resolving any outstanding dispute. There is 

no indication that the trial court forced Borkey to enter into the agreement under duress. 

If Borkey truly wished to further pursue this issue he should not have entered into a valid 

new contract on the matter and, as such, the trial court did not err in concluding the 

question of the nebulous non-compete to be moot. 

{¶10} Borkey’s second argument is that the trial court erroneously supplanted the 

clear, reasonable and unambiguous terms of the settlement agreement by inserting a $500 

per month failure to transfer penalty as opposed to Borkey’s proposed resolution that was 

to find the appellee in breach of the agreement and hold that the property be transferred 

to Borkey without Borkey having to pay anything. As the trial court pointed out at the 

hearing, it is unclear where the settlement agreement provides for the forfeiture that 

Borkey believes is appropriate. 

{¶11} This is the second instance where the settlement agreement appears to be 

lacking. There is no specific penalty provision or associated timeline for the property to 

be transferred. Instead the agreement provides in pertinent part: 

In the event that the previously noted real properties transfer pursuant to 

the previously noted purchase agreements to Fred Borkey, Fred Borkey 

shall pay to the Defendants Thirty-Five Thousand Dollars ($35,000) over 

24 months; in the event that the transfer does not occur, the Defendants 

shall do all required of them to release the money held in escrow to Fred 

Borkey, and Fred Borkey will be released by all the Defendants under the 

Documents noted above, and as further noted herein. 

* * * 

2. Payment. In consideration of this agreement, and if the real properties 

noted above transfer to him with good and clear title, Mr. Borkey shall pay 

to the Defendants the total sum of Thirty-Five Thousand Dollars ($35,000) 
to the Defendants * * * over a 24 month period after the real property 

noted above transfers good and clear title to Mr. Borkey. 

It is understood and agreed between the settling parties that the payment 

noted above is contingent upon the transfer of the real property * * *. 

In the event that said real property does not transfer to Fred Borkey, 

pursuant to the prior settlement agreement and purchase agreements for the 

real property, the payment above and any and all other payments which 

may have been due to the Defendants shall be deemed paid in full, and all 

assets pursuant to the Documents shall be titled in the name of Fred 

Borkey, including the equipment, the recipes, and any and all other assets 

that were part of the Documents for the sale of the Jack Frost Donut 

business. Fred Borkey shall owe nothing more to the Defendants. 

{¶12} The contract fails to provide any explanation in regards to what amount of 

time would have to pass such that appellee would be deemed to have defaulted into the 

failed transfer provision. In light of this defective gap in the settlement agreement, the 

remedy fashioned by the trial court appears to be a very reasonable correction of a 

missing term: the time frame applicable to the above provisions. Pursuant to the trial 

court’s order, in the event that non-transfer persisted for more than a month after the 

hearing, the $35,000 purchase price would reduce over five months culminating in the 

trial court’s statement that it would readdress the matter further should transfer not be 

accomplished after six months. The trial court at that time could enforce a further 

penalty including, and up to, the full amount of the purchase price as Borkey presently 

seeks. 

{¶13} However, this entire discussion becomes theoretical at this point because it 
is undisputed that the transfer of the property has indeed occurred. The sole question 

remaining is whether the trial court’s interpretation of the contract and its provision of 

the missing time frame term was contrary to law. The Ohio Supreme Court has stated 

that, “[i]f it is found that the parties intended to be bound, the court should not, frustrate 

this intention, if it is reasonably possible to fill in some gaps that the parties have left, 

and reach a fair and just result.” Litsinger v. Am. Sign Co., 11 Ohio St.2d 1, 14, 227 

N.E.2d 609 (1967), citing 1 Corbin on Contracts, 400 - 406, Section 95. In this 

instance we believe the trial court’s fashioned remedy complied with the rule of 

Litsinger in that it reasonably filled in a gap left in the settlement agreement. The court 

did not change any of the essential terms of the agreement but rather provided a helpful 

incentive to appropriately hasten the resolution clearly contemplated by the agreement. 

 

{¶14} Borkey’s sole assignment of error is overruled. 

{¶15} The judgment of the trial court is affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment 

into execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

EILEEN A. GALLAGHER, JUDGE 

SEAN C. GALLAGHER, P.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR