James F. Eudaly filed suit in February 1990 against his former employer Valmet Automation (USA), Inc., for failure to pay sales commissions. Valmet asserted in defense a “Release,” executed by Eudaly in July 1989 upon his termination from employment, and in which, on receipt of certain sums, he released Valmet for “all manner of actions, causes of action, suits, debts, duties, accounts, contracts, claims and demands whatsoever . . . including ... all claims and demands for or with respect to salary, remuneration, commission, advances on commission, fringe benefits, vacation pay, severance allowance, [etc.]. . . .” Valmet’s motion for summary judgment on grounds of this release was denied by the trial court in August 1990, on a finding of a genuine issue of fact as to fraudulent inducement to enter the release.
Time for discovery expired October 1, 1990. On October 12, 1990, Valmet moved for leave to file a counterclaim for overpayment of commissions and sought damages for breach of the release, occasioned by the suit itself filed by Eudaly. Eudaly opposed Valmet’s motion to amend as untimely and sought an enlargement of time to file a pretrial order. The trial court did not rule on those motions, but on November 7, 1990, issued an order allowing Valmet to file its counterclaims.
On November 19, 1990, Eudaly moved for reconsideration of the order allowing Valmet to file counterclaims and sought to exclude admission of the release at trial. On December 6, 1990, Eudaly moved to reopen discovery relative to Valmet’s counterclaims and filed an affidavit showing the necessity for discovery. None of these motions was ruled on by the trial court. On January 14, 1991, the case was called for trial. Eudaly requested a continuance to allow discovery as to Valmet’s counterclaims, and asked for a ruling on the several pending motions, but the trial court denied a continuance and denied Eudaly’s motion to reopen discovery, saying “I set a September deadline for motions, those motions were filed after that date.”
The jury returned a verdict for the defendant Valmet on
1. Generally it is a matter of the trial court’s discretion whether to allow the late filing of counterclaims pursuant to OCGA § 9-11-13 (f) (see White v. Fidelity Nat. Bank,
Accordingly, we rule that on the face of its statement that it had imposed a September deadline for motions and for a pre-trial order, the trial court abused its discretion in allowing Valmet to file late counterclaims after this deadline without a showing of necessity or justice pursuant to OCGA § 9-11-13 (f); and, having allowed Valmet to file late counterclaims, the trial court prima facie abused its discretion in refusing Eudaly time for discovery and for denying a continuance. Once the trial court allowed the late filing of counterclaims, it was without discretion to deny Eudaly all discovery, and the principles allowing liberal discovery applied. See generally Morton v. Gardner,
2. In view of the reversal of the verdict on Valmet’s counterclaims for the reasons given in Division 1, it is unnecessary to consider appellant’s contention that that verdict was not supported' by sufficient evidence.
3. The trial court did not err in admitting in evidence the release. The document, neither in part nor in whole, is not void for being in restraint of trade according to Howard Schultz & Assoc. v. Broniec,
4. Appellant contends the trial court erred in rejecting his evidence of fraud, but in his brief merely argues that the trial court erred in excluding Exhibit 10 “as evidence of [Valmet’s] intentional misrepresentation of the FSC sale and his commission thereon.” Since appellant provides no clue as to what “the FSC sale” is and what Exhibit 10 is and what it would tend to prove, this allusion is too obscure to form the basis for a finding of harmful error on appeal; the error alleged is not self evident, nor is appellee’s objection to the evidence as being not properly authenticated and “absolutely irrelevant.” Admissibility of evidence is largely a matter of discretion for the trial court, and the burden is on the party alleging error to show it affirmatively by the record. Armech Svc. Co. v. Rose Elec. Co.,
5. Inasmuch as the jury determined that Valmet was not liable on Eudaly’s claims, the jury could not have reached a question of punitive damages, and grant of directed verdict to Valmet on the issue of punitive damages cannot have been error. Appellant is not entitled to a new trial on this ground.
Judgment affirmed in part and reversed in part.