Alers v. Bemer

Syllabus

The defendant appealed from the trial court's judgment for the plaintiff on the complaint and on the defendant's counterclaim, both alleging breach of contract. The parties had previously executed a settlement agreement that required the defendant to make two payments to the plaintiff and included nondisparagement and confidentiality clauses. Shortly after the defendant made the first payment, the plaintiff's attorney, F, made posts on his law firm's website and Facebook page regarding the parties' settlement. After discovering F's posts, the defendant did not make the second payment to the plaintiff, and the plaintiff filed an action for breach of contract. The defendant, alleging that F's posts breached the terms of the settlement agreement and he was therefore excused from making the second payment to the plaintiff under the agreement, filed a counterclaim. On appeal, the defendant claimed, inter alia, that the court improperly found that F was not acting as an agent of the plaintiff when he disclosed confidential information stemming from and relating to the settlement agreement on his law firm's website and Facebook page. Held: The trial court's finding that the defendant failed to meet his burden of demonstrating that F was acting as the plaintiff's agent when he made the online publications was not clearly erroneous, as the record contained no evidence that F acted at the plaintiff's request, for the plaintiff's benefit or in furtherance of the business for which the plaintiff had retained him, and, therefore, the defendant's claim that the plaintiff was liable for F's conduct in breaching the terms of the settlement agreement failed. Argued December 4, 2025—officially released May 12, 2026